[Federal Register Volume 88, Number 201 (Thursday, October 19, 2023)]
[Proposed Rules]
[Pages 72013-72027]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22949]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. 2023-5]


Exemptions To Permit Circumvention of Access Controls on 
Copyrighted Works

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The United States Copyright Office is conducting the ninth 
triennial rulemaking proceeding under the Digital Millennium Copyright 
Act (``DMCA''), concerning possible temporary exemptions to the DMCA's 
prohibition against circumvention of technological measures that 
control access to copyrighted works. In this proceeding, the Copyright 
Office is considering petitions for the renewal of exemptions that were 
granted during the eighth triennial rulemaking along with petitions for 
new exemptions to engage in activities not permitted by existing 
exemptions. On June 8, 2023, the Office published a Notification of 
Inquiry requesting petitions to renew existing exemptions and comments 
in response to those petitions, as well as petitions for new 
exemptions. Having carefully considered the renewal petitions and 
comments received, in this Notice of Proposed Rulemaking (``NPRM''), 
the Office announces its intention to recommend all but one of the 
existing exemptions for renewal. This NPRM also initiates three rounds 
of public comment on the newly proposed exemptions. Interested parties 
are

[[Page 72014]]

invited to make full legal and evidentiary submissions in support of or 
in opposition to the newly proposed exemptions, in accordance with the 
requirements set forth below.

DATES: Initial written comments (including documentary evidence) and 
multimedia evidence from proponents and other members of the public who 
support the adoption of a proposed exemption, as well as parties that 
neither support nor oppose an exemption but seek to share pertinent 
information, are due December 22, 2023. Written response comments 
(including documentary evidence) and multimedia evidence from those who 
oppose the adoption of a proposed exemption are due February 20, 2024. 
Written reply comments from supporters of particular proposals and 
parties that neither support nor oppose a proposal are due March 19, 
2024.

ADDRESSES: The Copyright Office is using the regulations.gov system for 
the submission and posting of comments in this proceeding. All comments 
are therefore to be submitted electronically through regulations.gov. 
The Office is accepting two types of comments. First, commenters who 
wish briefly to express general support for or opposition to a proposed 
exemption may submit such comments electronically by typing into the 
comment field on regulations.gov. Second, commenters who wish to 
provide a fuller legal and evidentiary basis for their position may 
upload a Word or PDF document, but such longer submissions must be 
completed using the long-comment form provided on the Office's website 
at https://www.copyright.gov/1201/2024. Specific instructions for 
submitting comments, including multimedia evidence that cannot be 
uploaded through regulations.gov, are also available on that web page. 
If a commenter cannot meet a particular submission requirement, please 
contact the Office using the contact information below for special 
instructions.

FOR FURTHER INFORMATION CONTACT: Rhea Efthimiadis, Assistant to the 
General Counsel, by email at <a href="/cdn-cgi/l/email-protection#e08d858694a0838f90999289878894ce878f96"><span class="__cf_email__" data-cfemail="8ae7efecfecae9e5faf3f8e3ede2fea4ede5fc">[email protected]</span></a> or by telephone at 
(202) 707-8350.

SUPPLEMENTARY INFORMATION: 
    On June 8, 2023, the Office published a Notification of Inquiry 
(``NOI'') requesting petitions to renew current exemptions, oppositions 
to the renewal petitions, and petitions for newly proposed exemptions 
in connection with the ninth triennial section 1201 rulemaking.\1\ In 
response, the Office received thirty-eight renewal petitions, six 
comments in opposition to renewal of an exemption, and two comments 
supporting renewal of an exemption.\2\ In addition, the Office received 
eleven petitions for new exemptions or expansion of previously granted 
exemptions.
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    \1\ Exemptions To Permit Circumvention of Access Controls on 
Copyrighted Works, 88 FR 37486 (June 8, 2023) (``2023 NOI''). On 
July 5, 2023, the Office issued a Notice of Inquiry extending the 
comment submission period for petitions for new exemptions. 
Exemptions To Permit Circumvention of Access Controls on Copyrighted 
Works: Notice and Request for Public Comment, 88 FR 42891 (July 5, 
2023).
    \2\ The comments received in response to the Notification of 
Inquiry are available at https://www.regulations.gov/document/COLC-2023-0004-0002/comment and on the Copyright Office website. Renewal 
petitions are available at https://www.copyright.gov/1201/2024/petitions/renewal/, and petitions for new exemptions are available 
at https://www.copyright.gov/1201/2024/petitions/proposed/. 
References to renewal petitions and comments are by party name 
(abbreviated where appropriate) and a brief identification of the 
previously granted exemption, followed by either ``Renewal Pet.,'' 
``Supp.'' (for comments supporting an exemption), or ``Opp.'' (for 
comments opposing an exemption). References to petitions for new 
exemptions are by party name (abbreviated where appropriate), the 
Office's proposed class number, and ``Pet.''
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    This NPRM summarizes the renewal petitions and sets forth which 
exemptions the Office intends to recommend for renewal without the need 
for petitioners to further develop the administrative record. 
Separately, this NPRM outlines the proposed classes for new exemptions 
for which the Office is initiating three rounds of public comment.

I. Standard for Evaluating Proposed Exemptions

    As the NOI explained, before the Office can recommend a temporary 
exemption from the prohibition on circumvention, the record must 
establish that ``persons who are users of a copyrighted work are, or 
are likely to be in the succeeding 3-year period, adversely affected by 
the prohibition . . . in their ability to make noninfringing uses under 
[title 17] of a particular class of copyrighted works.'' \3\ When 
defining a ``class of copyrighted works,'' the Office generally uses 
the categories of works in 17 U.S.C. 102 as a starting point and then 
refines the class by other criteria, such as the technological 
protection measures (``TPMs'') used, distribution platforms, and/or 
types of uses or users.\4\
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    \3\ 17 U.S.C. 1201(a)(1)(C).
    \4\ See U.S. Copyright Office, Section 1201 Rulemaking: Eighth 
Triennial Proceeding to Determine Exemptions to the Prohibition on 
Circumvention, Recommendation of the Register of Copyrights 8-9 
(2021) (``2021 Recommendation''); U.S. Copyright Office, Section 
1201 of Title 17, at 26, 108-10 (2017), https://www.copyright.gov/policy/1201/section-1201-full-report.pdf (``Section 1201 Study''); 
see also H.R. Rep. No. 105-551, pt. 2, at 38 (1998) (``Commerce 
Comm. Report'') (``The Committee intends that the `particular class 
of copyrighted works' be a narrow and focused subset of the broad 
categories of works of authorship than is identified in Section 102 
of the Copyright Act (17 U.S.C. 102).'').
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    In evaluating the evidence, the Office weighs the statutory factors 
in section 1201(a)(1)(C): ``(i) the availability for use of copyrighted 
works; (ii) the availability for use of works for nonprofit archival, 
preservation, and educational purposes; (iii) the impact that the 
prohibition on the circumvention of technological measures applied to 
copyrighted works has on criticism, comment, news reporting, teaching, 
scholarship, or research; (iv) the effect of circumvention of 
technological measures on the market for or value of copyrighted works; 
and (v) such other factors as the [Office] considers appropriate.'' \5\ 
After developing a comprehensive administrative record, the Register of 
Copyrights makes a recommendation to the Librarian of Congress 
concerning whether exemptions are warranted based on that record.
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    \5\ 17 U.S.C. 1201(a)(1)(C).
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    In considering whether to recommend an exemption, the Office 
follows the statutory text: ``Are users of a copyrighted work adversely 
affected by the prohibition on circumvention in their ability to make 
noninfringing uses of a class of copyrighted works, or are users likely 
to be so adversely affected in the next three years?'' \6\ This inquiry 
breaks down into the following elements:
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    \6\ Section 1201 Study at 114.
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    <bullet> Does the proposed class include at least some works 
protected by copyright?
    <bullet> Are the uses at issue likely noninfringing under title 17?
    <bullet> Are users currently, or likely to be, adversely affected 
in their ability to make such noninfringing uses during the next three 
years? \7\
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    \7\ This element is analyzed in reference to section 
1201(a)(1)(C)'s five statutory factors.
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    <bullet> Is the statutory prohibition on circumventing access 
controls the cause of the adverse effects? \8\
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    \8\ Section 1201 Study at 115-27.
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    To determine whether a proposed use is likely to be noninfringing, 
the Register considers the Copyright Act and relevant judicial 
precedents.\9\ When

[[Page 72015]]

considering whether such uses are being adversely impacted by the 
prohibition on circumvention, the rulemaking focuses on ``distinct, 
verifiable, and measurable impacts'' compared to ``de minimis 
impacts.'' \10\ The Register examines the administrative record as a 
whole to consider whether the preponderance of the evidence shows that 
the conditions for granting an exemption have been met.\11\
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    \9\ Id. at 115-17. While controlling precedent directly on point 
is not required to justify an exemption, there is no ``rule of 
doubt'' favoring an exemption when it is unclear that a particular 
use is fair or otherwise noninfringing. See U.S. Copyright Office, 
Section 1201 Rulemaking: Sixth Triennial Proceeding to Determine 
Exemptions to the Prohibition on Circumvention, Recommendation of 
the Register of Copyrights 15 (2015) (``2015 Recommendation''). The 
rulemaking also generally ``is not an appropriate venue for breaking 
new ground in fair use jurisprudence.'' 2021 Recommendation at 10-11 
(quoting Section 1201 Report at 116-17).
    \10\ Commerce Comm. Report at 37; see also Staff of H. Comm. on 
the Judiciary, 105th Cong., Section-by-Section Analysis of H.R. 2281 
as Passed by the United States House of Representatives on August 
4th, 1998, at 6 (Comm. Print 1998) (using the equivalent phrase 
``substantial adverse impact''); see also, e.g., Section 1201 Study 
at 119-21 (discussing same and citing application of this standard 
in five prior rulemakings).
    \11\ See 17 U.S.C. 1201(a)(1)(C) (asking whether users ``are, or 
are likely to be in the succeeding 3-year period, adversely affected 
by the prohibition [on circumvention] in their ability to make 
noninfringing uses'') (emphasis added); Section 1201 Study at 111-
12; see also Sea Island Broad. Corp. v. FCC, 627 F.2d 240, 243 (D.C. 
Cir. 1980) (noting that ``[t]he use of the `preponderance of 
evidence' standard is the traditional standard in civil and 
administrative proceedings''); Exemption to Prohibition on 
Circumvention of Copyright Protection Systems for Access Control 
Technologies, 70 FR 57526, 57528 (Oct. 3, 2005); 2021 Recommendation 
at 7-8; U.S. Copyright Office, Section 1201 Rulemaking: Seventh 
Triennial Proceeding to Determine Exemptions to the Prohibition on 
Circumvention, Recommendation of the Acting Register of Copyrights 
13 (2018) (``2018 Recommendation''); 2015 Recommendation at 13-14; 
U.S. Copyright Office, Section 1201 Rulemaking: Fifth Triennial 
Proceeding to Determine Exemptions to the Prohibition on 
Circumvention, Recommendation of the Register of Copyrights 6 (2012) 
(``2012 Recommendation''); U.S. Copyright Office, Section 1201 
Rulemaking: Second Triennial Proceeding to Determine Exemptions to 
the Prohibition on Circumvention, Recommendation of the Register of 
Copyrights 19-20 (2003).
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II. Review of Petitions To Renew Existing Exemptions

