65260 Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 

From To MEA 

*10000—MRA 

#GNSS MEA 

From To MEA MAA 

§ 95.7528 JET ROUTE J528 Is Amended To Delete 

WHATCOM, WA VORTAC ............................................... U.S. CANADIAN BORDER .............................................. 18000 45000 

Airway segment Changeover points 

From To Distance From 

§ 95.8003 VOR Federal Airway Changeover Points V1 

CHARLESTON, SC VORTAC .................................... GRAND STRAND, SC VORTAC ............................... 46 CHARLESTON 

Is Amended To Add Changeover Point V208 

SANTA CATALINA, CA VORTAC .............................. OCEANSIDE, CA VORTAC ...................................... 31 SANTA CATALINA 

Is Amended To Add Changeover Point V27 

SANTA CATALINA, CA VORTAC .............................. OCEANSIDE, CA VORTAC ...................................... 31 SANTA CATALINA 

Is Amended To Add Changeover Point V34 

ROCHESTER, NY VOR/DME .................................... HANCOCK, NY VOR/DME ........................................ 60 ROCHESTER 

Is Amended To Add Changeover Point V458 

SANTA CATALINA, CA VORTAC .............................. OCEANSIDE, CA VORTAC ...................................... 31 SANTA CATALINA 

[FR Doc. 2012–26334 Filed 10–25–12; 8:45 am] 

BILLING CODE 4910–13–P 

LIBRARY OF CONGRESS 

Copyright Office 

37 CFR Part 201 

[Docket No. 2011–7] 

Exemption to Prohibition on 

Circumvention of Copyright Protection 

Systems for Access Control 

Technologies 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Final rule. 

SUMMARY: Having duly considered and 

accepted the Recommendation of the 

Register of Copyrights that the 

prohibition against circumvention of 

technological measures that effectively 

control access to copyrighted works 

shall not apply to persons who engage 

in noninfringing uses of certain classes 

of copyrighted works, the Librarian of 

Congress is exercising his authority to 

publish a new rule designating classes 

of copyrighted works that shall be 

subject to statutory exemption. 

DATES: Effective Date: October 28, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Jacqueline C. Charlesworth, Senior 

Counsel to the Register of Copyrights, 

Office of the Register of Copyrights, by 

email at jcharlesworth@loc.gov; 

Christopher S. Reed, Senior Advisor for 

Policy & Special Projects, Office of the 

Register of Copyrights, by email at 

creed@loc.gov; or call the U.S. Copyright 

Office by phone at 202–707–8350. 

SUPPLEMENTARY INFORMATION: The 

Librarian of Congress, upon the 

recommendation of the Register of 

Copyrights, has determined that the 

prohibition against circumvention of 

technological measures that effectively 

control access to copyrighted works 

shall not apply to persons who engage 

in noninfringing uses of certain classes 

of works. This rulemaking is the 

culmination of a proceeding initiated by 

the Register on September 29, 2011. A 

more comprehensive statement of the 

background and legal requirements of 

the rulemaking, a discussion of the 

record, and the Register’s analysis are 

set forth in the Register’s 

Recommendation, which was 

transmitted to the Librarian on October 

12, 2012. A copy of the 

Recommendation may be found at 

www.copyright.gov/1201/. This notice 

summarizes the Register’s 

Recommendation, announces the 

Librarian’s determination, and 

publishes the regulatory text codifying 

the exempted classes of works. 

I. Background 

A. Statutory Requirements 

The Digital Millennium Copyright Act 

(‘‘DMCA’’) was enacted to implement 

certain provisions of the WIPO 

Copyright Treaty and WIPO 

Performances and Phonograms Treaty. It 

established a wide range of rules for the 

digital marketplace that govern not only 

copyright owners, but also consumers, 

manufacturers, distributors, libraries, 

educators, and online service providers. 

Chapter 12 of Title 17 of the United 

States Code prohibits the circumvention 

of certain technological measures 

employed by or on behalf of copyright 

owners to protect their works 

(‘‘technological measures’’ or ‘‘access 

controls’’). Specifically, Section 

1201(a)(1)(A) provides, in part, that 

‘‘[n]o person shall circumvent a 

technological measure that effectively 

controls access to a work protected’’ by 

the Copyright Act. In order to ensure 

that the public will have the continued 

ability to engage in noninfringing uses 

of copyrighted works, however, 

subparagraph (B) limits this prohibition. 

It provides that the prohibition shall not 

apply to persons who are users of a 

copyrighted work in a particular class of 

works if such persons are, or in the 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 65261 

succeeding three-year period are likely 

to be, adversely affected by virtue of the 

prohibition in their ability to make 

noninfringing uses of such works, as 

determined in this rulemaking 

proceeding. 

The proceeding is conducted by the 

Register of Copyrights, who is to 

provide notice of the proceeding, seek 

comments from the public, consult with 

the Assistant Secretary for 

Communications and Information of the 

Department of Commerce, and 

recommend final regulations to the 

Librarian of Congress. According to 

Section 1201(a)(1)(D), the resulting 

regulations, which are issued by the 

Librarian of Congress, announce ‘‘any 

class of copyrighted works for which the 

Librarian has determined, pursuant to 

the rulemaking * * * 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.’’ 

The primary responsibility of the 

Register and the Librarian in this 

rulemaking proceeding is to assess 

whether the implementation of access 

control measures is diminishing the 

ability of individuals to use copyrighted 

works in ways that are not infringing 

and to designate any classes of works 

with respect to which users have been 

adversely affected in their ability to 

make such noninfringing uses. Congress 

intended that the Register solicit input 

that would enable consideration of a 

broad range of current or likely future 

adverse impacts. Section 1201(a)(1)(C) 

directs that the rulemaking proceeding 

examine: (1) The availability for use of 

copyrighted works; (2) the availability 

for use of works for nonprofit archival, 

preservation, and educational purposes; 

(3) the impact that the prohibition on 

the circumvention of technological 

measures applied to copyrighted works 

has on criticism, comment, news 

reporting, teaching, scholarship, or 

research; (4) the effect of circumvention 

of technological measures on the market 

for or value of copyrighted works; and 

(5) such other factors as the Librarian 

considers appropriate. These statutory 

factors require the Register and 

Librarian to balance carefully the 

availability of copyrighted works for 

use, the effect of the prohibition on 

particular uses, and the effect of 

circumvention on copyrighted works. 

B. The Rulemaking Process 

In examining the factors set forth in 

Section 1201(a)(1)(C), the focus is on 

whether the implementation of 

technological measures has an adverse 

impact on the ability of users to make 

lawful uses of copyrighted works. The 

statutory prohibition on circumvention 

is presumed to apply to any and all 

kinds of works unless, and until, the 

criteria have been met for a particular 

class. 

In each rulemaking proceeding, the 

Register and Librarian review the 

proposed classes de novo. The fact that 

a class previously has been designated 

creates no presumption that 

redesignation is appropriate. While in 

some cases earlier legal analysis by the 

Register may be relevant to analyzing a 

proposed exemption, the proponent of a 

class must still make a persuasive 

factual showing with respect to the 

three-year period currently under 

consideration. When a class has been 

previously designated, however, 

evidence relating to the costs, benefits, 

and marketplace effects ensuing from 

the earlier designation may be relevant 

in assessing whether a similar class 

should be designated for the subsequent 

period. 

Proponents of an exemption for a 

class of works bear the burden of 

demonstrating that the exemption is 

warranted. In order to establish a prima 

facie case for designation of a particular 

class of works, the proponent must 

show that: (1) Uses affected by the 

prohibition on circumvention are or are 

likely to be noninfringing; and (2) as a 

result of a technological measure 

controlling access to a copyrighted 

work, the prohibition is causing, or in 

the next three years is likely to cause, 

a substantial adverse impact on those 

uses. 

There are several types of 

noninfringing uses that could be 

affected by the prohibition of Section 

1201(a)(1), including fair use and the 

use of public domain works, among 

others. A proponent must show that the 

proposed use is or is likely 

noninfringing. It is not sufficient that 

the use could be noninfringing, as the 

Register does not apply a ‘‘rule of 

doubt’’ when it is unclear whether a 

proposed use is likely to be fair or 

otherwise noninfringing. 

A proponent may not rely on 

speculation to support a proposed class, 

but instead must show by a 

preponderance of evidence that the 

alleged harm to noninfringing uses is 

more likely than not to occur during the 

next three years. The harm must be 

distinct and measurable, and more than 

de minimis. The Register and Librarian 

will, when appropriate, consider 

whether alternatives exist to accomplish 

the proposed noninfringing uses. The 

mere fact that a particular medium or 

technology may be more convenient for 

noninfringing uses than other formats is 

generally insufficient to support an 

exemption. If sufficient alternatives 

exist, there is no substantial adverse 

impact or adequate basis to designate 

the class. 

C. Defining a Class 

The starting point in defining a 

‘‘particular class’’ of works to be 

designated as a result of the rulemaking 

is one of the categories of works set 

forth in Section 102 of the Copyright 

Act, such as literary works, musical 

works, or sound recordings. Those 

categories are only a starting point, 

however; a ‘‘class’’ will generally 

constitute some subset of a Section 102 

category. The determination of the 

appropriate scope of a class of works 

recommended for exemption will also 

depend on the evidentiary record and 

take into account the adverse impact on 

noninfringing uses, as well as the 

market for and value of the copyrighted 

works. 

