[Federal Register Volume 65, Number 209 (Friday, October 27, 2000)]
[Rules and Regulations]
[Pages 64556-64574]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-27714]



[[Page 64555]]

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

Part V





Library of Congress





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



Copyright Office



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



37 CFR Part 201



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

Federal Register / Vol. 65, No. 209 / Friday, October 27, 2000 / 
Rules and Regulations

[[Page 64556]]


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

LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. RM 99-7D]


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

AGENCY: Copyright Office, Library of Congress.

ACTION: Final Rule.

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

SUMMARY: This rule designates the classes of copyrighted works that the 
Librarian of Congress has determined shall be subject to exemption from 
the prohibition against circumvention of a technological measure that 
effectively controls access to a work protected under title 17 of the 
U.S. Code. In title I of the Digital Millennium Copyright Act, Congress 
established that this prohibition against circumvention will become 
effective October 28, 2000. The same legislation directed the Register 
of Copyrights to conduct a rulemaking procedure and to make 
recommendations to the Librarian as to whether any classes of works 
should be subject to exemptions from the prohibition against 
circumvention. The exemptions set forth in this rule will be in effect 
until October 28, 2003.

EFFECTIVE DATE: October 28, 2000.

FOR FURTHER INFORMATION CONTACT: Charlotte Douglass or Robert Kasunic, 
Office of the General Counsel, Copyright GC/I&R, P.O. Box 70400, 
Southwest Station, Washington, DC 20024. Telephone (202) 707-8380; 
telefax (202) 707-8366.

SUPPLEMENTARY INFORMATION:

Recommendation of the Register of Copyrights

I. Background

A. Legislative Requirements for Rulemaking Proceeding

    The WIPO Copyright Treaty (WCT) and the WIPO Performances and 
Phonograms Treaty (WPPT) require that Contracting Parties provide 
adequate legal protection and effective legal remedies against the 
circumvention of effective technological measures that authors or other 
copyright owners (or, in the case of the WPPT, performers and producers 
of phonograms) use in connection with the exercise of their rights and 
that restrict acts which they have not authorized and are not permitted 
by law. \1\
---------------------------------------------------------------------------

    \1\ The treaties were adopted on December 20, 1996 at a World 
Intellectual Property Organization (WIPO) Diplomatic Conference on 
Certain Copyright and Neighboring Rights Questions. The United 
States ratified the treaties in September, 1999. The treaties will 
go into effect after 30 instruments of ratification or accession by 
States have been deposited with the Director General of WIPO.
---------------------------------------------------------------------------

    In fulfillment of these treaty obligations, on October 28, 1998, 
the United States enacted the Digital Millennium Copyright Act 
(``DMCA''), Pub. L. 105-304 (1998). Title I of the Act added a new 
Chapter 12 to Title 17 U.S.C., which among other things prohibits 
circumvention of access control technologies employed by or on behalf 
of copyright owners to protect their works. Specifically, new 
subsection 1201(a)(1)(A) provides, inter alia, that ``No person shall 
circumvent a technological measure that effectively controls access to 
a work protected under this title.'' Congress found it appropriate to 
modify the prohibition to assure that the public will have continued 
ability to engage in noninfringing uses of copyrighted works, such as 
fair use. See the Report of the House Committee on Commerce on the 
Digital Millennium Copyright Act of 1998, H.R. Rep. No. 105-551, pt. 2, 
at 36 (1998) (hereinafter Commerce Comm. Report). 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 3-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 this rulemaking. This prohibition on 
circumvention becomes effective on October 28, 2000, two years after 
the date of enactment of the DMCA.
    During the 2-year period between the enactment and the effective 
date of the provision, the Librarian of Congress must make a 
determination as to classes of works exempted from the prohibition. 
This determination is to be made upon the recommendation of the 
Register of Copyrights in a rulemaking proceeding. The determination 
thus made will remain in effect during the succeeding three years. In 
making her recommendation, the Register of Copyrights is to consult 
with the Assistant Secretary for Communications and Information of the 
Department of Commerce and report and comment on the Assistant 
Secretary's views. 17 U.S.C. 1201(a)(1)(C).
    A more complete explanation of the development of the legislative 
requirements is set out in the Notice of Inquiry published on November 
24, 1999, 64 FR 66139, and is also available on the Copyright Office's 
website at : http://www.loc.gov/copyright/1201/anticirc.html. See also 
the discussion in section III.A. below.

B. Responsibilities of Register of Copyrights and Librarian of Congress

    The prohibition against circumvention is subject to delayed 
implementation in order to permit a determination whether users of 
particular classes of copyrighted works are likely to be adversely 
affected by the prohibition in their ability to make noninfringing 
uses. By October 28, 2000, upon the recommendation of the Register of 
Copyrights in a rulemaking proceeding, the Librarian of Congress must 
determine whether to exempt certain classes of works (which he must 
identify) from the application of the prohibition against circumvention 
during the next three years because of such adverse effects.
    The Register was directed to conduct a rulemaking proceeding, 
soliciting public comment and consulting with the Assistant Secretary 
of Commerce for Communications and Information, and then to make a 
recommendation to the Librarian, who must make a determination whether 
any classes of copyrighted works should be exempt from the statutory 
prohibition against circumvention during the three years commencing on 
that date.
    The primary responsibility of the Register and the Librarian in 
this respect is to assess whether the implementation of technological 
protection measures that effectively control access to copyrighted 
works (hereinafter ``access control measures'') is diminishing the 
ability of individuals to use copyrighted works in ways that are 
otherwise lawful. Commerce Comm. Report, at 37. As examples of 
technological protection measures in effect today, the Commerce 
Committee offered the use of ``password codes'' to control authorized 
access to computer programs and encryption or scrambling of cable 
programming, videocassettes, and CD-ROMs. Id.
    The prohibition becomes effective on October 28, 2000, and any 
exemptions to that prohibition must be in place by that time. Although 
it is difficult to measure the effect of a future prohibition, Congress 
intended that the Register solicit input that would enable 
consideration of a broad range of current or likely future adverse 
impacts. The

[[Page 64557]]

nature of the inquiry is delineated in the statutory areas to be 
examined, as set forth in section 1201(a)(1)(C):

    (i) The availability for use of copyrighted works;
    (ii) The availability for use of works for nonprofit archival, 
preservation, and educational purposes;
    (iii) The impact that the prohibition on the circumvention of 
technological measures applied to copyrighted works has on 
criticism, comment, news reporting, teaching, scholarship, or 
research;
    (iv) The effect of circumvention of technological measures on 
the market for or value of copyrighted works; and
    (v) Such other factors as the Librarian considers appropriate.

II. Solicitation of Public Comments and Hearings

    On November 24, 1999, the Office initiated the rulemaking procedure 
with publication of a Notice of Inquiry. 64 FR 66139. The Notice of 
Inquiry requested written comments from all interested parties, 
including representatives of copyright owners, educational 
institutions, libraries and archives, scholars, researchers and members 
of the public. The Office devoted a great deal of attention in this 
Notice to setting out the legislative parameters and developing 
questions related to the criteria Congress had established. The Office 
was determined to make the comments it received available immediately 
in order to elicit a broad range of public comment; therefore, it 
stated a preference for submission of comments in certain electronic 
formats. Id. In response to some commenters' views that the formats 
permitted were not sufficient, the Office expanded the list of formats 
in which comments could be submitted. 65 FR 6573 (February 10, 2000). 
In the same document, the Office extended the comment period: comments 
would be due by February 17, 2000 and reply comments by March 20, 2000. 
On March 17, the Office extended the reply comment period to March 31; 
scheduled hearings to take place in Washington, DC on May 2-4 and in 
Palo Alto, California, at Stanford University on May 18-19; and set a 
June 23, 2000 deadline for submission of post-hearing comments. 65 FR 
14505 (March 17, 2000). All of these notices were published not only in 
the Federal Register, but also on the Office's website.
    In response to the Notice of Inquiry, the Office received 235 
initial comments and 129 reply comments. Thirty-four witnesses 
representing over 50 groups testified at five days of hearings held in 
either Washington, DC or Palo Alto, California. The Office placed all 
initial comments, reply comments, optional written statements of the 
witnesses and the transcripts of the two hearings on its website 
shortly after their receipt. Following the hearings, the Office 
received 28 post-hearing comments, which were also posted on the 
website. All of these commenters and witnesses are identified in the 
indexes that appear on the Office's website.
    The comments received represent a broad perspective of views 
ranging from representatives or individuals who urged there should be 
broad exemptions to those who opposed any exemption; they also included 
a number of comments about various other aspects of the Digital 
Millennium Copyright Act. The Copyright Office has now exhaustively 
reviewed and analyzed the entire record, including all of the comments 
and the transcripts of the hearings in order to determine whether any 
class of copyrighted works should be exempt from the prohibition 
against circumvention during the next three years.\2\
---------------------------------------------------------------------------

    \2\ In referring to the comments and hearing materials, the 
Office will use the following abbreviations: C-Comment, R-Reply 
Comment, PH-Post Hearing Comments, T + speaker and date--Transcript 
(ex. ``T Laura Gasaway, 5/18/00'') and WS + speaker--Written 
statements (ex. ``WS Vaidhyanathan''). Citations to page numbers in 
hearing transcripts are to the hard copy transcripts at the 
Copyright Office. For the hearings in Washington, DC, the pagination 
of those transcripts differs from the pagination of the versions of 
the transcript available on the Copyright Office website.
---------------------------------------------------------------------------

III. Discussion

A. The Purpose and Focus of the Rulemaking

1. Purpose of the Rulemaking
    As originally reported out of the Senate Judiciary Committee on May 
11, 1998, S. Rep. No. 105-190 (1998), and the House Judiciary Committee 
on May 22, 1998, H.R. Rep. No. 105-551, pt. I (1998), section 
1201(a)(1) consisted of only one sentence--what is now the first 
sentence of section 1201(a)(1): ``No person shall circumvent a 
technological measure that effectively controls access to a work 
protected under this title.'' Section 1201(a)(2), like the provision 
finally enacted, prohibited the manufacture, importation, offering to 
the public, providing or otherwise trafficking in any technology, 
product, service, device, or component to circumvent access control 
measures. Section 1201(a) thus addressed ``access control'' measures, 
prohibiting both the conduct of circumventing those measures and 
devices that circumvent them. Thus, section 1201(a) prohibits both the 
conduct of circumventing access control measures and trafficking in 
products, services and devices that circumvent access control measures.
    In addition to section 1201(a)(1)'s prohibition on circumvention of 
access control measures, section 1201 also addressed circumvention of a 
different type of technological measure. Section 1201(b), in the 
versions originally reported by the House and Senate Judiciary 
Committees and in the statute finally enacted, prohibited the 
manufacture, importation, offering to the public, providing or 
otherwise trafficking in any technology, product, service, device, or 
component to circumvent protection afforded by a technological measure 
that effectively protects a right of a copyright owner under title 17 
in a copyrighted work. The type of technological measure addressed in 
section 1201(b) includes copy-control measures and other measures that 
control uses of works that would infringe the exclusive rights of the 
copyright owner. They will frequently be referred to herein as copy 
controls. But unlike section 1201(a), which prohibits both the conduct 
of circumvention and devices that circumvent, section 1201(b) does not 
prohibit the conduct of circumventing copy control measures. The 
prohibition in section 1201(b) extends only to devices that circumvent 
copy control measures. The decision not to prohibit the conduct of 
circumventing copy controls was made, in part, because it would 
penalize some noninfringing conduct such as fair use.
    In the House of Representatives, the DMCA was sequentially referred 
to the Committee on Commerce after it was reported out of the Judiciary 
Committee. The Commerce Committee was concerned that section 1201, in 
its original form, might undermine Congress' commitment to fair use. 
Commerce Comm. Report, at 35. While acknowledging that the growth and 
development of the Internet has had a significant positive impact on 
the access of students, researchers, consumers, and the public at large 
to information and that a ``plethora of information, most of it 
embodied in materials subject to copyright protection, is available to 
individuals, often for free, that just a few years ago could have been 
located and acquired only through the expenditure of considerable time, 
resources, and money,'' Id., the Committee was concerned that 
``marketplace realities may someday dictate a different outcome, 
resulting in less access, rather than more, to copyrighted materials 
that are important to education, scholarship, and other socially vital 
endeavors.'' Id. at 36. Possible measures that might lead to

[[Page 64558]]