    In this proceeding, the Office is again using a streamlined process 
for recommending the renewal of exemptions previously issued by the 
Librarian of Congress. As the Office explained in its 2017 policy 
study, the ``Register must apply the same evidentiary standards in 
recommending the renewal of exemptions as for first-time exemption 
requests,'' and the statute requires that ``a determination must be 
made specifically for each triennial period.'' \12\ The Office further 
determined that ``the statutory language appears to be broad enough to 
permit determinations to be based upon evidence drawn from prior 
proceedings, but only upon a conclusion that this evidence remains 
reliable to support granting an exemption in the current proceeding.'' 
\13\ The Office first instituted this streamlined renewal process in 
the seventh triennial rulemaking, which concluded in 2018.\14\ In that 
rulemaking, the Office received requests to renew each of the 
exemptions from the previous proceeding, none of which were 
meaningfully contested.\15\ As a result, it was able to recommend 
renewal of all previously granted exemptions.\16\ The streamlined 
renewal process was praised by participants during the ensuing 
rulemaking,\17\ and the Office has employed it in subsequent 
rulemakings.
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    \12\ Section 1201 Study at 142, 145.
    \13\ Id. at 143.
    \14\ 2018 Recommendation at 17.
    \15\ Id. at 22.
    \16\ Id. at 19.
    \17\ See, e.g., id. at 19 n.80 (collecting transcript testimony 
from 2018 rulemaking).
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    The Office is following the same procedure in this rulemaking. 
Renewal petitions must be for exemptions as they are currently 
formulated, without modification. Petitions should support a 
determination by the Office that, due to a lack of legal, marketplace, 
or technological changes, the factors that led it to recommend adoption 
of the exemption in the prior rulemaking may still be relied on to 
renew the exemption.\18\ To the extent that any renewal petition 
proposes uses beyond the current exemption, the Office disregards those 
portions of the petition for purposes of considering the renewal of the 
exemption, and instead focuses on whether the petition provides 
sufficient information to warrant renewal of the exemption in its 
current form.
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    \18\ See Section 1201 Study at 143-44.
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    In response to its current NOI, the Office received petitions to 
renew each existing exemption, except for one.\19\ Each of the thirty-
eight renewal petitions received included a summary of the continuing 
need and justification for the exemption. In each case, petitioners 
also signed a declaration stating that, to the best of their personal 
knowledge, there has not been any material change in the facts, law, or 
other circumstances set forth in the prior rulemaking record such that 
renewal of the exemption would not be justified.
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    \19\ A renewal petition was not filed for the current exemption 
permitting circumvention of video games in the form of computer 
programs for the purpose of allowing an individual with a physical 
disability to use alternative software or hardware input methods. 
See 37 CFR 201.40(b)(21). The Office therefore will not recommend 
this exemption to the Librarian for renewal.
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    The Office received eight comments in response to the renewal 
petitions, two of which support renewal of specific exemptions. Six 
comments oppose certain different aspects of the renewal petitions.\20\
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    \20\ See, e.g., DVD Copy Control Ass'n (``DVD CCA'') & Advanced 
Access Content Sys. Licensing Adm'r (``AACS LA'') Noncom. Videos 
Opp.; DVD CCA & AACS LA AV Educ. TDM Opp.; Author Services, Inc. 
(``Author Services'') Device Repair Opp.; American Consumer 
Institute (``ACI'') Medical Device Repair Opp.; Medical Imaging & 
Technology Alliance (``MITA'') Medical Device Repair Opp.; Philips 
North America, LLC (``Philips'') Medical Device Repair Opp.
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    As detailed below, after reviewing the petitions for renewal and 
comments in response, the Office concludes that each petition is 
sufficient to renew the corresponding existing exemption, and does not 
find sufficient opposition to any existing exemption that supports 
refusing renewal. Accordingly, the Office intends to recommend that the 
thirty-eight existing exemptions for which renewal petitions were 
received be renewed in their current form.\21\
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    \21\ Because a renewal petition was not filed for the current 
exemption found within 37 CFR 201.40(b)(21), the Office will not 
renew or consider this exemption during the rulemaking proceeding. 
See Exemptions to Permit Circumvention of Access Controls on 
Copyrighted Works, 82 FR 29804, 29805 (June 30, 2017) (``[T]he 
statutory language appears to be broad enough to permit 
determinations to be based upon evidence drawn from prior 
proceedings, but only upon a conclusion that this evidence remains 
reliable to support granting an exemption in the current 
proceeding.'' (quoting Section 1201 Study at 142-43)); see also id. 
(requiring those seeking renewal to use the Office's form to 
summarize the ``existence of a continuing need and justification for 
the exemption'' and attest that ``there has not been any material 
change in the facts, law, or other circumstances set forth in the 
prior rulemaking record . . . that originally demonstrated the need 
for the selected exemption, such that renewal of the exemption would 
not be justified'').
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A. Audiovisual Works--Criticism and Comment--Filmmaking

    Multiple organizations petition to renew the exemption for motion 
pictures \22\ for uses in documentary films or other films where the 
use is a parody or for a biographical or historically significant 
nature (codified at 37 CFR 201.40(b)(1)(i)(A)).\23\ No oppositions were 
filed against renewal.
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    \22\ Unless otherwise noted, all references to motion pictures 
as a category include television programs and videos.
    \23\ International Documentary Association and Kartemquin 
Educational Films (collectively ``Joint Filmmakers'') Documentary 
Films Renewal Pet.; New Media Rights (``NMR'') Documentary Films 
Renewal Pet.
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    The petitions for renewal summarize the continuing need and 
justification for the exemption, and the petitioners demonstrate 
personal knowledge of and

[[Page 72016]]

experience with this exemption. For example, the International 
Documentary Association and Kartemquin Educational Films (collectively 
``Joint Filmmakers'')--which represent thousands of independent 
filmmakers across the nation--state that TPMs such as encryption 
continue to prevent filmmakers from accessing needed material, and that 
this is ``especially true for the kind of high fidelity motion picture 
material filmmakers need to satisfy both distributors and viewers.'' 
\24\ Petitioners state that filmmakers have found it necessary to rely 
on this exemption and will continue to do so.\25\
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    \24\ Joint Filmmakers Documentary Films Renewal Pet. at 3.
    \25\ Id.; NMR Documentary Films Renewal Pet. at 3.
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    Based on the information provided in the renewal petitions and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, it intends to recommend renewal.

B. Audiovisual Works--Criticism and Comment--Noncommercial Videos

    Two organizations petition to renew the exemption for motion 
pictures for use in noncommercial videos (codified at 37 CFR 
201.40(b)(1)(i)(B)).\26\ The petitions argue for the continuing need 
and justification for the exemption, and the petitioners demonstrate 
personal knowledge of and experience with this exemption. For example, 
one of the petitioners, OTW, has advocated for the noncommercial video 
exemption in past triennial rulemakings, and has heard from ``a number 
of noncommercial remix artists'' who have used the exemption in the 
past and anticipate needing to use it in the future.\27\ OTW includes 
an account from an academic stating that footage ripped from DVDs and 
Blu-ray was preferred for ``vidders'' (noncommercial remix artists) 
because ``it is high quality enough to bear up under the 
transformations that vidders make to it--which now routinely include 
changes of color, speed, cropping and zooming, masking, animations and 
other cgi, and even explorations of the z-axis and 3D.'' \28\ 
Similarly, NMR notes ``a continuing need for the exemption'' and a 
purported reliance by filmmakers to make these types of uses in the 
next triennial period.\29\ No oppositions were filed to renewal of the 
exemption as currently formulated.
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    \26\ NMR Noncom. Videos Renewal Pet.; Organization for 
Transformative Works (``OTW'') Noncom. Videos Renewal Pet.
    \27\ OTW Noncom. Videos Renewal Pet. at 3.
    \28\ Id.
    \29\ NMR Noncom. Videos Renewal Pet. at 3.
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    The Office did, however, receive opposition to OTW's renewal 
petition to the extent it seeks to modify the regulatory language of 
this exemption. Specifically, in its renewal petition, OTW proposes the 
Office ``us[e] the relatively simple language defining the exempted 
class from the 2008 rulemaking,'' rather than the language in the 
current exemption, which was adopted in the 2021 rulemaking.\30\ DVD 
CCA and AACS LA object to the proposed change in the language sought by 
OTW, noting that the Office's streamlined proceedings for renewals is 
``only'' for exemptions ``as they are currently written in the Code of 
Federal Regulations, without modification.'' \31\ The Office agrees. 
OTW's proposed modifications must instead be addressed as part of the 
full rulemaking proceeding, and therefore this request is included as 
one of the proposed new classes discussed below.\32\
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    \30\ OTW describes its requested change to the exemption 
language as ``not . . . an expansion of the existing exemption, but 
a more understandable restatement.'' OTW Noncom. Videos Renewal Pet. 
at 4.
    \31\ DVD CCA & AACS LA Noncom. Videos Opp. at 2 (emphasis 
omitted) (quoting 2023 NOI at 37487).
    \32\ See 2023 NOI at 37487. As the Office previously noted, much 
of the language that has been added to the exemption since 2008 was 
sought by exemption proponents. See 2012 Recommendation at 105, 110.
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    Based on the information provided in the renewal petitions and the 
lack of opposition to renewal of the exemption as it currently exists, 
the Office believes that the conditions that led to adoption of this 
exemption are likely to continue during the next triennial period. 
Accordingly, it intends to recommend renewal.

C. Audiovisual Works--Criticism and Comment--Multimedia E-Books

    Authors Alliance, the American Association of University Professors 
(``AAUP''), and independent documentary producer and screenwriter, 
Bobette Buster, filed a joint petition to renew the exemption for the 
use of motion picture excerpts in nonfiction multimedia e-books 
(codified at 37 CFR 201.40(b)(1)(i)(C)).\33\ No oppositions were filed 
against renewal.
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    \33\ Buster, Authors Alliance & AAUP Nonfiction Multimedia E-
Books Renewal Pet.
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    The petition states that there is a continuing need and 
justification for the exemption by pointing to Professor Buster's 
continuing work on an e-book series titled ``Deconstructing Master 
Filmmakers,'' where the ``use of high-resolution video is essential'' 
to the project and would not be available ``without the circumvention 
of technological protection measures.'' \34\ The petition notes that 
Professor Buster's project has been discussed during the three previous 
rulemakings and its continuation justifies renewal of the current 
exemption.
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    \34\ Id. at 3.
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    The Office agrees. Based on the information provided in the renewal 
petition and the lack of opposition, the Office believes that the 
conditions that led to adoption of this exemption are likely to 
continue during the next triennial period.\35\ Accordingly, it intends 
to recommend renewal.
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    \35\ The Office notes that petitioners have filed highly similar 
renewal petitions in the 2018 and 2021 rulemaking proceedings, 
testifying generally that Professor Buster has continued to work on 
her e-book series without additional specifics about that work or 
progress. See 2018 Bobette Buster et al. Nonfiction Multimedia E-
Books Renewal Pet. at 3 (``Ms. Buster continues to work on an e-book 
series, based on her lecture series, `Deconstructing Master 
Filmmakers: The Uses of Cinematic Enchantment,' that relies on the 
availability of high-resolution video not available without 
circumvention of technological protection measures''); 2021 Bobette 
Buster et al. Nonfiction Multimedia E-Books Renewal Pet. at 3 (``Ms. 
Buster continues to work on an e-book series, based on her lecture 
series, `Deconstructing Master Filmmakers: The Uses of Cinematic 
Enchantment,' that relies on the availability of high-resolution 
video not available without circumvention of technological 
protection measures.''). If petitioners seek renewal in future 
proceedings, the Office suggests that they provide additional 
information about Professor Buster's progress or point to other 
individuals relying on the exemption.
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D. Audiovisual Works--Criticism and Comment--Universities and K-12 
Educational Institutions

    Several organizations petition to renew the exemption for motion 
pictures for educational purposes by college and university faculty, 
students, or employees acting at the direction of faculty, or K-12 
educators and students (codified at 37 CFR 201.40(b)(1)(ii)(A)).\36\ No 
oppositions were filed against renewal.
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    \36\ Decherney, Delli Carpini, Library Copyright Alliance 
(``LCA''), and Society for Cinema and Media Studies (``SCMS'') 
(collectively ``Joint Educators'') AV Educ. Renewal Pet.; Brigham 
Young Univ.--Idaho Intellectual Property Office (``BYU-Idaho'') AV 
Educ. Renewal Pet.
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    The petitions argue for the continuing need and justification for 
the exemption, stating that educators and students continue to rely on 
excerpts from digital media for class presentations and coursework. 
Peter Decherney, Michael Delli Carpini, Library Copyright Alliance 
(``LCA''), and Society for Cinema and Media Studies (``SCMS'') 
(collectively ``Joint Educators'') provide several examples of 
professors using DVD clips in the classroom. For example, University of

[[Page 72017]]

Pennsylvania Medieval Literature Professor David Wallace ``frequently 
uses film and television clips to compare medieval poetry with the 
style of popular contemporary film'' and ``uses the clips to focus on 
historical detail.'' \37\ In addition, co-petitioner Peter Decherney 
declares that he ``continues to rely heavily on this exemption in 
teaching his course on Multimedia Criticism'' where his students 
``produce short videos analyzing media.'' \38\ Indeed, Joint Educators 
broadly suggest that the ``entire field'' of video essays or multimedia 
criticism ``could not have existed in the United States without fair 
use and the 1201 educational exemption.'' \39\ Similarly, BYU-Idaho 
assert that access to films on streaming platforms ``are not available 
for institutions due to limited licensing agreements that limit uses to 
residential or personal use.'' \40\ Through these submissions, 
petitioners demonstrate personal knowledge of and experience with 
regard to this exemption based on their representation of thousands of 
digital and literacy educators and/or members supporting educators and 
students, combined with past participation in the section 1201 
triennial rulemaking.
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    \37\ Joint Educators AV Educ. Renewal Pet. at 3.
    \38\ Id.
    \39\ Id.
    \40\ BYU-Idaho AV Educ. Renewal Pet. at 3.
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    Based on the information provided in the renewal petitions and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, it intends to recommend renewal.

