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[Federal Register: July 27, 2010 (Volume 75, Number 143)]
[Rules and Regulations]               
[Page 43825-43839]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27jy10-17]                         

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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. RM 2008-8]

 
Exemption to Prohibition on Circumvention of Copyright Protection 
Systems for Access Control Technologies

AGENCY: Copyright Office, Library of Congress.

ACTION: Final rule.

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SUMMARY: The Librarian of Congress announces that the prohibition 
against

[[Page 43826]]

circumvention of technological measures that effectively control access 
to copyrighted works shall not apply to persons who engage in 
noninfringing uses of six classes of copyrighted works.

EFFECTIVE DATE: July 27, 2010.

FOR FURTHER INFORMATION CONTACT: Robert Kasunic, Assistant General 
Counsel, and David O. Carson, General Counsel, Copyright GC/I&R, P.O. 
Box 70400, Washington, D.C. 20024. Telephone: (202) 707-8380. Telefax: 
(202) 707-8366.

SUPPLEMENTARY INFORMATION: In this notice, the Librarian of Congress, 
upon the recommendation of the Register of Copyrights, announces that 
the prohibition against circumvention of technological measures that 
effectively control access to copyrighted works shall not apply to 
persons who engage in noninfringing uses of six classes of works. This 
announcement is the culmination of a rulemaking proceeding commenced by 
the Register on October 6, 2008. A more comprehensive statement of the 
background and legal requirements of the rulemaking, a discussion of 
the record and the Register's analysis may be found in the Register's 
memorandum to the Librarian of Congress dated June 11, 2010, which 
contains the full explanation of the Register's recommendation. A copy 
of the Register's memorandum may be found at http://www.copyright.gov/1201. This notice summarizes the Register's recommendation, announces 
the Librarian's determination, and publishes the regulatory text 
codifying the six exempted classes of works.

I. Background

A. Legislative Requirements for Rulemaking Proceeding
    The Digital Millennium Copyright Act (``DMCA'') was enacted to 
implement certain provisions of the WIPO Copyright Treaty and WIPO 
Performances and Phonograms Treaty. It established a wide range of 
rules that govern not only copyright owners in the marketplace for 
electronic commerce, but also consumers, manufacturers, distributors, 
libraries, educators, and on-line service providers. It defined whether 
consumers and businesses may engage in certain conduct, or use certain 
devices, in the course of transacting electronic commerce.
    Chapter 12 of title 17 of the United States Code prohibits 
circumvention of certain technological measures employed by or on 
behalf of copyright owners to protect their works (i.e., ``access 
controls''). Specifically, Section 1201(a)(1)(A) provides, in part, 
that no person shall circumvent a technological measure that 
effectively controls access to a work protected under this title. In 
order to ensure that the public will have continued ability to engage 
in noninfringing uses of copyrighted works, such as fair use, 
subparagraph (B) limits this prohibition. It provides that the 
prohibition against circumvention shall not apply to persons who are 
users of a copyrighted work which is in a particular class of works, if 
such persons are, or are likely to be in the succeeding three-year 
period, adversely affected by virtue of such prohibition in their 
ability to make noninfringing uses of that particular class of works 
under this title as determined in a rulemaking. The proceeding is 
conducted by the Register of Copyrights, who is to provide notice of 
the rulemaking, seek comments from the public, consult with the 
Assistant Secretary for Communications and Information of the 
Department of Commerce, and recommend final regulations to the 
Librarian of Congress. The regulations, to be issued by the Librarian 
of Congress, announce ``any class of copyrighted works for which the 
Librarian has determined, pursuant to the rulemaking conducted under 
subparagraph (c), that noninfringing uses by persons who are users of a 
copyrighted work are, or are likely to be, adversely affected, and the 
prohibition contained in subparagraph (A) shall not apply to such users 
with respect to such class of works for the ensuing 3-year period.'' 
This is the fourth Section 1201 rulemaking.
B. Responsibilities of Register of Copyrights and Librarian of Congress
    The primary responsibility of the Register and the Librarian in 
this rulemaking proceeding was to assess whether the implementation of 
access control measures is diminishing the ability of individuals to 
use copyrighted works in ways that are not infringing and to designate 
any classes of works with respect to which users have been adversely 
affected in their ability to make noninfringing uses. Congress intended 
that the Register solicit input that would enable consideration of a 
broad range of current or likely future adverse impacts. The statute 
directs that in conducting the rulemaking, the Register and the 
Librarian shall examine:
    (1) The availability for use of copyrighted works;
    (2) The availability for use of works for nonprofit archival, 
preservation, and educational purposes;
    (3) 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;
    (4) The effect of circumvention of technological measures on the 
market for or value of copyrighted works; and
    (5) Such other factors as the Librarian considers appropriate.
    These factors to be considered in the rulemaking process require 
the Register and the Librarian to carefully balance the availability of 
works for use, the effect of the prohibition on particular uses, and 
the effect of circumvention on copyrighted works.
C. The Purpose and Focus of the Rulemaking

1. Purpose of the Rulemaking

    The task of this rulemaking is to determine whether the 
availability and use of access control measures has already diminished 
or is about to diminish the ability of the users of any particular 
classes of copyrighted works to engage in noninfringing uses of those 
works similar or analogous to those that the public had traditionally 
been able to make prior to the enactment of the DMCA. In examining the 
factors set forth in Section 1201(a)(1)(C), the focus is on whether the 
implementation of technological protection measures has had an adverse 
impact on the ability of users to make lawful uses.

2. The Necessary Showing

    Proponents of a class of works have the burden of proof. In order 
to make a prima facie case for designation of a class of works, 
proponents must show by a preponderance of the evidence that there has 
been or is likely to be a substantial adverse effect on noninfringing 
uses by users of copyrighted works. De minimis problems, isolated harm 
or mere inconveniences are insufficient to provide the necessary 
showing. Similarly, for proof of ``likely'' adverse effects on 
noninfringing uses, a proponent must prove by a preponderance of the 
evidence that the harm alleged is more likely than not; a proponent may 
not rely on speculation alone to sustain a prima facie case of likely 
adverse effects on noninfringing uses. It is also necessary to show a 
causal nexus between the prohibition on circumvention and the alleged 
harm.
    Proposed classes are reviewed de novo. The existence of a 
previously designated class creates no presumption for consideration of 
a new class, but rather the proponent of such a class of works must 
make a prima facie case in each three-year period.

[[Page 43827]]

3. Determination of ``Class of Works''

    The starting point for any definition of a ``particular class'' of 
works in this rulemaking must be one of the categories of works set 
forth in section 102 of the Copyright Act. However, those categories 
are only a starting point and a ``class'' will generally constitute 
some subset of a section 102 category. The determnation of the 
appropriate scope of a ''class of works''; recommended for exemption 
will also take into account the likely adverse effects on noninfringing 
uses and the adverse effects that designation of the class may have on 
the market for or value of copyrighted works.
    While starting with a section 102 category of works, or a 
subcategory thereof, the description of a ``particular class''of works 
ordinarily should be further refined by reference to other factors that 
assist in ensuring that the scope of the class addresses the scope of 
the harm to noninfringing uses. For example, the class might be defined 
in part by reference to the medium on which the works are distributed, 
or even to the access control measures applied to them. The description 
of a class of works may also be refined, in appropriate cases, by 
reference to the type of user who may take advantage of the designation 
of the class of works or by reference to the type of use of the work 
that may be made pursuant to the designation. The ``class'' must be 
properly tailored not only to address the harm demonstrated, but also 
to limit the adverse consequences that may result from the creation of 
an exempted class. In every case, the contours of a ``class'' will 
depend on the unique factual circumstances established in the 
rulemaking record on a case-by-case basis.
D. Consultation with the Assistant Secretary for Communications and 
Information
    Section 1201(a)(1)(C) requires the Register of Copyrights to 
consult with the Assistant Secretary for Communications and Information 
of the Department of Commerce (who is also the Administrator of the 
National Telecommunications and Information Administration) and report 
and comment on the views of the Assistant Secretary (``NTIA'') when she 
makes her recommendation to the Librarian of Congress.
    In addition to informal consultations throughout the course of the 
rulemaking proceeding, NTIA formally communicated its views in letters 
to the Register on November 4, 2009, and April 16, 2010. NTIA's views 
were considered by the Register in forming her recommendation. A 
discussion of NTIA's substantive analysis of particular proposals is 
presented in the relevant sections of the Register's recommendation.

II. Solicitation of Public Comments and Hearings

    On October 6, 2008, the Register initiated this rulemaking 
proceeding pursuant to Section 1201(a)(1)(C) with publication of a 
Notice of Inquiry. The NOI requested written comments from all 
interested parties, including representatives of copyright owners, 
educational institutions, libraries and archives, scholars, 
researchers, and members of the public.
    During the initial comment period that ended on December 2, 2008, 
the Copyright Office received nineteen written comments proposing 
twenty-five classes of works, all of which were posted on the Office's 
website. Because some of the initial comments contained similar or 
overlapping proposals, the Copyright Office arranged related classes 
into groups, and set forth and summarized all proposed classes in a 
Notice of Proposed Rulemaking (``NPRM'') published on December 29, 
2008. This NPRM did not present the initial classes in the form of 
proposed rule, but merely as ``a starting point for further 
consideration.''
    The NPRM asked interested parties to submit comments providing 
support, opposition, clarification, or correction regarding the 
proposals, and to provide factual and/or legal arguments in support of 
their positions. The Copyright Office received a total of fifty-six 
responsive comments before the comment period closed on February 2, 
2009, all of which were posted on the Copyright Office website.
    Four days of public hearings were conducted by the Register in May 
2009 at Stanford University and the Library of Congress. Thirty-seven 
witnesses, representing proponents and opponents of proposed classes of 
works, testified on twenty-one proposed classes. Following the 
hearings, the Copyright Office sent follow-up questions to some of the 
hearing witnesses, and responses were received during the summer. The 
entire record in this and the previous section 1201(a)(1)(C) 
rulemakings are available on the Office's website, http://www.copyright.gov/1201/index.html.
    On October 27, 2009, the Librarian of Congress published in the 
Federal Register a Notice of an interim rule, extending the existing 
classes of works exempted from the prohibition until the conclusion of 
the current rulemaking proceeding and the designation of any classes of 
works to be exempt from the prohibition for the ensuing three-year 
period by the Librarian of Congress.