While beginning with a category of 

works identified in Section 102, or a 

subcategory thereof, the description of 

the ‘‘particular class’’ ordinarily will be 

refined with reference to other factors so 

that the scope of the class is 

proportionate to the scope of harm to 

noninfringing uses. For example, a class 

might be refined in part by reference to 

the medium on which the works are 

distributed, or to the access control 

measures applied to the works. The 

description of a class of works may also 

be refined, in appropriate cases, by 

reference to the type of user who may 

take advantage of the exemption or the 

type of use that may be made pursuant 

to the designation. The class must be 

properly tailored to address not only the 

demonstrated harm, but also to limit the 

adverse consequences that may result 

from the exemption to the prohibition 

on circumvention. In every case, the 

contours of a class will depend on the 

factual record established in the 

rulemaking proceeding. 

II. History of the Proceeding 

A. Solicitation of Public Comments and 

Hearings 

This is the fifth triennial rulemaking 

proceeding pursuant to Section 

1201(a)(1)(C). The Register initiated the 

rulemaking on September 29, 2011 (76 

FR 60398) with publication of a Notice 

of Inquiry (‘‘NOI’’). The NOI requested 

written comments from all interested 

parties, including representatives of 

copyright owners, educational 

institutions, libraries and archives, 

scholars, researchers, and members of 


emcdonald on DSK67QTVN1PROD with RULES
65262 Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 

the public, concerning whether 

noninfringing uses of certain classes of 

works are, or are likely to be, adversely 

affected by the prohibition against 

circumvention of measures that control 

access to copyrighted works. 

During the initial comment period 

that ended on December 1, 2011, the 

Copyright Office received 22 comments, 

all of which were posted on the Office’s 

Web site. Based on these comments, the 

Register identified proposed exemptions 

for the upcoming period. Because some 

of the initial comments contained 

similar or overlapping proposals, the 

Copyright Office organized the 

proposals into ten proposed classes of 

works, and set forth and summarized 

each class in a Notice of Proposed 

Rulemaking (‘‘NPRM’’) published on 

December 20, 2011 (76 FR 78866). 

The NPRM did not present the initial 

classes in the form of a proposed rule, 

but merely as ‘‘a starting point for 

further consideration.’’ The NPRM 

asked interested parties to submit 

additional comments and reply 

comments providing support, 

opposition, clarification, or correction 

regarding the proposed classes of works, 

and to provide factual and/or legal 

arguments in support of their positions. 

The Copyright Office received a total of 

674 comments before the comment 

period closed on February 10, 2012. The 

Office also received 18 reply comments 

before the reply comment period closed 

on March 2, 2012. 

On March 15, 2012, the Register 

published a Notice indicating that 

public hearings would be conducted at 

the University of California, UCLA 

School of Law, in California, and at the 

Library of Congress in Washington, DC, 

in May and June 2012 to consider the 

proposed exemptions. Requests to 

testify were due April 2, 2012. Public 

hearings were held on five separate 

days: at the Library of Congress on May 

11, 2012; at University of California, Los 

Angeles, School of Law on May 17, 

2012; and at the Library of Congress on 

May 31, June 4, and June 5, 2012. 

Witnesses representing proponents and 

opponents of proposed classes of works 

offered testimony and answered 

questions from Copyright Office staff. 

Following the hearings, the Copyright 

Office sent follow-up questions 

pertaining to certain issues to witnesses 

who had testified. The purpose of these 

written inquiries was to clarify for the 

record certain statements made during 

the hearings and to elicit further 

responses to questions raised at the 

hearings. 

B. Consultation With the Assistant 

Secretary for Communications and 

Information 

As contemplated by Congress, the 

Register also sought input from the 

Assistant Secretary for Communications 

and Information of the Department of 

Commerce, who oversees the National 

Telecommunications and Information 

Administration (‘‘NTIA’’). NTIA staff 

were briefed on the rulemaking process 

and informed of developments through 

a series of meetings and telephone 

conferences. They also were in 

attendance at many of the hearings. 

NTIA formally communicated its 

views on the proposed classes in a letter 

delivered to the Register on September 

21, 2012. 

III. The Designated Classes 

Upon the recommendation of the 

Register of Copyrights, the Librarian has 

determined that the following classes of 

works shall be exempt from the 

prohibition against circumvention of 

technological measures set forth in 

Section 1201(a)(1)(A): 

A. Literary Works Distributed 

Electronically—Assistive Technologies 

Literary works, distributed electronically, 

that are protected by technological measures 

which either prevent the enabling of readaloud functionality or interfere with screen 

readers or other applications or assistive 

technologies, (i) when a copy of such a work 

is lawfully obtained by a blind or other 

person with a disability, as such a person is 

defined in 17 U.S.C. 121; provided, however, 

the rights owner is remunerated, as 

appropriate, for the price of the mainstream 

copy of the work as made available to the 

general public through customary channels; 

or (ii) when such work is a nondramatic 

literary work, lawfully obtained and used by 

an authorized entity pursuant to 17 U.S.C. 

121. 

This exemption is a modification of 

the proponents’ proposal. It permits the 

circumvention of literary works that are 

distributed electronically to allow blind 

and other persons with disabilities to 

obtain books through the open market 

and use screen readers and other 

assistive technologies to read them, 

regardless of whether an accessible copy 

may be available for purchase, but 

provided the author, publisher, or other 

rights owner receives remuneration, as 

appropriate. It also permits authorized 

entities operating under Section 121 to 

use such works and ensures that such 

use conforms to the provisions and 

safeguards of that section. 

Proponents American Council of the 

Blind and American Foundation for the 

Blind, supported by The SamuelsonGlushko Technology Law & Policy 

Clinic at the University of Colorado Law 

School, sought an exemption to access 

literary works that are distributed 

electronically—i.e., ebooks—that are 

legally obtained by individuals who are 

blind or print disabled but cannot be 

used with screen readers or other 

assistive technologies. In 2006 and 

2010, the Librarian designated a class 

consisting of ‘‘[l]iterary works 

distributed in ebook format when all 

existing ebook editions of the work 

(including digital text editions made 

available by authorized entities) contain 

access controls that prevent the enabling 

either of the book’s read-aloud function 

or of screen readers that render the text 

into a specialized format.’’ See 37 CFR 

201.40(b)(6). In this proceeding, 

proponents sought to eliminate the 

requirement that all existing ebook 

editions contain access controls, but at 

the same time proposed to limit the 

exemption to individuals with print 

disabilities as defined by Section 121 of 

the Copyright Act and to authorized 

entities under Section 121 distributing 

works exclusively to such persons. 

Proponents asserted that the 

exception is necessary because 

technological measures to control access 

to copyrighted works have been 

developed and deployed in ways that 

prevent access to ebooks by people who 

are blind or visually impaired. 

Proponents explained that, despite the 

rapid growth of the ebook market, most 

ebook titles remain inaccessible due to 

fragmentation within the industry and 

differing technical standards and 

accessibility capabilities across 

platforms. Although precise figures 

remain elusive, press accounts cited by 

the proponents suggest that only a 

fraction of the publicly available ebooks 

are accessible; proponents estimated 

that there are approximately 1.8 million 

inaccessible ebook titles. Proponents 

cited an example, The Mill River 

Recluse by Darcie Chan, ebook editions 

of which are available in each of the 

three major ebook stores. Only the 

iBookstore edition is accessible, 

however. An individual with a print 

disability would thus be required to 

have an iPhone, iPad, or other Apple 

device in order to access the book. 

Joint Creators and Copyright Owners, 

consisting of the Association of 

American Publishers, the American 

Society of Media Photographers, the 

Business Software Alliance, the 

Entertainment Software Association, the 

Motion Picture Association of America, 

the Picture Archive Council of America, 

and the Recording Industry Association 

of America (‘‘Joint Creators’’), 

representing various content owner 

groups, offered no objection in principle 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 65263 

to an exemption such as that 

promulgated in 2010. They observed 

that the market is evolving rapidly and 

that the market share of the major 

electronic book platforms had increased 

substantially since the last rulemaking. 

However, they opposed elimination of 

the requirement in the existing 

exemption that all ebook formats 

contain access controls before the 

exemption could be invoked. 

When the Register was first called 

upon to consider an exemption for 

ebooks in 2003, the marketplace was 

very different. At that time, ebooks were 

distributed primarily for use on 

personal computers (‘‘PCs’’), readable 

with freely available software, and the 

public’s reception of ebooks was 

tentative. Today, ebooks are marketed 

mainly for use on mobile devices, 

ranging from dedicated ebook readers 

using proprietary software (e.g., 

Amazon’s Kindle) to multipurpose 

devices running free software 

applications (e.g., an Apple iPad 

running Amazon’s Kindle app). 

Nonetheless, there are often substantial 

costs associated with owning dedicated 

reading devices, and there are 

inefficiencies associated with having to 

own more than one such device. The 

restrictions recommended by the 

Register in prior rulemakings are 

therefore not reflective of the current 

market conditions. 

