64556 Federal Register / Vol. 65, No. 209 / Friday, October 27, 2000 / Rules and Regulations

1The 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.

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

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

Federal Register / Vol. 65, No. 209 / Friday, October 27, 2000 / Rules and Regulations 64557

2 In referring to the comments and hearing

materials, the Office will use the following

abbreviations: C-Comment, R-Reply Comment, PHPost 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.

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

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

64558 Federal Register / Vol. 65, No. 209 / Friday, October 27, 2000 / Rules and Regulations

3The 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.

4Some 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.’’

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

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

Federal Register / Vol. 65, No. 209 / Friday, October 27, 2000 / Rules and Regulations 64559

to characterize as ‘substantial’ the

burden faced by a party seeking an

exemption from a general statutory

rule’’).

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:

64560 Federal Register / Vol. 65, No. 209 / Friday, October 27, 2000 / Rules and Regulations

5A 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 § 12A.03[A][[2][b] (Copyright

Protection Systems Special Pamphlet).

6The 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 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

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

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

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

64562 Federal Register / Vol. 65, No. 209 / Friday, October 27, 2000 / Rules and Regulations

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

Federal Register / Vol. 65, No. 209 / Friday, October 27, 2000 / Rules and Regulations 64563

7One 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.

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

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 ‘‘failsafe 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 payper-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

64564 Federal Register / Vol. 65, No. 209 / Friday, October 27, 2000 / Rules and Regulations

‘‘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, ‘‘usefacilitating.’’ 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 ‘‘payper-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

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

64566 Federal Register / Vol. 65, No. 209 / Friday, October 27, 2000 / Rules and Regulations

8One 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.

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 noninfringing 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

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

Federal Register / Vol. 65, No. 209 / Friday, October 27, 2000 / Rules and Regulations 64567

9This 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.

10The DVD issue is addressed below, Section

III.E.3.

11Nonetheless, 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.

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 useenhancing 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.

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

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.

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

64568 Federal Register / Vol. 65, No. 209 / Friday, October 27, 2000 / Rules and Regulations

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).

13Perhaps 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.

14However, 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.’’

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

§ 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.

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

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.

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,

Federal Register / Vol. 65, No. 209 / Friday, October 27, 2000 / Rules and Regulations 64569

15Among 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.

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.

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

64570 Federal Register / Vol. 65, No. 209 / Friday, October 27, 2000 / Rules and Regulations

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 ‘‘usefacilitating’’ 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 § 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

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

64572 Federal Register / Vol. 65, No. 209 / Friday, October 27, 2000 / Rules and Regulations

16The 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.

17A 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.

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.

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.

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 Noninfringing 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

Federal Register / Vol. 65, No. 209 / Friday, October 27, 2000 / Rules and Regulations 64573

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.

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 noninfringing 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.

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

64574 Federal Register / Vol. 65, No. 209 / Friday, October 27, 2000 / Rules and Regulations

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 § 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 § 201.40 is added to read as

follows:

§ 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