E. Audiovisual Works--Criticism and Comment--Massive Open Online 
Courses (``MOOCs'')

    Peter Decherney, Michael Delli Carpini, LCA, and SCMS (collectively 
``Joint Educators'') jointly petition to renew the exemption for motion 
pictures for educational uses in MOOCs (codified at 37 CFR 
201.40(b)(1)(ii)(B)).\41\ No oppositions were filed against renewal.
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    \41\ Joint Educators AV Educ. MOOCs Renewal Pet.
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    The petition cites a continuing need and justification for the 
exemption, stating that instructors continue to rely on the exemption 
to ``develop, provide, and improve MOOCs,'' as well as increase the 
number of (and therefore access to) MOOCs, particularly in the field of 
film and media studies.\42\ Specifically, Joint Educators note that 
Professor Decherney's History of Hollywood class ``offers close 
readings of Hollywood classics like King Kong (1933) and Casablanca 
(1942) and analyzes digital special effects, sound design, and other 
elements of filmmaking.'' \43\ The petition also states that the 
``exemption has become even more vital since the COVID-19 pandemic and 
the continuing shift of our education systems to include online 
learning,'' highlighting the increase in MOOCs and increased 
enrollment.\44\
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    \42\ Id. at 3.
    \43\ Id.
    \44\ Id.
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    Based on the information provided in the renewal petition and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, it intends to recommend renewal.

F. Audiovisual Works--Criticism and Comment--Digital and Media Literacy 
Programs

    LCA and Professor Renee Hobbs petition to renew the exemption for 
motion pictures for educational uses in nonprofit digital and media 
literacy programs offered by libraries, museums, and other nonprofits 
(codified at 37 CFR 201.40(b)(1)(ii)(C)).\45\ No oppositions were filed 
against renewal.
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    \45\ LCA & Hobbs AV Educ. Nonprofits Renewal Pet.
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    The petition provides testimony as to the continuing need and 
justification for the exemption, and petitioners demonstrate personal 
knowledge of and experience with this exemption. For example, the 
petition states that librarians, museums, and other nonprofit entities 
across the country have relied on the current exemption and will 
continue to do so for their digital and media literacy programs.\46\ 
The petition also notes that Professor Hobbs has testified in several 
previous rulemakings and has personal experience with the relevant 
standards and evidence underpinning the current exemption.
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    \46\ Id. at 3.
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    Based on the information provided in the renewal petition and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, it intends to recommend renewal.

G. Audiovisual Works--Captioning and Audio Description

    The Association of Transcribers and Speech-to-Text Providers 
(``ATSP'') and LCA jointly petition to renew the exemption for motion 
pictures for the provision of captioning and/or audio description by 
disability services offices or similar units at educational 
institutions for students, faculty, or staff with disabilities 
(codified at 37 CFR 201.40(b)(2)).\47\ No oppositions were filed 
against renewal.
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    \47\ ATSP & LCA Captioning Renewal Pet.
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    The petition contains testimony that the exemption continues to be 
relied on by its beneficiaries. For example, petitioners assert that 
they ``have used the exemption to address the requests and concerns of 
students with disabilities in attendance at their respective 
educational institutions to create equitable educational experiences,'' 
which ``enables disability services offices and similar units to ensure 
that students with disabilities have access to the same advantages as 
their peers in the pursuit of education.'' \48\ ``Based on their 
regular interaction with those affected by the exemption,'' which 
demonstrates personal knowledge of the exemption, petitioners believe 
that the circumstances justifying the exemption currently exist and 
will persist for the next three years.\49\
---------------------------------------------------------------------------

    \48\ Id. at 3.
    \49\ Id.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petition and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, it intends to recommend renewal.

H. Audiovisual Works--Preservation or Replacement--Library, Archives, 
and Museum

    LCA petitions to renew the exemption for motion pictures for 
preservation or the creation of a replacement copy by an eligible 
library, archives, or museum (codified at 37 CFR 201.40(b)(3)).\50\ No 
oppositions were filed against renewal.
---------------------------------------------------------------------------

    \50\ LCA Preservation Renewal Pet.
---------------------------------------------------------------------------

    The petition provides testimony as to the continuing need and 
justification for the exemption. For example, the petition states that 
``[c]ultural heritage institutions across the country have relied on 
the exemption . . . to make preservation and replacement copies of the 
motion pictures in their collections stored on DVDs and Blu-ray 
discs,'' as many motion pictures in the collections ``are unavailable 
for purchase or streaming'' or ``continue to deteriorate.'' \51\ LCA 
also demonstrates personal knowledge of the exemption based on its past 
participation with this particular exemption in the previous section 
1201 triennial rulemaking.
---------------------------------------------------------------------------

    \51\ Id. at 3.

---------------------------------------------------------------------------

[[Page 72018]]

    Based on the information provided in the renewal petition and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, it intends to recommend renewal.

I. Audiovisual Works--Text and Data Mining--Scholarly Research and 
Teaching

    Authors Alliance, AAUP, and LCA jointly petition to renew the 
exemption for text and data mining of motion pictures by researchers 
affiliated with a nonprofit institution of higher education, or at the 
direction of such researchers, for the purpose of scholarly research 
and teaching (codified at 37 CFR 201.40(b)(4)).\52\ As discussed 
further below, DVD CCA & AACS LA submitted a comment in opposition.
---------------------------------------------------------------------------

    \52\ Authors Alliance, AAUP & LCA AV Text and Data Mining 
Renewal Pet.
---------------------------------------------------------------------------

    The petition argues that there is a continuing need for the 
exemption and includes examples of researchers actively relying on the 
exemption. For example, as part of ``researching depictions'' of 
climate changes, Professor James Lee at the University of Cincinnati, 
is using the exemption ``to build a corpus of . . . films to then 
conduct text and data mining, searching for climate change markers 
across those materials.'' \53\ According to the petition, there is a 
continued need for the exemption because ``this type of research 
requires substantial computing resources and institutional 
coordination'' and, as a result, ``many of these projects are just now 
taking shape'' as ``a wide range of researchers . . . are actively 
planning projects that would rely on the TDM exemption.'' \54\ The 
petition further states that the Office can rely on the record from the 
previous rulemaking because the relevant case law has not changed and 
there have been no developments in the market that would allow 
petitioners to obtain the works they need without circumvention.\55\ 
Finally, the petition states that ``[c]ommercially licensed text and 
data mining products continue to be made available to research 
institutions, as they were at the time of the 2021 exemption and as is 
reflected in the existing record, but these licensed products do not 
allow researchers to license the full array of texts and films that are 
needed to engage in the research they seek to do.'' \56\
---------------------------------------------------------------------------

    \53\ Id. at 3. Additionally, the petition described how John 
Bell, Director of the Data Experiences and Visualizations Studio and 
Digital Humanities Program Manager at Dartmouth Research Computing, 
uses the exemption in his ``Deep Screens XR Project,'' which 
``extracts video files from 800+ DVDs of commercial narrative films, 
stores those videos in a secure compute environment, and processes 
them using machine learning-based methods to establish 3D body pose 
data on the actors in those films.'' Id.
    \54\ Id.
    \55\ Id. at 4
    \56\ Id.
---------------------------------------------------------------------------

    DVD CCA and AACS LA filed an objection to renewal on the grounds 
that the previous rulemaking record is no longer reliable. According to 
DVD CCA and AACS LA, during the last rulemaking petitioners ``contended 
that there was no evidence of the availability of licenses for motion 
pictures for their desired use'' and the Office's recommendation of the 
exemption was based on the fact that ``there [were] no [existing] 
large-scale libraries of digital motion pictures available for text and 
data mining.'' \57\ DVD CCA and AACS LA argue that ``because 
proponents' own petition indicates they are aware of the emergence of 
licensed access to motion pictures for data mining purposes, then such 
facts should be developed in the full rulemaking as such licensing 
opportunities could be a reasonable alternative to circumvention.'' 
\58\ DVD CCA and AACS LA did not, however, provide affirmative evidence 
of new licensing options for the text and data mining activities 
covered by the current exemption.
---------------------------------------------------------------------------

    \57\ DVD CCA & AACS LA AV Text and Data Mining Opp. at 2, 3 n.1 
(quoting 2021 Recommendation at 119).
    \58\ Id. at 3.
---------------------------------------------------------------------------

    After reviewing the renewal petition, the opposition comment, and 
the record from the previous rulemaking for this exemption, the Office 
concludes that the exemption may be renewed by relying on the prior 
record. DVD CCA and AACS LA are correct that the Register concluded in 
2021 that ``there are no existing large-scale libraries of digital 
motion pictures available for text and data mining.'' \59\ Contrary to 
the opposition's assertion, however, the Register did not find that 
licensed text and data mining products were ``nonexistent.'' \60\ 
Opponents of the exemption, including from DVD CCA and AACS LA, 
asserted in the previous rulemaking that ``[i]n fact, licenses are 
available'' for text and data mining.\61\ For example, the Motion 
Picture Association, Alliance for Recorded Music, and Entertainment 
Software Association, filed a joint submission arguing that an 
exemption was unnecessary because ``copyright owners of motion pictures 
already license other educational uses, such as remote streaming, and 
could potentially license the uses at issue.'' \62\ Ultimately, the 
Office concluded that while there may have been a ``nascent, but 
growing'' market for licenses,\63\ proponents were unable to obtain the 
``large-scale'' licenses they claimed were needed for the quantity of 
audiovisual works necessary to engage in text and data mining.\64\ The 
statement in the current renewal petition that ``licensed products do 
not allow researchers to license the full array of texts and films that 
are needed to engage in the research they seek to do'' \65\ is thus a 
summary of the previous rulemaking record; not an admission that the 
relevant facts have changed. For this reason, the opposition filed by 
DVD CCA and AACS LA does not preclude renewal of this exemption.\66\
---------------------------------------------------------------------------

    \59\ 2021 Recommendation at 119.
    \60\ DVD CCA & AACS LA AV Text and Data Mining Opp. at 2.
    \61\ 2021 DVD CCA & AACS LA Class 7 Opp. at 14-15 (pointing to 
testimony by Professor Lauren Tilton as ``suggesting research groups 
need financial resources to license [ ] works'' for text and data 
mining but as ``not say[ing] that licenses are not available, that 
rightsholders are unwilling to license the works, or even that the 
fees for such licenses are unreasonable'').
    \62\ 2021 Joint Creators Class 7 Opp. at 6.
    \63\ 2021 Recommendation at 112-13 (quoting 2021 Ass'n of 
American Publishers Class 7 Opp. at 9-10).
    \64\ See id. at 119 (``For researchers interested in studying 
motion pictures, there are no existing large-scale libraries of 
digital motion pictures available for text and data mining.''); see 
also 2021 Hearing Tr. at 415:22-416:07 (Apr. 7, 2021) (Professor 
David Bamman, University of California, Berkeley) (stating that 
``licensing for movies'' was a problem for text and data mining 
because such activities could not be ``carr[ied] out if there's any 
single studio that doesn't allow the licenses for those terms'').
    \65\ Authors Alliance, AAUP & LCA AV Text and Data Mining 
Renewal Pet. at 4.
    \66\ The Office also notes that the opposition did not provide 
affirmative evidence of ``new legal or factual developments that 
implicate `the reliability of the previously-analyzed administrative 
record,' '' as required by the Notice of Inquiry. 2023 NOI at 37488 
(quoting Exemptions to Permit Circumvention of Access Controls on 
Copyrighted Works, 85 FR 65293, 65295 (Oct. 15, 2020)). As the 
Office explained in June, ``[u]nsupported conclusory opinion and 
speculation'' will ``not be enough'' for the Office ``to refuse to 
recommend renewing an exemption it would have otherwise recommended 
in the absence of any opposition.'' Id. It is not enough to point to 
a single sentence offered by renewal petitioners arguing that the 
record remains unchanged.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petition and the 
lack of sufficient opposition, the Office believes that the conditions 
that led to adoption of this exemption are likely to continue during 
the next triennial period. Accordingly, it intends to recommend 
renewal.