such an outcome included the elimination of print or other hard-copy 
versions, permanent encryption of all electronic copies and adoption of 
business models that restrict distribution and availability of works. 
The Committee concluded that ``[i]n this scenario, it could be 
appropriate to modify the flat prohibition against the circumvention of 
effective technological measures that control access to copyrighted 
materials, in order to ensure that access for lawful purposes is not 
unjustifiably diminished.'' Id.
    In order to address such possible developments, the Commerce 
Committee proposed a modification of section 1201 which it 
characterized as a `` `fail-safe' mechanism.'' Id. As the Committee 
Report describes it, ``This mechanism would monitor developments in the 
marketplace for copyrighted materials, and allow the enforceability of 
the prohibition against the act of circumvention to be selectively 
waived, for limited time periods, if necessary to prevent a diminution 
in the availability to individual users of a particular category of 
copyrighted materials.'' Id.
    The ``fail-safe'' mechanism is this rulemaking. In its final form 
as enacted by Congress, slightly modified from the mechanism that 
appeared in the version of the DMCA reported out of the Commerce 
Committee, the Register is to conduct a rulemaking proceeding and, 
after consulting with the Assistant Secretary for Communications and 
Information of the Department of Commerce, recommend to the Librarian 
whether he should conclude ``that persons who are users of a 
copyrighted work are, or are likely to be in the succeeding 3-year 
period, adversely affected by the prohibition under [section 
1201(a)(1)(A)] in their ability to make noninfringing uses under [Title 
17] of a particular class of copyrighted works.'' 17 U.S.C. 
1201(a)(1)(C). ``The Librarian shall publish 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.'' 17 U.S.C. 1201(a)(1)(C).
    The Commerce Committee offered additional guidance as to the task 
of the Register and the Librarian in this rulemaking. ``The goal of the 
proceeding is to assess whether the implementation of technological 
protection measures that effectively control access to copyrighted 
works is adversely affecting the ability of individual users to make 
lawful uses of copyrighted works * * *. The primary goal of the 
rulemaking proceeding is to assess whether the prevalence of these 
technological protections, with respect to particular categories of 
copyrighted materials, is diminishing the ability of individuals to use 
these works in ways that are otherwise lawful.'' Commerce Comm. Report, 
at 37. Accord: Staff of House Committee on the Judiciary, 105th Cong., 
Section-By-Section Analysis of H.R. 2281 as Passed by the United States 
House of Representatives on August 4, 1998, (hereinafter House 
Manager's Report) (Rep. Coble)(Comm. Print 1998), at 6. The Committee 
observed that the effective date of section 1201(a)(1) was delayed for 
two years in order ``to allow the development of a sufficient record as 
to how the implementation of these technologies is affecting 
availability of works in the marketplace for lawful uses.'' Commerce 
Comm. Report, at 37.
    Thus, the task of this rulemaking appears to be to determine 
whether the availability and use of access control measures has already 
diminished or is about to diminish the ability of the public to engage 
in the lawful uses of copyrighted works that the public had 
traditionally been able to make prior to the enactment of the DMCA. As 
the Commerce Committee Report stated, in examining the factors set 
forth in section 1201(a)(1)(C), the focus must be on ``whether the 
implementation of technological protection measures (such as encryption 
or scrambling) has caused adverse impact on the ability of users to 
make lawful uses.'' Id.
2. The Necessary Showing
    The language of section 1201(a)(1) does not offer much guidance as 
to the respective burdens of proponents and opponents of any classes of 
works to be exempted from the prohibition on circumvention. Of course, 
it is a general rule of statutory construction that exemptions must be 
construed narrowly in order to preserve the purpose of a statutory 
provision, and that rule is applied in interpreting the copyright law. 
Tasini v. New York Times Co., 206 F.3d 161, 168 (2d Cir. 2000). 
Moreover, the burden is on the proponent of the exemption to make the 
case for exempting any particular class of works from the operation of 
section 1201(a)(1). See 73 Am. Jur. 2d 313 (1991) (``[s]tatutes 
granting exemptions from their general operation [to] be strictly 
construed, and any doubt must be resolved against the one asserting the 
exemption.'') Indeed, the House Commerce Committee stated that ``The 
regulatory prohibition is presumed to apply to any and all kinds of 
works, including those as to which a waiver of applicability was 
previously in effect, unless, and until, the Secretary makes a new 
determination that the adverse impact criteria have been met with 
respect to a particular class and therefore issues a new waiver.'' 
Commerce Comm. Report, at 37 (emphasis added).\3\
---------------------------------------------------------------------------

    \3\ The Commerce Committee proposal would have placed 
responsibility for the rulemaking in the hands of the Secretary of 
Commerce. As finally enacted, the DMCA shifted that responsibility 
to the Librarian, upon the recommendation of the Register.
---------------------------------------------------------------------------

    The legislative history makes clear that a determination to exempt 
a class of works from the prohibition on circumvention must be based on 
a determination that the prohibition has a substantial adverse effect 
on noninfringing use of that particular class of works. The Commerce 
Committee noted that the rulemaking proceeding is to focus on 
``distinct, verifiable, and measurable impacts, and should not be based 
upon de minimis impacts.'' Commerce Comm. Report, at 37. ``If the 
rulemaking has produced insufficient evidence to determine whether 
there have been adverse impacts with respect to particular classes of 
copyrighted works, the circumvention prohibition should go into effect 
with respect to those classes.'' Id. at 38. Similarly, the House 
Manager's Report stated that ``[t]he focus of the rulemaking proceeding 
must remain on whether the prohibition on circumvention of 
technological protection measures (such as encryption or scrambling) 
has caused any substantial adverse impact on the ability of users to 
make non-infringing uses,'' and suggested that ``mere inconveniences, 
or individual cases * * * do not rise to the level of a substantial 
adverse impact.'' House Manager's Report, at 6.\4\ See also Connecticut 
Department of Public Utility Control v. Federal Communications 
Commission, 78 F.3d 842, 851 (2d Cir. 1996) (``It is reasonable

[[Page 64559]]

to characterize as `substantial' the burden faced by a party seeking an 
exemption from a general statutory rule'').
---------------------------------------------------------------------------

    \4\ Some commenters have suggested that the House Manager's 
Report is entitled to little deference as legislative history. See, 
e.g., PH18, p. 3. However, because that report is consistent with 
the Commerce Committee Report, there is no need in this rulemaking 
to determine whether the Manager's Report is entitled to less weight 
than the Commerce Committee Report. Some critics of the Manager's 
Report have objected to its statement that the focus of this 
proceeding should be on whether there is a ``substantial adverse 
impact'' on noninfringing uses. However, they have failed to explain 
how this statement is anything other than another way of saying what 
the Commerce Committee said when it said the determination should be 
based on ``distinct, verifiable, and measurable impacts, and should 
not be based upon de minimis impacts.''
---------------------------------------------------------------------------

    Although future adverse impacts may also be considered, the 
Manager's Report states that ``the determination should be based upon 
anticipated, rather than actual, adverse impacts only in extraordinary 
circumstances in which the evidence of likelihood of future adverse 
impact during that time period is highly specific, strong and 
persuasive. Otherwise, the prohibition would be unduly undermined.'' 
Id. Although the Commerce Committee Report does not state how future 
adverse impacts are to be evaluated (apart from a single reference 
stating that in categories where adverse impacts have occurred or ``are 
likely to occur,'' an exemption should be made, Commerce Comm. Report 
at 38), the Committee's discussion of ``distinct, verifiable and 
measurable impacts'' suggests that it would require a similar showing 
with respect to future adverse impact.
    The legislative history also requires the Register and Librarian to 
disregard any adverse effects that are caused by factors other than the 
prohibition against circumvention. The House Manager's Report is 
instructive:

    The focus of the rulemaking proceeding must remain on whether 
the prohibition on circumvention of technological protection 
measures (such as encryption or scrambling) has caused any 
substantial adverse impact on the ability of users to make non-
infringing uses. Adverse impacts that flow from other sources * * * 
or that are not clearly attributable to such a prohibition, are 
outside the scope of the rulemaking.

House Manager's Report, at 6. The House Commerce Committee came to a 
similar conclusion, using similar language. Commerce Comm. Report, at 
37.
    In fact, some technological protection measures may mitigate 
adverse effects. The House Manager's Report notes that:

    In assessing the impact of the implementation of technological 
measures, and of the law against their circumvention, the rule-
making proceedings should consider the positive as well as the 
adverse effects of these technologies on the availability of 
copyrighted materials. The technological measures--such as 
encryption, scrambling, and electronic envelopes--that this bill 
protects can be deployed, not only to prevent piracy and other 
economically harmful unauthorized uses of copyrighted materials, but 
also to support new ways of disseminating copyrighted materials to 
users, and to safeguard the availability of legitimate uses of those 
materials by individuals.

House Manager's Report, at 6.
    Another mitigating factor may arise when a work as to which the 
copyright owner has instituted a technological control is also 
available in formats that are not subject to technological protections. 
For example, a work may be available in electronic format only in 
encrypted form, but may also be available in traditional hard copy 
format which has no such technological restrictions on access. The 
availability without restriction in the latter format may alleviate any 
adverse effect that would otherwise result from the technological 
controls utilized in the electronic format. The availability of works 
in such other formats is to be considered when exemptions are 
fashioned. Id. at 7.
3. Determination of ``Class of Works''
    One of the key issues discussed in comments and testimony was how a 
``class'' of works is to be defined. The Office's initial notice of 
inquiry highlighted this issue, asking for comments from the public on 
the criteria to be used in determining what a ``class of works'' is and 
on whether works could be classified in part based on the way in which 
they are being used. See questions 16, 17 and 23, 64 FR at 66143. A 
joint submission by a number of library associations took the position 
that the Librarian should adopt a ``'function-based'' definition of 
classes of works.'' C162, p. 32. The same submission stated that ``the 
class of works should be defined, in part, according to the ways they 
are being used because that is precisely how the limitations on the 
otherwise exclusive rights of copyright holders are phrased,'' Id., p. 
36, and concluded that ``all categories of copyrighted works should be 
covered by this rulemaking.'' Id., p. 38. In contrast, a coalition of 
organizations representing copyright owners argued for a narrower 
approach, rejecting a focus on particular types of uses of works or on 
particular access control technologies. R112, p. 10. One association of 
copyright owners argued that a ``class'' should not be defined by 
reference to any particular medium (such as digital versatile discs, or 
DVD's), but rather by reference to ``a type or types of works.'' R59, 
p. 8. Many representatives of copyright owners repeated the legislative 
history that ``the `particular class of copyrighted works' be a narrow 
and focused subset of the broad categories of works of authorship than 
is [sic] identified in section 102 of the Copyright Act (17 U.S.C. 
102).'' See, e.g., Id., (quoting Commerce Comm. Report, at 38). A 
representative of a major copyright owner took the position that 
``defining `classes' of works is neither feasible nor appropriate'' and 
that ``[b]efore there is any movement in the direction of exempting 
certain works or `classes' of works from the prohibition against 
circumvention, those who support such exemption should come forward 
with proof that users who desire to make non-infringing uses or avail 
themselves of the fair use defense are prevented from doing so by the 
technological protections.'' C43, p.6.
    Based on a review of the statutory language and the legislative 
history, the view that a ``class'' of works can be defined in terms of 
the status of the user or the nature of the intended use appears to be 
untenable. Section 1201(a)(1)(B) refers to ``a copyrighted work which 
is in a particular class of works.'' Section 1201(a)(1)(C) refers to 
``a particular class of copyrighted works.'' Section 1201(a)(1)(D) 
``any class of copyrighted works.'' This statutory language appears to 
require that the Librarian identify a ``class of works'' based upon 
attributes of the works themselves, and not by reference to some 
external criteria such as the intended use or users of the works. The 
dictionary defines ``class'' as ``a group, set or kind sharing common 
attributes.'' Webster's New Collegiate Dictionary 211 (1995).
    Moreover, the phrase ``class of works'' connotes that the common 
attributes relate to the nature of authorship in the works. Although 
the Copyright Act does not define ``work,'' the term is used throughout 
the copyright law to refer to a work of authorship, rather than to a 
material object on which the work appears or to the readers or users of 
the work. See, e.g., 17 U.S.C. 102(a) (``Copyright protection subsists, 
in accordance with this title, in original works of authorship fixed in 
any tangible medium of expression, * * *) (emphasis added) and the 
catalog of the types of works protected by copyright set forth in 
section 102(a)(1)-(8) (``literary works,'' ``musical works,'' 
``dramatic works,'' etc.).
    Nevertheless, the statutory language is arguably ambiguous, and one 
could imagine an interpretation of section 1201(a)(1) that permitted a 
class of works to be defined in terms of criteria having nothing to do 
with the intrinsic qualities of the works. In such a case, resort to 
legislative history might clarify the meaning of the statute. In this 
case, the legislative history appears to leave no other alternative 
than to interpret the statute as requiring a ``class'' to be defined 
primarily, if not exclusively, by reference to attributes of the works 
themselves.
    The Commerce Committee Report addressed the issue of determining a 
class of works:


[[Page 64560]]


    The issue of defining the scope or boundaries of a ``particular 
class'' of copyrighted works as to which the implementation of 
technological protection measures has been shown to have had an 
adverse impact is an important one to be determined during the 
rulemaking proceedings. In assessing whether users of copyrighted 
works have been, or are likely to be adversely affected, the 
Secretary shall assess users' ability to make lawful uses of works 
``within each particular class of copyrighted works specified in the 
rulemaking.'' The Committee intends that the ``particular class of 
copyrighted works'' be a narrow and focused subset of the broad 
categories of works of authorship than [sic] is identified in 
section 102 of the Copyright Act (17 U.S.C. 102).

Commerce Comm. Report, at 38.\5\
---------------------------------------------------------------------------

    \5\ A leading treatise draws the following conclusion from this 
language:
    It would seem, therefore, that the language should be applied to 
discrete subgroups. If users of physics textbooks or listeners to 
Baroque concerti, for example, find themselves constricted in the 
new Internet environment, then some relief will lie. If, on the 
other hand, the only unifying feature shared by numerous disgruntled 
users is that each is having trouble accessing copyrighted works, 
albeit of different genres, then no relief is warranted. 1 Nimmer on 
Copyright Sec. 12A.03[A][[2][b] (Copyright Protection Systems 
Special Pamphlet).
---------------------------------------------------------------------------

    A ``narrow and focused subset of the broad categories of works of 
authorship * * * identified in section 102'' presumably must use, as 
its starting point, the categories of authorship set forth in section 
102: literary works; musical works; dramatic works; pantomimes and 
choreographic works; pictorial, graphic, and sculptural works; motion 
pictures and other audiovisual works; sound recordings; and 
architectural works.
    Moreover, the Commerce Committee Report states that the task in 
this rulemaking proceeding is to determine whether the prevalence of 
access control measures, ``with respect to particular categories of 
copyrighted materials, is diminishing the ability of individuals to use 
these works in ways that are otherwise lawful.'' Commerce Comm. Report, 
at 37 (emphasis added). In fact, the Report refers repeatedly to 
``categories'' of works in connection with the findings to be made in 
this rulemaking. See Id., at 36 (``individual users of a particular 
category of copyrighted materials'') (``whether enforcement of the 
regulation should be temporarily waived with regard to particular 
categories of works'') (``any particular category of copyrighted 
materials'') (``assessment of adverse impacts on particular categories 
of works''), and 38 (``Only in categories as to which the Secretary 
finds that adverse impacts have occurred''). Because the term 
``category'' of works has a well-understood meaning in the copyright 
law, referring to the categories set forth in section 102, the 
conclusion is inescapable that the starting point for any definition of 
a ``particular class'' of works in this rulemaking must be one of the 
section 102 categories.\6\
---------------------------------------------------------------------------

    \6\ The legislative history of the Copyright Act of 1976 
supports the conclusion that there is a close relation between the 
section 102 categories and a ``class'' of work. The authoritative 
report of the House Judiciary Committee, in discussing the section 
102 categories of works, used the term ``class'' as a synonym for 
``category.'' See H.R. Rep. No. 94-1476, at 53 (1976).
---------------------------------------------------------------------------

    The views of the Judiciary Committee are in accord with those 
expressed in the Commerce Committee Report. The House Manager's Report 
uses very similar words to describe how a ``class of works'' is to be 
determined:

    Deciding the scope or boundaries of a ``particular class'' of 
copyrighted works as to which the prohibition contained in section 
1201(a)(1) has been shown to have had an adverse impact is an 
important issue to be determined during the rulemaking proceedings. 
The illustrative list of categories appearing in section 102 of 
Title 17 is only a starting point for this decision. For example, 
the category of ``literary works'' (17 USC 102(a)(1)) embraces both 
prose creations such as journals, periodicals or books, and computer 
programs of all kinds. It is exceedingly unlikely that the impact of 
the prohibition on circumvention of access control technologies will 
be the same for scientific journals as it is for computer operating 
systems; thus, these two categories of works, while both ``literary 
works,'' do not constitute a single ``particular class'' for 
purposes of this legislation. Even within the category of computer 
programs, the availability for fair use purposes of PC-based 
business productivity applications is unlikely to be affected by 
laws against circumvention of technological protection measures in 
the same way as the availability for those purposes of videogames 
distributed in formats playable only on dedicated platforms, so it 
is probably appropriate to recognize different ``classes'' here as 
well.