III. The Designated Classes

A. Motion pictures on DVDs that are lawfully made and acquired and that 
are protected by the Content Scrambling System when circumvention is 
accomplished solely in order to accomplish the incorporation of short 
portions of motion pictures into new works for the purpose of criticism 
or comment, and where the person engaging in circumvention believes and 
has reasonable grounds for believing that circumvention is necessary to 
fulfill the purpose of the use in the following instances:
     Educational uses by college and university 
professors and by college and university film and media studies 
students;
     Documentary filmmaking;
     Noncommercial videos.
    DVDs protected by the Content Scrambling System (CSS) have been an 
issue in this rulemaking proceeding since its inception in 2000. In the 
2006 rulemaking proceeding, the Librarian designated a class of 
``[a]udiovisual works included in the educational library of a college 
or university's film or media studies department, when circumvention is 
accomplished for the purpose of making compilations of portions of 
those works for educational use in the classroom by media studies or 
film professors.''
    In the current rulemaking, educators sought to renew and, in a 
number of ways, to expand the existing class of works designated in the 
last proceeding. The proposed expansions of the class involved 
extending the class to include all of the motion pictures on CSS-
protected DVDs contained in a college or university library (rather 
than just a film or media studies department) and to encompass 
classroom use by all college and university professors and students as 
well as elementary and secondary school teachers and students.
    Apart from educators, others sought designation of similar classes 
of works to address what they contended are adverse impacts on their 
ability to engage in noninfringing uses of copyrighted works. 
Documentary filmmakers argued that the prohibition on circumvention 
adversely affects their ability to use portions of motion pictures in 
documentary films, many of which would qualify as noninfringing uses 
for the purposes of criticism or comment. Creators of noncommercial 
videos that incorporate portions of

[[Page 43828]]

motion pictures contained on CSS-protected DVDs also alleged that the 
prohibition on circumvention adversely affected their ability to engage 
in noninfringing criticism or comment.
    Based on the record in this proceeding, the Register determines 
that CSS is a technological measure that protects access to copyrighted 
motion pictures. She also determined that a substantial number of uses 
in the record with respect to education, documentary filmmaking, and 
noncommercial videos qualify as noninfringing uses.
    NTIA supports expansion of the existing class of audiovisual works 
to include all college and university level instructors and students 
but does not believe the record justifies an expansion that would 
include elementary and secondary school teachers and students. NTIA 
also recommended limiting the class to address the use of DVDs included 
in the educational library or departments of the academic institutions. 
It also supported the proposal to designate a class of works for the 
benefit of documentary filmmakers. Finally, it expressed general 
support for the request to designate a class that would permit 
extraction of film clips for use in noncommercial videos, but suggested 
a requirement that the clips from the audiovisual work must be for 
remix videos that are used for social comment or criticism, or that are 
used in transformative-type works according to established fair use 
principles.
    Given that all of these proposed classes at issue involved motion 
pictures on CSS-protected DVDs, the Register recommends that the 
Librarian designate a single class addressing all of these adversely 
affected uses of DVDs. However, the Register concludes that the record 
does not support all of the proposed expansions of the existing class 
of audiovisual works and that in at least one respect, the record 
supported a contraction of that class.
    What the record does demonstrate is that college and university 
educators, college and university film and media studies students, 
documentary filmmakers, and creators of noncommercial videos frequently 
make and use short film clips from motion pictures to engage in 
criticism or commentary about those motion pictures, and that in many 
cases it is necessary to be able to make and incorporate high-quality 
film clips in order effectively to engage in such criticism or 
commentary. In such cases, it will be difficult or impossible to engage 
in the noninfringing use without circumventing CSS in order to make 
high-quality copies of short portions of the motion pictures. Because 
not all uses by educators, documentary filmmakers or makers of 
noncommerical videos will be noninfringing or will require such high-
quality copies, the class of works recommended by the Register is not 
as extensive as what was requested by some proponents, and the class 
contains some limitations. First, proponents for educators failed to 
demonstrate that high-quality resolution film clips are necessary for 
K-12 teachers and students, or for college and university students 
other than film and media studies students. Because other means, such 
as the use of screen capture software, exist that permit the making of 
lower-quality film clips without circumventing access controls, the 
Register finds no justification in the record for expanding the class 
of works to include such persons as express beneficiaries of the 
designation of this class of works.
    Second, the circumvention of access controls must be accomplished 
solely in order to enable incorporation of short portions of motion 
pictures into new works for purposes of criticism of comment. The 
justification offered by proponents for designating a class of 
audiovisual works, and a key element of the Register's conclusion that 
the intended uses will frequently be noninfringing fair uses, was that 
the uses that justify designation of the class were for purposes of 
criticism and commentary, which are classic ``fair use'' purposes. 
Moreover, all of the evidence in the rulemaking demonstrating 
noninfringing uses involved the use of short portions of motion 
pictures. While the Register is persuaded that it would be difficult 
and imprudent to quantify the precise contours of what constitutes a 
``short portion,'' there was no evidence in the record to support the 
conclusion that anything more than incorporating relatively short 
portions of motion pictures into a new work for purposes of criticism 
or commentary would be a fair use. Similarly, in order to meet the 
requirements of the designated class of works, a new work must be 
created, whether that work is a compilation of clips for use in the 
classroom, or a documentary or video incorporating a clip or clips from 
a copyrighted motion picture.
    The final requirement of the recommended class is that the person 
engaging in the circumvention must reasonably believe that the 
circumvention is necessary in order to fulfill the purpose of the use - 
i.e., the noninfringing criticism or commentary. Because alternatives 
to circumvention such as video capture may suffice in many, and perhaps 
the vast majority of situations, users must make a reasonable 
determination that heightened quality is necessary to achieve the 
desired goal. The justification for designating this class of works is 
that some criticism and/or commentary requires the use of high-quality 
portions of motion pictures in order to adequately present the speech-
related purpose of the use. Where alternatives to circumvention can be 
used to achieve the noninfringing purpose, such non-circumventing 
alternatives should be used. Thus, this limitation seeks to avoid an 
overly broad class of works given the limited number of uses that may 
require circumvention to achieve the intended noninfringing end.
    The class has also been limited to include only motion pictures 
rather than all audiovisual works. Because there was no evidence 
presented that addressed any audiovisual works other than motion 
pictures, there was no basis for including the somewhat broader class 
of audiovisual works (which includes not only motion pictures, but also 
works such as video games and slide presentations).
B. Computer programs that enable wireless telephone handsets to execute 
software applications, where circumvention is accomplished for the sole 
purpose of enabling interoperability of such applications, when they 
have been lawfully obtained, with computer programs on the telephone 
handset.
    The Electronic Frontier Foundation (EFF) proposed a class that 
would allow circumvention of the technological measures contained on 
certain wireless phone handsets (known as ``smartphones'') that prevent 
third-party software applications from being installed and run on such 
phones. This circumvention activity is colloquially referred to as 
``jailbreaking'' a phone.
    The factual record with respect to this proposed class focused 
primarily on Apple's iPhone, although there are allegations in the 
record involving other mobile phone manufacturers as well. EFF 
asserted, and Apple's testimony confirmed, that any software or 
application to be used on the iPhone must be validated with the 
firmware that controls the iPhone's operation. This validation process 
is intended to make it impossible for an owner of an iPhone to install 
and use third-party applications on the iPhone that have not been 
approved for distribution through Apple's iTunes App Store.
    EFF argued that jailbreaking is a noninfringing activity for three 
reasons. First, it alleged that at least in some cases, jailbreaking 
can be done within

[[Page 43829]]