J. Literary Works--Text and Data Mining--Scholarly Research and 
Teaching

    Authors Alliance, AAUP, and LCA also jointly petition to renew the

[[Page 72019]]

exemption for text and data mining of literary works that were 
distributed electronically by researchers affiliated with a nonprofit 
institution of higher education, or at the direction of such 
researchers, for the purpose of scholarly research and teaching 
(codified at 37 CFR 201.40(b)(5)).\67\ No oppositions were filed 
against renewal.
---------------------------------------------------------------------------

    \67\ Authors Alliance, AAUP & LCA LW Text and Data Mining 
Renewal Pet.
---------------------------------------------------------------------------

    The petition largely echoes the same petitioners' joint petition 
for text and data mining of audiovisual works. Petitioners state that 
they ``have continued to work with researchers, . . . many of whom are 
now actively relying on the TDM exemption in their research or 
developing plans to do so in the very near future.'' \68\ For example, 
they point to Professor Lee's use of the exemption to research 
depictions of climate change, where he ``build[s] a corpus of novels . 
. . to then conduct text and data mining, searching for climate change 
markers across those materials.'' \69\ Because researchers are actively 
relying on the current exemption, and because ``there are no material 
changes in facts, law, technology, or other circumstances'' from the 
previous rulemaking, petitioners seek to renew the exemption in this 
cycle.\70\
---------------------------------------------------------------------------

    \68\ Id. at 3.
    \69\ Id.
    \70\ Id. at 4.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petition and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, it intends to recommend renewal.

K. Literary Works--Assistive Technologies

    The American Council of the Blind (``ACB''), American Foundation 
for the Blind (``AFB''), HathiTrust, and LCA jointly petition to renew 
the exemption for literary works or previously published musical works 
that have been fixed in the form of text or notation, distributed 
electronically, whose technological measures interfere with assistive 
technologies (codified at 37 CFR 201.40(b)(6)).\71\ No oppositions were 
filed against renewal.
---------------------------------------------------------------------------

    \71\ ACB, AFB, HathiTrust & LCA Assistive Technologies Renewal 
Pet.
---------------------------------------------------------------------------

    The petition provides evidence regarding the continuing need and 
justification for the exemption stating that individuals who are blind, 
visually impaired, or print disabled are significantly disadvantaged 
with respect to obtaining accessible e-book content because TPMs 
interfere with the use of assistive technologies.\72\ Specifically, 
petitioners assert that ``many e-books have built-in security software 
that prevents purchasers and other third parties from utilizing them 
outside of publisher-designated e-book reader platforms.'' \73\ 
Petitioners also note that the record underpinning the exemption ``has 
stood and been re-established in the past seven triennial reviews 
dating back to 2003'' and that the ``accessibility of e-books is 
frequently cited as a top priority'' by its members.\74\ Finally, they 
demonstrate personal knowledge of and experience with the assistive 
technology exemption, as organizations that have participated in past 
rulemaking proceedings regarding this exemption and advocate for 
individuals with print disabilities.
---------------------------------------------------------------------------

    \72\ Id. at 3.
    \73\ Id.
    \74\ Id. at 3, 4.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petition and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, it intends to recommend renewal.

L. Literary Works--Medical Device Data

    The Coalition of Medical Device Patients and Researchers petition 
to renew the exemption covering access to patient data on medical 
devices or monitoring systems (codified at 37 CFR 201.40(b)(7)).\75\ No 
oppositions were filed against renewal.
---------------------------------------------------------------------------

    \75\ Coalition of Medical Device Patients and Researchers 
Medical Devices Renewal Pet.
---------------------------------------------------------------------------

    The petition states that patients continue to need access to data 
output from their medical devices to manage their health and react to 
their medical data in real-time, which the current exemption 
facilitates.\76\ One member of the Coalition, who has personal 
knowledge of and experience with this exemption through participation 
in past rulemakings, attests that he needed access to the data output 
from his medical device.\77\ Another member describes how an inability 
to get her defibrillator interrogated by an authorized representative 
within a three-day window ``potentially put[ ] her health at serious 
risk.'' \78\
---------------------------------------------------------------------------

    \76\ Id. at 3, 4.
    \77\ Id. at 3.
    \78\ Id.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petition and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, it intends to recommend renewal.

M. Computer Programs--Unlocking

    The Institute of Scrap Recycling Industries, Inc. (``ISRI'') 
petitions to renew the exemption for computer programs that operate 
wireless devices, to allow connection of the device to an alternative 
wireless network (``unlocking'') (codified at 37 CFR 201.40(b)(8)).\79\ 
No oppositions were filed against renewal.
---------------------------------------------------------------------------

    \79\ ISRI Unlocking Renewal Pet.
---------------------------------------------------------------------------

    The petition offers evidence of the continuing need and 
justification for the exemption by explaining that ISRI's members 
continue to receive wireless products that are locked to a particular 
wireless carrier.\80\ Moreover, ISRI notes that the number of 5G-
enabled devices has continued to grow since the previous rulemaking, 
meaning that there are more devices that may require unlocking for the 
reasons discussed in previous rulemakings.\81\ For example, ISRI states 
that its members continue to purchase or acquire donated cell phones, 
tablets, and other wireless devices and try to reuse them, but that 
wireless carriers still lock devices to prevent them from being used on 
other carriers.\82\ ISRI has personal knowledge of and experience with 
this exemption because it represents companies that rely on the ability 
to unlock cellphones and has participated in ``several cycles'' of 
triennial rulemakings addressing device unlocking.\83\
---------------------------------------------------------------------------

    \80\ Id. at 3.
    \81\ Id. The petition also notes that the increased number of 
devices does not implicate the reliability of the factual record, as 
new devices continue to use modems by a single chipset vendor--
Qualcomm--which was the basis for the Office's expansion of this 
exemption to all wireless devices in the last rulemaking. See 2021 
Recommendation at 161-63 (explaining that ``proponents have provided 
sufficient evidence for the Register to conclude that the 2015 fair 
use analysis applies with equal force to unlocking all types of 
wireless devices'' because most wireless devices in the United 
States use modems manufactured by Qualcomm).
    \82\ ISRI Unlocking Renewal Pet. at 3.
    \83\ Id.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petition and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, it intends to recommend renewal.

N. Computer Programs--Jailbreaking

    The Office received multiple petitions to renew the four exemptions 
that permit enabling electronic devices to interoperate with or to 
remove software applications (``jailbreaking'') (codified at 37 CFR 
201.40(b)(9)-(12)).\84\ No oppositions were filed against renewal.
---------------------------------------------------------------------------

    \84\ These exemptions permit circumvention for the purpose of 
jailbreaking (1) smartphones and other portable all-purpose 
computing devices, (2) smart televisions, (3) voice assistant 
devices, and (4) routers and dedicated networking devices. See 
Electronic Frontier Foundation (``EFF'') Smartphone and Portable 
All-Purpose Mobile Computing Device Jailbreaking Renewal Pet.; NMR 
Smartphone and Portable All-Purpose Mobile Computing Device 
Jailbreaking Renewal Pet.; EFF Smart TVs Jailbreaking Renewal Pet.; 
Software Freedom Conservancy (``SFC'') Smart TVs Jailbreaking 
Renewal Pet.; EFF Voice Assistant Devices Jailbreaking Renewal Pet.; 
SFC Routers and Dedicated Network Devices Jailbreaking Renewal Pet.

---------------------------------------------------------------------------

[[Page 72020]]

    The renewal petitions provide evidence of the continuing need and 
justification for the four jailbreaking exemptions. Regarding 
smartphones and other portable all-purpose mobile computing devices 
specifically, EFF asserts that they ``spoke to many device users who 
currently rely on the jailbreaking exemption and anticipate continuing 
to rely on the exemption in the future'' for uses such as installing an 
alternative operating system, keeping older devices functional, and 
customizing application functionality.\85\ For smart TVs, SFC asserts 
that ``the majority of Smart TV platforms ship to the consumer in 
`locked' formats, which prevent users from loading third-party software 
to enable interoperability.'' \86\ For voice assistant devices, EFF 
points to voice assistant devices, such as the Lenovo smart display, 
that are no longer supported but whose users wish to expand their 
functionality and install updated software.\87\ And for routers, SFC 
states that based on its observations, there is a continued need to 
install alternative firmware and security updates to networking 
devices.\88\
---------------------------------------------------------------------------

    \85\ EFF Smartphone and Portable All-Purpose Mobile Computing 
Device Jailbreaking Renewal Pet. at 3.
    \86\ SFC Smart TVs Jailbreaking Renewal Pet. at 3.
    \87\ EFF Voice Assistant Devices Jailbreaking Renewal Pet. at 3.
    \88\ SFC Routers and Dedicated Network Devices Jailbreaking 
Renewal Pet. at 3.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of these exemptions are likely to continue during the next 
triennial period. Accordingly, it intends to recommend renewal.

O. Computer Programs--Repair of Motorized Land Vehicles, Marine 
Vessels, or Mechanized Agricultural Vehicles or Vessels

    Both iFixit and MEMA, The Vehicle Suppliers Association (``MEMA'') 
filed petitions to renew the exemption for computer programs that 
control motorized land vehicles, marine vessels, or mechanized 
agricultural vehicles or vessels for purposes of diagnosis, repair, or 
modification of the vehicle or vessel function (codified at 37 CFR 
201.40(b)(13)).\89\ No oppositions were filed against renewal.
---------------------------------------------------------------------------

    \89\ iFixit Vehicle or Vessel Repair Renewal Pet.; MEMA Vehicle 
or Vessel Repair Renewal Pet.
---------------------------------------------------------------------------

    Both petitions attest that the current exemption remains necessary. 
For example, MEMA states that ``seemingly every year vehicle computer 
programs become more important and essential to today's motor 
vehicles'' and that its membership ``continues to see firsthand that 
the exemption is helping protect consumer choice and a competitive 
market, while mitigating risks to intellectual property and vehicle 
safety.'' \90\ iFixit states ``the software measures manufacturers 
deploy for the purpose of controlling access to vehicle software . . . 
prevent[s] consumers and independent repair shops from lawfully 
diagnosing, maintaining, repairing, and upgrading their vehicles.'' 
\91\ Both petitioners have personal knowledge of and experience with 
this exemption; both have participated in previous rulemakings and 
either represent or have gathered information from individuals or 
professionals conducting repairs or businesses that manufacture, 
distribute, and sell motor vehicle parts.
---------------------------------------------------------------------------

    \90\ MEMA Vehicle or Vessel Repair Renewal Pet. at 3.
    \91\ iFixit Vehicle or Vessel Repair Renewal Pet. at 3.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, it intends to recommend renewal.