House Manager's Report, at 7.
    The House Manager's Report continues:

    At the same time, the Secretary should not draw the boundaries 
of ``particular classes'' too narrowly. For instance, the section 
102 category ``motion pictures and other audiovisual works'' may 
appropriately be subdivided, for purposes of the rulemaking, into 
classes such as ``motion pictures,'' ``television programs,'' and 
other rubrics of similar breadth. However, it would be 
inappropriate, for example, to subdivide overly narrowly into 
particular genres of motion pictures, such as Westerns, comedies, or 
live action dramas. Singling out specific types of works by creating 
in the rulemaking process ``particular classes'' that are too narrow 
would be inconsistent with the intent of this bill.

Id.
    The conclusion to be drawn from the legislative history is that the 
section 102 categories of works are, at the very least, the starting 
point for any determination of what a ``particular class of work'' 
might be. That is not to say that a ``class'' of works must be 
identical to a ``category.'' In fact, that usually will not be the 
case. A ``class'' of works might include works from more than one 
category of works; one could imagine a ``class'' of works consisting of 
certain sound recordings and musical compositions, for example. More 
frequently, a ``class'' would constitute some subset of a section 102 
category, such as the Judiciary Committee's example of ``television 
programs.''
    A rigid adherence to defining ``class'' solely by reference to 
section 102 categories or even to inherent attributes of the works 
themselves might lead to unjust results in light of the fact that the 
entire ``class'' must be exempted from section 1201(a)(1)'s 
anticircumvention provision if the required adverse impact is 
demonstrated. For example, if a showing had been made that users of 
motion pictures released on DVD's are adversely affected in their 
ability to make noninfringing uses of those works, it would be 
unfortunate if the Librarian's only choice were to exempt motion 
pictures. Limiting the class to ``motion pictures distributed on 
DVD's,'' or more narrowly to ``motion pictures distributed on DVD's 
using the content scrambling system of access control'' would be a more 
just `` and permissible `` classification. Such a classification would 
begin by reference to attributes of the works themselves, but could 
then be narrowed by reference to the medium on which the works are 
distributed, or even to the access control measures applied to them. 
But classifying a work solely by reference to the medium on which the 
work appears, or the access control measures applied to the work, seems 
to be beyond the scope of what ``particular class of work'' is intended 
to be. And classifying a work by reference to the type of user or use 
(e.g., libraries, or scholarly research) seems totally impermissible 
when administering a statute that requires the Librarian to create 
exemptions based on a ``particular class of works.'' If Congress had 
wished to provide for exemptions based on the status of the user or the 
nature of the use--criteria that would be very sensible--Congress could 
have said so clearly. The fact that the issue of noninfringing uses was 
before Congress and the fact that Congress clearly was seeking, in 
section 1201, to create exemptions that would permit noninfringing 
uses, make it clear that

[[Page 64561]]

Congress had every opportunity and motive to clarify that such uses 
could be ingredients of the definition of ``class'' if that was what 
Congress intended. Yet the fact that Congress selected language in the 
statute and legislative history that avoided suggesting that classes of 
works could be defined by reference to users or uses is strong evidence 
that such classification was not within Congress' contemplation.
    In this rulemaking, exemptions for two classes of works are 
recommended. The first class, ``Compilations consisting of lists of 
websites blocked by filtering software applications,'' fits comfortably 
within the approach to classification outlined herein. The second 
class, ``Literary works, including computer programs and databases, 
protected by access control mechanisms that fail to permit access 
because of malfunction, damage or obsoleteness,'' is a somewhat less 
comfortable fit. It includes all literary works (a section 102 
category) and specifically mentions two subclasses of literary works, 
but narrows the exemption by reference to attributes of the 
technological measures that control access to the works. Such 
classification probably reaches the outer limits of a permissible 
definition of ``class'' under the approach adopted herein.

B. Consultation With Assistant Secretary of Commerce for Communications 
and Information

    As is required by section 1201(a)(1)(C), the Register has consulted 
with the Assistant Secretary for Communications and Information in the 
Department of Commerce. The Assistant Secretary is the Administrator of 
the National Telecommunciations and Information Administration (NTIA). 
Discussions with the Assistant Secretary and the NTIA staff have taken 
place throughout this rulemaking process. In furtherance of the 
consultative process, on September 29, 2000, the Assistant Secretary 
presented a letter to the Register detailing his views. That letter has 
been forwarded to the Librarian. After full and thorough consideration 
of and discussions with the Assistant Secretary's office on these 
views, the Register includes the following report and comment on the 
Assistant Secretary's perspective in this recommendation to the 
Librarian.
    The Assistant Secretary stated that his principal concern is to 
ensure that the Librarian will preserve fair use principles in this new 
digital age. The concerns expressed in his letter quoted from and 
restated many of the concerns that were presented in the House Commerce 
Committee Report. The Assistant Secretary noted that the Commerce 
Committee was concerned that the anticircumvention prohibition of 
section 1201(a)(1) might have adverse consequences on fair uses of 
copyrighted works protected by technological protection measures, 
particularly by librarians and educators. He echoed the fears of the 
Commerce Committee that a legal framework may be developing that would 
``inexorably create a pay-per-use society.'' He stated that the 
``right'' to prohibit circumvention should be qualified in order to 
maintain a balance between the interests of content creators and 
information users, by means of carefully drawn exemptions from the 
anticircumvention provision.
    Since fair use, as codified in 17 U.S.C. 107, is not a defense to 
the cause of action created by the anticircumvention prohibition of 
section 1201, the Assistant Secretary urges the Register to follow the 
House Commerce Committee's intent to provide for exemptions analogous 
to fair use. He advises the Register to preserve fair use principles by 
crafting exemptions that are grounded in these principles in order to 
promote inclusion of all parts of society in the digital economy and 
prevent a situation in which information crucial to supporting 
scholarship, research, comment, criticism, news reporting, life-long 
learning, and other related lawful uses of copyrighted information is 
available only to those with the ability to pay or the expertise to 
negotiate advantageous licensing terms.
    The Assistant Secretary expresses support for commenters in this 
proceeding who believed that the term ``class'' should not be 
interpreted as ``coextensive'' with categories of original works of 
authorship, as that term is used in section 102(a) of the Copyright 
Act. He states that since the statute and legislative history provide 
little guidance on the meaning of the term ``class of works'' and since 
section 1201(a)(1)(C) instructs the Librarian to examine considerations 
of use that are similar to fair use analysis, the classes of exempted 
works should be fashioned based on a factual examination of the uses to 
which copyrighted materials are put.
    In order to craft an exemption that will preserve fair uses, he 
concludes that the determination of exempted classes of works should 
include a factual examination of the uses to which copyrighted 
materials are put. With this in mind, he endorses, ``as a starting 
point, the exception proposed by the library and academic 
communities.'' In particular, he would support the crafting of the 
following exemption: ``Works embodied in copies that have been lawfully 
acquired by users or their institutions who subsequently seek to make 
noninfringing uses thereof.''
    The Register has subsequently sought and received clarification of 
some of the points made in the Assistant Secretary's letter. In 
particular, the Register has asked (1) for the Assistant Secretary's 
views on whether a ``class of works'' can be defined or determined by 
reference to the uses of the works in that class, rather than by 
reference to attributes of the works themselves, and (2) that the 
Assistant Secretary identify any comments or testimony in the record of 
this rulemaking proceeding that he believes presented any evidence that 
technological measures that control access to copyrighted works 
actually have caused or in the next three years will cause substantial 
adverse impacts on the ability of users to make noninfringing uses of 
works in the proposed class of works that he has endorsed.
    With respect to how a ``class of works'' is to be defined or 
determined, NTIA responded by stating that fair use has to be a part of 
any discussion focusing on exemptions to the DMCA's anticircumvention 
prohibition, and that because the principle of fair use is grounded in 
a factual examination of the use to which copyrighted materials are 
put, it would be reasonable to include a similar examination in 
fashioning a class of excepted works under 1201(a)(1)(C).
    In response to the request to identify comments and testimony that 
present evidence of substantial adverse impacts on the ability of users 
to make noninfringing uses of ``works embodied in copies that have been 
lawfully acquired by users or their institutions who subsequently seek 
to make noninfringing uses thereof,'' NTIA cited one comment and the 
testimony of several witnesses. NTIA also questioned whether a showing 
of ``substantial'' adverse impact is required, observing that ``Nowhere 
in section 1201(a)(1)(C) does the word ``substantial'' appear'' and 
asserting that a showing of ``reasonably anticipated impacts'' should 
be sufficient.
    The views of the Assistant Secretary have been seriously considered 
in the preparation of these recommendations to the Librarian. Because 
the exemption endorsed by the Assistant Secretary (see discussion 
above) is not supported in this recommendation, an explanation of the 
reasons is in order.
    At the outset of these comments on the Assistant Secretary's views, 
it should be understood that there is no

[[Page 64562]]

disagreement with the Assistant Secretary or the Commerce Committee on 
the need to preserve the principles of fair use and other noninfringing 
uses in the digital age. The Register's disagreement with the Assistant 
Secretary's proposals arises from the interpretation of both the 
statutory language of section 1201(a)(1)(C) and a review of the record 
in this proceeding.
    First, the Assistant Secretary's proposals are based on--and 
necessarily require adoption of--an interpretation of the statutory 
phrase ``particular class of copyrighted works'' that the Register 
cannot support. As stated above in section III.A.3, a ``particular 
class of copyrighted works'' must relate primarily to attributes of the 
copyrighted works themselves and not to factors that are external to 
the works, e.g., the material objects on which they are fixed or the 
particular technology employed on the works. Similarly, neither the 
language of the statute nor the legislative history provide a basis for 
an interpretation of an exemption of a class of works that is ``use-
oriented.'' While the Register was required to ``examine'' the present 
or likely adverse effects on uses, and in particular noninfringing 
uses, that inquiry had the express goal of designating exemptions that 
were based on classes of copyrighted works. The only examples cited and 
guidance provided in the legislative history lead the Register to 
conclude that a class must be defined primarily by reference to 
attributes of the works themselves, typically based upon the categories 
set forth in section 102(a) or some subset thereof, e.g., motion 
pictures or video games.
    As NTIA observes, it is appropriate to examine the impact of access 
control measures on fair use in determining what classes of works, if 
any, should be subject to an exemption. But the Assistant Secretary has 
not explained how a ``class of works'' can be defined or determined 
without any reference whatsoever to attributes of the works themselves, 
and solely by reference to the status of the persons who acquire copies 
of those works. While fair use is relevant in determining what classes 
should be exempted, its relevance relates to the inquiry whether users 
of a particular class of works (as defined above, in section III.A.3.) 
are adversely affected in their ability to make noninfringing uses 
(such as fair use) of works in that class.
    The specific exemption endorsed by the Assistant Secretary, and the 
reasons why that exemption cannot be adopted, are discussed below. See 
section III.E.9. Those reasons will not be repeated at length here. As 
already noted, the proposal does not constitute a ``particular class of 
copyrighted work'' as required by the statute. Moreover, the record 
does not reveal that there have been adverse effects on noninfringing 
uses that such an exemption would remedy. Finally, this approach would, 
in effect, revive a version of section 1201(a)(1) focusing on persons 
who have gained initial lawful access that was initially enacted by the 
House of Representatives but ultimately rejected by Congress.
    NTIA's observation that the word ``substantial'' does not appear in 
section 1201(a)(1)(C) does not require the conclusion, suggested by 
NTIA, that a showing of substantial harm is not required. As noted 
above (section III.A.2) the House Manager's Report states that the 
focus of this rulemaking should be on whether the prohibition on 
circumvention of technological protection measures has had a 
substantial adverse impact on the ability of users to make non-
infringing uses. Although the Commerce Committee Report does not use 
the word substantial, its direction to make exemptions based upon 
``distinct, verifiable, and measurable impacts, and * * * not * * * 
upon de minimis impacts' requires a similar showing. Moreover, while 
NTIA asserts that an exemption may be made based on a finding of 
``likely adverse effects'' or ``reasonably anticipated impacts,'' it 
appears that a similar showing of substantial likelihood is required 
with respect to such future harm. See section III.A.2 above. 
``Likely''--the term used in section 1201 to describe the showing of 
future harm that must be made--means ``probable,'' ``in all 
probability,'' or ``having a better chance of existing or occurring 
than not.'' Black's Law Dictionary 638 (Abridged 6th ed. 1991).
    The comments and testimony identified by NTIA in support of the 
exemption are discussed below in section III.E.9.
    For the foregoing reasons, the Assistant Secretary, in supporting 
this exemption proposed by libraries and educators, endorses an 
exemption that is beyond the scope of the Librarian's authority. While 
the proposed exemption addresses important concerns, it is a proposal 
that would be more appropriately suited for legislative action rather 
than for the regulatory process set forth in section 1201(a)(1)(C) and 
(D). In the absence of clarification by Congress, a ``particular class 
of works'' cannot be interpreted so expansively.
    Some of the issues raised by the Assistant Secretary are also 
likely to be addressed in a joint study by the Assistant Secretary and 
the Register pursuant to section 104 of the DMCA. See 65 FR 35673 (June 
5, 2000). It is possible that this study will result in legislative 
recommendations that might more appropriately resolve the issues raised 
by the Assistant Secretary.