The Register determined that the 

statutory factors of Section 1201(a)(1)(C) 

strongly favor an exempted class to 

address the adverse effects that were 

established in the record. The 

designated class is not merely a matter 

of convenience, but is instead intended 

to enable individuals who are blind or 

visually impaired to have meaningful 

access to the same content that 

individuals without such impairments 

are able to perceive. As proponents 

explained, their desire is simply to be 

able to access lawfully acquired content. 

In short, the exemption is designed to 

permit effective access to a rapidly 

growing array of ebook content by a 

population that would otherwise go 

without. 

NTIA also indicated its support for 

the adoption of an exemption, noting 

that ‘‘[r]equiring visually impaired 

Americans to invest hundreds of dollars 

in an additional device (or even 

multiple additional devices), 

particularly when an already-owned 

device is technically capable of 

rendering literary works accessible, is 

not a reasonable alternative to 

circumvention * * *.’’ 

Explaining that literary works are 

distributed electronically in a wide 

range of formats, not all of which are 

necessarily widely understood to 

constitute ‘‘ebooks,’’ NTIA noted that it 

preferred the more general term 

‘‘literary works, distributed 

electronically.’’ 

At the hearing, proponents confirmed 

that it was not their intent to create a 

situation where publishers are not 

getting paid for their works, and that the 

author or publisher should be 

compensated for the price of the 

mainstream book available to the 

general public. Thus, the first prong of 

the designated class permits 

circumvention by blind or other persons 

with disabilities, effectively ensuring 

that they have access through the open 

market, while also ensuring that rights 

owners receive appropriate 

remuneration. 

The second prong of the proposal (the 

part that would extend the exemption to 

authorized entities) is a new 

consideration; it has not been the 

subject of a prior Section 1201 

rulemaking and proponents did not 

provide extensive analysis. Nonetheless, 

the Register found that the proposal was 

supported by relevant evidence and 

thus recommended that authorized 

entities should enjoy an exemption to 

the extent required to carry out their 

work under Section 121. The Register 

recommended some modifications to 

the proposal as written to ensure that it 

is consistent with, but not an 

enlargement of, Section 121. In relevant 

part, Section 121 permits qualified 

‘‘authorized entities’’ to reproduce and 

distribute nondramatic literary works 

provided the resulting copies are in 

‘‘specialized formats exclusively for use 

by blind or other persons with 

disabilities.’’ 

In her recommendation, the Register 

noted that several provisions in Section 

121 appear ill-suited to the digital world 

and could benefit from comprehensive 

review by Congress. Section 121 was 

enacted in 1996 following careful 

consideration of the public interest, 

including the interests of persons with 

disabilities and the interest of authors 

and other copyright owners. The issues 

relating to digital uses are complex and 

deserving of consideration beyond what 

can be accomplished in this proceeding. 

B. Wireless Telephone Handsets— 

Software Interoperability 

Computer programs that enable wireless 

telephone handsets to execute lawfully 

obtained software applications, where 

circumvention is accomplished for the sole 

purpose of enabling interoperability of such 

applications with computer programs on the 

telephone handset. 

This exemption is a modification of 

the proponents’ proposal. It permits the 

circumvention of computer programs on 

mobile phones to enable interoperability 

of non-vendor-approved software 

applications (often referred to as 

‘‘jailbreaking’’), but does not apply to 

tablets—as had been requested by 

proponents—because the record did not 

support it. 

Proponent Electronic Frontier 

Foundation (‘‘EFF’’), joined by New 

America Foundation’s Open Technology 

Initiative, New Media Rights, Mozilla 

Corporation (‘‘Mozilla’’), and the Free 

Software Foundation (‘‘FSF’’), as well as 

several hundred individual supporters, 

sought an exemption to permit the 

circumvention of access controls on 

wireless devices so that the devices can 

be used with non-vendor-approved 

software that is lawfully acquired. In 

2010, the Register recommended, and 

the Librarian designated, a class that 

permitted circumvention of 

technological measures on certain 

telephone handsets known as 

‘‘smartphones.’’ In recommending that 

class, the Register found that many such 

phones are protected by access controls, 

that proponents’ intended use—to 

render certain lawfully acquired 

applications interoperable with the 

handset’s software—was fair, and that 

the access controls adversely affected 

that use. The Register also found that 

the statutory factors prescribed by 17 

U.S.C. 1201(a)(1)(C) weighed in favor of 

granting the exemption. 

In this proceeding, proponents urged 

an expanded version of the class 

designated in 2010, citing dramatic 

growth in the mobile phone market, 

along with continued widespread use of 

technological measures to prevent users 

from installing unauthorized 

applications on such phones. They 

proposed that the exemption be 

extended to include ‘‘tablets,’’ such as 

Apple’s iPad, which, in EFF’s words, 

have ‘‘enjoyed similar radical popularity 

over the past two years.’’ 

EFF asserted that courts have long 

found copying and modification to 

enable device interoperability 

noninfringing under the doctrine of fair 

use. It further noted that the Register 

concluded in the 2010 rulemaking that 

jailbreaking was a fair use, and 

maintained that nothing in the factual or 

legal record since the last proceeding 

suggested that a change in this position 

was warranted. 

EFF also asserted that the last three 

years have seen dramatic growth in the 

adoption of smartphones and tablets as 

consumers increasingly shift from 

traditional personal computers to 

mobile devices. EFF argued that the 

technological restrictions on phones and 

tablets have an adverse effect on 


emcdonald on DSK67QTVN1PROD with RULES
65264 Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 

consumer choice and competition. 

Specifically, it noted that Apple, whose 

devices ‘‘refuse to run any unapproved 

third-party software,’’ has strict rules 

about the type of programs approved for 

sale through its ‘‘App Store,’’ the only 

authorized source of iPhone and iPad 

applications. EFF further asserted that 

although Android-based devices are 

generally less restricted than Apple 

devices, most still employ technological 

measures to block functionality and 

prevent the installation of certain types 

of software. EFF urged the Register to 

consider that such technological 

measures are not intended to protect the 

copyrighted firmware, but instead to 

promote anticompetitive business 

practices. 

Joint Creators asserted that the 

proposed exemption is unnecessary and 

beyond the scope of the rulemaking 

because Section 1201(f) of the Copyright 

Act already defines ‘‘the contours of 

acceptable circumvention related to 

interoperability.’’ Specifically, Joint 

Creators argued that the proponents 

have not established that Section 1201(f) 

does not already permit the conduct in 

which proponents seek to engage and, 

‘‘if it were established that Congress 

chose not to include the conduct at 

issue within [Section] 1201(f),’’ then 

proponents have failed to establish that 

the Librarian has the authority to upset 

that decision through this proceeding. 

The Register concluded that it was 

unclear, at best, whether Section 1201(f) 

applies in this circumstance, so she 

proceeded to analyze the merits of the 

proposed exemption. 

Joint Creators did not directly 

challenge EFF’s fair use analysis but 

instead took issue with the Register’s 

previous fair use finding. In reviewing 

the fair use question, the Register noted 

that the factual record with respect to 

fair use was substantially the same as it 

was in 2010 and that there had been no 

significant developments in pertinent 

case law that would cause the Register 

to reevaluate the analytical framework 

applied in 2010. The purpose and 

character of the use is noncommercial 

and personal so that individual owners 

of smartphones may use them for the 

purpose for which they were intended. 

The nature of the copyrighted work— 

firmware—remains the same as it was in 

2010, and it remains true that one 

engaged in jailbreaking need only 

modify the functional aspects of the 

firmware, which may or may not be 

subject to copyright protection. Those 

engaged in jailbreaking use only that 

which is necessary to engage in the 

activity, which is often de minimis, 

rendering the third factor potentially 

unfavorable, but nevertheless of 

minimal consequence. With respect to 

market harm, notwithstanding the 

earlier exemption, the proliferation of 

smartphones has increased since the last 

rulemaking, suggesting that the fourth 

factor favored a fair use finding even 

more than it did in 2010. 

The Register found that proponents 

had established that the prohibition is 

adversely affecting, and is likely to 

continue to have an adverse impact on, 

certain uses of mobile devices in which 

the firmware, a copyrightable work, is 

protected by technological measures. 

The evidence in the record indicated 

that smartphones have been widely 

adopted and that consumer acceptance 

of such devices will continue to 

increase in the future. Nonetheless, the 

vast majority of mobile phones sold 

today contain technological measures 

that restrict users’ ability to install 

unauthorized applications. 

The Register determined that the 

statutory factors weighed in favor of a 

renewed exemption for smartphones, as 

nothing in the record suggested that the 

market for mobile phones had been 

negatively impacted by the designation 

of such a class and, in fact, such a class 

might make smartphones more 

attractive to consumers. While Joint 

Creators raised concerns about pirated 

applications that are able to run on 

jailbroken devices, the record did not 

demonstrate any significant relationship 

between jailbreaking and piracy. 

On the other hand, the Register 

concluded that the record did not 

support an extension of the exemption 

to ‘‘tablet’’ devices. The Register found 

significant merit to the opposition’s 

concerns that this aspect of the 

proposed class was broad and illdefined, as a wide range of devices 

might be considered ‘‘tablets,’’ 

notwithstanding the significant 

distinctions among them in terms of the 

way they operate, their intended 

purposes, and the nature of the 

applications they can accommodate. For 

example, an ebook reading device might 

be considered a ‘‘tablet,’’ as might a 

handheld video game device or a laptop 

computer. 