P. Computer Programs--Repair of Devices Designed Primarily for Use by 
Consumers

    EFF petitions to renew the exemption for computer programs that 
control devices designed primarily for use by consumers for diagnosis, 
maintenance, or repair of the device (codified at 37 CFR 
201.40(b)(14)).\92\ The Office received one opposition from Author 
Services, discussed further below.
---------------------------------------------------------------------------

    \92\ EFF Device Repair Renewal Pet.
---------------------------------------------------------------------------

    The petition asserts a for the continuing need and justification 
for the exemption, stating that ``[m]anufacturers of these devices 
continue to implement technological protection measures that inhibit 
lawful repairs, maintenance, and diagnostics, and they show no sign of 
changing course.'' \93\ The petition also reports that the Federal 
Trade Commission has identified `` `unjustified software locks, digital 
rights management, and technological protection measures' as one form 
of anticompetitive repair restriction,'' and that the few state laws 
pertaining to the right to repair ``have important gaps,'' such as not 
encompassing certain devices covered by the current exemption.\94\ EFF 
has personal knowledge of and experience with this exemption due to its 
prior advocacy for the exemption in past proceedings.
---------------------------------------------------------------------------

    \93\ Id. at 3.
    \94\ Id. (quoting Federal Trade Commission, Policy Statement of 
the Federal Trade Commission on Repair Restrictions Imposed by 
Manufacturers and Sellers 1 (2021), https://www.ftc.gov/legal-library/browse/policy-statement-federal-trade-commission-repair-restrictions-imposed-manufacturers-sellers).
---------------------------------------------------------------------------

    Author Services, an organization that represents the works of L. 
Ron Hubbard, filed an opposition to renewal of this exemption ``in its 
present form.'' \95\ While Author Services states that it has ``no 
objection'' with consumers repairing products sold ``in the open market 
to ordinary consumers,'' it objects to the extent that the exemption 
may encompass devices that ``can only be purchased and used by someone 
who possess[es] particular qualifications or has been specifically 
trained in the use of the device.'' \96\ Author Services asserts that 
the Office did not consider these types of devices when granting the 
exemption in the previous proceeding, and contends that applying the 
exemption to such devices undermines manufacturers' abilities to 
control their software and ``directly contradict[s]'' negotiated 
licenses.\97\
---------------------------------------------------------------------------

    \95\ Author Services Device Repair Opp. at 1.
    \96\ Id. at 1-2.
    \97\ Id. at 2.
---------------------------------------------------------------------------

    After reviewing the renewal petition, the opposition comment, and 
the record from the previous rulemaking, the Office concludes that the 
exemption may be renewed by relying on the prior record. Author 
Services' opposition is limited to devices available ``only'' to 
individuals with qualifications and training, and they therefore would 
not qualify as ``primarily designed for use by consumers'' within the 
scope of the existing exemption.\98\ This exemption was crafted to 
cover consumer devices because proponents in the previous rulemaking 
had shown ``common characteristics such that users of the proposed 
exemption are likely to be similarly situated.'' \99\ In its prior 
rulemaking, the Office declined to recommend an exemption covering 
commercial and industrial devices because it was ``unclear'' from the 
record whether they shared the same common traits.\100\ The devices 
described

[[Page 72021]]

by Author Services appear to fall into the latter category, and 
therefore the opposition does not show that the previous rulemaking 
record is no longer reliable.
---------------------------------------------------------------------------

    \98\ 37 CFR 201.40(b)(14) (limiting the exemption to ``a 
lawfully acquired device that is primarily designed for use by 
consumers'').
    \99\ 2021 Recommendation at 197.
    \100\ Id.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petition and the 
lack of opposition to renewal, the Office believes that the conditions 
that led to adoption of this exemption are likely to continue during 
the next triennial period. Accordingly, it intends to recommend 
renewal.

Q. Computer Programs--Repair of Medical Devices and Systems

    Five organizations filed petitions to renew the exemption to access 
computer programs that are contained in and control the functioning of 
medical devices or systems, and related data files, for diagnosis, 
maintenance, or repair (codified at 37 CFR 201.40(b)(15)).\101\ The 
Office received three comments opposing renewal, discussed further 
below.
---------------------------------------------------------------------------

    \101\ See Avante Health Solutions, Avante Diagnostic Imaging, 
Avante Ultrasound (collectively ``Avante'') Medical Device Repair 
Renewal Pet.; Crothall Facilities Management, Inc. (``Crothall'') 
Medical Device Repair Renewal Pet.; Metropolis Int'l Medical Device 
Repair Renewal Pet.; TriMedx Holdings, LLC (``TriMedx'') Medical 
Device Repair Renewal Pet.; TTG Imaging Solutions, LLC (``TTG 
Imaging Solutions'') Medical Device Repair Renewal Pet.
---------------------------------------------------------------------------

    Four of the petitions provide evidence of the continuing need and 
justification for the exemption.\102\ For example, Avante states that 
``the use of TPMs in medical systems and devices is widespread among 
the types of systems and devices'' and that manufacturers ``have 
developed new systems that further restrict access to use of necessary 
software tools.'' \103\ TTG Imaging Solutions asserts that the 
exemption is ``crucial to ensure the availability, affordability, and 
timely repair of medical devices, which directly impacts patient care 
and healthcare accessibility.'' \104\ And both Metropolis International 
and TriMedx testify that they relied on the current exemption to 
refurbish and repair medical systems.\105\ The petitioners have 
personal knowledge of and experience with this exemption; each either 
repairs, maintains, services, or sells medical systems and devices for 
entities in the healthcare industry.
---------------------------------------------------------------------------

    \102\ A fifth petition, submitted by Crothall, did not meet the 
Office's requirements for renewal petitions. While the Office 
requires ``a brief explanation summarizing the basis for claiming a 
continuing need and justification for the exemption,'' 2023 NOI at 
37488, Crothall's petition contains only two brief sentences stating 
that is ability to service medical devices ``can be impacted'' by 
software restrictions. See Crothall Medical Device Repair Renewal 
Pet. at 3 (``Crothall's ability to service a device without using 
the installed software and data files can be impacted by software 
access. Access to software error logs is a critical function in the 
optimal diagnosis, maintenance, and repair of devices.''). Because 
other petitioners provide the required information for renewal, 
Crothall's petition is not discussed further.
    \103\ Avante Medical Device Repair Renewal Pet. at 3. Avante 
proposed this exemption in the previous rulemaking and was referred 
to as ``Transtate'' in the Register's Recommendation. See 2021 
Register's Recommendation at 190.
    \104\ TTG Imaging Solutions Medical Device Repair Renewal Pet. 
at 3.
    \105\ See Metropolis Int'l Medical Device Repair Renewal Pet. at 
3 (testifying that it is a dealer of refurbished medical imaging 
systems and has faced legal threats for its repair activities); 
TriMedx Medical Device Repair Renewal Pet. at 3 (testifying that the 
current exemption ``allows TRIMEDX and other third-party servicers 
to overcome, and in some cases, avoid the anti-competitive tactics 
of the [original equipment manufacturers], while ensuring third-
party service organizations have the necessary access to medical 
devices and information to repair and maintain the equipment on 
behalf of hospital customers'').
---------------------------------------------------------------------------

    The Office received opposition comments from the nonprofit American 
Consumer Institute (``ACI''), the Medical Imaging & Technology Alliance 
(``MITA''),\106\ and Philips North America, LLC (``Philips'').\107\ 
Opponents assert that the repair exemption ``undermines the maintenance 
and repair standards laid out by the U.S. Food Drug Administration 
(FDA) for the equipment employed in patient care'' because independent 
servicers conducting repairs are ``neither regulated nor monitored'' by 
the FDA.\108\ MITA further asserts that ``Congress and the FDA have 
announced new policies on medical device cybersecurity that directly 
conflict with the 2021 Exemption.'' \109\ In addition, MITA and Philips 
both argue that the Supreme Court's recent decision in Andy Warhol 
Found. for the Visual Arts v. Goldsmith (Warhol) \110\ constitutes a 
new legal development that undermines the validity of the previous 
rulemaking's analysis due to the Court's holding that commercial, non-
transformative uses are, in general, less likely to qualify as 
fair.\111\ As applied to medical device repair, MITA and Philips 
contend that because the repair services at issue can be and are 
commercialized, with petitioners and others similarly situated 
profiting from the use of manufacturers' software to repair devices, 
this weighs against fair use.\112\ We address each of these arguments 
below.
---------------------------------------------------------------------------

    \106\ MITA is currently challenging the original adoption of 
exemption for medical devices and systems repair. See MITA v. 
Library of Congress, 2023 WL 2387760 (D.D.C. Mar. 7, 2023). The 
district court granted summary judgment in favor of the Library of 
Congress, and the case is now on appeal before the D.C. Circuit.
    \107\ ACI Medical Device Repair Opp.; MITA Medical Device Repair 
Opp.; Philips Medical Device Repair Opp.
    \108\ ACI Medical Device Repair Opp. at 1-2.
    \109\ MITA Medical Device Repair. Opp. at 6 (citing U.S. Food & 
Drug Admin., Cybersecurity in Medical Devices: Quality System 
Considerations and Content of Premarket Submissions (Sept. 2023), 
https://www.fda.gov/media/119933/download; Consolidated 
Appropriations Act, 2023, sec. 3305, 136 Stat. 4459, 5832-34).
    \110\ 143 S. Ct. 1258 (2023).
    \111\ MITA Medical Device Repair Opp. at 2-6; Philips Medical 
Device Repair Opp. at 5-8.
    \112\ MITA Medical Device Repair Opp. at 5-6; Philips Medical 
Device Repair Opp. at 6-8; Warhol, 143 S. Ct. at 1275 (explaining 
that while ``the commercial nature of the use is not dispositive,'' 
``it is relevant'' and ``is to be weighed against the degree to 
which the use has a further purpose or different character'').
---------------------------------------------------------------------------

    Opponents' arguments concerning FDA regulation of medical devices 
were raised and addressed in the last rulemaking, and therefore are not 
evidence that the factual or legal situation justifying the exemption 
has changed.\113\ During the last rulemaking, the FDA submitted 
comments in which the agency expressed no objection to the proposed 
exemption to allow circumvention of TPMs on medical devices for repair-
related purposes.\114\ In its comments, the FDA pointed to its 2018 
report on independent medical device repair in which it ``concluded 
that the continued availability of ISOs to service and repair medical 
devices is critical to the functioning of the healthcare system in the 
United States.\115\ Similarly, the FDA indicated that it ``does not 
share [opponents'] view that an exemption from liability under 17 
U.S.C. 1201 for circumvention conducted solely for the purpose of 
diagnosis, maintenance, or repair of medical devices would necessarily 
and materially jeopardize the safety and effectiveness of medical 
devices in the United States with respect to cybersecurity.'' \116\ 
Although the FDA

[[Page 72022]]

indicated that it was ``evaluating [its] approach to cybersecurity and 
medical device servicing'' and, as MITA points out, has since issued 
updated cybersecurity guidance, and although Congress has imposed 
additional cybersecurity requirements on medical device manufacturers, 
these developments do not change the Office's 1201 analysis.
---------------------------------------------------------------------------

    \113\ See 2021 Recommendation at 228-29 (noting that opponents 
argued ``that the potential consequences of unauthorized 
circumvention on patient safety should factor into if not decisively 
tilt the analysis against an exemption'' and concluding that those 
concerns ``while significant, do not provide a basis for denying the 
requested exemption'').
    \114\ See id. at 229 (citing Letter from Suzanne B. Schwartz, 
Dir., Office of Strategic P'ships & Tech. Innovation, FDA, to Kevin 
R. Amer, Acting Gen. Counsel & Assoc. Register of Copyrights, U.S. 
Copyright Office (Aug. 13, 2021)).
    \115\ Letter from Suzanne B. Schwartz, Dir., Office of Strategic 
P'ships & Tech. Innovation, FDA, to Kevin R. Amer, Acting Gen. 
Counsel & Assoc. Register of Copyrights, U.S. Copyright Office at 3 
(Aug. 13, 2021) (citing U.S. Food & Drug Admin., FDA Report on the 
Quality, Safety, and Effectiveness of Servicing of Medical Devices 
23 (May 2018), https://www.fda.gov/media/113431/download).
    \116\ Letter from Suzanne B. Schwartz, Dir., Office of Strategic 
P'ships & Tech. Innovation, FDA, to Kevin R. Amer, Acting Gen. 
Counsel & Assoc. Register of Copyrights, U.S. Copyright Office at 3 
(Aug. 13, 2021) (citing U.S. Food & Drug Admin., Cybersecurity in 
Medical Devices: Challenges and Opportunities (June 2021), https://www.fda.gov/media/150144/download).
---------------------------------------------------------------------------

