Federal Register / Vol. 88, No. 201 / Thursday, October 19, 2023 / Proposed Rules 72013 

the Tribes of the project through 

correspondence dated May 20, 2022, 

and received a response from the 

Catawba Indian Nation in a letter dated 

July 7, 2022. The Catawba Indian Nation 

requested to be notified if Native 

American artifacts or human remains 

are located during the ground 

disturbance phase of the project. 

Paperwork Reduction Act 

This rulemaking does not contain 

information collection requirements, 

and a submission to the Office of 

Management and Budget under the 

Paperwork Reduction Act is not 

required. The NPS may not conduct or 

sponsor and you are not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. 

National Environmental Policy Act 

The NPS has prepared the EA to 

determine whether this rulemaking will 

have a significant impact on the quality 

of the human environment under the 

National Environmental Policy Act of 

1969. This rulemaking would not 

constitute a major Federal action 

significantly affecting the quality of the 

human environment. A detailed 

statement under the NEPA is not 

required because of the FONSI. The EA 

contains a full description of the 

purpose and need for taking action, the 

alternatives considered, a map of the 

affected area, and the environmental 

impacts associated with the project. A 

copy of the EA and FONSI can be found 

online at the URL listed in ADDRESSES. 

Effects on the Energy Supply (Executive 

Order 13211) 

This rulemaking is not a significant 

energy action under the definition in 

Executive Order 13211; the rulemaking 

is not likely to have a significant 

adverse effect on the supply, 

distribution, or use of energy, and the 

rulemaking has not otherwise been 

designated by the Administrator of 

OIRA as a significant energy action. A 

Statement of Energy Effects in not 

required. 

Clarity of This Rule 

The NPS is required by Executive 

Orders 12866 (section 1(b)(12)) and 

12988 (section 3(b)(1)(B)), and 13563 

(section 1(a)), and by the Presidential 

Memorandum of June 1, 1998, to write 

all rules in plain language. This means 

that each rule the NPS publishes must: 

(a) Be logically organized; 

(b) Use the active voice to address 

readers directly; 

(c) Use common, everyday words and 

clear language rather than jargon; 

(d) Be divided into short sections and 

sentences; and 

(e) Use lists and tables wherever 

possible. 

If you feel that the NPS has not met 

these requirements, send us comments 

by one of the methods listed in the 

ADDRESSES section. To better help the 

NPS revise the rule, your comments 

should be as specific as possible. For 

example, you should identify the 

numbers of the sections or paragraphs 

that you find unclear, which sections or 

sentences are too long, the sections 

where you feel lists or tables would be 

useful, etc. 

Public Participation 

It is the policy of the Department of 

the Interior, whenever practicable, to 

afford the public an opportunity to 

participate in the rulemaking process. 

Accordingly, interested persons may 

submit written comments regarding this 

proposed rule by one of the methods 

listed in the ADDRESSES section of this 

document. 

Public Availability of Comments 

Before including your address, phone 

number, email address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

List of Subjects in 36 CFR Part 7 

National parks, Reporting and 

Recordkeeping requirements. 

In consideration of the foregoing, the 

National Park Service proposes to 

amend 36 CFR part 7 as set forth below: 

PART 7—SPECIAL REGULATIONS, 

AREAS OF THE NATIONAL PARK 

SYSTEM 

■ 1. The authority citation for part 7 

continues to read as follows: 

Authority: 54 U.S.C. 100101, 100751, 

320102; Sec. 7.96 also issued under D.C. 

Code 10–137 and D.C. Code 50–2201.07. 

■ 2. Amend § 7.58 by adding paragraph 

(d) to read as follows: 

§ 7.58 Cape Hatteras National Seashore. 

* * * * * 

(d) Bicycle Use. (1) The 

Superintendent may designate all or a 

portion of the following trails as open to 

bicycle use: 

(i) Multi-use pathway in the Hatteras 

Island District (approximately 1.6 

miles). 

(ii) [Reserved] 

(2) Maps showing the pathway as 

open to bicycle use will be available at 

Seashore visitor centers and posted on 

the Seashore website. The 

Superintendent will provide notice that 

the pathway is open to bicycle use in 

accordance with § 1.7 of this chapter, 

including in the superintendent’s 

compendium (or written compilation) of 

discretionary actions referred to in 36 

CFR 1.7(b). 

(3) The Superintendent may limit, 

restrict, or impose conditions on bicycle 

use, or close any trail to bicycle use, or 

terminate such conditions, closures, 

limits, or restrictions in accordance with 

§ 4.30 of this chapter. A violation of any 

such limit, restriction, condition, or 

closure is prohibited. 

Shannon A. Estenoz, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 2023–23077 Filed 10–18–23; 8:45 am] 

BILLING CODE 4312–52–P 

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. 