NTIA supported the designation of a 

class for both smartphones and tablets. 

Noting the broad support for such an 

exemption and the numerous 

noninfringing uses enabled by 

jailbreaking, NTIA asserted that ‘‘the 

mobile application market has thrived, 

and continues to do so, despite—and 

possibly in part because of—the current 

exemption.’’ NTIA was persuaded that 

the proposed class should apply to 

tablets as well as mobile phones, 

believing that category to have been 

sufficiently defined by EFF. As noted, 

however, the Register determined that 

the record lacked a sufficient basis to 

develop an appropriate definition for 

the ‘‘tablet’’ category of devices, a 

necessary predicate to extending the 

exemption beyond smartphones. In 

future rulemakings, as mobile 

computing technology evolves, such a 

definition might be more attainable, but 

on this record, the Register was unable 

to recommend the proposed expansion 

to tablets. 

C. Wireless Telephone Handsets— 

Interoperability With Alternative 

Networks 

Computer programs, in the form of 

firmware or software, that enable a wireless 

telephone handset originally acquired from 

the operator of a wireless 

telecommunications network or retailer no 

later than ninety days after the effective date 

of this exemption to connect to a different 

wireless telecommunications network, if the 

operator of the wireless communications 

network to which the handset is locked has 

failed to unlock it within a reasonable period 

of time following a request by the owner of 

the wireless telephone handset, and when 

circumvention is initiated by the owner, an 

individual consumer, who is also the owner 

of the copy of the computer program in such 

wireless telephone handset, solely in order to 

connect to a different wireless 

telecommunications network, and such 

access to the network is authorized by the 

operator of the network. 

This exemption is a modification of 

the proponents’ proposal. It permits the 

circumvention of computer programs on 

mobile phones to enable such mobile 

phones to connect to alternative 

networks (often referred to as 

‘‘unlocking’’), but with limited 

applicability. In order to align the 

exemption to current market realities, it 

applies only to mobile phones acquired 

prior to the effective date of the 

exemption or within 90 days thereafter. 

Proponents Consumers Union, 

Youghiogheny Communications, LLC, 

MetroPCS Communications, Inc., and 

the Competitive Carriers Association, 

supported by other commenting parties, 

submitted similar proposals seeking an 

exemption to permit circumvention to 

enable wireless devices to interoperate 

with networks other than the network 

on which the device was originally 

used. In 2006, and again in 2010, the 

Register recommended, and the 

Librarian designated, a class of works 

that permitted the circumvention of 

technological protection measures 

applied to firmware in wireless 

handsets for the purpose of switching to 

an alternative wireless network. 

Proponents advanced several theories 

as to why ‘‘unlocking’’ is a 

noninfringing use, including that it does 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 65265 

not implicate any copyright interests or, 

if it does, the conduct is permitted 

under Section 117 of the Copyright Act. 

In particular, proponents asserted that 

the owners of mobile phones are also 

the owners of the copies of the 

computer programs on those phones 

and that, as owners, they are entitled to 

exercise their rights under Section 117, 

which gives the owner of a copy of a 

computer program the privilege to make 

or authorize the making of another copy 

or adaptation of that computer program 

under certain circumstances, such as to 

permit the program to be used on a 

particular machine. 

Proponents noted that ‘‘huge 

numbers’’ of people have already 

unlocked their phones under the 2006 

and 2010 exemptions and claimed that 

ending the exemption will lead to 

higher device prices for consumers, 

increased electronic waste, higher costs 

associated with switching service 

providers, and widespread mobile 

customer ‘‘lock-in.’’ Although 

proponents acknowledged that 

unlocked mobile devices are widely 

available for purchase, they contended 

that an exemption is still warranted 

because some devices sold by carriers 

are permanently locked and because 

unlocking policies contain restrictions 

and may not apply to all of a carrier’s 

devices. Proponents characterized 

software locks as impediments to a 

competitive marketplace. They claimed 

that absent the exemption, consumers 

would be forced to continue to do 

business with the carrier that sold the 

device to the consumer in the first 

instance, or to discard the device. 

CTIA—The Wireless Association 

(‘‘CTIA’’), a trade association comprised 

of various commercial wireless service 

providers, objected to the proposals as 

drafted. Overall, CTIA maintained that 

an exemption for unlocking is not 

necessary because ‘‘the largest 

nationwide carriers * * * have liberal, 

publicly available unlocking policies,’’ 

and because unlocked phones are 

‘‘freely available from third party 

providers—many at low prices.’’ 

Nonetheless, CTIA indicated that its 

members did not object to a ‘‘narrowly 

tailored and carefully limited 

exception’’ to permit individual 

customers of wireless carriers to unlock 

phones for the purpose of switching 

networks. 

CTIA explained that the practice of 

locking cell phones is an essential part 

of the wireless industry’s predominant 

business model, which involves 

subsidizing the cost of wireless handsets 

in exchange for a commitment from the 

customer that the phone will be used on 

that carrier’s service so that the subsidy 

can eventually be recouped by the 

carrier. CTIA alleged that the industry 

has been plagued by ‘‘large scale phone 

trafficking operations’’ that buy large 

quantities of pre-paid phones, unlock 

them, and resell them in foreign markets 

where carriers do not subsidize 

handsets. On the question of 

noninfringing use, CTIA asserted that 

the Section 117 privileges do not apply 

because owners of wireless devices do 

not necessarily own the software on 

those devices. 

The Register confronted similar 

arguments about Section 117 in the 

2010 proceeding. There, the parties 

relied primarily upon Krause v. 

Titleserv, Inc., 402 F.3d 119 (2d Cir. 

2005), as the leading authority regarding 

ownership of computer programs. After 

reviewing mobile phone agreements 

introduced in the 2010 proceeding, 

based on the state of the law at that 

time, the Register concluded that ‘‘[t]he 

record * * * leads to the conclusion 

that a substantial portion of mobile 

phone owners also own the copies of 

the software on their phones.’’ 

Since the Register rendered her 2010 

Recommendation, the case law has 

evolved. In 2010, the Ninth Circuit 

issued its decision in Vernor v. 

Autodesk, Inc., 621 F.3d 1102 (9th Cir. 

2010), holding that ‘‘a software user is 

a licensee rather than an owner of a 

copy where the copyright owner (1) 

Specifies that the user is granted a 

license; (2) significantly restricts the 

user’s ability to transfer the software; 

and (3) imposes notable use 

restrictions.’’ 

Proponents made only a cursory 

attempt to respond to Vernor and failed 

to offer relevant agreements to support 

their view of software ownership. CTIA, 

by contrast, cited agreements from 

several major carriers in an effort to 

demonstrate that the software on the 

mobile handsets is licensed, rather than 

sold, to a phone’s owner. Nonetheless, 

the Register was forced to conclude that 

the state of the law—and its 

applicability to mobile phone 

software—remains indeterminate. 

Although Vernor and Krause are useful 

guideposts in considering the status of 

software ownership, they are controlling 

precedent in only two circuits and are 

inconsistent in their approach; whether 

and how those standards would be 

applied in other circuits is unknown. 

Moreover, while CTIA contended that 

the agreements it offered unequivocally 

supported a finding that users do not 

own the software, in reviewing those 

agreements, the Register believed the 

question to be a closer call. The Register 

therefore determined that some subset 

of wireless customers—i.e., anyone 

considered to own the software on their 

phones under applicable precedent— 

would be entitled to exercise the 

Section 117 privilege. 

The Register further concluded that 

the record before her supported a 

finding that, with respect to new 

wireless handsets, there are ample 

alternatives to circumvention. That is, 

the marketplace has evolved such that 

there is now a wide array of unlocked 

phone options available to consumers. 

While it is true that not every wireless 

device is available unlocked, and 

wireless carriers’ unlocking polices are 

not free from all restrictions, the record 

clearly demonstrates that there is a wide 

range of alternatives from which 

consumers may choose in order to 

obtain an unlocked wireless phone. 

Thus, the Register determined that with 

respect to newly purchased phones, 

proponents had not satisfied their 

burden of showing adverse effects 

related to a technological protection 

measure. 

However, with respect to ‘‘legacy’’ 

phones—i.e., used (or perhaps unused) 

phones previously purchased or 

otherwise acquired by a consumer—the 

record pointed to a different conclusion. 

The record demonstrated that there is 

significant consumer interest in and 

demand for using legacy phones on 

carriers other than the one that 

originally sold the phone to the 

consumer. It also supported a finding 

that owners of legacy phones— 

especially phones that have not been 

used on any wireless network for some 

period of time—may have difficulty 

obtaining unlocking codes from wireless 

carriers, in part because an older or 

expired contract might not require the 

carrier to cooperate. 

Despite the increasing availability of 

unlocked phones in the marketplace 

and the trend toward wireless carriers’ 

unlocking phones in certain 

circumstances, NTIA favored a broader 

exemption. It asserted that the 

unlocking policies of most wireless 

carriers are not reasonable alternatives 

to circumvention because many such 

policies apply only to current customers 

or subscribers, because some carriers 

will refuse to unlock devices, and 

because unlocking policies are often 

contingent upon the carrier’s ability to 

obtain the necessary code. Further, 

‘‘NTIA does not support the notion that 

it is an appropriate alternative for a 

current device owner to be required to 

purchase another device to switch 

carriers.’’ 