    The Office addressed these same concerns in the last rulemaking, 
stating that ``the Register generally does not consider other 
regulatory schemes as part of the adverse effects analysis because the 
focus of this proceeding is on copyright-related considerations.'' 
\117\ Further, a user availing themselves of the temporary exemption 
for medical device repair is not absolved from noncompliance with other 
laws and regulations, including any promulgated by the FDA. 
Accordingly, the Office concludes that opponents' renewed safety and 
cybersecurity arguments do not demonstrate that the relevant legal or 
factual circumstances justifying the exemption have changed.
---------------------------------------------------------------------------

    \117\ See 2021 Recommendation at 229; see also id. at 228-29 
(noting that opponents argued ``that the potential consequences of 
unauthorized circumvention on patient safety should factor into if 
not decisively tilt the analysis against an exemption'' and 
concluding that those concerns ``while significant, do not provide a 
basis for denying the requested exemption'').
---------------------------------------------------------------------------

    As to the argument that the decision in Warhol constitutes a change 
in the law that supports refusal of the renewal petition, MITA and 
Philips point to the Court's analysis of the first fair use factor, in 
which it explained that the ``central'' question is ``whether and to 
what extent the use at issue has a purpose or character different from 
the original.'' \118\ They argue that medical device repair is not 
transformative under the first factor because the device's software is 
``not transformed--at all--during or after the maintenance or repair 
work'' and thus has the ``the exact same purpose--to enable the device 
to function.'' \119\
---------------------------------------------------------------------------

    \118\ MITA Medical Device Repair Opp. at 3-4 (quoting Warhol, 
143 S. Ct. at 1274-75); see also Philips Medical Device Repair Opp. 
at 5-6 (quoting Warhol, 143 S. Ct. at 1273, where the Court held the 
first fair use factor focuses on ``whether an allegedly infringing 
use has a further purpose or different character, which is a matter 
of degree, and the degree of difference must be weighed against 
other considerations, like commercialism'').
    \119\ MITA Medical Device Repair Opp. at 4 (emphasis omitted).
---------------------------------------------------------------------------

    These fair use arguments assert are largely identical to those 
raised by opponents, including MITA and Philips, in the prior 
rulemaking.\120\ They were rejected in the 2021 Register's 
Recommendation, which found that ``opponents overstate the significance 
of the commercial purpose element to the fair use analysis'' and that 
repair of medical devices and equipment, like other forms of repair, 
was likely transformative under the first fair use factor.\121\ The 
Recommendation explained that repair ``supports--rather than 
displaces--the purpose of the embedded programs that control the 
device.'' \122\ In other words, the purpose of the use of software in 
repair is to render a non-functional device functional again, while the 
original purpose of the software is to operate a device that functions 
as designed. Because this analysis is part of the record that justified 
recommending the exemption in 2021, opponents must show that the 
decision in Warhol constitutes intervening legal precedent that renders 
the Office's prior fair use analysis no longer valid.
---------------------------------------------------------------------------

    \120\ In the 2021 rulemaking, MITA argued there was ``nothing 
transformative about an unregulated [Independent Service 
Organization] accessing and copying medical imaging device software 
and materials for a commercial purpose'' (2021 MITA Class 12 Opp. at 
9), and Philips argued that repair of medical devices and equipment 
was not fair use because it is ``commercial--and thus, presumptively 
unfair'' and because repair does ``not transform the copyrighted 
material,'' such as by modifying the software contained in medical 
devices and systems (2021 Philips Class 12 Opp. at 8).
    \121\ See 2021 Recommendation at 208-09 (citing 2015 
Recommendation at 234-35 (concluding that repair of vehicles was 
likely to be transformative because ``proposed uses for diagnosis 
and repair would presumably enhance the intended use of [the 
embedded] computer programs'')).
    \122\ Id. at 201 (quoting U.S. Copyright Office, Software-
Enabled Consumer Products 40 (2016), https://www.copyright.gov/policy/software/software-full-report.pdf). And the Office's previous 
fair use analyses of repair explained, ``a finding of fair use is 
not necessarily precluded when the new use coincides generally with 
the original use of a work.'' 2015 Recommendation at 234.
---------------------------------------------------------------------------

    After reviewing the opposition comments, the record from the 
previous rulemaking, and the Supreme Court's decision, the Office 
concludes that its fair use analysis for repair of medical devices and 
systems remains sound. The Warhol decision does not, as MITA and 
Philips suggest, substantially change how the Office would analyze the 
particular uses at issue--diagnosis, maintenance, and repair of medical 
devices and systems--under the first factor. The opposition comments 
point to language in the Court's decision explaining that uses that 
``share the same or highly similar purposes'' as the copyrighted work 
weigh against fair use.\123\ But this statement echoes the Court's 
earlier finding in Campbell v. Acuff-Rose Music, Inc. that the first 
factor focuses on whether a use ``supplant[s] the original'' or 
``instead add something new, with a further purpose or different 
character.'' \124\ It also mirrors the Court's discussion in Google LLC 
v. Oracle America, Inc., where it cited Campbell and explained that the 
first factor asks whether the use ``add[s] something new, with a 
further purpose or different character,'' and that ``the word 
`transformative' [ ] describe[s] a copying use that adds something new 
and important'' and is therefore more likely to be fair.\125\ The 
Warhol opinion did not overrule these prior decisions, but rather built 
upon them.\126\ Nothing in the opinion changes the Office's evaluation 
of the differences in purpose between the uses covered by the exemption 
and the intended use of the software. Accordingly, the decision is not 
a basis to question the reliability of the 2021 rulemaking record that 
resulted in the exemption for repair of medical devices and systems.
---------------------------------------------------------------------------

    \123\ MITA Medical Device Repair Opp. at 4 (quoting Warhol, 143 
S. Ct. at 1277).
    \124\ 510 U.S. 569, 579 (1994). Further, to the extent to which 
opponents read Campbell to require that a new use add ``new 
expression, meaning or message'' to be considered fair, see MITA 
Medical Device Repair Opp. at 4, the Court in Warhol clarified that 
``meaning or message [i]s simply relevant to whether the new use 
serve[s] a purpose distinct from the original, or instead 
supersede[s] its objects,'' not determinative or required. Warhol, 
143 S. Ct. at 1282-83 (citing Campbell, 510 U.S. at 579).
    \125\ 141 S. Ct. 1183, 1202-03 (2021) (quoting Campbell, 510 
U.S. at 579).
    \126\ For this reason, the Eleventh Circuit recently denied a 
motion for rehearing in a case involving fair use decided prior to 
the Warhol opinion--that court concluded that the intervening 
Supreme Court opinion did not affect its analysis of 
transformativeness under the first fair use factor or the ``balance 
of the four factors.'' Apple Inc. v. Corellium, Inc., No. 21-12835, 
2023 U.S. App. LEXIS 22252, at *3 (11th Cir. Aug. 23, 2023) (denying 
petition for rehearing and rehearing en banc).
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of evidence in the opposition comments that the factual or legal 
record has changed in relevant ways, the Office believes that the 
conditions that led to adoption of this exemption are likely to 
continue during the next triennial period. Accordingly, it intends to 
recommend renewal.

R. Computer Programs--Security Research

    Multiple organizations and security researchers submitted four 
petitions to renew the exemption permitting circumvention for purposes 
of good-faith security research (codified at 37 CFR 
201.40(b)(16)).\127\ No oppositions

[[Page 72023]]

were filed against renewal, and one comment was received in support 
filed by ``A Group of Hackers at DEF CON.'' \128\
---------------------------------------------------------------------------

    \127\ Blaze & Bellovin Security Research Renewal Pet.; Halderman 
& Green Security Research Renewal Pet.; MEMA Security Research 
Renewal Pet.; SFC Security Research Renewal Pet.
    \128\ A Group of Hackers at DEFCON Security Research Supp. 
(noting that the exemption has led to ``the creation of software to 
fix vulnerabilities, as well as papers and presentations on security 
research'').
---------------------------------------------------------------------------

    The petitions include statements regarding the continuing need and 
justification for the exemption based on personal knowledge. For 
example, a petition from Professor J. Alex Halderman and Associate 
Professor Matthew D. Green states that security research ``play[s] a 
vital role in [cybersecurity],'' as ``vulnerability disclosure and 
remediation are key to securing existing infrastructure.'' \129\ The 
petition from Professors Matt Blaze and Steven Bellovin asserts that 
the exemption remains necessary because in the past three years ``one 
of us has continued to receive threats of prospective litigation from 
copyright holders in connection with his security research on software 
in voting systems.'' \130\ Additionally, the vehicle suppliers 
association MEMA states that its membership ``has seen firsthand that 
the exemption is helping encourage innovation in the automotive 
industry while mitigating risks to intellectual property and vehicle 
safety.'' \131\ Finally, SFC asserts that the exemption continues to be 
used by ``privacy and security researchers who investigate and publish 
information about privacy flaws in computing devices; and individual 
consumers and hobbyists who wish to prevent their private data from 
being disclosed by the devices they own.'' \132\
---------------------------------------------------------------------------

    \129\ Halderman & Green Security Research Renewal Pet. at 3.
    \130\ Blaze & Bellovin Security Research Renewal Pet. at 3.
    \131\ MEMA Security Research Renewal Pet. at 3.
    \132\ SFC Security Research Renewal Pet. at 3.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, it intends to recommend renewal.

S. Computer Programs--Video Game Preservation

    The Software Preservation Network (``SPN'') and LCA jointly 
petition to renew the exemption for individual play by gamers and 
preservation of video games by a library, archives, or museum for which 
outside server support has been discontinued, and preservation by a 
library, archives, and museum, of discontinued video games that never 
required server support (codified at 37 CFR 201.40(b)(17)).\133\ No 
oppositions were filed against renewal, and one individual filed a 
comment in support of the petition.\134\
---------------------------------------------------------------------------

    \133\ SPN & LCA Abandoned Video Game Renewal Pet.
    \134\ Burt Abandoned Video Game Supp.
---------------------------------------------------------------------------

    The petition states that libraries, archives, and museums continue 
to need the exemption to preserve video games, which is ``an ongoing 
[and] iterative process.'' \135\ For example, it cites The Strong 
National Museum of Play, which has a ``substantial number of TPM-
encumbered video games in its collections that will need preservation 
treatment that requires circumvention in the coming years.'' \136\ In 
addition, the petition asserts that video game collection librarians 
``report a similar ongoing need,'' which ``has become a crucial tool in 
their ongoing efforts to save digital game culture before it 
disappears.'' \137\ The petitioners have personal knowledge of and 
experience with this exemption through their past participation in the 
triennial rulemaking proceedings, as well as through their 
representation of members that have relied on this exemption.
---------------------------------------------------------------------------

    \135\ SPN & LCA Abandoned Video Games Renewal Pet. at 3.
    \136\ Id.
    \137\ Id.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petition and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, it intends to recommend renewal.

T. Computer Programs--Software Preservation

    SPN and LCA jointly petition to renew the exemption for computer 
programs, other than video games, for the preservation of computer 
programs and computer program-dependent materials by libraries, 
archives, and museums (codified at 37 CFR 201.40(b)(18)).\138\ No 
oppositions were filed against renewal, and one individual supported 
the petition.\139\
---------------------------------------------------------------------------

    \138\ SPN & LCA Software Preservation Renewal Pet.
    \139\ Burt Software Preservation Supp.
---------------------------------------------------------------------------

    Petitioners state that libraries, archives, and museums continue to 
need the exemption to preserve and curate software and materials 
dependent on software, which is ``an ongoing [and] iterative process.'' 
\140\ For example, a software preservation analyst found ``remote 
access to digital collections [a]s an increasingly explicit directive 
to fulfill cultural heritage institutions' missions to support 
research, analysis, and other scholarly re-use of the historical record 
(and to do so equitably and inclusively).'' \141\ The petition also 
asserts that SPN's members are providing an off-site researcher with 
``access to born-digital materials using remote access to legacy 
software.'' \142\ The petitioners have personal knowledge of and 
experience with this exemption through their past participation in the 
triennial rulemaking proceedings, as well as through their 
representation of members that have relied on this exemption.
---------------------------------------------------------------------------

    \140\ SPN & LCA Software Preservation Renewal Pet. at 3.
    \141\ Id.
    \142\ Id.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petition and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, it intends to recommend renewal.