C. Conclusions Regarding This Rulemaking and Summary of Recommendations

    After reviewing all of the comments and the testimony of the 
witnesses who appeared at the hearings, the Register concludes that a 
case has been made for exemptions relating to two classes of works:
    (1) Compilations consisting of lists of websites blocked by 
filtering software applications; and
    (2) Literary works, including computer programs and databases, 
protected by access control mechanisms that fail to permit access 
because of malfunction, damage or obsoleteness.
    These recommendations may seem modest in light of the sweeping 
exemptions proposed by many commenters and witnesses, but they are 
based on a careful review of the record and an application of the 
standards governing this rulemaking procedure. While many commenters 
and witnesses made eloquent policy arguments in support of exemptions 
for certain types of works or certain uses of works, such arguments in 
most cases are more appropriately directed to the legislator rather 
than to the regulator who is operating under the constraints imposed by 
section 1201(a)(1).
    Many of the proposed classes do not qualify for exemption because 
they are not true ``classes of works'' as described above in section 
III.A.3. The proposed exemptions discussed below in section III.E.2, 5, 
6, 7, 8, and 9 all suffer from that frailty to varying degrees. In many 
cases, proponents attempted to define classes of works by reference to 
the intended uses to be made of the works, or the intended user. These 
criteria do not define a ``particular class of copyrighted work.''
    For almost all of the proposed classes, the proponents failed to 
demonstrate that there have been or are about to be adverse effects on 
noninfringing uses that have ``distinct, verifiable, and measurable 
impacts.'' See Commerce Comm. Report, at 37. In most cases, those 
proponents who presented actual examples or experiences with access 
control measures presented, at best, cases of ``mere inconveniences, or 
individual cases, that do not rise to the level of a substantial 
adverse impact.'' See House Manager's Report, at 6. As one leading 
proponent of exemptions

[[Page 64563]]

admitted, the inquiry into whether users of copyrighted works are 
likely to be adversely effected by the full implementation of section 
1201(a)(1) is necessarily ``speculative since it entails a prediction 
about the future.'' T Jaszi, 5/2/00, pp. 11-12.
    It should come as no surprise that the record supports so few 
exemptions. The prohibition on circumventing access control measures is 
not yet even in effect. Witnesses who asserted the need to circumvent 
access control measures were unable to cite any actual cases in which 
they or others had circumvented access controls despite the fact that 
such circumvention will not be unlawful until October 28, 2000. T Neal, 
5/4/00, p. 103; T Cohen, 5/4/00, pp. 100-01. \7\
---------------------------------------------------------------------------

    \7\ One witness testified that ``there have been times that 
we've had to circumvent,'' but on examination, it appears that the 
example the witness gave would not constitute circumvention of an 
access control measure. See T Gasaway, 5/18/00, pp. 49-50.
---------------------------------------------------------------------------

    The legislative history reveals that Congress anticipated that 
exemptions would be made only in exceptional cases. See House Manager's 
Report, at 8 (it is ``not required to make a determination under the 
statute with respect to any class of copyrighted works. In any 
particular 3-year period, it may be determined that the conditions for 
the exemption do not exist. Such an outcome would reflect that the 
digital information marketplace is developing in the manner which is 
most likely to occur, with the availability of copyrighted materials 
for lawful uses being enhanced, not diminished, by the implementation 
of technological measures and the establishment of carefully targeted 
legal prohibitions against acts of circumvention.''); Commerce Comm. 
Report, at 36 (``Still, the Committee is concerned that marketplace 
realities may someday dictate a different outcome, resulting in less 
access * * *. In this scenario, it could be appropriate to modify the 
flat prohibition against the circumvention of effective technological 
measures that control access to copyrighted materials * * *.''; ``a 
``fail-safe mechanism'' is required'; ``This mechanism would * * * 
allow the enforceability of the prohibition against the act of 
circumvention to be selectively waived, for limited time periods, if 
necessary to prevent a diminution in the availability to individual 
users of a particular category of copyrighted materials.'') (emphasis 
added).
    The two recommended exemptions do constitute ``particular classes 
of copyrighted works,'' and genuine harm to the ability to engage in 
noninfringing activity has been demonstrated. These exemptions will 
remain in effect for three years. In the next rulemaking, they will be 
examined de novo, as will any other proposed exemption including 
exemptions that were rejected in this proceeding. If, in the next three 
years, copyright owners impose access controls in unreasonable ways 
that adversely affect the ability of users to engage in noninfringing 
uses, it is likely that the next rulemaking will result in more 
substantial exemptions.
    Ultimately, the task in this rulemaking proceeding is to balance 
the benefits of technological measures that control access to 
copyrighted works against the harm caused to users of those works, and 
to determine, with respect to any particular class of works, whether an 
exemption is warranted because users of that class of works have 
suffered significant harm in their ability to engage in noninfringing 
uses. See House Managers Report at 7 (decision ``should give 
appropriate weight to the deployment of such technologies in evaluating 
whether, on balance, the prohibition against circumvention of 
technological measures has caused an adverse impact on the specified 
categories of users of any particular class of copyrighted 
materials''). The four factors specified in section 1201(a)(1)(C) 
reflect some of the significant considerations that must be balanced: 
Are access control measures increasing or restricting the availability 
of works to the public in general? What impact are they having on the 
nonprofit archival, preservation, and educational activities? What 
impact are they having on the ability to engage in fair use? To what 
extent is circumvention of access controls affecting the market for and 
value of copyrighted works?
    The information submitted in this, the first rulemaking proceeding 
under section 1201(a)(1), indicates that in most cases thus far the use 
of access control measures has sometimes enhanced the availability of 
copyrighted works and has rarely impeded the ability of users of 
particular classes of works to make noninfringing uses. With the 
exception of the two classes recommended for exemption, the balance of 
all relevant considerations favors permitting the prohibition against 
circumvention to go into effect as scheduled.
Licensing
    Many of the complaints aired in this rulemaking actually related 
primarily to licensing practices rather than technological measures 
that control access to works. Some witnesses expressed concerns about 
overly restrictive licenses, unwieldy licensing terms, restrictions 
against use by unauthorized users, undesirable terms and prices, and 
other licensing restrictions enforced by technological protection 
measures. See, e.g., T Gasaway, 5/18/00; T Coyle, 5/18/00; T 
Weingarten, 5/19/00. One of these witnesses admitted that ``some of the 
concerns today are just pure licensing concerns.'' T Gasaway, 5/18/00, 
p. 65.
    It appears that in those cases, the licensees often had the choice 
of negotiating licenses for broader use, but did not choose to do so. 
See T. Clark, 5/3/00, p. 99, T Neal, 5/4/00, p. 133, T Gasaway, 5/18/
00, p. 38. Commenters and witnesses who complained about licensing 
terms did not demonstrate that negotiating less restrictive licenses 
that would accommodate their needs has been or will be prohibitively 
expensive or burdensome. Nor has there been a showing that unserved 
persons not permitted to gain access under a particular license (e.g., 
a member of the public wishing to gain access to material at a 
university library when the library's license restricts access to 
students and faculty) could not obtain access to the restricted 
material in some other way or place.
    It is appropriate to consider harm emanating from licensing in 
determining whether users of works have been adversely affected by the 
prohibition on circumvention in their ability to make noninfringing 
uses. This triennial rulemaking is to ``monitor developments in the 
marketplace for copyrighted materials,'' Commerce Comm. Report, at 36, 
and developments in licensing practices are certainly relevant to that 
inquiry. If, for example, licensing practices with respect to 
particular classes of works make it prohibitively burdensome or 
expensive for users, such as libraries and educational institutions, to 
negotiate terms that will permit the noninfringing uses, and if the 
effect of such practices is to diminish unjustifiably access for lawful 
purposes, see Commerce Comm. Report, at 36, exemptions for such classes 
may be justified. If copyright owners flatly refuse to negotiate 
licensing terms that users need in order to engage in noninfringing 
uses, an exemption may be justified. But such a case has not been made 
in this proceeding.
    Many commenters expressed concerns that, in the words of one 
witness, we are ``on the brink of a pay-per-use universe.'' T Jaszi, 5/
2/00, p. 70. The Assistant Secretary for Communications and Information 
shares that concern, observing that the Commerce Committee Report had 
warned against the development of a

[[Page 64564]]

``legal framework that would inexorably create a `pay-per-use' 
society.'' See Commerce Comm. Report, at 26.
    However, a ``pay-per-use'' business model may be, in the words of 
the House Manager's Report, ``use-facilitating.'' House Manager's 
Report, at 7. The Manager's Report refers to access control 
technologies that are ``designed to allow access during a limited time 
period, such as during a period of library borrowing'' or that allow 
``a consumer to purchase a copy of a single article from an electronic 
database, rather than having to pay more for a subscription to a 
journal containing many articles the consumer does not want.'' Id. For 
example, if consumers are given a choice between paying $100 for 
permanent access to a work or $2 for each individual occasion on which 
they access the work, many will probably find it advantageous to elect 
the ``pay-per-use'' option, which may make access to the work much more 
widely available than it would be in the absence of such an option. The 
comments and testimony of SilverPlatter Information Inc., demonstrate 
that the flexibility offered by such ``persistent'' access controls can 
actually enhance use. Of course, one can imagine pay-per-use scenarios 
that are likely to make works less widely available as well.
    The record in this proceeding does not reveal that ``pay-per-use'' 
business models have, thus far, created the adverse impacts on the 
ability of users to make noninfringing uses of copyrighted works that 
would justify any exemptions from the prohibition on circumvention. If 
such adverse impacts occur in the future, they can be addressed in a 
future rulemaking proceeding.

D. The Two Exemptions

1. Compilations Consisting of Lists of Websites Blocked by Filtering 
Software Applications
    Certain software products, often known as ``filtering software'' or 
``blocking software,'' restrict users from visiting certain internet 
websites. These software products include compilations consisting of 
lists of websites to which the software will deny access. Schools, 
libraries, and parents may choose to use such software for the purpose 
of preventing juveniles' access to pornography or other explicit or 
inappropriate materials on their computers. R56. At least one court 
that has addressed the use of such software has concluded that 
requiring use of the software in public libraries offends the First 
Amendment. See, e.g., Mainstream Loudoun v. Board of Trustees of the 
Loudoun County Library, 24 F. Supp. 2d 552 (E.D. Va. 1998). See also 
Tenn. Op. Atty. Gen. No. 00-030 (2000). On the other hand, the Supreme 
Court has suggested that availability of such software for use by 
parents to prevent their children from gaining access to objectionable 
websites is a positive development. Reno v. American Civil Liberties 
Union, 521 U.S. 844, 876-77 (1997); United States v. Playboy 
Entertainment Group, Inc., 120 S.Ct. 1878, 1887 (2000).
    Critics charge that some filtering programs unfairly block sites 
that do not contain undesirable material and therefore should not be 
filtered. One commenter alleged that such programs have an error rate 
of 76%. R56 at 6. Another commenter described the ``long history of 
errors in blocking sites,'' and asserted that the software 
manufacturers have not responded appropriately. R26. The names of 
blocked websites are compiled into lists which are protected by 
copyright as compilations. Several commenters assert that manufacturers 
of filtering software encrypt the lists naming the targeted sites and 
that they are not made available to others, including the operators of 
the targeted sites themselves. R56. These commenters assert that they 
have no alternative but to decrypt the encrypted lists in order to 
learn what websites are included in those lists. Persons have already 
decrypted the lists for the purpose of commenting on or criticizing 
them. R56. One commenter cites an injunction against authors of a 
program decrypting the list of blocked websites. R26. See Microsystems 
Software, Inc. v. Scandinavia Online AB, No. 00-1503 (1st Cir. Sept. 
27, 2000). Such acts of decryption would appear to violate 1201(a)(1) 
if it took effect without an exemption for these activities.
    This does appear to present a problem for users who want to make 
noninfringing uses of such compilations, because reproduction or 
display of the lists for the purpose of criticizing them could 
constitute fair use. The interest in accessing the lists in order to 
critique them is demonstrated by court cases, websites devoted to the 
issue, and a fair number of commenters. See generally R73 (Computer 
Professionals for Social Responsibility); R38; PH20; and PH5 
(California Association of Library Trustees and Commissioners, reverse 
filtering); WS Vaidhyanathan. There is uncontroverted evidence in this 
record that the lists are not available elsewhere. No evidence has been 
presented that there is not a problem with respect to lists of websites 
blocked by filtering software, or that permitting circumvention of 
technological measures that control access to such lists would have a 
negative impact on any of the factors set forth in section 
1201(A)(1)(C). The commenters assert that there is no other legitimate 
way to obtain access to this information. No one else on the record has 
asserted otherwise.
    A review of the factors listed in 1201(a)(1)(C) supports the 
creation of this exemption. Although one can speculate that the 
availability of technological protection measures that deny access to 
the lists of blocked websites might be of benefit to the proprietors of 
filtering software, and might even increase the willingness of those 
proprietors to make the software available for use by the public, no 
commenters or witnesses came forward to make such an assertion. No 
information was presented relating to the use of either the filtering 
software or the lists of blocked websites for nonprofit archival, 
preservation and educational purposes. Nor was any information 
presented relating to whether the circumvention of technological 
measures preventing access to the lists has had an impact on the market 
for or value of filtering software or the compilations of objectionable 
websites contained therein. However, a persuasive case was made that 
the existence of access control measures has had an adverse effect on 
criticism and comment, and most likely news reporting, and that the 
prohibition on circumvention of access control measures will have an 
adverse effect.
    Thus, it appears that the prohibition on circumvention of 
technological measures that control access to these lists of blocked 
sites will cause an adverse effect on noninfringing users since persons 
who wish to criticize and comment on them cannot ascertain which sites 
are contained in the lists unless they circumvent. The case has been 
made for an exemption for compilations consisting of lists of websites 
blocked by filtering software applications.
2. Literary Works, Including Computer Programs and Databases, Protected 
by Access Control Mechanisms That Fail to Permit Access Because of 
Malfunction, Damage or Obsoleteness
    This designation of class of works is intended to exempt users of 
software, databases and other literary works in digital formats who are 
prevented from accessing such works because the access control 
protections are not functioning in the way that they were intended. In 
the course of this rulemaking