The Register concluded after a review 

of the statutory factors that an 

exemption to the prohibition on 

circumvention of mobile phone 


emcdonald on DSK67QTVN1PROD with RULES
65266 Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 

computer programs to permit users to 

unlock ‘‘legacy’’ phones is both 

warranted and unlikely to harm the 

market for such programs. At the same 

time, in light of carriers’ current 

unlocking policies and the ready 

availability of new unlocked phones in 

the marketplace, the record did not 

support an exemption for newly 

purchased phones. Looking to 

precedents in copyright law, the 

Register recommended that the class 

designated by the Librarian include a 

90-day transitional period to allow 

unlocking by those who may acquire 

phones shortly after the new exemption 

goes into effect. 

D. Motion Picture Excerpts— 

Commentary, Criticism, and 

Educational Uses 

• Motion pictures, as defined in 17 U.S.C. 

101, on DVDs that are lawfully made and 

acquired and that are protected by the 

Content Scrambling System, where the 

person engaging in circumvention believes 

and has reasonable grounds for believing that 

circumvention is necessary because 

reasonably available alternatives, such as 

noncircumventing methods or using screen 

capture software as provided for in 

alternative exemptions, are not able to 

produce the level of high-quality content 

required to achieve the desired criticism or 

comment on such motion pictures, and 

where circumvention is undertaken solely in 

order to make use of short portions of the 

motion pictures for the purpose of criticism 

or comment in the following instances: (i) In 

noncommercial videos; (ii) in documentary 

films; (iii) in nonfiction multimedia ebooks 

offering film analysis; and (iv) for 

educational purposes in film studies or other 

courses requiring close analysis of film and 

media excerpts, by college and university 

faculty, college and university students, and 

kindergarten through twelfth grade 

educators. For purposes of this exemption, 

‘‘noncommercial videos’’ includes videos 

created pursuant to a paid commission, 

provided that the commissioning entity’s use 

is noncommercial. 

• Motion pictures, as defined in 17 U.S.C. 

101, that are lawfully made and acquired via 

online distribution services and that are 

protected by various technological protection 

measures, where the person engaging in 

circumvention believes and has reasonable 

grounds for believing that circumvention is 

necessary because reasonably available 

alternatives, such as noncircumventing 

methods or using screen capture software as 

provided for in alternative exemptions, are 

not able to produce the level of high-quality 

content required to achieve the desired 

criticism or comment on such motion 

pictures, and where circumvention is 

undertaken solely in order to make use of 

short portions of the motion pictures for the 

purpose of criticism or comment in the 

following instances: (i) In noncommercial 

videos; (ii) in documentary films; (iii) in 

nonfiction multimedia ebooks offering film 

analysis; and (iv) for educational purposes in 

film studies or other courses requiring close 

analysis of film and media excerpts, by 

college and university faculty, college and 

university students, and kindergarten 

through twelfth grade educators. For 

purposes of this exemption, ‘‘noncommercial 

videos’’ includes videos created pursuant to 

a paid commission, provided that the 

commissioning entity’s use is 

noncommercial. 

• Motion pictures, as defined in 17 U.S.C. 

101, on DVDs that are lawfully made and 

acquired and that are protected by the 

Content Scrambling System, where the 

circumvention, if any, is undertaken using 

screen capture technology that is reasonably 

represented and offered to the public as 

enabling the reproduction of motion picture 

content after such content has been lawfully 

decrypted, when such representations have 

been reasonably relied upon by the user of 

such technology, when the person engaging 

in the circumvention believes and has 

reasonable grounds for believing that the 

circumvention is necessary to achieve the 

desired criticism or comment, and where the 

circumvention is undertaken solely in order 

to make use of short portions of the motion 

pictures for the purpose of criticism or 

comment in the following instances: (i) in 

noncommercial videos; (ii) in documentary 

films; (iii) in nonfiction multimedia ebooks 

offering film analysis; and (iv) for 

educational purposes by college and 

university faculty, college and university 

students, and kindergarten through twelfth 

grade educators. For purposes of this 

exemption, ‘‘noncommercial videos’’ 

includes videos created pursuant to a paid 

commission, provided that the 

commissioning entity’s use is 

noncommercial. 

• Motion pictures, as defined in 17 U.S.C. 

101, that are lawfully made and acquired via 

online distribution services and that are 

protected by various technological protection 

measures, where the circumvention, if any, is 

undertaken using screen capture technology 

that is reasonably represented and offered to 

the public as enabling the reproduction of 

motion picture content after such content has 

been lawfully decrypted, when such 

representations have been reasonably relied 

upon by the user of such technology, when 

the person engaging in the circumvention 

believes and has reasonable grounds for 

believing that the circumvention is necessary 

to achieve the desired criticism or comment, 

and where the circumvention is undertaken 

solely in order to make use of short portions 

of the motion pictures for the purpose of 

criticism or comment in the following 

instances: (i) In noncommercial videos; (ii) in 

documentary films; (iii) in nonfiction 

multimedia ebooks offering film analysis; 

and (iv) for educational purposes by college 

and university faculty, college and university 

students, and kindergarten through twelfth 

grade educators. For purposes of this 

exemption, ‘‘noncommercial videos’’ 

includes videos created pursuant to a paid 

commission, provided that the 

commissioning entity’s use is 

noncommercial. 

These related exemptions are 

modifications of the proponents’ 

proposals. They permit the 

circumvention of motion pictures 

contained on DVDs and delivered 

through online services to permit the 

use of short portions for purposes of 

criticism and comment in 

noncommercial videos, documentary 

films, nonfiction multimedia ebooks 

offering film analysis, and for certain 

educational uses by college and 

university faculty and students and 

kindergarten through twelfth grade 

educators. They also permit the use of 

screen capture technology to the extent 

an exemption is necessary under the 

law. However, the exemptions do not 

apply to the use of motion picture 

excerpts in fictional films, as the 

Register was unable to conclude on the 

record presented that such use is 

noninfringing. 

Proponents submitted eight proposals 

requesting the designation of classes to 

allow the circumvention of lawfully 

made and acquired motion pictures and 

audiovisual works protected by various 

access controls where the user seeks to 

engage in a noninfringing use. The 

proposals were comprised of three 

subgroups: 

First, proponents of exemptions for 

noncommercial videos sought to use 

clips from motion pictures to create new 

noncommercial videos, such as remix or 

mash-up videos, for criticism, comment, 

and other noninfringing uses. 

Proponents for these uses included EFF 

and University of Michigan Library 

(‘‘UML’’), supported by the Organization 

for Transformative Works. UML’s 

proposal requested an exemption very 

similar to the Register’s 2010 

recommended exemption for motion 

pictures contained on DVDs protected 

by Content Scrambling System (‘‘CSS’’), 

which encompassed educational uses 

and documentary filmmaking, in 

addition to noncommercial videos. 

However, UML indicated that the 

exemption should apply not only to 

motion pictures but to audiovisual 

works generally. EFF sought to broaden 

the 2010 exemption by expanding it to 

include audiovisual works and to 

include circumvention of motion 

pictures acquired via online distribution 

services. It also sought to enlarge the 

exemption to include not just criticism 

or comment but any noninfringing use, 

and to cover ‘‘primarily noncommercial 

videos,’’ a category that would include 

videos generating some amount of 

revenue. 

Second, proponents of exemptions for 

commercial uses by documentary 

filmmakers, fictional filmmakers, and 

multimedia ebook authors sought an 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 65267 

exemption to use clips from motion 

pictures to engage in criticism, 

comment, or other fair uses. Proponents 

for these uses included International 

Documentary Association, Kartemquin 

Educational Films, Inc., National 

Alliance for Media Arts and Culture, 

and Independent Filmmaker Project 

(collectively ‘‘Joint Filmmakers’’); UML; 

and Mark Berger, Bobette Buster, Barnet 

Kellman, and Gene Rosow (collectively 

‘‘Joint Ebook Authors’’). Each of these 

proposals requested an exemption to 

circumvent motion pictures or other 

audiovisual works for use by creators of 

noninfringing commercial works, 

namely, documentary films, fictional 

films, and multimedia ebooks offering 

film analysis. As noted, UML’s proposal 

largely tracked the exemption 

recommended by the Register in 2010. 

Joint Filmmakers’ proposal sought to 

expand the 2010 exemption by adding 

fictional filmmakers, as well as by 

extending the exemption to cover any 

noninfringing use. Joint Filmmakers 

also sought to include circumvention of 

Blu-ray discs protected by the Advanced 

Access Content System (‘‘AACS’’) and 

motion pictures digitally transmitted 

through protected online services. Joint 

Ebook Authors’ proposal sought the use 

of short portions of motion pictures for 

the purpose of multimedia ebook 

authorship. Like Joint Filmmakers, Joint 

Ebook Authors indicated that the 

proposed exemption should not depend 

on uses that involve criticism or 

comment but should instead merely 

require that the use be noninfringing. 