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 


lotter on DSK11XQN23PROD with PROPOSALS1
72014 Federal Register / Vol. 88, No. 201 / Thursday, October 19, 2023 / Proposed Rules 

1Exemptions 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). 

2The 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.’’ 

3 17 U.S.C. 1201(a)(1)(C). 

4See 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).’’). 

5 17 U.S.C. 1201(a)(1)(C). 

6Section 1201 Study at 114. 

7This element is analyzed in reference to section 

1201(a)(1)(C)’s five statutory factors. 

8Section 1201 Study at 115–27. 

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 

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 meft@

copyright.gov 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. 

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

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. 

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: 

• Does the proposed class include at 

least some works protected by 

copyright? 

• Are the uses at issue likely 

noninfringing under title 17? 

• Are users currently, or likely to be, 

adversely affected in their ability to 

make such noninfringing uses during 

the next three years? 7

• Is the statutory prohibition on 

circumventing access controls the cause 

of the adverse effects? 8

To determine whether a proposed use 

is likely to be noninfringing, the 

Register considers the Copyright Act 

and relevant judicial precedents.9 When 


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Federal Register / Vol. 88, No. 201 / Thursday, October 19, 2023 / Proposed Rules 72015 

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). 

10Commerce Comm. Report at 37; see also Staff 

of H. Comm. on the Judiciary, 105th Cong., Sectionby-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). 

11See 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). 

12Section 1201 Study at 142, 145. 

13 Id. at 143. 

14 2018 Recommendation at 17. 

15 Id. at 22. 

16 Id. at 19. 

17See, e.g., id. at 19 n.80 (collecting transcript 

testimony from 2018 rulemaking). 

18See Section 1201 Study at 143–44. 

19A 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. 

20See, 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. 

21Because 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’’). 

22Unless 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. 

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

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 firsttime 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. 

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. 

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. 

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

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

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. 

The petitions for renewal summarize 

the continuing need and justification for 

the exemption, and the petitioners 

demonstrate personal knowledge of and 


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24 Joint Filmmakers Documentary Films Renewal 

Pet. at 3. 

25 Id.; NMR Documentary Films Renewal Pet. at 

3. 

26NMR Noncom. Videos Renewal Pet.; 

Organization for Transformative Works (‘‘OTW’’) 

Noncom. Videos Renewal Pet. 

27OTW Noncom. Videos Renewal Pet. at 3. 

28 Id. 

29NMR Noncom. Videos Renewal Pet. at 3. 

30OTW 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). 

32See 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. 

33Buster, Authors Alliance & AAUP Nonfiction 

Multimedia E-Books Renewal Pet. 

34 Id. at 3. 

35The 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. 

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. 

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

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. 

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

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. 

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 highresolution 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. 

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. 

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. 

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 


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37 Joint Educators AV Educ. Renewal Pet. at 3. 

38 Id. 

39 Id. 

40BYU-Idaho AV Educ. Renewal Pet. at 3. 

41 Joint Educators AV Educ. MOOCs Renewal Pet. 

42 Id. at 3. 

43 Id. 

44 Id. 

45LCA & Hobbs AV Educ. Nonprofits Renewal 

Pet. 

46 Id. at 3. 

47ATSP & LCA Captioning Renewal Pet. 

48 Id. at 3. 

49 Id. 

50LCA Preservation Renewal Pet. 

51 Id. at 3. 

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. 

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. 

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

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. 

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. 

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. 

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

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. 

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. 


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52Authors Alliance, AAUP & LCA AV Text and 

Data Mining Renewal Pet. 

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. 

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. 

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). 

64See 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’’). 

65Authors Alliance, AAUP & LCA AV Text and 

Data Mining Renewal Pet. at 4. 

66The 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 

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. 

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

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. 

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

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 


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67Authors Alliance, AAUP & LCA LW Text and 

Data Mining Renewal Pet. 

68 Id. at 3. 

69 Id. 

70 Id. at 4. 

71ACB, AFB, HathiTrust & LCA Assistive 

Technologies Renewal Pet. 

72 Id. at 3. 

73 Id. 

74 Id. at 3, 4. 

75Coalition of Medical Device Patients and 

Researchers Medical Devices Renewal Pet. 

76 Id. at 3, 4. 

77 Id. at 3. 

78 Id. 

79 ISRI Unlocking Renewal Pet. 

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. 

84These exemptions permit circumvention for the 

purpose of jailbreaking (1) smartphones and other 

Continued 

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. 

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

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. 

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. 

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. 

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

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. 

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

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. 


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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. 

85EFF Smartphone and Portable All-Purpose 

Mobile Computing Device Jailbreaking Renewal Pet. 

at 3. 