[[Page 64565]]

proceeding, a number of users, and in particular consumers of software 
and users of compilations, expressed concerns about works which they 
could not access even though they were authorized users, due to the 
failure of access control mechanisms to function properly.
    Substantial evidence was presented on this issue, in particular 
relating to the use of ``dongles,'' hardware locks attached to a 
computer that interact with software programs to prevent unauthorized 
access to that software. C199. One commenter attached numerous letters 
and news articles to his submission and testimony, documenting the 
experience of users whose dongles become damaged or malfunction. It 
appears that in such instances, the vendors of the software may be 
nonresponsive to requests to replace or repair the dongle, or may 
require the user to purchase either a new dongle or an entirely new 
software package, usually at a substantial cost. In some cases, the 
vendors have gone out of business, and the user has had no recourse for 
repair or replacement of the dongle.
    Libraries and educational institutions also stated that they have 
experienced instances where materials they obtained were protected by 
access controls that subsequently malfunctioned, and they could not 
obtain timely relief from the copyright owner. R34, R75 (National 
Library of Medicine), R111 (National Agricultural Library). Similarly, 
libraries stated that there have been instances where material has been 
protected by technological access protections that are obsolete or are 
no longer supported by the copyright owner. Id.
    No evidence has been presented to contradict the evidence of 
problems with malfunctioning, damaged or obsolete technological 
measures. Nor has evidence been presented that the marketplace is 
likely to correct this problem in the next three years.
    This appears to be a genuine problem that the market has not 
adequately addressed, either because companies go out of business or 
because they have insufficient incentive to support access controls on 
their products at some point after the initial sale or license. In 
cases where legitimate users are unable to access works because of 
damaged, malfunctioning or obsolete access controls, the access 
controls are not furthering the purpose of protecting the work from 
unauthorized users. Rather, they are preventing authorized users from 
getting the access to which they are entitled. This prevents them from 
making the noninfringing uses they could otherwise make. This situation 
is particularly troubling in the context of libraries and educational 
institutions, who may be prevented from engaging in noninfringing uses 
of archiving and preservation of works protected by access controls 
that are obsolete or malfunctioning. In effect, it puts such users in a 
position where they cannot obtain access; nor, under 1201(a)(1), would 
they be permitted to circumvent the access controls to make non-
infringing uses of the work unless they fall within an exemption.
    Not only does such a result have an adverse impact on noninfringing 
uses, but it also does not serve the interests of copyright owners that 
1201(a)(1) was meant to protect. In almost all cases where this 
exemption will apply, the copyright owner will already have been 
compensated for access to the work. It is only when the access controls 
malfunction that the exemption will come into effect. This does not 
cause significant harm to the copyright owner. Moreover, authorized 
users of such works are unlikely to circumvent the access controls 
unless they have first sought but failed to receive assistance from the 
copyright owner, since circumvention is likely to be more difficult and 
time-consuming than obtaining assistance from a copyright owner who is 
responsive to the needs of customers. Only as a fallback will most 
users attempt to circumvent the access controls themselves.
    Although it might be tempting to describe this class as ``works 
protected by access control mechanisms that fail to permit access 
because of malfunction, damage or obsoleteness,'' that would not appear 
to be a legitimate class under section 1201 because it would be defined 
only by reference to the technological measures that are applied to the 
works, and not by reference to any intrinsic qualities of the works 
themselves. See the discussion of ``works'' above in section III.A.3. 
The evidence in this rulemaking of malfunctioning, damaged or obsolete 
technological protection measures has related to software (dongles) 
and, in the cases raised by representatives of libraries, to 
compilations of literary works and databases. Therefore, this class of 
works is defined primarily in terms of such literary works, and 
secondarily by reference to the faulty technological protection 
measures.
    Although this exemption fits within the parameters of the term 
``class of works'' as described by Congress, it probably reaches the 
limits of those parameters. The definition of the class does start with 
a section 102 category of works--literary works. It then narrows that 
definition by reference to attributes of access controls that sometimes 
protect those works--i.e., the failure of those access controls to 
function as intended. But in reality, this exemption addresses a 
problem that could be experienced by users in accessing all classes of 
copyrighted works. This subject matter is probably more suitable for a 
legislative exemption, and the Register recommends that Congress 
consider amending section 1201 to provide a statutory exemption for all 
works, regardless of what class of work is involved, that are protected 
by access control mechanisms that fail to permit access because of 
malfunction, damage or obsoleteness. Meanwhile, because genuine harm 
has been demonstrated in this rulemaking proceeding and because it is 
possible to define a class of works that fits within the framework of 
section 1201(a)(1)(B), (C) and (D), the Register recommends that the 
Librarian exempt this class of works during the first three years in 
which section 1201(a)(1) is in effect. But the fact that sufficient 
harm has been found to justify this exemption for this three-year 
period will not automatically justify a similar exemption in the next 
triennial rulemaking. In fact, if there were a showing in the next 
rulemaking proceeding that faulty access controls create adverse 
impacts on noninfringing uses of all categories of works, such a 
showing could, parodoxically, result in the conclusion that the problem 
is not one that can be resolved pursuant to section 1201(a)(1)(C) and 
(D), which anticipates exemptions only for ``a particular class of 
works.'' A legislative resolution of this problem is preferable to a 
repetition of the somewhat ill-fitting regulatory approach adopted 
herein.
    The class of works covers literary works--and is applicable in 
particular to computer programs, databases and other compilations--
protected by access controls that fail to permit access because of 
damage, malfunction or obsoleteness. The terms ``damage'' and 
``malfunction'' are fairly self-explanatory, and would apply to any 
situation in which the access control mechanism does not function in 
the way in which it was intended to function. For definition of the 
term ``obsolete,'' it is instructive to look to section 108(c), which 
also addresses the issue of obsoleteness. For the purposes of section 
108, ``a format shall be considered obsolete if the machine or device 
necessary to render perceptible a work stored in that format is no 
longer manufactured or is no longer reasonably available in the 
commercial marketplace.'' In the context of this

[[Page 64566]]

rulemaking, an access control should be considered obsolete in 
analogous circumstances.
    An exemption for this class, however, would not cover several other 
types of problems that commenters presented. For example, a commenter 
describing the problems experienced by users of damaged or 
malfunctioning dongles noted that similar problems occur when dongles 
become lost or are stolen. C199. That is, vendors of the software are 
often reluctant to replace the dongle, or insist that the user purchase 
a new dongle at a high cost. While this may be a problem, exempting 
works in this situation could unfairly prejudice the interests of 
copyright owners, who have no way of ascertaining whether the dongle 
was in fact lost or stolen, or whether it has been passed on to another 
user along with an unauthorized copy of the software, while the 
original user obtains a replacement by claiming the original dongle was 
lost. This exemption also would not cover situations such as those 
described by certain libraries, who expressed the fear that they would 
be prevented by 1201(a)(1) from reformatting materials that are in 
obsolete formats. If the materials did not contain access control 
protections, but were merely in an obsolete format, 1201(a)(1) would 
not be implicated. To the extent that technological protections 
prevented the library from converting the format, those protections 
would seem to be copy controls, the act of circumvention of which is 
not prohibited by section 1201.
    The factors listed in 1201(a)(1)(C) support the creation of this 
exemption. In cases such as those described above, access controls 
actually decrease the availibility of works for any use, since works 
that were intended to be available become unavailable due to damage, 
malfunction or obsoleteness. This decrease in availability is felt 
particularly by the library and educational communities, who have been 
prevented from making non-infringing uses, including archiving and 
preservation, by malfunctioning or obsolete access controls. 
Circumvention of access controls in these instances should not have a 
significant effect on the market for or value of the works, since 
copyright owners typically will already have been compensated for the 
use of the work.

E. Other Exemptions Considered, But Not Recommended

    A number of other proposed exemptions were considered, but for the 
reasons set forth below the Register does not recommend that any of 
them be adopted.
1. ``Thin Copyright'' Works
    Many commenters have urged the exemption of a class of works 
consisting of what they term ``thin copyright works.'' These are works 
consisting primarily (but not entirely) of matter unprotected by 
copyright, such as U.S. government works or works whose term of 
copyright protection has expired, or works for which copyright 
protection is ``thin,'' such as factual works. As one proponent, the 
Association of American Universities, described the class, it includes 
``works such as scholarly journals, databases, maps, and newspapers 
[which] are primarily valuable for the information they contain, 
information that is not protected by copyright under Section 102(b) of 
the Copyright Act.'' C161. Most often this argument is made in the 
context of databases that contain a significant amount of 
uncopyrightable material. These databases may nonetheless be covered by 
copyright protection by virtue of the selection, coordination and 
arrangement of the materials. They may also incorporate copyrightable 
works or elements, such as a search engine, headnotes, explanatory 
texts or other contributions that represent original, creative 
authorship. While this proposal is frequently made with reference to 
databases, it is not limited to them, and would apply to any works that 
contain a mixture of copyrightable and uncopyrightable elements.
    Proponents of such an exemption make two related arguments. First, 
some commenters argue that using Section 1201(a)(1) to prohibit 
circumvention of access controls on works that are primarily factual, 
or in the public domain, bootstraps protection for material that 
otherwise would be outside the scope of protection. It would, in 
effect, create legal protection for even the uncopyrightable elements 
of the database, and go beyond the scope of what Section 1201(a)(1) was 
meant to cover. An exemption for these kinds of works, proponents 
argue, is necessary to preserve an essential element of the copyright 
balance `` that copyright does not protect facts, U.S. government 
works, or other works in the public domain. Without such an exemption, 
users will be legally prevented from circumventing access controls to, 
and subsequently making noninfringing uses of, material unprotected by 
copyright.
    A related worry of commenters is that, in practice, section 
1201(a)(1) will be used to ``lock up'' works unprotected by copyright. 
They predict that compilers of factual databases will have an incentive 
to impose a thin veneer of copyright on a database, by adding, for 
example, some graphics or an introduction, and thus take unfair 
advantage of the protection afforded by Section 1201. In addition, they 
fear that access to works such as databases, encyclopedias, and 
statistical reports, which are a mainstay of the educational and 
library communities, will become increasingly and prohibitively 
expensive.
    On the record developed in this proceeding, the need for such an 
exemption has not been demonstrated. First, although proponents argue 
that 1201(a)(1)(A) bootstraps protection for uncopyrightable elements 
in copyrightable databases, the copyrightable elements in databases and 
compilations usually create significant added value. Indeed, in most 
cases the uncopyrightable material is available elsewhere in ``raw'' 
form, but it is the inclusion of that material in a copyrightable 
database that renders it easier to use. Search engines, headnotes, 
selection, and arrangement, far from being a thin addition to the 
database, are often precisely the elements that database users utilize, 
and which make the database the preferred means to access and use the 
uncopyrightable material it contains. Because it is the utility of 
those added features that most users wish to access, it is appropriate 
to protect them under Section 1201(a)(1)(A). Moreover, all 
copyrightable works are likely to contain some uncopyrightable 
elements, factual or otherwise. This does not undermine their 
protection under copyright or under 1201(a)(1)(A).\8\
---------------------------------------------------------------------------

    \8\ One commenter suggested an exemption for ``compilations and 
other works that incorporate works in the public domain, unless the 
compilation or work was marked in such a way as to allow 
identification of public domain elements and separate circumvention 
of the technological measures that controlled access to those 
elements.'' PH4 (Ginsburg). While this approach could address some 
of the concerns raised by proponents, it is unclear whether it would 
be technologically feasible for copyright owners to implement. 
Furthermore, as discussed below, the Register has not yet been 
presented with evidence that there have been or are likely to be 
adverse impacts in this area.
---------------------------------------------------------------------------

    Second, the fear that 1201(a)(1)(A) will disadvantage users by 
``locking up'' uncopyrightable material, while understandable, does not 
seem to be borne out in the record of this proceeding. Commenters have 
not provided evidence that uncopyrightable material is becoming more 
expensive or difficult to access since the enactment of Section 1201, 
nor have they shown that works of minimal copyright authorship

[[Page 64567]]

are being attached to otherwise unprotectible material to take 
advantage of the 1201 prohibitions. The examples presented in this 
rulemaking proceeding of databases that mix copyrightable and 
uncopyrightable elements seem to be operating in a way that minimizes 
the impact on noninfringing uses, such as the LEXIS/NEXIS database and 
databases produced by a witness in the Washington DC hearings, 
SilverPlatter Information Inc. These databases provide business models 
that allow users to pay for different levels of access, and to choose 
different payment schedules depending on the way they would like to use 
the database. Finally, although the fear that material will be ``locked 
up'' is most compelling with respect to works that are the ``sole 
source'' of uncopyrightable material, most of the uncopyrightable 
material in these databases can be found elsewhere, albeit not with the 
access and use-enhancing features provided by the copyrightable 
contributions. Where users can reasonably find these materials in other 
places, their fears that it will be ``locked up'' are unwarranted.
    In applying the four factors in Section (a)(1)(C), the impact of 
access control technologies on the availability of works in general, 
and their impact on the library and educational communities in 
particular, must be evaluated. In general, it appears that the advent 
of access control protections has increased the availability of 
databases and compilations. Access controls provide an increased 
incentive for database producers to create and maintain databases. 
Often, the most valuable commodity of a database producer is access to 
the database itself. If a database producer could not control access, 
it would be difficult to profit from exploitation of the database. 
Fewer databases would be created, resulting in diminished availability 
for use. If there were evidence that technological access protections 
made access to these works prohibitively expensive or burdensome, it 
would weigh against increased availability. However, as discussed 
above, such evidence has not been presented in this proceeding. Nor has 
there been a showing of any significant adverse impact thus far on 
nonprofit archival, preservation and educational activities or on 
criticism, comment, news reporting, teaching, scholarship or research. 
There is no evidence that the use of technological measures that 
control access to ``thin copyright'' works has made those works less 
accessible for such purposes than they were prior to the introduction 
of such measures. Finally, in assessing the effect of circumvention on 
the market for or value of the works, it appears likely that if 
circumvention were permitted, the ability of database producers to 
protect their investment would be seriously undermined and the market 
would be harmed.
2. Sole Source Works
    A number of commenters proposed an exemption for a class of ``sole 
source works,'' that is, works that are available from a single source, 
which makes the works available only in a form protected by access 
controls.\9\ C162 (American Library Association et al.); C213; C234. 
Proponents fear that works will increasingly become available only in 
digital form, which will be subject to access controls that prohibit 
users who want to make noninfringing uses from accessing the work, 
either because access will be too costly or will be refused. In such 
cases, where there is no other way to get access to the work, all 
noninfringing uses of the work will be adversely impacted.
---------------------------------------------------------------------------

    \9\ This subject has been discussed briefly above, in reference 
to databases that contain uncopyrightable material not available 
elsewhere. This section, however, refers mainly to copyrightable 
sole source works.
---------------------------------------------------------------------------

    Again, it is questionable whether proponents of an exemption have 
identified a genuine ``class'' of works. The only thing the works in 
this proposed class have in common is that each is available from a 
single source. Moreover, the case has not been made for an exemption 
for this proposed class.
    Commenters submitted different examples of works that were 
available only in digital form. These included a number of databases 
and indexes. C162 (ALA). In addition, several commenters noted that 
digital versions of works, such as motion pictures in DVD format, often 
contain material, such as interviews, film clips or search engines, not 
found in the analog versions of the same works. C162, C234.\10\
---------------------------------------------------------------------------

    \10\ The DVD issue is addressed below, Section III.E.3.
---------------------------------------------------------------------------