Joint Ebook Authors also proposed that 

the exemption include digitally 

transmitted video in addition to CSSprotected DVDs. 

Finally, proponents of exemptions for 

educational uses sought to use clips 

from motion pictures for criticism, 

comment, or other educational purposes 

by college and university professors and 

faculty, college and university students, 

and kindergarten through twelfth grade 

educators. Proponents for these uses 

included UML; Library Copyright 

Alliance (‘‘LCA’’); Peter Decherney, 

Katherine Sender, Michael X. Delli 

Carpini, International Communication 

Association, Society for Cinema and 

Media Studies, and American 

Association of University Professors 

(‘‘Joint Educators’’); and Media 

Education Lab at the Harrington School 

of Communication and Media at the 

University of Rhode Island (‘‘MEL’’). 

The proposals by UML and LCA 

requested an exemption similar to the 

2010 exemption recommended by the 

Register for circumvention of CSSprotected DVDs, except that UML 

sought to broaden it to apply to 

audiovisual works, as well as to 

students across all disciplines of study. 

Joint Educators’ proposed exemption 

sought to enable college and university 

students, as well as faculty, to use short 

portions of video, as well as to 

circumvent AACS-protected Blu-ray 

discs and digitally transmitted works. 

Finally, MEL requested an exemption 

for the circumvention of audiovisual 

works used for educational purposes by 

kindergarten through twelfth grade 

educators. 

Because each of the proposals 

involved the use of clips from motion 

pictures or audiovisual works, the eight 

possible exemptions were addressed as 

a group in the Register’s 

Recommendation. The proposals for 

exemptions to allow the circumvention 

of lawfully obtained motion pictures 

protected by access controls for various 

commercial, noncommercial, and 

‘‘primarily noncommercial’’ purposes 

shared a unifying feature in that in each 

case, proponents were seeking an 

exemption to allow circumvention for 

the purpose of reproducing short clips 

to facilitate alleged noninfringing uses. 

Creators of noncommercial videos 

sought to use portions of motion 

pictures to create noninfringing works 

involving criticism or comment that 

they asserted were transformative. 

Documentary filmmakers and 

multimedia ebook authors sought to 

reproduce portions of motion pictures 

in new works offering criticism or 

commentary. Fictional filmmakers 

wished to incorporate motion pictures 

into new films to convey certain 

messages. Film and media studies 

professors sought to assemble motion 

picture excerpts to demonstrate 

concepts, qualities, and techniques. 

Other educators sought to reproduce 

clips of motion pictures to illustrate 

points for classroom discussion. 

Joint Creators and DVD Copy Control 

Association (‘‘DVD CCA’’) opposed the 

proposals pertaining to noncommercial 

videos and, more generally, the use of 

motion pictures contained on CSSprotected DVDs. Joint Creators also 

opposed the use of motion pictures 

acquired via online distribution 

services. Joint Creators questioned 

whether proponents had met the 

required statutory burden for an 

exemption. They urged the Register 

precisely to analyze the alleged 

noninfringing uses to determine 

whether they were, in fact, 

noninfringing. In addition, they argued 

that the proposed exemption for 

circumvention of AACS-protected Bluray discs should not be approved. 

DVD CCA maintained that none of the 

examples offered in support of the 

proposed exemptions for documentary 

filmmakers, fictional filmmakers, or 

multimedia ebook authors sufficiently 

established that CSS is preventing the 

proposed uses. DVD CCA asserted that 

there are several alternatives to 

circumvention, including clip licensing, 

screen capture software, and video 

recording via smartphone that would 

enable proponents affordably and 

effectively to copy short portions of 

motion pictures without the requested 

exemption. 

As for educational uses, Joint Creators 

and DVD CCA did not oppose the 

granting of an exemption covering 

circumvention of CSS for a variety of 

college and university uses involving 

copying of short portions of motion 

pictures, but asserted that the 

exemption should be limited to conduct 

that is clearly noninfringing and 

requires high-quality content. 

Advanced Access Content System 

License Administrator (‘‘AACS LA’’) 

generally opposed the requested 

exemptions as they would apply to 

AACS-protected Blu-ray discs. It 

asserted that proponents have failed to 

make the case that they face substantial 

adverse effects with respect to content 

available only on Blu-ray discs. 

In reviewing the proposed classes, the 

Register noted that certain of the 

proposed exemptions referred to 

‘‘audiovisual works’’ as opposed to 

‘‘motion pictures.’’ The Register 

observed that Section 101 defines 

‘‘motion pictures’’ as ‘‘audiovisual 

works consisting of a series of related 

images which, when shown in 

succession, impart an impression of 

motion, together with accompanying 

sounds, if any.’’ Section 101 defines 

‘‘audiovisual works’’ somewhat more 

broadly, as ‘‘works that consist of a 

series of related images which are 

intrinsically intended to be shown by 

the use of machines or devices such as 

projectors, viewers, or electronic 

equipment, together with accompanying 

sounds, if any, regardless of the nature 

of the material objects, such as films or 

tapes, in which the works are 

embodied.’’ Under the Copyright Act, 

‘‘motion pictures’’ are thus a subset 

(albeit a very large one) of ‘‘audiovisual 

works.’’ The record for the proposed 

classes was directed to uses of motion 

pictures such as movies, television 

shows, commercials, news, DVD extras, 

etc., and did not focus on uses of 

audiovisual works that would fall 

outside of the Copyright Act’s definition 

of ‘‘motion pictures.’’ Based on the 

record, the Register found no basis for 

considering exemptions beyond motion 


emcdonald on DSK67QTVN1PROD with RULES
65268 Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 

pictures and treated the requested 

exemptions for ‘‘audiovisual works’’ as 

requests relating to motion pictures. 

The Register determined that 

proponents of exemptions for 

noncommercial videos, commercial uses 

by documentary filmmakers and 

multimedia ebook authors, and uses in 

educational contexts had established 

that a significant number of the 

proposed uses were for purposes of 

criticism and commentary. She noted 

that such uses fall within the favored 

purposes referenced in the preamble of 

Section 107 and, especially in light of 

the brevity of the excerpts used, are 

likely to be fair uses. More specifically, 

the Register determined that the 

proposed uses tended to be 

transformative in nature, employing 

short clips for purposes of criticism, 

comment, teaching, and/or scholarship, 

rather than for the works’ originally 

intended purpose. Despite the 

commercial aspect of uses by 

documentary filmmakers and 

multimedia ebook authors, the Register 

noted that when a short excerpt of a 

motion picture is used for purposes of 

criticism and comment, even in a 

commercial context, it may well be a 

productive use that serves the essential 

function of fair use as a free speech 

safeguard. While the Register did not 

conclude that a court would find each 

and every one of proponents’ examples 

to be transformative, she did find that 

the record amply supported the 

conclusion that a substantial number of 

the proffered examples likely would be 

considered transformative fair uses. 

The Register also concluded, 

however, that the same fair use analysis 

did not apply to fictional filmmakers, at 

least on the record presented. She noted 

that fictional films differ from the other 

categories of use because their purpose 

is typically for entertainment, rather 

than for criticism or comment. As the 

Register explained in her 

Recommendation, under appropriate 

circumstances, a use by a fictional 

filmmaker might well be a fair use. But 

fictional film proponents merely 

described their desired uses and did not 

present concrete examples—such as 

existing films that made use of 

preexisting material in a clearly 

transformative manner—that permitted 

the Register to make a finding of fair use 

in this context. The record did not allow 

a satisfying determination as to the 

nature of the fictional filmmakers’ 

proposed uses, the amount of the 

underlying works fictional filmmakers 

generally sought to use, or whether or 

how such uses might affect the market 

for the original works. 

In addition, the Register observed 

that, to the extent discernible from 

proponents’ descriptions, a number of 

the examples cited did not appear 

readily to lend themselves to a 

conclusion that the described use would 

likely be considered fair. More 

specifically, the use of an earlier work 

to flesh out characters or motivations in 

a new work, or to develop a storyline, 

as suggested by some of proponents’ 

descriptive examples, does not 

inherently serve the purpose of criticism 

or comment on the existing work. The 

Register therefore concluded, on the 

record before her, that fictional 

filmmakers had failed to establish that 

the uses in which they sought to engage 

were likely to be noninfringing. 

Having determined otherwise with 

respect to the other proposed categories 

of use involving criticism and comment, 

however, the Register proceeded to 

consider whether there were adequate 

alternatives to circumvention to 

accommodate these noninfringing uses. 

Opponents pointed to clip licensing, 

smartphone video recording, and screen 

capture software as alternatives to 

achieve the desired uses. The Register 

found that clip licensing was not a 

reasonable alternative, as the scope of 

content offered through reasonably 

available licensing sources was far from 

complete. Moreover, requiring a creator 

who is making fair use of a work to 

obtain a license is in tension with the 

Supreme Court’s holding in Campbell v. 

Acuff-Rose Music, Inc., 510 U.S. 569 

(1994), that rightsholders do not have an 

exclusive right to markets for 

commentary on or criticism of their 

copyrighted works. 

Nor did smartphone recording appear 

to be an adequate option, as the 

evidence indicated that smartphone 

recordings yielded inferior video and 

audio quality, and failed to capture the 

complete image as it was meant to 

appear on the screen. 