86SFC Smart TVs Jailbreaking Renewal Pet. at 3. 

87EFF Voice Assistant Devices Jailbreaking 

Renewal Pet. at 3. 

88SFC Routers and Dedicated Network Devices 

Jailbreaking Renewal Pet. at 3. 

89 iFixit Vehicle or Vessel Repair Renewal Pet.; 

MEMA Vehicle or Vessel Repair Renewal Pet. 

90MEMA Vehicle or Vessel Repair Renewal Pet. 

at 3. 

91 iFixit Vehicle or Vessel Repair Renewal Pet. at 

3. 

92EFF Device Repair Renewal Pet. 

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-commissionrepair-restrictions-imposed-manufacturers-sellers). 

95Author Services Device Repair Opp. at 1. 

96 Id. at 1–2. 

97 Id. at 2. 

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. 

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

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. 

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. 

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. 

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. 

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

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 


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101See 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. 

102A 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. 

103Avante 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. 

104TTG Imaging Solutions Medical Device Repair 

Renewal Pet. at 3. 

105See 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’’). 

106MITA 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. 

107ACI Medical Device Repair Opp.; MITA 

Medical Device Repair Opp.; Philips Medical 

Device Repair Opp. 

108ACI Medical Device Repair Opp. at 1–2. 

109MITA 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). 

111MITA Medical Device Repair Opp. at 2–6; 

Philips Medical Device Repair Opp. at 5–8. 

112MITA 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’’). 

113See 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’’). 

114See 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)). 

115Letter 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). 

116Letter from Suzanne B. Schwartz, Dir., Office 

of Strategic P’ships & Tech. Innovation, FDA, to 

Kevin R. Amer, Acting Gen. Counsel & Assoc. 

Continued 

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. 

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. 

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. 

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. 

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 


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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). 

117See 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’’). 

118MITA 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’’). 

119MITA Medical Device Repair Opp. at 4 

(emphasis omitted). 

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). 

121See 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. 

123MITA 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). 

126For 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). 

127Blaze & Bellovin Security Research Renewal 

Pet.; Halderman & Green Security Research 

Renewal Pet.; MEMA Security Research Renewal 

Pet.; SFC Security Research Renewal Pet. 

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. 

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. 

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

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. 

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. 

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 goodfaith security research (codified at 37 

CFR 201.40(b)(16)).127 No oppositions 


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128A 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’’). 

129Halderman & Green Security Research 

Renewal Pet. at 3. 

130Blaze & Bellovin Security Research Renewal 

Pet. at 3. 

131MEMA Security Research Renewal Pet. at 3. 

132SFC Security Research Renewal Pet. at 3. 

133SPN & LCA Abandoned Video Game Renewal 

Pet. 

134Burt Abandoned Video Game Supp. 

135SPN & LCA Abandoned Video Games Renewal 

Pet. at 3. 

136 Id. 

137 Id. 

138SPN & LCA Software Preservation Renewal 

Pet. 

139Burt Software Preservation Supp. 

140SPN & LCA Software Preservation Renewal 

Pet. at 3. 

141 Id. 

142 Id. 

143Weinberg 3D Printers Renewal Pet. 

144 Id. at 3. 

145 Id. 

were filed against renewal, and one 

comment was received in support filed 

by ‘‘A Group of Hackers at DEF 

CON.’’ 128

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

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

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. 

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

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. 

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. 

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

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 


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146SFC Copyright License Investigation Renewal 

Pet. 

147 Id. at 3. 

148 Id. 

149The 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. 

151 Id. (quoting Exemptions to Permit 

Circumvention of Access Controls on Copyrighted 

Works, 85 FR 37399, 37402 (June 22, 2020). 

152Section 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). 

153OTW 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). 

156See 2021 OTW Class 1 Pet. 

157See 2021 Recommendation at 40–42. 

158See 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))). 

159 Joint Educators Class 2 Pet. 

160 Id. at 2. 

161 Id. 

162 Id. 

163See 2021 Recommendation at 49–52; 2018 

Recommendation at 53–55. 

programs (codified at 37 CFR 

201.40(b)(20)).146 No oppositions were 

filed against renewal. 

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 noncompliance, 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. 

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. 

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

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

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. 

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). 

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 


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164Authors Alliance, AAUP & LCA Class 3(a) 

Pet.; Authors Alliance, AAUP & LCA Class 3(b) Pet. 

165Authors Alliance, AAUP & LCA Class 3(a) Pet. 

at 2; Authors Alliance, AAUP & LCA Class 3(b) Pet. 

at 2. 

166Authors Alliance, AAUP & LCA Class 3(a) Pet. 

at 2–3; Authors Alliance, AAUP & LCA Class 3(b) 

Pet. at 2–3. 