the scope of what is authorized under the license Apple grants to every 
iPhone user. It stated that ``[t]o the extent a jailbreaking technique 
does not modify any of the individual software programs that comprise 
the iPhone firmware collection, but instead simply adds additional 
software components to the collection, the practice may not exceed the 
scope of the license to `use the iPhone software' or constitute a 
`modification' of any Apple software components, any more than the 
addition of a new printer driver to a computer constitutes a 
`modification' of the operating system already installed on the 
computer.''
    Second, EFF asserted that ``to the extent a jailbreak technique 
requires the reproduction or adaptation of existing firmware beyond the 
scope of any license or other authorization by the copyright owner, it 
would fall within the ambit of 17 U.S.C. Sec.  1l7(a).'' EFF contended 
that the iPhone owner is also the owner of the copy of the firmware on 
the iPhone and that jailbreaking falls within the owner's privilege 
``to adapt those copies to add new capabilities, so long as the changes 
do not ``harm the interests of the copyright proprietor.''
    Finally, EFF contended that in any event, jailbreaking constitutes 
fair use of the firmware because jailbreaking is a purely 
noncommercial, private use of computer software, a largely functional 
work that operates the phone, and that the phone owner must reuse the 
vast majority of the original firmware in order for the phone to 
operate. Because the phone owner is simply modifying the firmware for 
her own use on the phone, there is no harm to the market for the 
firmware.
    Apple responded that jailbreaking by purchasers of the iPhone is a 
violation of the prohibition against circumvention of access controls. 
It stated that its validation system is necessary to protect consumers 
and Apple from harm. Apple further contended that modifying Apple's 
operating system constituted the creation of an infringing derivative 
work. Specifically, Apple argued that because purchasers of an iPhone 
are licensees, not owners, of the computer programs contained on the 
iPhone, Section 117 of the Copyright Act is inapplicable as an 
exemption to the adaptation right. Apple further argued that the fair 
use defense codified in Sec.  107 would not apply to jailbreaking 
activity under the statutory factors.
    Based on the record, the Register has determined that the 
encryption and authentication processes on the iPhone's computer 
programs are technological measures that control access to the 
copyrighted work (the firmware) for purposes of Sec.  1201(a)(1). 
Moreover, the Register finds that the evidence supports the contention 
that a technological protection measure is adversely affecting adding 
applications to the iPhone. The critical question is whether 
jailbreaking an iPhone in order to add applications to the phone 
constitutes a noninfringing use.
    The Register does not find that the contract between Apple and 
purchasers of the iPhone authorize modification of the iPhone. 
Moreover, the Register cannot clearly determine whether the various 
versions of the iPhone contracts with consumers constituted a sale or 
license of a copy of the computer programs contained on the iPhone. The 
contractual language is unclear with respect to particular copies of 
the computer programs. Although Apple retains ownership of the computer 
programs, the contracts also expressly grant users ownership of the 
device. Since the ``copy'' of the computer program is fixed in hardware 
of the device, it is unclear what ownership status is to be given to 
the particular copy of the computer program contained in the device. 
Apple unquestionably has retained ownership of the intangible works, 
but the ownership of the particular copies of those works is unclear.
    Moreover, the state of the law with respect to the determination of 
ownership is in a state of flux in the courts. Both proponents and 
opponents cited case law in support of their respective positions, but 
the Register finds it impossible to determine how a court would resolve 
the issue of ownership on the facts presented here. While both parties 
agreed that the Second Circuit's decision in Krause v. Titleserv, 402 
F.3d 119 (2d Cir. 2005) is ``good law,'' that case dealt with a 
situation that is distinguishable in many respects from the present 
situation. The Register finds that the Krause case does not provide 
clear guidance as to how resolve the current issue.
    However, the Register does find that the proponent's fair use 
argument is compelling and consistent with the congressional interest 
in interoperability. The four fair use factors tend to weigh in favor 
of a finding of fair use.
    Under the first factor in Section 107, it appears fair to say that 
the purpose and character of the modification of the operating system 
is to engage in a private, noncommercial use intended to add 
functionality to a device owned by the person making the modification, 
albeit beyond what Apple has determined to be acceptable. The user is 
not engaging in any commercial exploitation of the firmware, at least 
not when the jailbreaking is done for the user's own private use of the 
device.
    The fact that the person engaging in jailbreaking is doing so in 
order to use Apple's firmware on the device that it was designed to 
operate, which the jailbreaking user owns, and to use it for precisely 
the purpose for which it was designed (but for the fact that it has 
been modified to run applications not approved by Apple) favors a 
finding that the purpose and character of the use is innocuous at worst 
and beneficial at best. Apple's objections to the installation and use 
of ``unapproved'' applications appears to have nothing to do with its 
interests as the owner of copyrights in the computer programs embodied 
in the iPhone, and running the unapproved applications has no adverse 
effect on those interests. Rather, Apple's objections relate to its 
interests as a manufacturer and distributor of a device, the iPhone.
    Moreover, Congress has determined that reverse engineering for the 
purpose of making computer programs interoperable is desirable when 
certain conditions are met, and has crafted a specific exemption from 
Section 1201(a)'s prohibition on circumvention in such cases. While an 
iPhone owner who ``jailbreaks'' does not fall within the four corners 
of the statutory exemption in Section 1201(f), the fact that he or she 
is engaging in jailbreaking in order to make the iPhone's firmware 
interoperable with an application specially created for the iPhone 
suggests that the purpose and character of the use are favored.
    Turning to the second fair use factor, it is customary for 
operating systems - functional works - to enable third party programs 
to interoperate with them. It does not and should not infringe any of 
the exclusive rights of the copyright owner to run an application 
program on a computer over the objections of the owner of the copyright 
in the computer's operating system. Thus, if Apple sought to restrict 
the computer programs that could be run on its computers, there would 
be no basis for copyright law to assist Apple in protecting its 
restrictive business model. The second factor decisively favors a 
finding of fair use.
    Turning to the third factor, ``the amount and substantiality of the 
portion used in relation to the copyrighted work as a whole,'' EFF 
admitted that because the Apple firmware is necessary in order to 
operate the iPhone, it is necessary for individuals who jailbreak their 
phones to reuse the vast majority of the original firmware. However, 
the amount of the copyrighted work

[[Page 43830]]

modified in a typical jailbreaking scenario is fewer than 50 bytes of 
code out of more than 8 million bytes, or approximately 1/160,000 of 
the copyrighted work as a whole. Where the alleged infringement 
consists of the making of an unauthorized derivative work, and the only 
modifications are so de minimis, the fact that iPhone users are using 
almost the entire iPhone firmware for the purpose for which it was 
provided to them by Apple undermines the significance of this factor. 
While the third factor arguably disfavors a fair use finding, the 
weight to be given to it under the circumstances is slight.
    Addressing the fourth factor, ``the effect of the use upon the 
potential market for or value of the copyrighted work,'' EFF asserted 
that the firmware has no independent economic value, pointing out that 
the iPhone firmware is not sold separately, but is simply included when 
one purchases an iPhone. EFF also argued that the ability to lawfully 
jailbreak a phone will increase, not decrease, overall sales of the 
phones because users will know that by jailbreaking, they can ``take 
advantage of a wider array of third party applications.
    Apple responded that unauthorized uses diminish the value of the 
copyrighted works to Apple. However, Apple is not concerned that the 
practice of jailbreaking will displace sales of its firmware or of 
iPhones; indeed, since one cannot engage in that practice unless one 
has acquired an iPhone, it would be difficult to make that argument. 
Rather, the harm that Apple fears is harm to its reputation. Apple is 
concerned that jailbreaking will breach the integrity of the iPhone's 
``ecosystem.'' The Register concludes that such alleged adverse effects 
are not in the nature of the harm that the fourth fair use factor is 
intended to address.
    NTIA does not support designating the proposed class. While 
acknowledging that permitting iPhone jailbreaking could facilitate 
innovation, better serve customers, and encourage the market to utilize 
open platforms, NTIA believes ``it might just as likely deter 
innovation by not allowing the developer to recoup its development 
costs and to be rewarded for its innovation.'' NTIA also believes that 
the proponents' ``public policy'' arguments should properly be 
considered by expert regulatory agencies, the Department of Justice, 
and the Congress. It concludes that the ``Register ought only to 
consider recommending the proposed class if she concludes that the 
access control measure would be a bar to actions that the above bodies 
might take in response to policy judgments made at those agencies.
    The Register appreciates that many regulatory and policy issues 
pertaining to jailbreaking and smartphones fall within the competence 
of other agencies, and the Register has no desire to interfere with 
those agencies' jurisdiction. However, the only question before the 
Register and the Librarian is whether Section 1201(a)(1)'s prohibition 
on circumvention is adversely affecting the ability of users of 
smartphones from engaging in noninfringing uses of the firmware on 
their devices. No other agency has the power to limit the application 
of the prohibition on circumvention in this (or any other) context. Any 
future action by a federal agency to permit jailbreaking will be futile 
without an exemption from liability under Section 1201(a)(1), but if a 
class is not designated in this rulemaking, all that it will mean is 
that Section 1201 cannot be used to prevent jailbreaking, without 
prejudice to any other legal or regulatory authority that might limit 
or prohibit jailbreaking.
    On balance, the Register concludes that when one jailbreaks a 
smartphone in order to make the operating system on that phone 
interoperable with an independently created application that has not 
been approved by the maker of the smartphone or the maker of its 
operating system, the modifications that are made purely for the 
purpose of such interoperability are fair uses. Case law and 
Congressional enactments reflect a judgment that interoperability is 
favored. The Register also finds that designating a class of works that 
would permit jailbreaking for purposes of interoperability will not 
adversely affect the market for or value of the copyrighted works to 
the copyright owner.
    Accordingly, the Register recommends that the Librarian designate 
the following class of works:

     Computer programs that enable wireless communication handsets 
to execute software applications, where circumvention is 
accomplished for the sole purpose of enabling interoperability of 
such applications, when they have been lawfully obtained, with 
computer programs on the telephone handset.
C. Computer programs, in the form of firmware or software, that enable 
used wireless telephone handsets to connect to a wireless 
telecommunications network, when circumvention is initiated by the 
owner of the copy of the computer program solely in order to connect to 
a wireless telecommunications network and access to the network is 
authorized by the operator of the network.
    In 2006, the Librarian designated a class of ``Computer programs in 
the form of firmware that enable wireless telephone handsets to connect 
to a wireless telephone communication network, when circumvention is 
accomplished for the sole purpose of lawfully connecting to a wireless 
telephone communication network,'' in order to permit the circumvention 
of access controls that prevent the owner of a cellphone from switching 
service on that cellphone to another wireless communication network. 
The access controls in question are embedded in the mobile phone's 
firmware or software and prevent the mobile phone owner from gaining 
access to the settings that connect the mobile phone to a network 
(e.g., Verizon's) other than the original network (e.g., AT&T's). 
Beneficiaries of that designation have now requested that the Librarian 
again designate a similar class of works. Representatives of wireless 
communication networks have opposed the request.
    As she did three years ago, the Register recognizes that the 
requests fall within the zone of interest subject to this rulemaking. 
That is, circumventing a mobile phone lock, without the authority of 
the copyright owner, to gain access to the protected work (i.e., the 
firmware) is likely actionable under Section 1201(a)(1) of the Act. 
Further, a wireless carrier who is harmed by the circumvention of the 
software lock may bring an action for violation of Section 1201(a)(1) 
against anyone who circumvents such a technological protection measure.
    The proponents of this class have presented a prima facie case that 
the prohibition on circumvention has had an adverse effect on 
noninfringing uses of firmware on wireless telephone handsets. 
Proponents have shown that mobile phone locks prevent consumers from 
legally accessing alternative wireless networks with the phone of their 
choice. This is the same type of activity that was at issue when the 
existing class of works was being considered in 2006.
    The wireless networks asserted that by using a cellphone on another 
network, an act that is not authorized