In the 2010 proceeding, the Register 

determined that screen capture 

technology offered a cost-effective 

alternative technique to allow 

reproduction of motion pictures for 

certain uses. Unlike the last proceeding, 

where the Register raised screen capture 

technology as a possible alternative, in 

the current proceeding it was opponents 

who pointed to screen capture as a 

reasonable solution. However, based on 

the video evidence and commentary 

from proponents and opponents 

concerning screen capture technology, 

the Register determined that the screen 

capture images, while improved in 

quality since the last rulemaking, were 

still of lower quality than those 

available by circumvention of access 

controls on motion pictures; they were 

somewhat diminished in clarity and 

depth, and could exhibit pixilation. 

Concerning screen capture, 

documentary filmmakers suggested that 

the lower-quality images generated by 

this technology were not suitable for the 

dissemination of their films. The 

Register found a similar argument 

persuasive in the previous rulemaking 

based on certain distribution standards 

generally requiring that films adhere to 

specific quality standards that cannot be 

met by screen capture. Unlike in the last 

proceeding, however, the Register was 

not convinced on the present record that 

the distribution requirements would 

give rise to significant adverse effects. In 

this proceeding, the parties explained 

the standards in greater detail, including 

the fact that certain accommodations are 

made by distributors with respect to 

pre-existing materials. 

Nonetheless, the record did support 

the conclusion that, in some cases, for 

other reasons, the inability to 

circumvent to make use of higherquality material available on DVDs and 

in protected online formats is likely to 

impose significant adverse effects on 

documentary filmmakers, 

noncommercial video makers, 

multimedia ebook authors, and certain 

educational users. Creators of 

noncommercial videos provided the 

most extensive record to support the 

need for higher-quality source material. 

Based on the video evidence presented, 

the Register concluded that diminished 

quality likely would impair the 

criticism and comment contained in 

noncommercial videos. For example, 

the Register was able to perceive that 

certain noncommercial videos would 

suffer significantly because of blurring 

and the loss of detail in characters’ 

expression and sense of depth. 

Although the record was not as robust 

in the case of documentary filmmakers 

and multimedia ebook authors, it was 

sufficient to support a similar finding 

that for certain uses—i.e., when trying to 

convey a point that depends upon the 

ability to perceive details or subtleties 

in a motion picture excerpt— 

documentary filmmakers and ebook 

authors would likely suffer adverse 

effects if they were unable to 

incorporate higher-quality images. 

Similarly, educational uses that depend 

upon close analysis of film or media 

images might be adversely impacted if 

students are unable to apprehend the 

subtle detail or emotional impact of the 

images they are analyzing. But where 

precise detail is not required for the 

particular use in question—for example, 

where a clip is presented simply to 

illustrate a historical event—the Register 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 65269 

concluded that lower-quality screen 

capture images appeared adequate to 

fulfill the noninfringing use. 

As an additional concern relating to 

screen capture technology, proponents 

maintained that even if the Register 

acknowledged now, as she did in 2010, 

that certain types of video capture 

software are noncircumventing, there is 

still no assurance that all copyright 

owners share this view. Proponents 

observed, for example, that litigation 

had been instituted over the use of 

similar methods of acquiring content 

protected by access controls. In light of 

the unsettled legal landscape, the 

Register determined that there is a need 

for limited exemptions to address the 

possible circumvention of protected 

motion pictures when using screen 

capture technology. 

The record also indicated that there is 

some amount of motion picture material 

available only on Blu-ray discs, such as 

bonus material or, more rarely, entire 

films released exclusively on Blu-ray. 

However, the cited uses of Blu-rayexclusive content in the record were 

insignificant in number. Moreover, with 

respect to documentary filmmakers in 

particular, for the reasons discussed 

above, the Register was not persuaded 

that Blu-ray content is necessary to meet 

applicable distribution standards. The 

Register therefore concluded that the 

record did not reflect a substantial 

adverse impact due to the inability to 

use motion picture materials contained 

on Blu-ray discs. 

Overall, based on the record 

presented, the Register determined that, 

when a higher-quality excerpt is 

essential to a particular use, an 

exemption to permit circumvention of 

CSS-protected DVDs and protected 

online formats is appropriate. For uses 

where high-quality material is not 

critical, screen capture technology 

provides an adequate alternative to 

circumvention, and an exemption to 

permit the use of such technology is 

appropriate. 

Looking to the statutory factors, the 

Register noted in her previous 

determination that ‘‘while CSSprotected DVDs may very well have 

fostered the digital distribution of 

motion pictures to the public, there is 

no credible support for the proposition 

that the digital distribution of motion 

pictures continues to depend on the 

integrity of the general ‘principle’ that 

the circumvention of CSS is always 

unlawful.’’ She found that the record in 

the current proceeding similarly failed 

to support a finding that there could be 

no exemption to the prohibition on 

circumvention of CSS-protected DVDs. 

In light of the negative impact the 

prohibition on circumvention has on 

favored uses, such as criticism, 

comment, news reporting, teaching, 

scholarship, and research, as established 

in the proceeding, the Register 

concluded that the statutory factors 

support appropriately tailored 

exemptions to facilitate those uses. 

NTIA agreed that an appropriate 

exemption to permit proposed 

noninfringing uses is necessary because 

users lack sufficient alternatives to 

circumvention. It asserted that 

‘‘generally, the technological 

alternatives [to circumvention] produce 

low-quality videos, and associated 

license agreements often impose 

significant content limitations on the 

final work product.’’ It further noted 

that clip services are limited in scope 

and may not meet the needs of all users, 

and that licensing negotiations are 

‘‘expensive and burdensome, especially 

when the licensee seeks to critique the 

copyrighted work.’’ 

NTIA proposed that the Register 

recommend a class that encompasses 

‘‘[m]otion pictures and other similar 

audiovisual works on DVDs or delivered 

via Internet Protocol,’’ asserting that the 

class should encompass ‘‘audiovisual 

works,’’ which is broader than ‘‘motion 

pictures.’’ NTIA also proposed to 

replace ‘‘for the purpose of criticism or 

comment’’ with ‘‘for the purpose of fair 

use,’’ and to expand the applicable 

circumstances beyond documentary 

filmmaking to include educational uses 

by college and university professors and 

college students, educational uses by 

kindergarten through twelfth grade 

educators, primarily noncommercial 

videos, and nonfictional or educational 

multimedia ebooks. Citing an 

inadequate definition of the proposed 

class of users, and a lack of 

demonstrated harm, the NTIA did not 

support an exemption for fictional 

filmmakers. 

While the NTIA’s views largely 

tracked those of the Register’s 

concerning the need to designate 

appropriate classes, for the reasons 

discussed above, the Register did not 

believe that certain of NTIA’s proposed 

expansions were supported by the 

record. 

In explaining her recommended 

exemptions, the Register emphasized 

that the use of only short portions or 

clips was critical to her determination 

that the proposed uses were 

noninfringing. She rejected the 

proposed expansion of the exemption to 

cover unspecified ‘‘noninfringing’’ or 

‘‘fair’’ uses where circumvention is not 

undertaken for the purpose of criticism 

or comment as, based on the record, 

criticism or comment were central to the 

uses supporting the exemption. 

The Register also noted that while 

there might be additional noninfringing 

uses by multimedia ebook authors that 

could support a more broadly conceived 

exemption, the record in the proceeding 

supported only an exemption for ebooks 

offering film analysis. 

Further, to the extent proponents for 

noncommercial videos sought an 

expanded exemption to cover 

‘‘primarily noncommercial videos’’—as 

opposed to ‘‘noncommercial videos’’— 

they failed to demonstrate that a 

meaningful number of such uses would 

qualify as noninfringing; proponents 

identified only a single video that 

allegedly fell within this category, 

because it generated advertising 

revenue. It was not clear from the 

record, however, as to why such an 

example should be considered 

‘‘primarily noncommercial’’ as opposed 

to ‘‘primarily commercial.’’ On the other 

hand, proponents established a 

sufficient basis to clarify that the 

exemption for noncommercial works 

should include videos created pursuant 

to a paid commission, provided that the 

commissioning entity uses the work 

solely in a noncommercial manner. 

With respect to educational uses, the 

Register found that the record supported 

a determination that college and 

university professors and other faculty, 

as well as students, in film studies and 

other courses focused on close analysis 

of media excerpts may sometimes need 

to reproduce content from CSSprotected DVDs and protected online 

formats to enable such analysis. Because 

the recommended exemption is limited 

to educational activities involving close 

analysis, there was no basis to limit the 

exemption only to professors. The 

Register further determined that nonprofessor faculty at colleges and 

universities also should be permitted to 

take advantage of the exemption when 

there is a pedagogical need for highquality source material. In addition, the 

record supported a finding that 

instructors of pre-college-level students 

sometimes engage in close analysis of 

motion picture excerpts in mediaoriented courses and might have a need 

for high-quality source material. 