167Weiss Class 4 Pet. 

168 Id. at 2. 

169 Id. 

170 Id. at 3. 

171Public Knowledge and iFixit Class 5 Pet. 

172 Id. at 2. 

173 Id. 

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)). 

175SPN & LCA Class 6(a) Pet.; Austin Class 6(b) 

Pet.; SPN & LCA Class 6(b) Pet.; Sullivan Class 6(b) 

Pet. 

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. 

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

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

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

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. 

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 


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176SPN & LCA Class 6(a) Pet. at 2; 37 CFR 

201.40(b)(18). 

177SPN & 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. 

178Austin Class 6(b) Pet at 2. 

179 Id. 

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/discussiondocument.pdf)). 

181See id. at 271–275, 279; see also 2018 

Recommendation at 271–75, 278; 2015 

Recommendation at 340–44, 351–52. 

182MEMA Class 7 Pet. 

183 Id. at 2. 

184The 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). 

the statutory requirements with respect 

to each category of works. 

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

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 onpremises 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. 

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

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

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. 


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185See 37 CFR 201.1(d), 205.24. 

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 nongovernmental 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. 

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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 82 

[EPA–HQ–OAR–2022–0707; FRL–9603–01– 

OAR] 

RIN 2060–AV65 

Protection of Stratospheric Ozone: 

Updates Related to the Use of OzoneDepleting Substances as Process 

Agents 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: This action proposes to 

establish recordkeeping and reporting 

requirements for uses of ozonedepleting substances as process agents 

and to update definitions to reflect 

current practice. Codified recordkeeping 

and reporting requirements would 

provide clear and consistent notice each 

year of information EPA collects, 

aggregates, and reports as a party to the 

Montreal Protocol on Substances that 

Deplete the Ozone Layer; effectively 

monitor these narrow uses in a more 

routine and consistent manner under 

the Clean Air Act; and enhance 

understanding of emissions of 

substances harmful to the ozone layer. 

DATES: Comments on this notice of 

proposed rulemaking must be received 

on or before December 4, 2023. Under 

the Paperwork Reduction Act (PRA), 

comments on the proposed information 

collection provisions are best assured of 

consideration if the Office of 

Management and Budget (OMB) 

receives a copy of your comments on or 

before November 20, 2023. Any party 

requesting a public hearing must notify 

the contact listed below under FOR

FURTHER INFORMATION CONTACT by 5 p.m. 

Eastern Time on October 24, 2023. If a 

public hearing is held, it will take place 

on or before November 3, 2023 and 

further information will be provided at 

https://www.epa.gov/ods-phaseout. 

ADDRESSES: You may send comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2022–0707, by any of the 

following methods: 

• Federal eRulemaking Portal: 

https://www.regulations.gov (our 

preferred method). Follow the online 

instructions for submitting comments. 

• Mail: U.S. Environmental 

Protection Agency, EPA Docket Center, 

Air and Radiation Docket, Mail Code 

28221T, 1200 Pennsylvania Avenue 

NW, Washington, DC 20460. 

• Hand Delivery or Courier: EPA 

Docket Center, WJC West Building, 

Room 3334, 1301 Constitution Avenue 

NW, Washington, DC 20004. The Docket 

Center’s hours of operations are 8:30 

a.m.–4:30 p.m., Monday–Friday (except 

Federal Holidays). 

Instructions: All submissions received 

must include the Docket ID No. for this 

rulemaking. Comments received may be 

posted without change to https://

www.regulations.gov, including any 

personal information provided. For 

further information on EPA Docket 

Center services and the current status, 

please visit us online at https://

www.epa.gov/dockets. 

You may find the following 

suggestions helpful for preparing your 

comments: direct your comments to 

specific sections of this proposed 

rulemaking and note where your 

comments may apply to future separate 

actions where possible; explain your 

views as clearly as possible; describe 

any assumptions that you used; provide 

any technical information or data you 

used that support your views; provide 

specific examples to illustrate your 

concerns; offer alternatives; and, make 

sure to submit your comments by the 

comment period deadline. Please 

provide any published studies or raw 

data supporting your position. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. EPA will generally 

not consider comments or comment 

contents located outside of the primary 

submission (e.g., on the web, cloud, or 

other file sharing system). 

EPA recognizes that given the nature 

of this proposed rulemaking, potentially 

affected entities may wish to submit 

Confidential Business Information (CBI) 

or other confidential information. CBI 

should not be submitted through 

https://www.regulations.gov. For 

submission of confidential comments or 

data, please work with the person listed 

in the FOR FURTHER INFORMATION

CONTACT section. For additional 

submission methods, the full EPA 

public comment policy, information 

about CBI or multimedia submissions, 


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