[[Page 43831]]

under their contracts, the customers infringe the exclusive right to 
reproduce copies of the computer software, because use of the mobile 
phones necessarily involves the making of copies in the random access 
memory of the mobile phone. Moreover, they asserted that the alteration 
of the computer programs in order enable the mobile phones to connect 
to another network constituted the unlawful making of derivative works, 
in violation of the copyright owner's exclusive right to prepare 
derivative works.
    Proponents of the class asserted that the owners of mobile phones 
are also the owners of the copies of the computer programs on those 
phones and that as owners they are entitled to exercise their 
privileges under Section 117 of the Copyright Act, which gives the 
owner of a copy of a computer program the privilege to make or 
authorize the making of another copy or adaptation of that computer 
program under certain circumstances. The wireless networks responded 
that their contracts with their customers restrict the uses of the 
customers' mobile phones and retain ownership of the copies of the 
computer programs that are loaded onto the mobile phones and enable the 
phones to operate. They also asserted those contractual restrictions 
make the networks - and not the customers - the owners of the copies of 
the computer programs, and therefore the privilege under Section 117 to 
make copies and adaptations of computer programs does not apply because 
that privilege is enjoyed only by the owner of the copy of the computer 
program. They also argued that the privilege does not extend to the 
customers' conduct because the making of a new copy or adaptation in 
order to use the mobile phone on a network other than the original 
network is not, as the statute requires, ``an essential step in the 
utilization of the computer program in conjunction with a machine.``
    The Register has reviewed the appropriate case law with respect to 
who is the ``owner'' of a copy of a computer program for purposes of 
Section 117 when a license or agreement imposes restrictions on the use 
of the computer program and has concluded that the state of the law is 
unclear. The Register cannot determine whether most mobile phone owners 
are also the owners of the copies of the computer programs on their 
mobile phones. However, based on the record in this proceeding, the 
Register finds that the proponents of the class have made a prima facie 
case that mobile phone owners are the owners of those copies. While the 
wireless networks have made a case that many mobile phone owners may 
not own the computer program copies because the wireless network's 
contract with the consumer retains ownership of the copies, they have 
not presented evidence that this is always the case even if their 
interpretation of the law governing ownership is correct. The record 
therefore leads to the conclusion that a substantial portion of mobile 
phone owners also own the copies of the software on their phones.
    The Register also concludes that when the owner of a mobile makes 
RAM copies of the software in order to operate the phone - even if she 
is operating it on another network - she is making a noninfringing use 
of the software under Section 117 because the making of that copy is an 
essential step in the utilization of that software in conjunction with 
a machine.
    Similarly, the making of modifications in the computer program in 
order to enable the mobile phone to operate on another network would be 
a noninfringing act under Section 117. As a general rule, anyone who 
wishes to switch her mobile phone from one network to another must 
alter some information embedded in the device. However, in a 
substantial number of cases those alterations do not appear to 
implicate Section 117 because the elimination and insertion of codes or 
digits, or completely reflashing a phone, cannot be considered an 
infringement of the computer program controlling the device. When 
specific codes or digits are altered to identify the new network to 
which the phone will connect, those minor alterations of data also do 
not implicate any of the exclusive rights of copyright owners. And 
complete reflashing does not even constitute circumvention of an access 
control because it actually deletes the copy of the entire work that 
had been protected by the access control, thereby permanently denying 
access to that work.
    In those cases where more substantial changes must be made to the 
computer program in order to enable use of the mobile phone on another 
network, those changes might implicate the exclusive right to prepare 
derivative works. However, those changes would be privileged under 
Section 117, which permits the making of ``a new copy or adaptation'' 
that is created as an essential step in the utilization of the computer 
program in conjunction with a machine.
    Section 1201(a)(1)(C) factors. As was the case in 2006, the 
Register finds that the four factors enumerated in Section 
1201(a)(1)(C)(i)-(iv) do not weigh either in favor of or against 
designation of the proposed class of works. Moreover, because it 
appears that the opposition to designating the proposed class is based 
primarily on the desires of wireless carriers to preserve an existing 
business model that has little if anything to do with protecting works 
of authorship, it is appropriate to address the additional factor 
(``such other factors as the Librarian considers appropriate'') set 
forth in Section 1201(a)(1)(C)(v). It seems clear that the primary 
purpose of the locks is to keep consumers bound to their existing 
networks, rather than to protect the rights of copyright owners in 
their capacity as copyright owners. This observation is not a criticism 
of the mobile phone industry's business plans and practices, which may 
well be justified for reasons having nothing to do with copyright law 
and policy, but simply a recognition of existing circumstances. Because 
there appear to be no copyright-based reasons why circumvention under 
these circumstances should not be permitted, the Register recommends 
that the Librarian designate a class of works similar to the class 
designated in 2006.
    The Register notes that the 2006 class, and the new one designated 
herein, are both narrow, apply only to claims under Section 1201(a)(1), 
and do not establish a general federal policy of ensuring that 
customers have the freedom to switch wireless communications service 
providers. The designated classes, both new and old, simply reflect a 
conclusion that unlocking a mobile phone to be used on another wireless 
network does not ordinarily constitute copyright infringement and that 
Section 1201(a)(1), a statute intended to protect copyright interests, 
should not be used to prevent mobile phone owners from engaging in such 
noninfringing activity.
    NTIA supported designation of a class similar to the class 
designated in 2006, but proposed that while non-profit entities should 
be permitted to take advantage of the exemption, commercial users 
should not. The Register's recommendation, in contrast, would permit 
some commercial activity, so long as it (1) involves only used 
handsets, (2) is done by the owner of the copy of the computer program, 
and (3) is done ``solely in order to access such a wireless 
telecommunications network and access to the network is authorized by 
the operator of the network.'' The Register believes that these 
limitations ensure that the designation of this class will not benefit 
those who engage in the type of commercial activity that is at the 
heart of the objections of opponents of the proposed class: the ``bulk 
resellers'' who purchase new mobile phone

[[Page 43832]]

handsets at subsidized prices and, without actually using them on the 
networks of the carriers who market those handsets, resell them for 
profit. The type of commercial activity that would be permitted would 
be the resale of used handsets after the owners of the handsets have 
used them and then given or sold them to somebody else, who then 
resells them just as a used bookstore sells used books. The Register 
acknowledges that NTIA's general view that the class should not extend 
to any commercial activity is inconsistent with aspects of the 
Register's recommendation, but believes that to the extent her 
recommendation goes beyond what NTIA was willing to endorse, it does so 
in a way that, in NTIA's words, ``prevents unlawful use by those that 
would misuse the exemption for commercial purposes.''
    However, the applicability of the proposed class to commercial 
recyclers, such as the ones who had proposed the original class of 
works, is limited. When the commercial recycler has made a derivative 
work that is within Section 117's privilege for making ``adaptations,'' 
the recycler is subject to a significant limitation contained within 
Section 117: such adaptations may be transferred only with the 
authorization of the copyright owner. Thus, a recycler who prepares 
such an adaptation may not transfer ownership of the copy of the 
adapted computer program to anybody else without the authorization of 
the copyright owner. On the other hand, a recycler who has not prepared 
an adaptation is free to resell the mobile phone along with the copy of 
the computer program contained within it.
    The new class is also cabined by existing law in two important 
respects. First, as with any regulation under Section 1201(a)(1)(C) and 
(D), the designation of this class offers no safe harbor from liability 
under Section 1201(a)(2) which strictly prohibits an entity from 
offering a circumvention service. Second, a wireless carrier's ``Terms 
of Purchase'' and ``Terms of Service'', which are binding contracts, 
still impose use restrictions on consumers notwithstanding the 
designation of this class. However, the wireless carrier must seek a 
remedy by asserting a claim of breach of contract, and not a claim 
under Section 1201(a)(1).
D. Video games accessible on personal computers and protected by 
technological protection measures that control access to lawfully 
obtained works, when circumvention is accomplished solely for the 
purpose of good faith testing for, investigating, or correcting 
security flaws or vulnerabilities, if:
    The information derived from the security testing is used 
primarily to promote the security of the owner or operator of a 
computer, computer system, or computer network; and
    The information derived from the security testing is used 
or maintained in a manner that does not facilitate copyright 
infringement or a violation of applicable law.
    Professor J. Alex Halderman proposed two classes of works relating 
to investigating and correcting security flaws or vulnerabilities 
created or exploited by technological measures protecting certain kinds 
of works. The Register concludes that Halderman has made the case for a 
class pertaining to video games, but has not made the case for a 
broader class pertaining to literary works, sound recordings and 
audiovisual works.
    In each case, Halderman qualified the scope of the proposed class 
by restricting it to (1) lawfully obtained works protected by access 
control measures that create or exploit security flaws or 
vulnerabilities that compromise the security of personal computers, and 
(2) cases where circumvention is accomplished solely for the purpose of 
good faith testing, investigating, or correcting such security flaws or 
vulnerabilities.
    In the current proceeding, Halderman did not present any evidence 
that the prohibition on circumvention is adversely affecting or is 
likely, in the next three years, to adversely affect the ability to 
engage in noninfringing uses of sound recordings or audiovisual works, 
or of literary works except to the extent that video games may be 
considered, in part, to constitute audiovisual works associated with 
such sound recordings. There is no information in the record that would 
justify again exempting the class designated three years ago.
    However, Halderman did present evidence and legal analysis in 
support of a class of works limited to video games. Under Section 
102(a) of the Copyright Act, video games are ``hybrid'' in that they 
fall within two statutory classes of works. Video games typically are, 
in part, computer programs, which are a subset of the statutory 
category of ``literary works.'' The evidence related to two types of 
access controls applied to video games: Macrovision's SafeDisc software 
and Sony's SecuRom software. Halderman asserted that the measures 
constitute access controls because, in both cases, the measures 
authenticate discs and enforce access policies.
    The alleged underlying noninfringing use involved is two-fold. 
First, purchasers of video games (including researchers) are engaged in 
noninfringing use when they install, access, and play authorized copies 
of such video games while further seeking to protect the security of 
their computers. Second, researchers in lawful possession of copies of 
games are engaged in noninfringing uses when they seek solely to 
research and investigate whether a video game, or the technological 
measure protecting it, creates security vulnerabilities or flaws. 
Professor Halderman asserted that such good faith research that does 
not cause or promote infringement generally constitutes fair use.
    Halderman alleged that SecuROM may create security flaws or 
vulnerabilities. He referred to a number of articles and class action 
lawsuits suggesting that SecuROM may contain flaws or cause 
vulnerabilities. He further stated that a single definitive scientific 
study might quell the ``panic, protests, and litigation'' to ``what may 
turn out to be nonexistent or easily reparable faults.''
    Halderman also alleged that harm is caused by Macrovision's 
SafeDisc. He alleged that SafeDisc was pre-installed on ``nearly every 
copy of the Microsoft Windows XP and Windows 2003 operating systems, 
[and that] the vulnerability affected nearly one billion PCs, two 
thousand times more than the [Sony] rootkit,''`` the security 
vulnerability that serviced as the factual basis for designating a 
class in the last rulemaking. He claimed that the security flaw created 
by SafeDisc was much more dangerous than the Sony rootkit flaw involved 
in the previous rulemaking that concluded in 2006, because this flaw 
allowed attackers to execute unrestricted `kernel-level' code and read 
or write to any area of the hard disk or memory of the PC, thus 
facilitating the complete compromise of the security of the PC.
    Opponents raised three principal arguments against Halderman's 
proposal. First, they argued that he provided little concrete or 
documented evidence that any security flaws or vulnerabilities 
associated with access control mechanisms used in connection with video 
games exist. Second, they argued that there is no evidence that 
research has been chilled, pointing to