U. Computer Programs--3D Printing

    Michael Weinberg petitions to renew the exemption for computer 
programs that operate 3D printers to allow use of alternative material 
(codified at 37 CFR 201.40(b)(19)).\143\ No oppositions were filed 
against renewal.
---------------------------------------------------------------------------

    \143\ Weinberg 3D Printers Renewal Pet.
---------------------------------------------------------------------------

    The petition states that there is a continuing need and 
justification for the exemption, and the petitioner has personal 
knowledge of and experience with this exemption as the individual who 
participated in previous rulemakings. Mr. Weinberg declares that he is 
a member of the 3D printing community and has been involved with this 
exemption request during each cycle it has been considered by the 
Office.\144\ In addition, he states that while 3D printers ``continue 
to use TPMs to limit the types of materials used in printers,'' since 
the last rulemaking proceeding, there has been ``an expansion of third-
party materials available for 3D printers'' due to the current 
exemption.\145\
---------------------------------------------------------------------------

    \144\ Id. at 3.
    \145\ Id.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petition and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, it intends to recommend renewal.

V. Computer Programs--Copyright License Investigation

    SFC petitions to renew the exemption for computer programs, for the 
purpose of investigating potential infringement of free and open source 
computer

[[Page 72024]]

programs (codified at 37 CFR 201.40(b)(20)).\146\ No oppositions were 
filed against renewal.
---------------------------------------------------------------------------

    \146\ SFC Copyright License Investigation Renewal Pet.
---------------------------------------------------------------------------

    The petition argues that there is a continuing need and 
justification for the exemption, including by discussing how 
technological protection measures, such as encryption, ``prevent[ ] the 
investigation of computer programs'' within various devices that use 
free and open source software (``FOSS'') to operate.\147\ The petition 
also evidences personal knowledge of the exemption. For example, it 
describes how SFC is informed of suspected non-compliance with the FOSS 
license, which it investigates on behalf of its members. Due to the 
``pervasive[ness]'' of infringement through license non-compliance, 
however, ``SFC can only pursue a fraction of the suspected 
infringements reported to it.'' \148\ SFC also participated in the 
previous rulemaking and provided the rulemaking record that led to the 
Office recommending the exemption.
---------------------------------------------------------------------------

    \147\ Id. at 3.
    \148\ Id.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petition and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, it intends to recommend renewal.

III. Analysis and Classification of Proposed New or Expanded Exemptions

    In addition to petitions to renew existing exemptions, the Office 
received eleven petitions for new or expanded exemptions.\149\ The 
Office has reviewed and consolidated related and/or overlapping 
proposed exemptions to simplify the rulemaking process and encourage 
joint participation among parties with common interests (although 
collaboration is not required).\150\ This has resulted in seven 
proposed classes of works.
---------------------------------------------------------------------------

    \149\ The Office received ten petitions for new classes. As 
discussed above, the Office has treated OTW's renewal petition 
proposing amended regulatory language as the eleventh petition.
    \150\ 2023 NOI at 37489.
---------------------------------------------------------------------------

    Each proposed class is briefly described below, and additional 
information can be found in the underlying petitions posted on the 
Office website. As explained in the NOI, the proposed classes represent 
`` `only a starting point for further consideration in the rulemaking 
proceeding,' and will be subject to `further refinement based on the 
record.' '' \151\ The description of each class also includes 
preliminary legal and factual areas of interest that the Office hopes 
commenters will address in their submissions. These early observations 
are offered without prejudice to the Office's ability to raise other 
questions or concerns at later stages of the proceeding, and commenters 
should offer all legal arguments and evidence they believe necessary to 
create a complete record. Finally, the Office reminds exemption 
proponents that ``where an exemption request resurrects legal or 
factual arguments that have been previously rejected, the Office will 
continue to rely on past reasoning to dismiss such arguments in the 
absence of new information.'' \152\
---------------------------------------------------------------------------

    \151\ Id. (quoting Exemptions to Permit Circumvention of Access 
Controls on Copyrighted Works, 85 FR 37399, 37402 (June 22, 2020).
    \152\ Section 1201 Study at 147; see also Exemption to 
Prohibition on Circumvention of Copyright Protection Systems for 
Access Control Technologies, 79 FR 55687, 55690 (Sept. 17, 2014).
---------------------------------------------------------------------------

Proposed Class 1: Audiovisual Works--Noncommercial Videos

    OTW filed a renewal petition requesting that the exemption for 
circumvention of access controls protecting motion pictures on DVDs, 
Blu-ray discs, and digitally transmitted video for purposes of 
criticism and comment, for use in noncommercial videos be amended to 
align with the language of the 2010 exemption for clarity.\153\ OTW 
contends that ``[t]he complexity of the current [exemption] provisions 
substantially increases the difficulty of communicating and 
implementing the exemptions in practice,'' and that reverting to the 
2010 language would not expand the scope of the existing exemption, but 
merely help ``clarify [it] for ordinary users.'' \154\ Since 2010, the 
exemption has been expanded to encompass works on a Blu-ray disc or 
received via a digital transmission, and to clarify it includes 
``videos produced for a paid commission if the commissioning entity's 
use is noncommercial.'' \155\
---------------------------------------------------------------------------

    \153\ OTW Class 1 Pet. at 4 (discussing rulemaking cycle that 
began in 2008 and concluded in 2010).
    \154\ Id.
    \155\ 37 CFR 201.40(b)(1). See 2015 Recommendation at 103-06 
(expanding the exemption to include Blu-ray and digital 
transmission).
---------------------------------------------------------------------------

    OTW made the same request to amend the language of the exemption in 
the previous rulemaking.\156\ The Office ultimately concluded that 
modification of the language was unnecessary,\157\ based on statements 
by OTW to that effect.\158\ The Office seeks comment on whether there 
are legal or factual circumstances that have changed and warrant 
altering the determination from the prior rulemaking.
---------------------------------------------------------------------------

    \156\ See 2021 OTW Class 1 Pet.
    \157\ See 2021 Recommendation at 40-42.
    \158\ See id. at 42 (``[W]e actually don't think that any change 
is necessary'' to the exemption requirement that motion pictures 
used under the exemption be ``lawfully made and acquired.'' (quoting 
2021 Hearing Tr. at 245:21-24 (Apr. 6, 2021) (Betsy Rosenblatt, 
OTW))).
---------------------------------------------------------------------------

Proposed Class 2: Audiovisual Works--Online Learning

    Peter Decherney, Sarah Banet-Weiser, Shiv Gaglani, and SCMS 
(collectively ``Joint Educators'') petition to expand the existing 
exemption for circumvention of access controls protecting motion 
pictures on DVDs, Blu-ray discs, and digitally transmitted video for 
educational purposes in massive open online courses (``MOOCs'') by 
faculty and employees acting at the direction of faculty of accredited 
nonprofit educational institutions.\159\ In their petition, Joint 
Educators request that the exemption be extended to cover other online 
learning platforms that offer ``supplemental education, upskilling, 
retraining and lifelong learning,'' such as Khan Academy, LinkedIn 
Learning, Osmosis.org, and Code.org.\160\ Joint Educators propose 
allowing ``educators and preparers of online learning materials offered 
by educational entities to use short excerpts of motion pictures 
(including television shows and videos) for the purpose of criticism, 
comment, illustration and explanation in offerings to registered 
learners of online learning platforms when use of the excerpts will 
contribute significantly to learning.'' \161\ Joint Educators contend 
that, since the last proceeding, the demand for online learning has 
``continued to skyrocket,'' with educational institutions using a 
variety of online learning platforms to supplement their 
curricula.\162\ They note that the current exemption for online 
learning only applies to a limited scope of learning settings (i.e., 
MOOCs developed at accredited educational institutions).
---------------------------------------------------------------------------

    \159\ Joint Educators Class 2 Pet.
    \160\ Id. at 2.
    \161\ Id.
    \162\ Id.
---------------------------------------------------------------------------

    The Office notes, that in the last two rulemakings, it received 
proposals to expand the existing exemption for online learning to for-
profit entities (including ``online learning platforms'') and 
unaccredited educational institutions. During those rulemakings, the 
Office considered and ultimately recommended against these 
proposals.\163\ The Office seeks comment on whether any changed legal 
or factual circumstances warrant altering that

[[Page 72025]]

determination and whether, or to what extent, commenters believe the 
proposed language should be adopted. As part of this analysis, 
commenters should discuss the extent to which the evidence submitted in 
prior rulemakings may be relied upon to support the expansion.
---------------------------------------------------------------------------

    \163\ See 2021 Recommendation at 49-52; 2018 Recommendation at 
53-55.
---------------------------------------------------------------------------

Proposed Classes 3(a): Motion Pictures and 3(b): Literary Works--Text 
and Data Mining

    Authors Alliance, AAUP, and LCA filed two petitions to expand the 
exemptions for text and data mining on a corpora of motion pictures and 
literary works for the purpose of scholarly research and teaching.\164\ 
Petitioners propose expanding each exemption to permit ``researchers to 
share corpora with researchers affiliated with different nonprofit 
institutions of higher education for purposes of conducting independent 
text data mining research and teaching, where those researchers are in 
compliance with the [current] exemption.'' \165\ Petitioners explain 
that, under their petitions, all provisions of the current exemptions 
would remain the same with the only change being the expansion of the 
types of users who would have access to motion pictures and literary 
works.\166\
---------------------------------------------------------------------------

    \164\ Authors Alliance, AAUP & LCA Class 3(a) Pet.; Authors 
Alliance, AAUP & LCA Class 3(b) Pet.
    \165\ Authors Alliance, AAUP & LCA Class 3(a) Pet. at 2; Authors 
Alliance, AAUP & LCA Class 3(b) Pet. at 2.
    \166\ Authors Alliance, AAUP & LCA Class 3(a) Pet. at 2-3; 
Authors Alliance, AAUP & LCA Class 3(b) Pet. at 2-3.
---------------------------------------------------------------------------

    For reasons of administrative efficiency, the Office has grouped 
these proposals into one category that encompasses two proposed classes 
pertaining to motion pictures and literary works, respectively (i.e., 
Classes 3(a) and 3(b)). Commenters addressing these proposals may 
submit a single comment addressing both motion pictures and literary 
works, but the supporting evidence must be sufficient to establish an 
adverse effect on noninfringing uses with respect to each. To the 
extent commenters believe the relevant factual and legal issues are 
similar as to the two classes of works, the supporting comments should 
describe them in detail. For example, commenters may wish to address 
the extent to which there is overlap with respect to the types of TPMs 
applied to these works, the nature of the proposed research activities, 
the relevant markets for the works, and the availability of potential 
alternatives to circumvention. Commenters may also wish to discuss 
whether this exemption should be analyzed as a request to engage in new 
circumvention activities not permitted by the current exemption or as a 
modification to post-circumvention limitations, and to what extent the 
Office's previous analysis of noninfringement and adverse effects apply 
to this class.