    The concerns of proponents of this type of exemption are 
understandable. However, there has been no evidence submitted in this 
rulemaking that access to works available only in a secured format is 
being denied or has become prohibitively difficult. Even considering 
the examples presented by various commenters, they merely establish 
that there are works that exist only in digital form. They have not 
established that access controls on those works have adversely impacted 
their ability to make noninfringing uses, or, indeed, that access 
controls impede their use of those works at all. In the case of 
databases and indexes, the Register heard no evidence that licenses to 
those works were not available or were available only on unreasonable 
and burdensome terms. For example, in the case of motion pictures on 
DVDs, anyone with the proper equipment can access (view) the work. If 
there were evidence that technological access controls were being used 
to lock up material in such a way that there was effectively no means 
for a user wanting to make a noninfringing use to get access, it could 
have a substantial adverse impact on users.\11\ No such evidence has 
been presented in this proceeding. If such evidence is presented in a 
subsequent proceeding, the case for an exemption may be made.
---------------------------------------------------------------------------

    \11\ Nonetheless, that evidence would have to be balanced 
against an author's right to grant access to a work. By definition, 
any unpublished creative work is almost certain to be available only 
from a single source--the author. Historically, there has never been 
a right to access an unpublished work, and the law has guarded an 
author's right to control first publication. Even when material has 
already been published, there is no absolute right of access. Even 
with nondigital formats, one must either purchase a copy of the work 
or go to someone who has purchased a copy (e.g., a library) in order 
to obtain access to it.
---------------------------------------------------------------------------

    With respect to this proposed class, little evidence has been 
presented relating to any of the factors set forth in Section 
1201(a)(1)(C). However, a review of those factors confirms that no 
exemption is justified in this case. If, as the proponents of this 
exemption assert, there are works that are available only in digital 
form and only with access control protections, many if not most of 
those works presumably would not have been made available at all if 
access control measures had not been available. Indeed, it appears that 
many of the ``sole source'' works identified by the American Library 
Association are works that most likely did not exist in the predigital 
era. See C162, p. 24. As with ``thin copyright'' works, no showing has 
been made of an adverse impact on the purposes set forth in 
1201(a)(1)(C)(ii) and (iii).
3. Audiovisual Works on Digital Versatile Discs (DVDs)
    More comments and testimony were submitted on the subject of motion 
pictures on digital versatile discs (DVDs) and the technological 
measures employed on DVDs, primarily Content Scrambling System 
(``CSS''), than on any other subject in this rulemaking. DVDs are 
digital media, similar to compact discs but with greater capacity, on 
which motion pictures and other audiovisual and other works may be 
stored. DVDs have recently become a

[[Page 64568]]

major medium, although not yet the predominant medium, for the 
distribution of motion pictures in the ``home video'' market. CSS is an 
encryption system used on most commercially distributed DVDs of motion 
pictures. DVDs with CSS may be viewed only on equipment licensed by the 
DVD Copy Control Association (DVD CCA). PH25. The terms of the DVD CCA 
license permits licensed devices to decrypt and play--but not to copy--
the films. For a more complete discussion of DVDs and CSS, see 
Universal City Studios, Inc. v. Reimerdes, 111 F. Supp.2d 294 (S.D.N.Y. 
2000), 55 U.S.P.Q.2d 1873 (S.D.N.Y. 2000).
    Proponents of an exemption for motion pictures on DVDs raised four 
general arguments. First, they asserted that CSS represents a merger of 
access and use controls,\12\ such that one of those two control 
functions of the technology cannot be circumvented without also 
circumventing the other. PH11. Since Congress prohibited only the 
conduct of circumventing access measures and declined to enact a 
comparable prohibition against circumvention of measures that protect 
the rights of the copyright owner under Sec. 1201(b), they argued that 
a merger of controls exceeds the scope of the congressional grant. In 
this view, the merger of access and use controls would effectively 
bootstrap the legal prohibition against circumvention of access 
controls to include copy controls and thereby prevents a user from 
making otherwise noninfringing uses of lawfully acquired copies, such 
as excerpting parts of the material on a DVD for a film class, which 
might be a fair use.
---------------------------------------------------------------------------

    \12\ In this discussion, the term ``use controls'' is used as a 
shorthand term for technological measures that effectively protect 
rights of copyright owners under title 17 (e.g., copy controls)--the 
controls that are the subject of the prohibition against certain 
technologies, products, services, devices and components found in 
section 1201(b)(1).
---------------------------------------------------------------------------

    While this is a significant concern, there are a number of 
considerations to be balanced. From the comments and testimony 
presented, it is clear that, at present, most works available in DVD 
format are also available in analog format (VHS tape) as well. R123, T 
Marks, 5/19/00, p. 301. When distributed in analog formats--formats in 
which distribution is likely to continue for the foreseeable future--
these works are not protected by any technological measures controlling 
access. WS Sorkin, p. 5. Therefore, any harm caused by the existence of 
access control measures used in DVDs can be avoided by obtaining a copy 
of the work in analog format. See House Manager's Report, at 7 (``in 
assessing the impact of the prohibition on the ability to make 
noninfringing uses, the Secretary should take into consideration the 
availability of works in the particular class in other formats that are 
not subject to technological protections.'').\13\
---------------------------------------------------------------------------

    \13\ Perhaps the best case for actual harm in this context was 
made with respect to matter that is available along with the motion 
picture in DVD format but not available in videotape format, such as 
outtakes, interviews with actors and directors, additional language 
features, etc. See C204, p. 4. However, this ancillary material 
traditionally has not been available in copies for distribution to 
the general public, and it appears that it is only with the advent 
of the DVD format that motion picture producers have been willing or 
able to include such material along with copies of the motion 
pictures themselves. Because of this and because motion picture 
producers are generally unwilling to release their works in DVD 
format unless they are protected by access control measures, it 
cannot be said that enforcing section 1201(a)(1) would, in the words 
of the Commerce Committee, result ``in less access, rather than 
more, to copyrighted materials that are important to education, 
scholarship, and other socially vital endeavors.'' See Commerce 
Comm. Report, at 35. Thus, it appears that the availability of 
access control measures has resulted in greater availability of 
these materials.
---------------------------------------------------------------------------

    Thus far, no proponents of this argument for an exemption have come 
forward with evidence of any substantial or concrete harm. Aside from 
broad concerns, there have been very few specific problems alleged. The 
allegations of harm raised were generally hypothetical in nature, 
involved relatively insignificant uses, or involved circumstances in 
which the noninfringing nature of the desired use was questionable 
(e.g., backup copies of the DVD) or unclear. T Robin Gross, 5/19/00, 
pp. 314-15. This failure to demonstrate actual harm in the years since 
the implementation of the CSS measures tends to undermine the fears of 
proponents of an exemption.
    Similarly, in all of the comments and testimony on this issue, no 
explanation has been offered of the technological necessity for 
circumventing the access controls associated with DVDs in order to 
circumvent the copy controls. If the copy control aspects of CSS may be 
circumvented without circumventing its access controls, this is clearly 
not a violation of Section 1201(a)(1)(A). There was no showing that 
copy or use controls could not be circumvented without violating 
Section 1201(a)(1). In contrast, there was specific testimony that an 
analog output copy control on DVD players, Macrovision, could be 
circumvented by an individual without circumventing the CSS protection 
measures and without violating section 1201(a)(1). T Marks, 5/19/00, 
pp.345-46. It would appear that circumvention of the Macrovision 
control, conduct not prohibited by any of the provisions of section 
1201, would enable many of the noninfringing uses alleged to be 
prevented. If in a subsequent rulemaking proceeding one could show that 
a particular ``copy'' or ``use'' control could not in fact be 
circumvented on a legitimately acquired copy without also circumventing 
the access measure, one might meet the required burden on this issue.
    The merger of technological measures that protect access and 
copying does not appear to have been anticipated by Congress.\14\ 
Congress did create a distinction between the conduct of circumvention 
of access controls and the conduct of circumvention of use controls by 
prohibiting the former while permitting the latter, but neither the 
language of section 1201 nor the legislative history addresses the 
possibility of access controls that also restrict use. It is unclear 
how a court might address this issue. It would be helpful if Congress 
were to clarify its intent, since the implementation of merged 
technological measures arguably would undermine Congress's decision to 
offer disparate treatment for access controls and use controls in 
section 1201.
---------------------------------------------------------------------------

    \14\ However, CSS was already in development in 1998 when the 
DMCA was enacted. It cannot be presumed that the drafters of section 
1201(a) were unaware of CSS. If CSS does involve a merger of access 
controls and copy controls, it is conceivable that the drafters of 
section 1201(a)(1) were aware of that. And it is quite possible that 
they anticipated that CSS would be a ``technological measure that 
effectively controls access to a work.''
---------------------------------------------------------------------------

    At present, on the current record, it would be imprudent to venture 
too far on this issue in the absence of congressional guidance. The 
issue of merged access and use measures may become a significant 
problem. The Copyright Office intends to monitor this issue during the 
next three years and hopes to have the benefit of a clearer record and 
guidance from Congress at the time of the next rulemaking proceeding.
    Another argument raised in the comments and testimony regarding 
DVDs is that users of Linux and other operating systems who own 
computers with DVD drives and who purchase legitimate copies of 
audiovisual works on DVDs should be able to view these works. Many 
Linux users have complained that they are unable to view the works on 
their computers because a licensed player has not yet been developed 
for the Linux OS platform. R56, PH11, PH3. While this situation created 
frustration for legitimate users,

[[Page 64569]]

the problem requires balancing of other considerations.
    The reasonable availability of alternate operating systems (dual 
bootable) or dedicated players for televisions suggests that the 
problem is one of preference and inconvenience, and leads to the 
conclusion that an exemption is not warranted. T Metalitz, 5/19/00, pp. 
298-99. Moreover, with the rapidly growing market of Linux users, it is 
commercially viable to create a player for this particular operating 
system. T Metalitz, 5/19/00, pp. 297-98. DVD CSS has expressed its 
willingness to license such players, and in fact has licensed such 
players. PH25. There is evidence that Linux players are currently being 
developed (Sigma Designs and Intervideo) and should be available in the 
near future. It appears likely that the market place will soon resolve 
this particular concern. PH123 (MPAA).
    While it does not appear that Congress anticipated that persons who 
legitimately acquired copies of works should be denied the ability to 
access these works, there is no unqualified right to access works on 
any particular machine or device of the user's choosing. There are also 
commercially available options for owners of DVD ROM drives and 
legitimate DVD discs. Given the market alternatives, an exemption to 
benefit individuals who wish to play their DVDs on computers using the 
Linux operating system does not appear to be warranted.
    It appears from the comments and testimony presented in this 
proceeding that the motion picture industry relied on CSS in order to 
make motion pictures available in digital format. R123. An exemption 
for motion pictures on DVDs would lead to a decreased incentive to 
distribute these works on this very popular new medium. It appears that 
technological measures on DVDs have increased the availability of 
audiovisual works to the general public, even though some portions of 
the public have been inconvenienced.
    A third argument raised relating to DVDs was the asserted need to 
reverse engineer DVDs in order to allow them to be interoperable with 
other devices or operating systems. C10, C18, C221. While there has 
been limited judicial recognition of a right to reverse engineer for 
purposes of interoperability of computer programs in the video game 
industry, see Sega Enterprises, Inc. v. Accolade, Inc., 977 F.2d 1510 
(9th Cir. 1992); Sony Computer Entertainment, Inc. v. Connectix, 203 
F.3d 596 (9th Cir. 2000), this rulemaking proceeding is not an 
appropriate forum in which to extend the recognition of such a right 
beyond the scope recognized thus far by the courts or by Congress in 
section 1201(f). In section 1201 itself, Congress addressed the issue 
of reverse engineering with respect to computer programs that are 
reverse engineered for the purpose of interoperability under certain 
circumstances to the ``extent any such acts of identification and 
analysis do not constitute infringement under this title.'' One court 
has rejected the applicability of section 1201(f) to reverse 
engineering of DVDs. Universal City Studios, Inc. v. Reimerdes, 82 
F.Supp.2d 211, 217-18 (S.D.N.Y. 2000); see also Universal City Studios, 
Inc. v. Reimerdes, 111 F. Supp.2d 294 (S.D.N.Y. 2000), 55 U.S.P.Q.2d 
1873 (S.D.N.Y. 2000). That decision is on appeal. If subsequent 
developments in that case or future cases lead to judicial recognition 
that section 1201(f) does apply to a case such as this, then presumably 
there would be no need to fashion an exemption pursuant to section 
1201(a)(1)(C). If, as the Reimerdes court has held, section 1201(f) 
does not apply in such a situation, an agency fashioning exemptions 
pursuant to section 1201(a)(1)(C) should proceed with caution before 
creating an exemption to accommodate reverse engineering that goes 
beyond the scope of a related exemption enacted by Congress expressly 
for the purpose of reverse engineering in another subsection of the 
same section of the DMCA. In any event, a more compelling case must be 
made before an exemption for reverse engineering of DVDs could be 
justified pursuant to section 1201(a)(1)(C).
    The final argument in support of an exemption for audiovisual works 
on DVDs was based on the motion picture industry's use of region coding 
as an access control measure. Proponents of an exemption argued that 
region coding prevents legitimate users from playing foreign films on 
DVDs which were purchased abroad on their machines that are encoded to 
play only DVDs with region coding for the region that includes the 
United States. C133, C231, C234, R92, PH11. There was also some showing 
that foreign releases of American and foreign motion pictures may 
contain content that is not available on the American releases and that 
circumvention may be necessary in order to access this material. T 
Gross, 5/19/00, p. 314.
    While the use of region coding may restrict unqualified access to 
all movies, the comments and testimony presented on this issue did not 
demonstrate that this restriction rises to the level of a substantial 
adverse effect. The problem appears to be confined to a relatively 
small number of users. The region coding also seems to result in 
inconvenience rather than actual or likely harm, because there are 
numerous options available to individuals seeking access to this 
foreign content (PAL converters to view foreign videotapes, limited 
reset of region code option on DVD players, or purchase of players set 
to different codes). Since the region coding of audiovisual works on 
DVDs serves legitimate purposes as an access control,\15\ and since 
this coding encourages the distribution and availability of digital 
audiovisual works, on balance, the benefit to the public exceeds the de 
minimis harm alleged at this time. If, at some time in the future, 
material is available only in digital format protected by region codes 
and the availability of alternative players is restricted, a more 
compelling case for an exemption might be made.
---------------------------------------------------------------------------

    \15\ Among other purposes, it prevents the marketing of DVDs of 
a motion picture in a region of the world where the motion picture 
has not yet been released in theatres, or is still being exhibited 
in theatres. See PH12, pp. 3-4.
---------------------------------------------------------------------------