[[Page 43833]]

what they called a robust ecosystem within which security experts 
routinely identify such flaws, collaborate on remedies, and disseminate 
information to alert computer users of the problems and them to 
solutions. Third, they argued that Professor Halderman failed to 
establish that the conduct at issue is prohibited by Section 
1201(a)(1), since a statutory exemption (in particular, 17 U.S.C. 
1201(j) might apply to the security research.
    NTIA has advised the Register that he believes the record supports 
designating the requested class relating to video games and other works 
accessible on personal computers. NTIA believed that the proponents 
have ``persuasively argued that without a research exemption, research 
into all current and future vulnerabilities will be and is chilled 
now,'' and concurred with the Librarian's conclusion in 2006 that the 
research may not be covered completely by the existing statutory 
exemptions. NTIA further believes that although the Sony Rootkit 
vulnerability no longer exists, ``it seems to be a certainty that new 
vulnerabilities will emerge in the next three years.''
    Overall, the Register has concluded that the factors set forth in 
17 U.S.C. 107 tend to strongly support a finding that such good faith 
research constitutes fair use. The socially productive purpose of 
investigating computer security and informing the public do not involve 
use of the creative aspects of the work and are unlikely to have an 
adverse effect on the market for or value of the copyrighted work 
itself. The proponents established an underlying noninfringing use.
    The next question is whether the prohibition is causing an adverse 
effect on such noninfringing uses. The record is essentially limited to 
SecuRom and SafeDisc. The evidence relating to SecuRom tends to be 
highly speculative, but Professor Halderman asserted that ``this 
situation has been crying out for an investigation by reputable 
security researchers in order to rigorously determine the nature of the 
problem that this system cause[s], and dispel this uncertainty about 
exactly what's going on.'' He believed that the prohibition on 
circumvention is at least in part to blame for the lack of rigorous, 
independent analysis.
    In contrast to SecuROM, SafeDisc has created a verifiable security 
vulnerability on a large number of computers. Opponents of the proposed 
class did not dispute that SafeDisc created a security vulnerability, 
but they argued that the security flaw was patched by Microsoft in 
2007, without the need of an exemption. However, SafeDisc was pre-
loaded on nearly every copy of Microsoft's Windows XP and Windows 2003 
operating systems and was on the market for over six years before a 
security researcher discovered malware exploiting the security. The 
vulnerability had the capacity to affect nearly one billion PCs.
    The record supports the conclusion that since the 2006 rulemaking, 
substantial vulnerabilities have existed with respect to video games - 
certainly with respect to SafeDisc and possibly with respect to 
SecuROM. Within the same class of works, security researchers have 
proposed investigation of unconfirmed allegations of security 
vulnerabilities on another technological protection measure (SecureROM) 
that protects access, but have expressed unwillingness to do so without 
clear legal authority. Aggregating the evidentiary record, the 
proponents have shown that they need to be able to fix flaws that are 
identified in this class of works and they need to be able to 
investigate other alleged security vulnerabilities in this class.
    Opponents argued that there may be no need to designate a class in 
this proceeding because circumvention may already be excused pursuant 
to Section 1201(j), which provides an exemption for security testing. 
However, the Register has concluded, as she did three years ago, that 
it is unclear whether Section 1201(j) applies in cases where the person 
engaging in security testing is not seeking to gain access to, in the 
words of Section 1201(j), ``a computer, computer system, or computer 
network.'' Therefore, it is appropriate to designate a class of works 
in this proceeding.
    Section 1201(j) does, however, influence both the decision to 
recommend designation of a class and the decision on how to fashion the 
class. Section 1201(j) is evidence of Congress's general concern to 
permit circumvention under appropriate circumstances for purposes of 
security testing, and it also is evidence of the conditions Congress 
believes should be imposed on those who take advantage of an exemption 
for security testing. Accordingly the Register recommends that the 
Librarian designate a class of video games protected by access 
controls, when circumvention is done for the purpose of good faith 
testing for, investigating, or correcting security flaws or 
vulnerabilities. Further refinements to the class include a requirement 
that the information derived from the testing be used primarily to 
promote the security of the owner or operator of a computer, computer 
system, or computer network; and a requirement that that information be 
used or maintained in a manner that does not facilitate copyright 
infringement or a violation of applicable law.
E. Computer programs protected by dongles that prevent access due to 
malfunction or damage and which are obsolete. A dongle shall be 
considered obsolete if it is no longer manufactured or if a replacement 
or repair is no longer reasonably available in the commercial 
marketplace.
    Three years ago, the Librarian designated the above-referenced 
class of works, which is similar to classes of works designated in each 
of the previous rulemakings. In the current proceeding the proponent of 
that class, Joseph V. Montoro, Jr., on behalf of Spectrum Software, 
Inc., has proposed an expanded class of works related to dongles. 
Dongles are a type of hardware that attach to either the printer port 
or the USB port of a computer in order to make secured software 
function. Montoro stated that dongles are sold along with certain types 
of software and are necessary for the user to access that software on a 
computer. He further explained that in order for the dongle to operate 
properly, the operating system must support the hardware and the 
required device driver must be installed. Montoro submitted that there 
are four situations where an exemption is necessary to rectify actual 
harm: (1) when dongles become obsolete; (2) when dongles fail; (3) 
where there are incompatibilities between the dongle and the operating 
system, and (4) where there are incompatibilities between the dongle 
and certain hardware. Montoro had stressed that his proposal is as much 
about the computer ecosystem as it is about dongles, in particular. He 
said that it is important to realize that the dongle, the operating 
system software and the computer hardware work in tandem and that the 
proposed class necessarily covers all of these parts.
    Representatives of the computer software industry stated that they 
do not oppose renewing the existing class of works, but object to 
expanding it beyond its current terms.
    As in 2006, the Register finds that the case has been made for 
designation of a class of works protected by dongles. Montoro has 
effectively met his burden of proof for a class relating to dongles 
that are malfunctioning or damaged and that are obsolete, a point on 
which there is no disagreement in the record. When the dongle no longer 
functions and is obsolete, there is a substantial adverse effect on 
noninfringing uses because there is no other means to access the

[[Page 43834]]

lawfully acquired software. When a dongle malfunctions or becomes 
obsolete, a person lawfully entitled to access the software should be 
able to rely on self-help if remedial measures are not reasonably 
available in the commercial marketplace. Moreover, the record reveals 
no evidence of harm to the market for, or value of, copyrighted works 
protected by dongles since the designation of the original class of 
works in 2000.
    The class, however, should not include cases where a replacement 
dongle is reasonably available or can be easily repaired. Some 
copyright owners legitimately use dongles to control access to a 
computer program by unauthorized users and are entitled to the full 
benefit of the prohibition as long as reasonable accommodations are 
offered for malfunctioning or damaged dongles. Montoro has not 
demonstrated that the standard previously applied - reasonably 
available in the marketplace - is insufficient to meet the needs of 
users of copyrighted works whose dongles malfunction or are damaged.
    Montoro also argues that the current class should be expanded to 
reach situations involving incompatibility between the dongle and a new 
or upgraded version of an operating system. The Register finds that he 
has failed to submit cogent evidence to support an expanded class in 
this context. A sufficient record would require more detail about the 
precise cause of the problems, the scope of the problem, and the 
noninfringing means available to resolve the problem.
    The evidence presented in the record also does not support 
Montoro's request to expand the class in relation to obsolete hardware, 
specifically parallel ports on computers. While it appears to be the 
case that parallel ports may be obsolescent, there is insufficient 
evidence in the record to support the conclusion that parallel ports 
are currently, or in the next three years will be, obsolete. In order 
to make a case for an expanded class in relation to obsolete hardware, 
Montoro would have to demonstrate that the hardware is, or is likely to 
be, obsolete in the next three year period (either as a pre-installed 
item or as an optional configuration), that the unavailability of this 
obsolete hardware would adversely affect noninfringing uses, and that 
copyright owners are not meeting the legitimate needs of existing 
users.

IV. Other Classes Considered, but Not Recommended

A. Subscription based services that offer DRM-protected streaming video 
where the provider has only made available players for a limited number 
of platforms, effectively creating an access control that requires a 
specific operating system version and/or set of hardware to view 
purchased material; and Motion pictures protected by anti-access 
measures, such that access to the motion picture content requires use 
of a certain platform.
    Two proposals sought designation of classes of works that would 
allow circumvention of technological protection measures in order to 
provide access to motion pictures on platforms other than those 
authorized by content providers or their licensees.
    Megan Carney proposed a class of works in order to allow 
circumvention of DRM-protected streaming videos offered by subscription 
based services, where the provider has made players available only for 
a limited number of platforms. She argued that this restriction of 
viewing options effectively constitutes an access control by requiring 
a specific operating system version and/or set of hardware to view 
purchased material. She sought to use Netflix's ``Watch Instantly'' 
streaming video feature, which installs digital rights management and 
runs only on certain platforms of computer software and hardware. 
``Watch Instantly'' is included, at no charge, in the monthly Netflix 
membership, but Carney said that she is unable to use it because she 
does not own a computer that operates on a compatible platform (PCs 
running Windows or Apple computers with Intel chips). Carney proposed 
that the Librarian designate a class or works in order to allow a user 
in her situation to create a separate program to circumvent the DRM on 
the streaming service system in order to view streaming video content 
made available by Netflix.
    Another proponent, Mark Rizik, proposed a class of works to allow 
the circumvention of motion pictures on DVDs protected by the CSS 
access control system, which requires the use of a certain platform for 
access. Specifically, Rizik would like to view, on a Linux-based 
computer that does not have a CSS-licensed video player, DVDs that are 
only viewable on CSS-licensed players. Rizik sought designation of a 
class in order to permit the creation of an unencrypted digital copy of 
the DVD by decrypting and extracting contents of DVDs for personal 
viewing purposes on Linux operating systems.
    The Motion Picture Association of America, Time Warner, and a 
coalition of copyright industry trade associations (the ``Joint 
Creators'') opposed these requests. NTIA has advised that it believes 
that the record does not support granting the requests.
    The proponents of both classes of works sought to circumvent the 
access controls because, they contended, it is too expensive to acquire 
the hardware and software with the minimum requirements necessary to 
view motion pictures on the distribution mechanism of their choice. 
They also argued that there are no reasonable, noninfringing 
alternatives to circumvention for those wishing to engage in the 
activity affected by these platform requirements.
    Similar classes to those proposed by Carney and Rizik have been 
requested and denied in the past three rulemakings. Although the 
streaming video proposal presents a new factual situation, the Register 
concludes that the legal arguments are fundamentally similar to the 
proposals relating to the viewing of DVDs on computers with Linux 
operating systems that were advanced in the previous three rulemakings, 
when those proposals were rejected. Likewise, arguments for the 
streaming video and Linux classes fail for fundamentally the same 
reasons as the earlier Linux proposals, and the Register cannot 
recommend that the Librarian designate either of these proposed classes 
of works.
    In these rulemakings, proposed classes have regularly been rejected 
in cases where a user who wished to engage in a noninfringing use of a 
work using a particular device already had the ability lawfully to 
engage in the same noninfringing use of the work using a different 
device. The same principle applies here. Alternative means exist to 
gain access to and view the motion pictures that Carney and Rizik wish 
to view after circumventing access controls. In any event, it is 
unclear from the record regarding streaming videos what is actually 
prohibiting Carney from being able to access the Netflix ``Watch 
Instantly'' feature and, in particular, whether the technological issue 
is centered around an access control. It cannot be discerned from the 
record whether Carney cannot gain access due to digital rights 
management or due to software and/or hardware incompatibility.
    Regarding DVD circumvention, many operating systems on the market 
enable authorized access to the works contained on CSS-protected DVDs. 
Moreover, CSS-compatible DVD players are in fact available for some 
Linux systems.