Proposed Class 4: Computer Programs--Generative AI Research

    Jonathan Weiss proposes a new exemption to circumvent technological 
measures that control access to ``copyrighted generative AI models, 
solely for the purpose of researching biases'' within the models.\167\ 
The proposed exemption would permit sharing the research, techniques, 
and methodologies that ``expose and address biases,'' and ensure, among 
other reasons, fairness and transparency within AI models and their 
development.\168\ The petition does not cabin the proposed exemption to 
a specific set of users, only describing them as ``researchers'' and 
does not discuss how TPMs prohibit, or are likely to prohibit, 
researchers from accessing the software within the generative AI 
models.\169\ Instead, Weiss submits three guardrails to prevent misuse 
of the proposed exemption: the exemption applies only where the 
``primary intention is to identify and address biases, and not to 
exploit them;'' any research ``prioritize[s] data privacy, ensuring 
that no personal or sensitive data is compromised;'' and researchers 
should ``actively engage with AI developers and stakeholders to address 
discovered biases.'' \170\
---------------------------------------------------------------------------

    \167\ Weiss Class 4 Pet.
    \168\ Id. at 2.
    \169\ Id.
    \170\ Id. at 3.
---------------------------------------------------------------------------

    In general, the Office seeks comment on whether the proposed 
exemption should be adopted, including any proposed regulatory 
language. Commenters should describe with specificity the relevant TPMs 
and whether their presence is adversely affecting noninfringing uses, 
including identifying whether eligible users may access the software 
through alternate channels that do not require circumvention and the 
legal basis for concluding that the proposed uses are likely to be 
noninfringing.

Proposed Class 5: Computer Programs--Repair

    Two organizations jointly petition for an expanded exemption 
relating to the diagnosis, maintenance, and repair of computer programs 
that control devices designed primarily for use by consumers.\171\ 
Public Knowledge and iFixit petition for an expansion to ``include 
commercial industrial equipment such as automated building management 
systems and industrial equipment (i.e., soft serve ice cream machines 
and other industrial kitchen equipment).'' \172\ The petition includes 
examples of how ``service passwords and digital locks'' are preventing 
diagnosing, maintaining, and repairing the software within the 
devices.\173\
---------------------------------------------------------------------------

    \171\ Public Knowledge and iFixit Class 5 Pet.
    \172\ Id. at 2.
    \173\ Id.
---------------------------------------------------------------------------

    The Office notes that in the last rulemaking, it declined to 
include commercial and industrial devices and systems within the scope 
of the proposed repair class due to a lack of evidence of adverse 
effects for such uses and because ``it [was] not apparent from the 
record that users of commercial and industrial systems are similarly 
situated to users of consumer products.'' \174\ The Office invites 
comment on whether users of commercial and industrial equipment are 
similarly situated to or distinct from users of software-enabled 
consumer devices; whether commercial and industrial devices and systems 
can be the basis of an exemption for a single ``class of works;'' 
whether diagnosis, maintenance, and repair of such devices and systems 
are likely to be noninfringing uses of their firmware; and whether TPMs 
are adversely affecting those uses.
---------------------------------------------------------------------------

    \174\ 2021 Recommendation at 194-98 (``Without a more developed 
record concerning devices designed primarily for commercial and 
industrial use, the Register cannot properly evaluate the purported 
similarities to consumer devices or analyze the claimed adverse 
effects.'' (citing FTC, Nixing the Fix: An FTC Report to Congress on 
Repair Restrictions 51 (May 2021), https://www.ftc.gov/system/files/documents/reports/nixing-fix-ftc-report-congress-repair-restrictions/nixing_the_fix_report_final_5521_630pm-508_002.pdf)).
---------------------------------------------------------------------------

Proposed Classes 6(a): Computer Programs and 6(b): Video Games-- 
Preservation

    Three petitions seek to expand the current exemptions for 
preservation of software and video games, and one petition seeks a new 
exemption for preservation of video games.\175\ As with the proposed 
text and data mining exemptions, the Office has grouped these petitions 
into a single category encompassing two proposed classes. Commenters 
addressing these proposals may submit a single comment addressing both 
computer programs and video games, but the supporting evidence must be 
sufficient to establish

[[Page 72026]]

the statutory requirements with respect to each category of works.
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    \175\ SPN & LCA Class 6(a) Pet.; Austin Class 6(b) Pet.; SPN & 
LCA Class 6(b) Pet.; Sullivan Class 6(b) Pet.
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    SPN and LCA filed a petition to expand the current exemption for 
preservation of software by eligible libraries, archives, and museums 
by removing the current requirement that electronic distribution, 
display, or performance of software be made to ``only . . . one 
eligible user at a time.'' \176\ SPN and LCA and Thomas Sullivan filed 
petitions to expand the current exemption for preservation of video 
games by eligible libraries, archives, and museums by removing the 
current requirement that video games ``not be distributed or made 
available outside of the physical premises of an eligible [library, 
archives, or museum].'' \177\ Finally, Ken Austin petitions for a new 
exemption that would permit circumvention by ``individual owners of 
video games which have DRM (digital rights management) that no longer 
function[ ] due to incompatibility'' with modern computers' operating 
systems.\178\ Mr. Austin provides an example of the Windows 10 
operating system preventing individuals from playing an old video game 
because the game's technological protection measures are flagged as a 
security threat.\179\
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    \176\ SPN & LCA Class 6(a) Pet. at 2; 37 CFR 201.40(b)(18).
    \177\ SPN & LCA Class 6(b) Pet.; Sullivan Class 6(b) Pet.; 37 
CFR 201.40(b)(17). Sullivan's petition also proposes an expansion of 
those permitted to engage in preservation, such as ``[c]olleges, 
[u]niversities, . . . and any institution dedicated to the 
preservation of video games.'' Sullivan Class 6(b) Pet. at 2.
    \178\ Austin Class 6(b) Pet at 2.
    \179\ Id.
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    The Office notes that it has previously considered and rejected 
many of these requests. In the last rulemaking, it rejected removing 
the one-user limit on software preservation out of concern with 
substitution risk,\180\ and declined to recommend removing the on-
premises limitation for video game preservation.\181\ The Office 
therefore seeks comment on whether there have been new factual or legal 
developments since the last rulemaking that would support a new 
recommendation for the preservation exemptions. Separately, it invites 
comment on the proposed exemption for individuals whose video games are 
no longer functional due to incompatibility with their computer's 
operating systems. Specifically, the Office seeks comment on the 
relevant TPMs and whether their presence is adversely affecting 
noninfringing uses, including identifying whether eligible users may 
access the software through alternate channels that do not require 
circumvention and the legal basis for concluding that the proposed uses 
are likely to be noninfringing.
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    \180\ 2021 Recommendation at 268-73, 279 (``[T]he inclusion of 
single user and limited time restrictions will minimize the risk of 
substitutional use of the software.'' (citing U.S. Copyright Office, 
Section 108 of Title 17: A Discussion Document of the Register of 
Copyrights 38-39 (2017), https://www.copyright.gov/policy/section108/discussion-document.pdf)).
    \181\ See id. at 271-275, 279; see also 2018 Recommendation at 
271-75, 278; 2015 Recommendation at 340-44, 351-52.
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Proposed Class 7: Computer Programs--Vehicle Operational Data

    MEMA petitions for a new exemption to ``access, store, and share 
vehicle operational data, including diagnostic and telematics data'' 
from ``a lawfully acquired motorized land vehicle or marine vessel such 
as a personal automobile or boat, commercial vehicle or vessel, or 
mechanized agricultural vehicle or vessel.'' \182\ The petition limits 
circumvention to ``lawful vehicle owners and lessees, or those acting 
on their behalf.'' \183\
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    \182\ MEMA Class 7 Pet.
    \183\ Id. at 2.
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    The Office encourages proponents to develop the legal and factual 
administrative record in their initial submissions, including 
describing with specificity the relevant TPMs and whether their 
presence is adversely affecting noninfringing uses, whether eligible 
users may access such data through alternate channels that do not 
require circumvention, and the legal basis for concluding that the 
proposed uses are likely to be noninfringing. In general, the Office 
seeks comment on whether the proposed exemption should be adopted, 
including any proposed regulatory language.

IV. Future Phases of the Ninth Triennial Rulemaking

    As in prior rulemakings, the Office will solicit public engagement 
to create a comprehensive record through receipt of written comments, 
public hearings, post-hearing questions, and ex parte meetings. Each 
future phase of the administrative process is described below.

A. Submission of Written Comments

    Parties wishing to address proposed exemptions in written comments 
should familiarize themselves with the substantive legal and 
evidentiary standards for the granting of an exemption under section 
1201(a)(1), which are described in more detail on the Office's form for 
submissions of longer comments, available on its website. In addressing 
factual matters, commenters should be aware that the Office favors 
specific, ``real-world'' examples supported by evidence over 
hypothetical observations. In cases where the technology at issue is 
not apparent from the requested exemption, it is helpful for commenters 
to describe the TPM(s) that control access to the work and the method 
of circumvention.
    Commenters' legal analysis should explain why the proposal meets or 
fails to meet the criteria for an exemption under section 1201(a)(1), 
including, without limitation, why the uses sought are or are not 
noninfringing as a matter of law. The legal analysis should also 
discuss statutory or other legal provisions that could impact the 
necessity for or scope of the proposed exemption. Legal assertions 
should be supported by statutory citations, relevant case law, and 
other pertinent authority. In cases where a class proposes to expand an 
existing exemption, participants should focus their comments on the 
legal and evidentiary bases for modifying the exemption, rather than 
the underlying exemption. As discussed above, the Office currently is 
inclined to recommend all but one current temporary exemption for 
renewal.\184\
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    \184\ The Office will not recommend renewal of the current 
exemption permitting circumvention of video games in the form of 
computer programs for the purpose of allowing an individual with a 
physical disability to use alternative software or hardware input 
methods within 37 CFR 201.40(b)(21).
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    To ensure a clear and definite record for each of the proposals, 
separate submissions must be submitted for each proposed class and not 
combined. Accordingly, the same party may submit multiple written 
comments on different proposals. The Office acknowledges that the 
requirement of separate submissions may require commenters to repeat 
certain information across multiple submissions, but the Office 
believes that the administrative benefits of creating a self-contained, 
separate record for each proposal justify the modest amount of added 
effort.
    The first round of public comment is limited to submissions from 
proponents (i.e., those parties who proposed new exemptions during the 
petition phase) and other members of the public who support the 
adoption of a proposed exemption, as well as any members of the public 
who neither support nor oppose an exemption but seek only to share 
pertinent information. Proponents of exemptions should present their 
complete affirmative case for an exemption during the initial round of 
public comment, including all legal and evidentiary support.

[[Page 72027]]

    The second round of public comment seeks comments from members of 
the public who oppose an exemption. As with the first round, commenters 
during the second round should present the full legal and evidentiary 
basis for their opposition. Finally, the third round of public comment 
will be limited to supporters of particular proposals and those who 
neither support nor oppose a proposal, who seek to reply to points made 
in the earlier rounds of comments. Reply comments should not raise new 
issues, but should instead be limited to addressing arguments and 
evidence presented by others during prior rounds.

B. Public Hearings

    After the three rounds of comments are completed, the Copyright 
Office will hold virtual public hearings in spring 2024. The hearings 
will allow for participation by videoconference and will be streamed 
online. A separate notice providing details about the hearings and how 
to participate will be published in the Federal Register at a later 
date. The Office will identify specific items of inquiry to be 
addressed during the hearings.

C. Post-Hearing Questions

    As with previous rulemakings, following the hearings, the Office 
may request additional information with respect to particular classes 
from rulemaking participants, to supply missing information for the 
record or otherwise resolve issues that it believes are material to 
particular exemptions. Such requests for information will take the form 
of a letter from the Office, will be addressed to individual parties 
involved in the proposal as to which more information is sought, and 
will provide a deadline for submission. Responding to such a request 
will be voluntary. After the receipt of all responses, the Office will 
post the questions and responses on the Office's website as part of the 
public record.

D. Ex Parte Communication

    In the last two proceedings, in response to stakeholder requests, 
the Office provided written guidelines under which interested non-
governmental participants could request informal communications with 
the Office during the post-hearing phase of the proceeding. In this 
proceeding, the Office will permit ex parte communications, but 
participating parties will be required to follow its regulations on ex 
parte communications, codified at 37 CFR 201.1(d) and 205.24.\185\ In 
accordance with the regulations, and similar to the last two 
proceedings, no ex parte communications with the Office regarding this 
proceeding will be permitted prior to the post-hearing phase.
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    \185\ See 37 CFR 201.1(d), 205.24.

    Dated: October 12, 2023,
Suzanne V. Wilson,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2023-22949 Filed 10-18-23; 8:45 am]
BILLING CODE 1410-30-P


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