    Consideration of the factors enumerated in subsection 1201(a)(1)(C) 
supports the conclusion that no exemption is warranted for this 
proposed class. The release of audiovisual works on DVDs was predicated 
on the ability to limit piracy through the use of technological access 
control measures. R123. These works are widely available in digital 
format and are also readily available in analog format. R123 and WS 
Sorkin, p. 5. The digital release of motion pictures has benefitted the 
public by providing better quality and enhanced features on DVDs. While 
Linux users represent a significant and growing segment of the 
population and while these users have experienced inconveniences, the 
market is likely to remedy this problem soon. PH25. See the discussion 
of the Linux players being developed by Sigma Designs and Intervideo, 
above. Moreover, there are commercially reasonable alternatives 
available to these users. R123. The restrictions on DVDs are presently 
offset by the overall benefit to the public resulting from digital 
release of audiovisual works. Therefore, at present the existence of 
technological measures that control access to motion pictures on DVDs 
has not had a significant adverse impact on the availability of those 
works to the public at large.
    On the question of the availability for use of works for nonprofit 
archival, preservation, and educational purposes, there was minimal 
evidence presented that these uses have been or are likely to be 
adversely affected during the

[[Page 64570]]

ensuing three year period. As stated above, facts relating to the issue 
of the existence of merged access and use controls may be presented in 
the next triennial rulemaking proceeding to determine whether the 
prohibition on circumvention of access controls is being employed in 
such a manner that it also restricts noninfringing uses.
    The impact that the prohibition on the circumvention of 
technological measures applied to copyrighted works has had or is 
likely to have on criticism, comment news reporting, teaching, 
scholarship, or research is uncertain. At present, the concerns 
expressed were speculative and the examples of the prohibition's likely 
adverse effects were minimal. At this time it appears likely that these 
concerns will be tempered by the market. If the market does not 
effectively resolve problems and sufficient evidence of substantial 
adverse effects are presented in the next triennial rulemaking 
proceeding, the Register will re-assess the need for an exemption.
    At this time it appears clear from the evidence that the 
circumvention of technological protection measures would be likely to 
have an adverse effect on the availability of digital works on DVDs to 
the public. The music industry's reluctance to distribute works on DVDs 
as a consequence of circumvention of CSS is a specific example of the 
potential effect on availability: ``In fact, it was the very hack of 
CSS that caused a delay in introduction of DVD audio into the 
marketplace.'' T Sherman, 5/3/2000, p. 18. Since the circumvention of 
technological access control measures will delay the availability of 
``use-facilitating'' digital formats that will benefit the public and 
that are proving to be popular with the public, the promulgation of an 
exemption must be carefully considered after a balancing of all the 
foregoing considerations. At present, the evidence weighs against an 
exemption for audiovisual works on DVDs.
4. Video Games in Formats Playable Only on Dedicated Platforms
    A number of comments and one witness at the hearings sought an 
exemption for video games that are playable only on proprietary 
players. T Hangartner, 5/17/00, p. 247, R73, R109. The arguments in 
support of an exemption for video games included three issues: reverse 
engineering of the games for interoperability to other platforms, 
merger of access and use controls, and region coding of the games.
    The existence of video games playable on dedicated platforms is not 
a new phenomenon in the marketplace. The Computer Software Rental 
Amendments Act of 1990 expressly provides for different treatment of 
video games sold only for use with proprietary platforms and those 
licensed for use on a computer capable of reproduction, recognizing the 
lower risk that the former will be copied to the detriment of the 
copyright owner. 17 U.S.C. 109(b)(1)(B)(ii). In the few comments 
addressing the need for interoperability of video games, there was very 
little evidentiary support for this alleged need. In fact, the 
testimony on behalf of Bleem, Inc. demonstrated that in cases involving 
interoperability of video games, courts have held either that section 
1201 is inapplicable or that the exemption in 1201(f) shields this 
activity for purposes of discovering functional elements necessary for 
interoperability. T Hangartner, 5/19/00, p. 250; T Russell, 5/19/00, p. 
332. Since the Basic Input Output System (BIOS) in these dedicated 
platforms is a computer program, section 1201(f) would appear to 
address the problem. To the extent that an identifiable problem exists 
that is outside the scope of section 1201(f), and therefore potentially 
within the scope of this rulemaking, its existence has not been 
sufficiently articulated to support the recommendation for an 
exemption. See also the discussion of reverse engineering below in 
Section III.E.5.
    The claim that the technological measures protecting access to 
video games also restrict noninfringing uses of the games also has not 
been supported by any verifiable evidence. For example, while the 
backup of such a work may be a noninfringing use, no evidence has been 
presented that access control measures, as distinguished from copy 
control measures, have caused an inability to make a backup, and the 
latter is the more likely cause. Nor has there been any showing that 
any copy or use control has been merged with an access control, such 
that the former cannot be circumvented without the latter.
    The paucity of evidence supporting an exemption on the basis of 
region coding similarly precludes a recommendation for an exemption. 
The few comments that mentioned this issue do not rise to the level of 
substantial adverse affect that would warrant an exemption for video 
games.
    The factors set forth in section 1201(a)(1)(C) do not support an 
exemption. There is no reason to believe that there has been any 
reduction in the availability of video games for use despite the fact 
that video games have incorporated access controls and dedicated 
platforms for many years. To the extent there has been a need for 
interoperability, it appears that section 1201(f) will allow functional 
features to be determined as the courts have allowed in the past. There 
has been insufficient evidence presented to indicate that video games 
have or will become less available after Sec. 1201(a)(1) goes into 
effect. There was no evidence offered that the prohibition on 
circumvention will adversely effect nonprofit archival, preservation, 
or educational uses of these works. There was also no evidence 
presented that the prohibition would have an adverse effect on 
criticism, comment, news reporting, teaching, scholarship, or research. 
On the other hand, there was little evidence that circumvention would 
have a negative impact on the market for or value of these copyrighted 
works, but this is of little consequence given the de minimis showing 
of any adverse impact access control measures have had on availability 
of the works for noninfringing uses.
5. Computer Programs and Other Digital Works for Purposes of Reverse 
Engineering
    A number of commenters asserted that reverse engineering is a 
noninfringing use that should be exempted for all classes of digital 
works. C143, R82. As already noted, reverse engineering was also raised 
as a basis for an exemption in relation to audiovisual works on DVDs 
and video games. C221. The arguments raised in support of a reverse 
engineering exemption for such works are addressed above. To the extent 
that reverse engineering is proposed for all classes of digital works, 
it does not meet the criteria of a class. A ``class of works'' cannot 
be defined simply in terms of the purpose for which circumvention is 
desired. See the discussion above, Section III.A.3.
    Moreover, to the extent that commenters seek an exemption to permit 
reverse engineering of computer programs, the case has not been made 
even if it is permissible to designate a class of ``computer programs 
for the purpose of reverse engineering.'' When it enacted section 1201, 
Congress carved out a specific exemption for reverse engineering of 
computer programs, section 1201(f). That exemption permits 
circumvention of an access control measure in order to engage in 
reverse engineering of a computer program with the purpose of achieving 
interoperability of an independently created computer program with 
other

[[Page 64571]]

programs, under certain circumstances set forth in the statute. When 
Congress has specifically addressed the issue by creating a statutory 
exemption for reverse engineering in the same legislation that 
established this rulemaking process, the Librarian should proceed 
cautiously before, in effect, expanding the section 1201(f) statutory 
exemption by creating a broader exemption pursuant to section 
1201(a)(1)(C).
    The proponents of an exemption for reverse engineering have 
expressed their dissatisfaction with the limited circumstances under 
which section 1201(f) permits reverse engineering (C13, C30), but the 
case they have made is for the legislator rather than for the 
Librarian. If, in the next three years, there is evidence that access 
control measures are actually impeding noninfringing uses of works that 
should be permitted, that evidence can be presented in the next 
triennial rulemaking proceeding. Such evidence was not presented in the 
current proceeding.
    To the extent that commenters have sought an exemption to permit 
reverse engineering for purposes of making digitally formatted works 
other than computer programs interoperable (i.e., accessible on a 
device other than the device selected by the copyright owner), it seems 
likely that the work will incorporate a computer program or reside on a 
medium along with a computer program and that it will be the computer 
program that must be reverse engineered in order to make the work 
interoperable. In such cases, section 1201(f) would appear to resolve 
the issue. To the extent that reverse engineering of something other 
than a computer program may be necessary, proponents of a reverse 
engineering exemption would be asking the Librarian to do what no court 
has ever done: to find that reverse engineering of something other than 
a computer program constitutes fair use or some other noninfringing 
use. It is conceivable that the courts may address that issue one day, 
but it is not appropriate to address that issue of first impression in 
this rulemaking proceeding without the benefit of judicial or statutory 
guidance.
    The factors set forth in section 1201(a)(1)(C) have already been 
discussed in the context of audiovisual works on DVDs and video games, 
the two specific classes of works for which a reverse engineering 
exemption has been sought. Those factors do not support an exemption 
for reverse engineering.
6. Encryption Research Purposes
    A number of commenters urged that a broader encryption research 
exemption is needed than is contained in section 1201(g). See, e.g., 
C185, C30, R55, R70. Dissatisfaction was expressed with the 
restrictiveness of the requirement to attempt to secure the copyright 
owner's permission before circumventing. C153. See 17 U.S.C. 
1201(g)(2)(C). Most of the references to statutory deficiencies 
regarding encryption research, however, merely state that the 
provisions are too narrow. See, e.g., PH20.
    As with reverse engineering, proponents of an exemption for 
encryption research are asking the Librarian to give them a broader 
exemption than Congress was willing to enact. But they have not carried 
their burden of demonstrating that the limitations of section 1201(g) 
have prevented them or are likely in the next three years to prevent 
them from engaging in noninfringing uses. With respect to encryption 
research, the DMCA required the Copyright Office and the National 
Telecommunications and Information Administration of the Department of 
Commerce to submit a joint report to Congress on the effect the 
exemption in section 1201(g) has had on encryption research and the 
development of encryption technology, the adequacy and effectiveness of 
technological measures designed to protect copyrighted works; and 
protection of copyright owners against the unauthorized access to their 
encrypted copyrighted works. The Copyright Office and NTIA submitted 
that report in May, 2000. Report to Congress: Joint Study of Section 
1201(g) of The Digital Millennium Copyright Act (posted at http://www.loc.gov/copyright/reports/studies/dmca_report.html and http://www.ntia.doc.gov/reports/dmca). In that report, NTIA and the Copyright 
Office concluded that ``[o]f the 13 comments received in response to 
the Copyright Office's and NTIA's solicitation, not one identified a 
current, discernable impact on encryption research and the development 
of encryption technology; the adequacy and effectiveness of 
technological protection for copyrighted works; or protection of 
copyright owners against the unauthorized access to their encrypted 
copyrighted works, engendered by Section 1201(g).'' That conclusion is 
equally applicable to the comments on encryption research submitted in 
this proceeding.
    Moreover, an exemption for encryption research is not focused on a 
class of works. See discussion above, Section III.A.3.
7. ``Fair Use'' Works
    A large number of commenters urged the Register to recommend an 
exemption to circumvent access control measures for fair use purposes. 
Responding to the statutory requirement of designating a ``particular 
classes of works,'' the Higher Education Associations (the Association 
of American Universities, the National Association of State 
Universities and Land Grant Colleges, and the American Council on 
Education) put forth within a broad class of ``fair use works'' the 
specific classes that are most likely to be used by libraries and 
educational institutions for purposes of fair use. PH24. The classes 
are scientific and social databases, textbooks, scholarly journals, 
academic monographs and treatises, law reports and educational audio/
visual works. A witness testifying on behalf of the Higher Education 
Associations explained that these works should be exempted where the 
purpose of using the works is fair use. T Gasaway, 5/18/00, p. 74. The 
Higher Education Associations also suggested that the exemption could 
be further limited to specific classes of persons who were likely to be 
fair users. PH24, at 12.
    To the extent that proponents of such an exemption seek to limit 
its applicability to certain classes of users or uses, or to certain 
purposes, such limitations are beyond the scope of this rulemaking. It 
is the Librarian's task to determine whether to exempt any ``particular 
class of works.'' 17 U.S.C. 1201(a)(1)(B), (C) (emphasis added). See 
the discussion above, Section III.A.3.
    The merits of an exemption for scientific and social databases have 
already been discussed to some extent in the treatment of ``thin 
copyright'' works and sole source works. To the extent that these works 
are not in these previously addressed classes, even though scientific 
and social databases can be seen to present an appropriate class, the 
case for an exemption has not been presented. No evidence was submitted 
that specific works in these named classes have been or are likely to 
be inaccessible because educational institutions or libraries have been 
prevented from circumventing them. Although the proponents of this 
exemption allege that if they are prevented from circumventing these 
particular classes of works, they and those they represent will not be 
able to exercise fair use as to this class of works, they have not 
demonstrated that

[[Page 64572]]

they have been unable to engage in such uses because of access control 
measures.
    Many of the concerns raised by proponents of such an exemption are 
actually related to copy control measures rather than access control 
measures. See, e.g., R75 (National Library of Medicine). If a library 
or higher education institution has access to a work, section 1201 does 
not prevent the conduct of circumventing technological measures that 
prevent the copying of the work.
    Although textbooks, scholarly journals, academic monographs and 
treatises, law reports and educational audiovisual works have been 
mentioned as candidates for this proposed class of ``fair use'' works, 
proponents have failed to demonstrate how technological measures that 
control access to such works are preventing noninfringing uses or will 
in the next three years prevent such uses. In fact, it is not even 
clear whether technological measures that control access are actually 
used with respect to some of these types of works, e.g., textbooks. 
While it is easy to agree that if access control measures were creating 
serious difficulties in making lawful uses of these works, an exemption 
would be justified, the case has not been made that this is a problem 
or is about to be a problem.
    Application of the factors set forth in section 1201(a)(1)(C) to 
this proposed class of works is identical to the analysis of those 
factors with respect to ``thin copyright'' works discussed above 
(Section III.E.1) and will not be repeated here.
8. Material that Cannot be Archived or Preserved
    A number of library associations expressed concern about the 
general impact of the prohibition against circumvention on the future 
of archiving and preservation. See, e.g., C175, R75, R80, C162, p.26-
29, 31-32; R83, p. 2-4; PH18, p.5. To some extent, these concerns may 
be addressed in the second of the two recommended exemptions, to the 
degree that faulty or obsolete access control measures may be 
preventing libraries and others from gaining authorized access to works 
in order to archive them. But more generally, libraries expressed 
concerns that digital works for which there are no established non-
digital alternatives may not be archived. C162, p.26-29.
    Because materials that libraries and others desire to archive or 
preserve cut across all classes of works, these works do not constitute 
a particular class.\16\ See the discussion above, Section III.A.3. The 
Office is limited to recommending only particular classes, and then 
only when it has been established that actual harm has occurred, or 
that harm will likely occur. Such a showing of adverse effect on all 
materials that may need to be archived or preserved has not been made. 
Demonstration of the inability to archive or preserve materials tied to 
a more particular class of works would be needed to establish an 
adverse effect in this rulemaking. Application of the relevant factors 
cannot take place in gross, without reference to a specified class of 
works.
---------------------------------------------------------------------------