[[Page 43835]]

    Further, many alternatives exist for both Carney and Rizik, 
including other streaming video alternatives and online content 
download sites. There are many reasonably-priced alternatives that may 
fulfill consumers' wants and needs, including purchasing a DVD player. 
Mere consumer inconvenience is not sufficient to support the 
designation of a class of works. The statute does not provide that this 
rulemaking is to enable the most convenient method of consuming video 
content. The proponents have merely advanced requests in order to 
satisfy their convenience and preferences as to how they would like to 
access media and have failed to demonstrate a need for remedial action. 
Accordingly, the Register cannot recommend the Librarian designate 
either proposed class in light of the alternatives that exist in the 
marketplace today.
B. Lawfully purchased sound recordings, audiovisual works, and software 
programs distributed commercially in digital format by online music and 
media stores and protected by technological measures that depend on the 
continued availability of authenticating servers, when such 
authenticating servers cease functioning because the store fails or for 
other reasons; and
    Lawfully purchased sound recordings, audiovisual works, and 
software programs distributed commercially in digital format by online 
music and media stores and protected by technological measures that 
depend on the continued availability of authenticating servers, prior 
to the failure of the servers for technologists and researchers 
studying and documenting how the authenticating servers that effectuate 
the technological measures function.
    Christopher Soghoian of the Berkman Center for Internet & Society 
at Harvard University has proposed two classes of works to allow the 
circumvention of technological measures that depend on the continued 
availability of authenticating servers (or ``DRM servers'') for the 
following uses: (1) by consumers, for access to and ordinary enjoyment 
of purchased works, and (2) by technologists and researchers, 
documenting the function of the technological measures. The 
technological measures in question regulate user access to copyrighted 
works via connections to remote online authenticating servers, and 
therefore always require that the server be operational; if the server 
is shut down, the authentication process cannot take place and access 
for the user will be denied.
    Joint Creators and Time Warner opposed Soghoian's requests, and 
NTIA has advised the Register that it believes that the record does not 
support them.
    Soghoian's first proposal, regarding DRM servers that control 
access to lawfully purchased sound recordings, audiovisual works and 
software programs, was based upon several recent instances where 
``online music and media stores'' that tethered their commercial 
distribution of digital works to DRM servers ceased operations. The 
proposal would not permit circumvention of operational DRM servers, but 
would cover only situations in which the particular authentication 
server has ceased to function. Soghoian argued that when the DRM 
servers malfunction or are shut down by their operators, consumers lose 
the ability to engage in the legitimate, noninfringing usage of content 
that they lawfully purchased and reasonably expected to continue using. 
However, there is no evidence that such a loss of rights has actually 
occurred thus far.
    Soghoian argued that, given the record he presents of digital media 
stores shutting down their DRM servers, and given the increased 
migration of customers from physical CDs to downloads, it is likely 
that in the next three years at least one DRM-media store and/or its 
authenticating servers will shut down, adversely affecting the ability 
to engage in noninfringing use of the protected works by those who 
purchased them. He proposed that exempting circumvention of DRM server 
technology after a server has stopped functioning is a reasonable 
remedy for these adverse effects under three of the four Section 
1201(a)(1)(C) factors.
    The Register cannot recommend this proposed class for the simple 
reason that the proponent has not sustained his burden of demonstrating 
that the prohibition on circumvention of access controls either has 
produced, or is likely to produce, any adverse effects on noninfringing 
uses of the proposed class of works. Here, no such instances of adverse 
effects have been shown. If, in the absence of current adverse effect, 
designation of a class of works is to be based solely upon anticipated 
harm, ``the evidence of likelihood of future adverse impact during that 
time period [must be] highly specific, strong and persuasive.'' 
Evidence of such a compelling nature is lacking here as well.
    The fundamental question in evaluating this proposal is whether the 
adverse effects complained of by the proponent, ``DRM-based stores that 
cease to operate or abandon their authenticating server system cause 
their customers to lose full, and often any, access to, and thus use 
of, their lawfully purchased works,'' are real, verifiable and 
reasonably likely to recur. There are several persuasive reasons in the 
record to answer this question in the negative.
    Regarding the three categories of copyrighted works that Soghoian 
identified in his proposal, he presented no information that one of 
them, software in this instance, is even being sold by online retailers 
using authentication servers. Thus, the Register's review of adverse 
effects must be restricted to sound recordings and audiovisual works. 
Soghain asserts that such works were sold by two entities, Circuit City 
and Google, who, upon deciding to withdraw from the market, fully 
refunded their customers' purchase costs. In his testimony, Soghoian 
stated that he was willing to narrow the proposed class to permit 
circumvention only ``in the event that the service does not provide any 
remedy for consumers.'' He further stated that a ``refund is a totally 
appropriate and satisfactory remedy.'' Since the record of DRM-
protected audiovisual works reveal only two defunct services and 
reveals that both provided acceptable remedies, there is no reason for 
the Register to consider this category of works in her determination.
    With regard to sound recordings, of the three retailers who stopped 
selling DRM-protected works, Yahoo Music has provided full refunds. The 
two others, MSN Music and Walmart, announced in response to consumer 
backlash that they would keep their servers operational. The record 
demonstrates that, thus far, there have been no adverse effects on the 
noninfringing use of DRM-protected sound recording downloads since 
purchasers retain identical access and use abilities.
    Soghoian's proposed class focused more on future harm, arguing that 
``there is no reason to believe that other companies or services that 
fail or are shut down in the future will provide similar corrective 
steps.'' He predicted that companies smaller than Microsoft and Walmart 
will not have the resources to provide refunds or keep authentication 
servers operating and that given the state of the economy, more 
companies will be jettisoning their DRM-protected music businesses and 
may decide simply to deactivate their authentication servers without 
advance warning. This appears to be pure conjecture. Soghoian presented 
no evidence supporting his claim that if another online retailer 
decides to

[[Page 43836]]

disable its authentication server, it will leave affected consumers 
without a remedy. To the contrary, the record shows that the two 
companies (MSN Music and Walmart) that have discontinued their services 
are still keeping the servers operational. Thus, the prediction that, 
within the next three years, consumers will be prevented from accessing 
and using DRM-protected works due to the cessation of operations by an 
authentication server is purely hypothetical.
    The Register therefore recommends rejection of this proposed class.
    Soghoian's second proposal relates to circumvention of the same DRM 
servers controlling access to the same categories of works as his first 
proposal. However, instead of being for the direct benefit of 
consumers, it would aid ``technologists and researchers studying and 
documenting how the authenticating servers that effectuate the 
technological measures function.'' Such study and documentation, the 
proposal states, would take place ``prior to the failure of the 
servers.'' This is intended to support Soghoian's first proposed user 
class by providing consumers with documentation about how DRM servers 
function, so that they can actually understand how to engage in 
circumvention of works in his first proposed class.
    Soghoian's legal argument in support of the ``researcher'' class 
rested upon a comparison with a similar class relating to ``rootkits'' 
that was designated in the 2006 rulemaking, where the Librarian 
designated a class to permit circumvention technological measures that 
(1) control access to lawfully purchased sound recordings and 
associated audiovisual works on CDs and (2) create or exploit security 
flaws or vulnerabilities that compromise the security of personal 
computers, when circumvention is accomplished solely for the purpose of 
good faith testing, investigating, or correcting such security flaws or 
vulnerabilities. Soghoian's proposal focused on the purpose of the 
existing ``rootkit'' class, contending that because his researcher 
class is also intended solely for good faith testing, investigation, 
and correction, it too meets the requirements for exemption from the 
anti-circumvention statute. He did point out, however, that the cases 
of failed DRM and copy protection systems do not easily fit into the 
category of ``security flaw or vulnerability.''
    Soghoian's proposed ``research'' class of works ultimately rests 
upon the same speculative argument as his ``user'' class. Since the 
record makes clear that the purpose of designating the research class 
is to facilitate circumvention of works in the ``user'' class, the 
arguments supporting the research class fail on the same basis as those 
supporting the user class. Accordingly, the Register recommends the 
rejection of this proposed class.
C. Software and information recorded, produced, stored, manipulated or 
delivered by the software, that a forensic investigator seeks to copy, 
activate, or reverse engineer in order to obtain evidence in a court 
proceeding.
    Glenn Pannenborg proposed designating a class of works for the 
benefit of forensic investigators (i.e., court-appointed evidence 
examiners) seeking evidence in a court proceeding. According to 
Pannenborg, forensic examiners practicing in the fields of financial or 
information technology may be faced with evidence that is recorded, 
produced, stored, manipulated or delivered by software covered under 17 
U.S.C. 1201, or evidence that may be the software itself, as in a 
patent or licensing dispute. He asserted that in order to obtain access 
to such evidence, a forensic investigator may have to circumvent a 
technological protection measure in violation of Section 1201(a)(1)(A).
    Joint Creators opposed Pannenborg's proposal, and NTIA has advised 
the Register that it believes the record does not support granting the 
request.
    The Register finds that the proponent in this case has not met the 
statutory burden of proof. Pannenborg failed to intelligibly describe 
the nature of authorship of the proposed class of works. Moreover, he 
presented no compelling evidence, and provides no concrete examples, 
that noninfringing uses of works in the proposed class have been or 
will be affected by the circumvention ban. Indeed, he provided little 
information about the works to which he has apparently been denied 
access. Because of the lack of such information in the record, an 
evaluation of whether and the extent to which the prohibition on 
circumvention caused an adverse effect on noninfringing uses was not 
possible. The Register, therefore, declines to recommend that the 
Librarian designate this proposed class of works.
D. Audiovisual works delivered by digital television (``DTV'') 
transmission intended for free, over-the-air reception by anyone, which 
are marked with a ``broadcast flag'' indicator that prevents, 
restricts, or inhibits the ability of recipients to access the work at 
a time of the recipient's choosing and subsequent to the time of 
transmission, or using a machine owned by the recipient but which is 
not the same machine that originally acquired the transmission.
    In the 2006 rulemaking, a number of commenters sought the 
designation of classes of works that target broadcast flags for 
television and radio broadcasts, noting that such restrictions could 
possibly interfere with the personal recording of digital broadcast 
content for time-shifting and format-shifting purposes. The Register 
rejected those requests, stating that there was no broadcast flag 
mandate in effect for either television or radio at that time and 
concluding that no relief could be granted based upon non-existent 
regulations. The broadcast flag can be described as a digital code 
embedded in a digital television (``DTV'') broadcasting stream, which 
prevents digital television reception equipment from redistributing 
broadcast content. The FCC had broadcast flag restrictions, but they 
were overturned by the United States Court of Appeals for the District 
of Columbia Circuit.
    In the current proceeding, Matt Perkins proposed a new ``broadcast 
flag'' class based upon the belief that broadcasters and copyright 
owners will experiment with copy protection measures to restrict the 
recording of broadcast television content after the completion of the 
transition to DTV. He asserted that consumers will experience 
frustration if their television recording privileges are in any way 
restricted.
    The National Association of Broadcasters (``NAB'') opposed this 
request, and NTIA advised the Register that it believes the record does 
not support the request.
    Perkins has failed to make his case for designating the proposed 
class. He has generally stated that a broadcast flag would interfere 
with the recording of digital television programming for personal use. 
However, he has not met his burden of proof in showing that regulatory 
action by the Librarian is warranted. There is no broadcast flag 
mandate for digital television broadcasts in effect, and it is highly 
speculative as to whether broadcasters and copyright owners will work 
to implement measures to restrict consumer recording privileges in the 
new DTV era.

[[Page 43837]]

    In addition, the record does not indicate that there currently are 
any devices that include broadcast flags. Furthermore, Perkins' theory 
in support of his request lacks any explanation or justification as to 
what noninfringing use would be prevented by the prohibition on 
circumvention with respect to the broadcast flag and fails to provide 
evidence that actual harm exists or that it is ``likely'' to occur in 
the ensuing three year period. The proposed class is also misguided 
because it affects redistribution of content and does not appear to be 
related to an access control technology measure for purposes of Section 
1201(a)(1). For the reasons stated above, the Register cannot recommend 
that the proposed request be granted.
E. Audiovisual works embedded in a physical medium (such as Blu-ray 
discs) which are marked for ``down-conversion'' or ``down-
resolutioning'' (such as by the presence of an Image Constraint Token 
``ICT``) when the work is to be conveyed through any of a playback 
machine's existing audio or visual output connectors, and therefore 
restricts the literal quantity of the embedded work available to the 
user (measured by visual resolution, temporal resolution, and color 
fidelity).
    Matt Perkins proposed a class of works based on audiovisual works 
embedded in Blu-ray discs. He stated that the Blu-ray disc's data 
structure allows a disc publisher to assign an image constraint token 
to an audiovisual work. He further explained that a licensed Blu-ray 
disc player responds to that token by ``down-rezzing'' the electronic 
video signal when conveyed over an ``untrusted'' analog connection 
(i.e., a trio of RCA cables). He asserted that no such constraints 
occur when the signal is conveyed over the preferred, ``trusted'' 
digital pathway (High-Definition Multimedia Interface [``HDMI''] 
incorporating High-bandwidth Digital Content Protection [``HDCP'']). He 
argued that ICT denies access to discarded video details until a 
condition is satisfied (HDMI connectivity), and therefore that ICT 
qualifies as an access control measure under Section 1201. He admitted 
that there is little evidence that ICTs are currently embedded in 
available Blu-ray discs, but nevertheless asserted that the possible 
inclusion of an image constraint token will cause user frustration 
because program content will not be seen in the promised high 
definition format.
    Advanced Access Content System Licensing Administrator, LLC (``AACS 
LA'') opposed the request, and NTIA has advised the Register that it 
believes the record does not support granting the request.
    Perkins' request cannot withstand scrutiny. He has failed to meet 
his burden of proof demonstrating that relief is warranted with regard 
to the willful down-conversion of high definition programming recorded 
on Blu-ray discs. He has not shown that the prohibition on 
circumvention has had or is likely to have a substantial adverse effect 
on a clearly identifiable noninfringing use. Similarly, he has not 
demonstrated the existence of actual harm, or the likelihood of future 
harm that designation of the proposed class would necessarily rectify. 
Specifically, he has not provided evidence that ICTs are currently 
being used on Blu-ray discs to restrict users from accessing the 
highest resolution format offered by Blu-ray discs. Further, the 
request is unnecessary because the potential problem described by 
Perkins is a rapidly disappearing legacy issue related to early 
generation high definition televisions. The Register recommends that 
the proposed class of works be rejected.
F. Literary works distributed in ebook format when all existing ebook 
editions of the work (including digital text editions made available by 
authorized entities) contain access controls that prevent the enabling 
either of the book's read-aloud function or of screen readers that 
render the text into a specialized format.
    In 2006, the Librarian designated a class consisting of ``Literary 
works distributed in ebook format when all existing electronic book 
(``ebook'') editions of the work (including digital text editions made 
available by authorized entities) contain access controls that prevent 
the enabling either of the book's read-aloud function or of screen 
readers that render the text into a specialized format.'' The American 
Foundation for the Blind (``AFB''), which was the principal proponent 
of ebook exemptions in 2003 and 2006, has proposed that the Librarian 
redesignate the existing class to ensure that people who are blind or 
visually impaired are not excluded from the digital revolution in 
education, information and entertainment.
    In support of its proposal, AFB offered an examination of five 
ebooks, two which it tested in the PDF format and three which it tested 
in the Microsoft Lit format. AFB stated that of these five books, only 
one--or twenty percent of the sample--was accessible. In order to make 
its case, the AFB had to demonstrate that the prohibition on 
circumvention has adversely affected, or is likely to adversely affect, 
users' ability to make noninfringing uses of a particular class of 
works. There was no dispute that making an ebook accessible to blind 
and visually impaired persons is a noninfringing use. Therefore, the 
main question is whether the prohibition on circumvention of 
technological measures that control access has adversely affected the 
ability of blind and visually impaired persons to gain access to the 
literary content in ebooks.
    In short, the proponents surveyed five ebook titles and found that 
three (Brian's Hunt, The Bridges of Madison County, and The Einstein 
Theory of Relativity) were not accessible in editions published in the 
Microsoft Lit format, one (The Sign of the Fish) was not accessible in 
an edition published in the Adobe PDF format, and one (The Complete 
Works of Edgar Alan Poe Volume 1) was accessible in the Adobe PDF 
format. Thus, four out of the five titles sampled were available in 
formats that were not accessible.
    Proponents of the class presented no other factual information 
relating to whether (and the extent to which) the prohibition on 
circumvention actually has had an adverse effect on the ability of 
blind and visually impaired persons to engage in the noninfringing use 
of reading ebooks by using screen readers and the read-aloud function 
offered in many ebooks.
    Joint Creators did not oppose the request, but did question whether 
the prohibition on circumvention of access controls was to blame for 
the discrepancy between access for the fully sighted and access for the 
visually impaired. NTIA has advised the Register that it believes that 
an exemption based on this proposals should be renewed. NTIA did not 
state that the record supports granting the requested exemption; in 
fact, it observed that the case made by proponents is weak. 
Nevertheless, NTIA concluded that despite the limited level of 
information provided, it is persuaded that harm to these uses and users 
is likely to exist.
    In reviewing the evidence presented in support of designating the 
proposed class, the first issue that is readily apparent is that two of 
the five works examined by AFB (The Einstein Theory of Relativity and 
The Complete Works of Edgar Alan Poe Volume 1) are in the public 
domain. Section 1201 does not prohibit circumvention of a technological 
protection measure when it simply controls access to a public domain 
work; in such a case, it is lawful to circumvent the technological 
protection measure and there is no need