    \16\ The National Digital Library and the Motion Picture 
Broadcasting and Recorded Sound Division of the Library of Congress 
addressed the class of audiovisual works when it stated that, to 
carry out their mission, they may need to circumvent access controls 
to preserve these materials for the long term. However, they did not 
state that they have thus far had such a need or that they are aware 
of circumstances likely to require them to engage in such 
circumvention in the next three years.
---------------------------------------------------------------------------

    Even if such materials were to constitute a particular class, and 
harm were shown, adverse causes other than circumvention must be 
discounted in balancing the relevant factors. House Manager's Report, 
at 6. The libraries and Higher Education Associations provided examples 
of problems due to numerous other factors--licensing restrictions, 
cost, lack of technological storage space, and uncertainty whether 
publishers will preserve their own materials. These are adverse effects 
caused by something other than the prohibition on circumvention of 
access control measures.
    The Higher Education Associations cite the frequent phenomenon of 
``disappearing'' works--those appearing online or on disk today that 
may be gone tomorrow, e.g., because they may be removed from an online 
database or because the library or institution has access to them only 
during the term of its license to use the work. See T Gasaway, 5/18/00, 
p. 38. This rulemaking proceeding cannot force copyright owners to 
archive their own works. Moreover, assuming that libraries and other 
institutions are unable to engage in such archiving themselves today, 
they have not explained how technological measures that control access 
to those works are preventing them from doing so. Rather, it would 
appear that restrictions on copying are more likely to be responsible 
for the problem. See R75 (National Library of Medicine's inability to 
preserve Online Journal of Current Clinical Trials and videotapes, 
apparently because of restrictions on copying); C162, pp. 25-29 
(American Library Association et al.). Section 1201 does not prohibit 
libraries and archives from the conduct of circumventing copy controls. 
Therefore, it is difficult to understand how an exemption from the 
prohibition on circumvention of access controls would resolve this 
problem.
    Some commenters have also complained that licensing terms have 
required them to return CD-ROMs to vendors in order to obtain updated 
versions, thereby losing the ability to retain the exchanged CD-ROM as 
an archival copy. See, e.g., C162, p. 27. But they have failed to 
explain how technological measures that control access to the works on 
the CD-ROMS play any role in their inability to archive something that 
they have returned to the vendor.\17\ In a future rulemaking 
proceeding, libraries and archives may be able to identify particular 
classes of works that they are unable to archive or preserve because of 
access control measures, and thereby establish the requisite harm.
---------------------------------------------------------------------------

    \17\ A related issue, CD-ROMS with faulty access controls that 
erroneously exclude authorized users from access, is addressed in 
the second exemption recommended by the Register.
---------------------------------------------------------------------------

    Because this proposed exemption does not really address a 
particular class of works, application of the factors set forth in 
section 1201(a)(1)(C) is difficult. If particular classes of works were 
in danger of disappearing due to access control measures, then 
presumably all of the factors (with the possible exception of the 
factor relating to the effect of circumvention on the market for or 
value of the copyrighted works) would favor such an exemption. But the 
current record does not support an exemption.
9. Works Embodied in Copies Which Have Been Lawfully Acquired by Users 
Who Subsequently Seek to Make Non-infringing Uses Thereof
    An exemption for ``works embodied in copies which have been 
lawfully acquired by users who subsequently seek to make non-infringing 
uses thereof'' was put forward by Peter Jaszi, a witness representing 
the Digital Future Coalition, and was subsequently endorsed by many 
members of the academic and library communities. T Peter Jaszi, 5/3/00; 
T Julie Cohen, 5/4/00, PH22, T Diana Vogelsong, 5/3/00. In addition, it 
was endorsed by the comments of the Assistant Secretary of Commerce for 
Communications and Information. See discussion above, Section III.B. 
Similar exemptions were independently proposed by other commenters. 
PH24 (AAU); PH18 (ALA), PH21. These proposed exemptions focus on 
allowing circumvention by users for

[[Page 64573]]

noninfringing purposes after they have gained initial lawful access, 
although the Association of American Universities' proposal would limit 
the ability to circumvent after the period of lawful access to users 
possessing a physical copy of the work.
    The proponents for this exemption fear that pay-per-use business 
models (using what are sometimes called ``persistent access controls'') 
will be used to lock up works, forcing payment for each time the work 
is accessed. In addition, they fear that persistent access controls 
will be used to constrain the ability of users, subsequent to initial 
access, to make uses that would otherwise be permissible, including 
fair uses. Without this exemption, they assert, the traditional balance 
of copyright would be upset, tipping it drastically in favor of the 
copyright owners and making it more difficult and/or expensive for 
users to engage in uses that are permitted today.
    Therefore, these commenters propose an exemption for a class of 
``works embodied in copies which have been lawfully acquired by users 
who subsequently seek to make non-infringing uses thereof.'' In 
substance, the proposal would exempt all users who wish to make 
noninfringing uses, regardless of the type of work, provided that they 
either lawfully acquire a copy or, in some versions of the proposal, 
lawfully acquire access privileges. This exemption, commenters argue, 
will equitably maintain the copyright balance. It would allow copyright 
owners to control the distribution of, and initial authorization of 
access to, copies of their works, while allowing users to circumvent 
those access controls for noninfringing uses after they have lawfully 
accessed or acquired them.
    However, for several reasons, the ``class'' they propose is not 
within the scope of this rulemaking. First, none of the proposals 
adequately define a ``class'' of the type this rulemaking allows the 
Librarian to exempt. As discussed above in Section III.A.3, ``a 
particular class of work'' must be determined primarily by reference to 
qualities of the work itself. It cannot be defined by reference to the 
class of users or uses of the work, as these proposals suggest. Second, 
although the commenters have persuasively articulated their fears about 
how these business models will develop and affect their ability to 
engage in noninfringing uses, they have not made the case that these 
fears are now being realized, or that they are likely be realized in 
the next three years.
    The Assistant Secretary for Communications and Information has 
endorsed this proposed exemption. In support of this proposal, NTIA 
made only general references to one comment, RC113, and to the 
testimony of Julie Cohen, Siva Vaidyanathan, Sarah Wiant, James Neal, 
Frederick Weingarten, and the Consortiums of College and University 
Media Centers (CCUMC). NTIA did not specifically identify what evidence 
these witnesses and commenters had provided, apart from noting that 
they provided ``numerous examples regarding the manner in which 
persistent access controls restrict the flow of information'' and 
testimony about ``impediments to archiving and preservation of digital 
works, teaching, and digital divide concerns.'' The latter concern is 
addressed in Section III.E.8.
    The one comment cited by NTIA related to medical records that are 
stored in proprietary formats. RC113. It does not appear from that 
single comment--the only comment or testimony submitted on the issue--
that the problem identified by the commenter related to technological 
measures that control access to copyrighted works. The commenter raised 
legitimate concerns about difficulties in converting data from one 
format to another. One can speculate that in the future, access control 
measures might be applied to medical data and prevent health care 
workers from obtaining needed access, but the commenter did not make 
the case that this is happening or is likely to happen in the next 
three years.
    The testimony cited by NTIA relating to access controls that 
restrict the flow of information raised many fears and concerns but 
minimal distinct, verifiable, or measurable impacts. Of course, it is a 
tautology that any measure that controls access to a work will, by 
definition, at least to some degree restrict the flow of the 
information in the work. But although many of the witnesses complained 
about ``persistent access controls,'' they did not present specific 
examples of any evidence of present or likely nontrivial adverse 
effects causally related to such controls.\18\ The testimony relating 
to noninfringing uses that could be adversely affected has not been 
specifically shown to be caused by access controls as opposed to other 
technological or licensing measures. There appears to be no support in 
the record for a finding that the cited testimony rises to the level of 
distinct, verifiable and measurable impacts justifying an exemption at 
this time.
---------------------------------------------------------------------------

    \18\ In fact, one of those witnesses admitted that ``the law has 
caused little harm yet'' and that ``my fears are speculative and 
alarmist.'' T Vaidyanathan, 5/18/00, p. 11. Another of the witnesses 
admitted that librarians have not yet experienced the ``persistent 
access controls'' feared by proponents of this exemption. T Neal, 5/
4/00, p. 42.
---------------------------------------------------------------------------

    Finally, the proposed exemption parallels elements of an approach 
that was considered, and ultimately rejected, by Congress during the 
drafting of the law. The version of the DMCA that was passed by the 
House of Representatives on August 4, 1998, contained a provision that 
required a rulemaking proceeding that would determine classes of works 
for which, inter alia, users ``who have gained lawful initial access to 
a copyrighted work'' would be adversely affected in their ability to 
make noninfringing uses. HR 2281 EH, Section 1201(a)(1)(B):

    The prohibition contained in subparagraph (A) shall not apply to 
persons with respect to a copyrighted work which is in a particular 
class of works and to which such persons have gained initial lawful 
access, if such persons are, or are likely to be in the succeeding 
3-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 under subparagraph (C).''

See also section 1201(a)(1)(D).
    Thus, when it first passed the DMCA the House of Representatives 
appears to have agreed with much of the approach taken by the 
proponents of this exemption. But the fact that Congress ultimately 
rejected this approach when it enacted the DMCA and, instead, deleted 
the provision that had limited the applicability of the exemptions to 
persons who have gained initial lawful access, is clear indication that 
the Librarian does not have the power to fashion a class of works based 
upon such a limitation. Such an exemption is more properly a subject of 
legislation, rather than of a rulemaking the object of which is to 
determine what classes of works are to be exempted from the prohibition 
on circumvention of access controls.
10. Exemption for Public Broadcasting Entities
    The Public Broadcasting Service, National Public Radio, and the 
Association of America's Public Television Stations described the 
public broadcasting entities' need to use sound recordings, published 
musical works and published pictorial, graphic and sculptural works in 
accordance with exemptions and statutory licenses under section 114(b) 
and 118(d) of the Copyright Act. R106. They observe that if copyright 
owners encrypted these classes of works, they would not be able

[[Page 64574]]

to make noninfringing uses of them pursuant to the statute. But their 
submission addressed potential adverse effects of the prohibition on 
circumvention, not current or even likely adverse effects. There has 
been no allegation that public broadcasters have encountered or are 
about to encounter technological protection measures that prevent them 
from exercising their rights pursuant to sections 114 and 118.
    If public broadcasting entities were able to demonstrate such 
adverse impact, a strong case might be made for an exemption for sound 
recordings, published musical works and published pictorial, graphic 
and sculptural works. In part for that very reason, public broadcasters 
may not experience serious adverse impacts on their ability to use such 
works pursuant to the compulsory licenses, because copyright owners 
will have every incentive to facilitate those permitted uses. Indeed, 
the public broadcasters stated that they ``believe that the developing 
methods of technological protection will be deployed ``to support new 
ways of disseminating copyrighted materials to users, and to safeguard 
the availability of ``works to the public.'' Id.
    In any event, there is no need at present for an exemption to 
accommodate the needs of public broadcasters.

IV. Conclusion

    Pursuant to the mandate of 17 U.S.C. 1201 (b) and 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 two classes of copyrighted works where 
the Register has found that noninfringing uses by users of such 
copyrighted works are, or are likely to be, adversely affected, and the 
prohibition found in 17 U.S.C. 1201 (a) should not apply to such users 
with respect to such class of work for the ensuing 3-year period. The 
classes of work so identified are:

    1. Compilations consisting of lists of websites blocked by 
filtering software applications; and
    2. Literary works, including computer programs and databases, 
protected by access control mechanisms that fail to permit access 
because of malfunction, damage or obsoleteness.

    The Register notes that any exemption of classes of copyrighted 
works published by the Librarian will be effective only until October 
28, 2003. Before that period expires, the Register will initiate a new 
rulemaking to consider de novo what classes of copyrighted works, if 
any, should be exempt from Sec. 1201(a)(1)(A) commencing October 28, 
2003.

Marybeth Peters,
Register of Copyrights.

Determination of the Librarian of Congress

    Having duly considered and accepted the recommendation of the 
Register of Copyrights concerning what classes of copyrighted works 
should be exempt from 17 U.S.C. 1201(a)(1)(A), 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 two 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) for the period from October 
28, 2000 to October 28, 2003. The classes are:

    1. Compilations consisting of lists of websites blocked by 
filtering software applications; and
    2. Literary works, including computer programs and databases, 
protected by access control mechanisms that fail to permit access 
because of malfunction, damage or obsoleteness.

List of Subjects in 37 CFR Part 201

    Copyright, Exemptions to prohibition against circumvention.

    For the reasons set forth in the preamble, the Library amends 37 
CFR part 201 as follows:

PART 201--GENERAL PROVISIONS

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

    Authority: 17 U.S.C. 702.

    2. A new Sec. 201.40 is added to read as follows:


Sec. 201.40  Exemption to prohibition against circumvention.

    (a) General. This section prescribes the classes of copyrighted 
works for which the Librarian of Congress has determined, pursuant to 
17 U.S.C. 1201(a)(1)(C) and (D), that noninfringing uses by persons who 
are users of such works are, or are likely to be, adversely affected. 
The prohibition against circumvention of technological measures that 
control access to copyrighted works set forth in 17 U.S.C. 
1201(a)(1)(A) shall not apply to such users of the prescribed classes 
of copyrighted works.
    (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 two 
classes of copyrighted works 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) for the period from October 
28, 2000 to October 28, 2003. The exempted classes of works are:
    (1) Compilations consisting of lists of websites blocked by 
filtering software applications; and
    (2) Literary works, including computer programs and databases, 
protected by access control mechanisms that fail to permit access 
because of malfunction, damage or obsoleteness.

    Dated: October 23, 2000.
James H. Billington,
The Librarian of Congress
[FR Doc. 00-27714 Filed 10-26-00; 8:45 am]
BILLING CODE 1410-30-P