[[Page 43838]]

for an exemption. Thus, the two works in the public domain included in 
the tiny sample - forty percent of the entire sample - are irrelevant 
to the case for an exemption. Even though one of these two public 
domain works was found to be inaccessible, the prohibition on 
circumvention cannot be said to be adversely affecting uses of that 
work given that the prohibition does not apply to public domain works.
    Two of the other ebooks cited in support of designating the class -
- Brian's Hunt and The Bridges of Madison County, -- are alleged to be 
inaccessible in Microsoft Lit format. However, the proponents did not 
state whether those titles are accessible and available in other 
formats, such as the widely-used PDF format. Because the proposed 
class, like the classes approved in 2003 and 2006, requires that ``all 
existing ebook editions of the work (including digital text editions 
made available by authorized entities) contain access controls that 
prevent the enabling either of the book's read-aloud function or of 
screen readers that render the text into a specialized format,'' the 
evidence relating to these two titles is insufficient to justify the 
designation of the proposed class. If Brian's Hunt and The Bridges of 
Madison County are available in other editions that provide read-aloud 
and screen reader accessibility, then they are not examples of works 
justifying redesignation of the class. In failing to even check to see 
whether Brian's Hunt and The Bridges of Madison County are available in 
an accessible format, the proponents failed to meet their burden of 
proof with respect to those two titles.
    The final book offered as an example of inaccessibility was The 
Sign of the Fish, by Joann Klusmeyer. The proponents of the class 
stated that the book ``opened in Acrobat, but content was not 
accessible.'' Nothing was said about whether the book was also 
available in other formats (and, if so, whether those formats were 
accessible). Again, the proponents presented insufficient evidence to 
evaluate whether yet another of the limited number of titles in their 
sample was inaccessible in all ebook formats.
    Although the Register could recommend against designation of the 
proposed class based simply upon the proponents' failure to provide 
sufficient evidence to evaluate whether any of the three non-public 
domain books cited by the proponents are inaccessable in all ebook 
formats, the Register's staff conducted some additional research to 
determine whether the case could be made that any or all of those books 
are inaccessible in all formats. With respect to Brian's Hunt and The 
Bridges of Madison County, a quick review of the market revealed that 
both of these works are available as digital texts through 
Bookshare.org. However, The Sign of the Fish is not available in any 
edition that permits the enabling of the ebook read-aloud function or 
of screen readers. However, the Register cannot conclude that the 
prohibition on circumvention has had an adverse effect on the 
noninfringing use of reading ebooks with screen readers or the read-
aloud function when the evidence reveals the case is built upon a 
single obscure book.
    The Register fully supports universal accessibility to ebooks for 
the blind and visually impaired. However, the rulemaking established by 
Congress requires proponents to demonstrate, de novo, in each 
rulemaking proceeding, that relief relating to a particular class of 
works is warranted for the ensuing three-year period. The Register is 
sympathetic to the needs of the blind and visually impaired, and agrees 
that as a matter of policy, access to e-books for the visually impaired 
should be encouraged and that, when there is evidence that the 
prohibition on circumvention is having an adverse impact on that goal, 
an appropriate class of works should be designated in this rulemaking. 
The Register has not hesitated to recommend such classes when the 
record has supported such a recommendation. However, unless the burden 
of presenting a prima facie case is met, the statutory standard 
established for this rulemaking does not permit the designation of a 
class of works. Presenting strong policy arguments in favor of 
exempting a class of works from the prohibition on circumvention is 
only part of the battle that a proponent must wage; it is also 
necessary to provide sufficient facts to justify a finding that the 
prohibition actually is having or is likely to have an adverse effect 
on noninfringing uses.
    For all of the reasons set forth above, the Register finds no 
factual basis for designating the proposed class of works. While the 
Register's recommendations in previous rulemakings made clear that the 
Register understands and accepts the legal and policy reasons for such 
an exemption, the constraints established by Congress in this 
rulemaking proceeding do not permit the designation of a class of works 
in the absence of a factual record that supports the need for the 
designation. No such showing has been made in this proceeding.

IV. Conclusion

    Having considered the evidence in the record, the contentions of 
the parties, and the statutory objectives, the Register of Copyrights 
recommends that the Librarian of Congress publish the five classes of 
copyrighted works designated above, so that the prohibition against 
circumvention of technological measures that effectively control access 
to copyrighted works shall not apply to persons who engage in 
noninfringing uses of those particular classes of works.

    Dated: July 19, 2010
Marybeth Peters,
Register of Copyrights.
     Determination of the Librarian of Congress
    Having duly considered the recommendation of the Register of 
Copyrights as summarized above and having accepted that recommendation 
with respect to all but one of the classes of works under 
consideration, the Librarian of Congress is exercising his authority 
under 17 U.S.C. 1201(a)(1)(C) and (D) and is publishing as a new rule 
the six classes of copyrighted works that shall be subject to the 
exemption found in 17 U.S.C. 1201(a)(1)(B) from the prohibition against 
circumvention of technological measures that effectively control access 
to copyrighted works set forth in 17 U.S.C. 1201(a)(1)(A).
    The Librarian has considered but rejected the Register's 
recommendation with respect to the proposed class of works consisting 
of literary works distributed in ebook format. This class of works was 
proposed by the American Foundation for the Blind (AFB) and is 
identical to that for which an exemption was granted in 2006 and 
similar to the class for which an exemption was granted in 2003.
    The Librarian understands, and agrees with, the Register regarding 
the requirement that a decision on a proposed class of works be made 
based on the record developed in the rulemaking proceeding. In the view 
of the Librarian, the proposed exemption should be granted because: (1) 
the record includes statements on the likelihood of access not being 
available to blind individuals, (2) no one opposed the exemption, and 
(3) there are broad benefits to society in making works accessible to 
the visually impaired. The Librarian notes that, in contrast with its 
actions in both 2003 and 2006, the Copyright Office did not submit any 
post-hearing questions on this proposed exemption. Such development of 
the record would have been helpful. The Librarian also notes that the 
Assistant Secretary for Communications and Information of the 
Department of

[[Page 43839]]

Commerce, with whom the Register is required by Section 1201(a)(l)(C) 
to consult when she makes her recommendation, supports granting the 
exemption.
    Accordingly, the Librarian is designating the class of works 
relating to literary works distributed in ebook format.
    Notwithstanding the above, the Librarian is aware that, in the past 
two years, the Register and her legal staff have invested a great deal 
of time in analyzing the myriad of issues that combine to make it 
difficult for blind and print-disabled persons to obtain access to 
certain e-books. The Copyright Office has hosted comprehensive meetings 
with stakeholders, solicited public comment on the application of 
domestic and international law to accessibility, participated in 
interagency and intergovernmental meetings in Washington, DC and 
Geneva, and, with the World Intellectual Property Organization, co-
sponsored a major international training program for experts from 
developing countries. Through this work, the Register has come to 
believe that more general Congressional attention on the issue of 
accessibility is merited. I agree with the Register in this 
determination.
    The section 1201 process is a regulatory process that is at best 
ill-suited to address the larger challenges of access for blind and 
print-disabled persons. The exemption that the Librarian is approving 
here offers a solution to specific concerns that were raised in the 
narrow context of the rulemaking. Moreover, it is a temporary solution, 
as the 1201 process begins anew every three years.
    Outside of section 1201and the issue of technological protection 
measures, the Register has been examining whether copyright law, and to 
some extent related disabilities and education laws, adequately serve 
the blind and print-disabled population in the digital age. In 
particular, the Register has learned that, even where books are 
published electronically for the general public, the digital format 
used or licensed may be employed in a way that is incompatible with 
Braille readers and other assistive technologies on which blind and 
print-disabled persons rely. In the long run, this incompatibility may 
lead to delays, cost challenges and standards issues that may off-set 
the long-awaited benefits of digital media. Copyright and content 
issues cannot be divorced from the general goal of ensuring that 
hardware devices are designed with accessibility in mind. The Librarian 
fully supports the Register in her examination of these issues and 
urges Congress to work with the Copyright Office to consider 
accessibility beyond the contours of this 1201 rulemaking.

List of Subjects in 37 CFR 201

    Copyright, Exemptions to prohibition against circumvention.

Final Regulations

    For the reasons set forth in the preamble, 37 CFR part 201 is 
amended as follows:

PART 201-GENERAL PROVISIONS

0
1. The authority citation for part 201 continues to read as follows:

    Authority: 17 U.S.C. 702

0
2. Section 201.40 is amended by revising paragraph (b) to read as 
follows:

Sec.  201.40 Exemption to prohibition against circumvention.

* * * * *
    (b) Classes of copyrighted works. Pursuant to the authority set 
forth in 17 U.S.C. 1201(a)(1)(C) and (D), and upon the recommendation 
of the Register of Copyrights, the Librarian has determined that the 
prohibition against circumvention of technological measures that 
effectively control access to copyrighted works set forth in 17 U.S.C. 
1201(a)(1)(A) shall not apply to persons who engage in noninfringing 
uses of the following five classes of copyrighted works:
    (1) Motion pictures on DVDs that are lawfully made and acquired and 
that are protected by the Content Scrambling System when circumvention 
is accomplished solely in order to accomplish the incorporation of 
short portions of motion pictures into new works for the purpose of 
criticism or comment, and where the person engaging in circumvention 
believes and has reasonable grounds for believing that circumvention is 
necessary to fulfill the purpose of the use in the following instances:
    (i) Educational uses by college and university professors and by 
college and university film and media studies students;
    (ii) Documentary filmmaking;
    (iii) Noncommercial videos.
    (2) Computer programs that enable wireless telephone handsets to 
execute software applications, where circumvention is accomplished for 
the sole purpose of enabling interoperability of such applications, 
when they have been lawfully obtained, with computer programs on the 
telephone handset.
    (3) Computer programs, in the form of firmware or software, that 
enable used wireless telephone handsets to connect to a wireless 
telecommunications network, when circumvention is initiated by the 
owner of the copy of the computer program solely in order to connect to 
a wireless telecommunications network and access to the network is 
authorized by the operator of the network.
    (4) Video games accessible on personal computers and protected by 
technological protection measures that control access to lawfully 
obtained works, when circumvention is accomplished solely for the 
purpose of good faith testing for, investigating, or correcting 
security flaws or vulnerabilities, if:
    (i) The information derived from the security testing is used 
primarily to promote the security of the owner or operator of a 
computer, computer system, or computer network; and
    (ii) The information derived from the security testing is used or 
maintained in a manner that does not facilitate copyright infringement 
or a violation of applicable law.
    (5) Computer programs protected by dongles that prevent access due 
to malfunction or damage and which are obsolete. A dongle shall be 
considered obsolete if it is no longer manufactured or if a replacement 
or repair is no longer reasonably available in the commercial 
marketplace.
    (6) Literary works distributed in ebook format when all existing 
ebook editions of the work (including digital text editions made 
available by authorized entities) contain access controls that prevent 
the enabling either of the book's read-aloud function or of screen 
readers that render the text into a specialized format.

    Dated: July 20, 2010
James H. Billington,
The Librarian of Congress.
[FR Doc. 2010-18339 Filed 7-26-10; 8:45 am]
BILLING CODE 1410-30-S
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