The Register stressed that prospective 

users of the recommended exemptions 

for the use of motion picture excerpts 

should take care to ensure that they 

satisfy each requirement of the narrowly 

tailored exemptions before seeking to 

operate under their benefits, and 

consider whether there is an adequate 

alternative before engaging in 

circumvention under a recommended 

exemption. The Register noted that 


emcdonald on DSK67QTVN1PROD with RULES
65270 Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 

screen capture technology should only 

be employed when it is reasonably 

represented, and offered to the public, 

as enabling the reproduction of motion 

picture content after such content has 

been lawfully decrypted—that is, when 

it is offered as a noncircumventing 

technology. And, finally, users of the 

limited exemptions should be prepared 

to defend their activities in light of the 

alternatives as they exist at the time of 

their use of the exemption, including 

any further innovations in screen 

capture or other technologies that may 

produce higher-quality results than 

were obtainable as of the Register’s 

Recommendation. 

E. Motion Pictures and Other 

Audiovisual Works—Captioning and 

Descriptive Audio 

Motion pictures and other audiovisual 

works on DVDs that are protected by the 

Content Scrambling System, or that are 

distributed by an online service and 

protected by technological measures that 

control access to such works, when 

circumvention is accomplished solely to 

access the playhead and/or related time code 

information embedded in copies of such 

works and solely for the purpose of 

conducting research and development for the 

purpose of creating players capable of 

rendering visual representations of the 

audible portions of such works and/or 

audible representations or descriptions of the 

visual portions of such works to enable an 

individual who is blind, visually impaired, 

deaf, or hard of hearing, and who has 

lawfully obtained a copy of such a work, to 

perceive the work; provided however, that 

the resulting player does not require 

circumvention of technological measures to 

operate. 

This exemption is a modification of 

the proponents’ proposal. It permits the 

circumvention of motion pictures and 

other audiovisual works contained on 

DVDs or delivered through online 

services to facilitate research and 

development of players capable of 

rendering captions and descriptive 

audio for persons who are blind, 

visually impaired, deaf, or hard of 

hearing. The exemption responds to the 

primary need articulated by proponents 

in their submissions and at the hearings 

and one compelled by public policy, 

namely research and development. With 

respect to other uses proposed by 

proponents, the Register was unable to 

conduct a fair use analysis due to 

insufficient facts on the record, and, in 

particular, a lack of clear information 

regarding how captions and descriptive 

audio would be created, disseminated, 

or otherwise made available in 

connection with the underlying 

audiovisual work. 

Proponents Telecommunications for 

the Deaf and Hard of Hearing, Inc., 

Gallaudet University, and the 

Participatory Culture Foundation 

proposed that the Register recommend 

four related classes of works to allow 

circumvention of technological 

measures applied to content distributed 

via the internet and ‘‘fixed-disc media’’ 

for the purpose of creating, improving, 

and rendering captions and descriptive 

audio tracks to enable individuals with 

disabilities to perceive such works, and 

for the purpose of conducting research 

and development on technologies to 

enable such accessibility. They urged 

that the prohibition on circumvention 

has had a ‘‘decidedly negative’’ impact 

on teaching, scholarship, research, and 

criticism. They stated that not only does 

the prohibition stifle the research and 

development associated with the 

development of accessible technologies, 

it also restricts the amount of content 

that is perceptible by individuals with 

disabilities. 

Although not particularly clear from 

the proponents’ written filings, at the 

hearing it became apparent that the 

primary interest was in the development 

of players capable of merging 

commercially accessible content with 

captions and descriptive audio that are 

created separately, generally by parties 

other than the copyright owner of the 

original copyrightable work. Proponents 

alleged that circumvention was 

necessary to achieve their objectives 

because they required access to the 

‘‘playhead,’’ that is, the technical timing 

information embedded in internetdelivered and fixed-disc-based content 

that would allow proper 

synchronization of captions and 

descriptive audio with the underlying 

video content to which it applied. 

Proponents explained that although 

some of the content in question is 

already captioned or provides 

descriptive audio, most does not. They 

acknowledged that the recently passed 

Twenty-First Century Communications 

and Video Accessibility Act (‘‘CVAA’’), 

Public Law 111–260 (codified in 

scattered sections of 47 U.S.C.), likely 

will require a substantial amount of 

digitally distributed programming to be 

captioned. However, they asserted that 

the CVAA does not extend to a wide 

range of content, including that which 

is distributed exclusively online (e.g., 

content that does not appear first on 

broadcast or cable television). Indeed, in 

recent rulemaking proceedings under 

the CVAA, many content producers and 

distributors asserted that the creation or 

improvement of captions and 

descriptive audio is burdensome and 

would require permission from the 

copyright owners. 

Proponents noted that the motion 

picture industry separately had asserted 

that voluntary captioning of a limited 

amount of programming would require 

‘‘eight years to phase in.’’ They further 

noted that Netflix provides captions or 

subtitles on fewer than 5,000 of its 

nearly 12,000 titles. In addition, 

proponents explained that when such 

captions do exist, they may be ‘‘riddled 

with errors’’ or inconsistently formatted, 

hampering accessibility. With respect to 

descriptive audio, proponents observed 

that such tracks may play back at an 

inappropriate volume. 

As for opposition, AACS LA and DVD 

CCA filed separate but substantially 

similar comments, taking issue with the 

proposed exemptions. They argued that 

the marketplace has evolved and will 

continue to evolve in such a way that 

satisfies accessibility needs. AACS LA 

further asserted that the proposed 

exemption potentially could harm 

future growth of the marketplace 

solutions for accessibility concerns. At 

the hearings, AACS LA offered a free 

license to its technology to enable 

developers to develop compatible 

implementations to enable accessibility, 

and it was suggested that DVD CCA 

would do so as well. 

Joint Creators also opposed, similarly 

asserting that voluntary efforts and 

regulatory compliance are sufficient 

marketplace drivers for accessible 

materials. In addition, they maintained 

that proponents had failed to meet their 

burden. In their view, proponents had 

presented only scattered examples of 

errors in captions and that such errors 

are little more than a ‘‘mere 

inconvenience’’; they also suggested 

that the proposed underlying uses might 

infringe the reproduction, distribution, 

and adaptation rights of the copyright 

owners. 

Assessing the record in light of the 

statutory factors, the Register concluded 

that a limited exemption was 

appropriate to facilitate the proposed 

research and development. The Register 

found that the substantial quantity of 

inaccessible content, and the likely 

increase in the amount of content 

distributed free from any requirement 

that it be rendered accessible, 

essentially limits the universe of 

materials with respect to which 

individuals with certain disabilities may 

engage in commentary, criticism, 

scholarship, and the like. As observed 

by the Register, the proposal was aimed 

at allowing the wide range of motion 

pictures and other audiovisual works 

that are available to the general 

population to be accessed and enjoyed 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 65271 

by those with disabilities. For such 

individuals, the exemption represents 

the difference between having and not 

having access to works available to 

everyone else. 

The Register determined that the 

record with respect to research and 

development was sufficiently clear to 

support an exemption for those 

activities. Dr. Christian Vogler of 

Gallaudet University demonstrated a 

software development effort aimed at 

creating a player to combine captions or 

descriptive audio with commercially 

available motion picture and 

audiovisual content. With respect to this 

project, the Register was able to 

conclude that the purported use did not 

implicate the copyrighted content itself, 

but only certain non-protectable 

information about the work—i.e., the 

timecode information accessible 

through the protected ‘‘playhead.’’ 

Moreover, the Register found that there 

did not appear to be any reasonable 

alternatives to circumvention in order to 

obtain this information. Although, as 

noted, AACS LA and DVDCCA had 

indicated a willingness to offer a free 

license to those interested in developing 

accessibility tools for playback devices, 

the record indicated that no such 

license was currently in place, and it 

was unclear whether such a license 

would come to fruition during the next 

three years. 

The Register found that proponents 

had demonstrated that there is a wide 

range of content contained on CSSprotected DVDs and delivered in 

protected online formats that is 

inaccessible to individuals with certain 

disabilities and as to which there is no 

alternative, accessible version. She 

further determined that the record did 

not support the proposition that 

circumvention was necessary with 

respect to Blu-ray content, as the same 

content is generally available on DVDs 

or online. 

Beyond research and development, 

the Register found that the scope of 

proponents’ intended uses was difficult 

to discern from proponents’ written 

submissions, as the papers were fraught 

with broad generalizations. During the 

hearing, proponents were able to 

articulate three broad categories of 

conduct: (1) Conducting research and 

development on accessible technologies 

to develop a player capable of 

presenting or manipulating captions or 

descriptive audio (as discussed above); 

(2) creating such captions or descriptive 

audio or corrections thereto; and (3) 

presenting such captions or descriptive 

audio along with the underlying 

lawfully acquired work. Still, the 

precise contours of certain aspects of the 

proponents’ intended exploitation of the 

proposed exemption remained elusive. 

Pointing to a footnote in Sony 

Corporation of America v. Universal 

Studios, Inc., 464 U.S. 417 (1984), 

which provides in dicta that ‘‘making a 

copy of a copyrighted work for the 

convenience of a blind person is * * * 

an example of fair use,’’ proponents 

asserted that each of the broadly defined 

intended uses was fair. However, fair 

use analyses are, by statute, necessarily 

fact specific. Most of the proposed uses 

relating to the creation of captions and 

descriptive audio proposed by the 

proponents were so generally described 

that the Register found it impossible to 

evaluate whether they would be 

noninfringing. For example, proponents 

discussed both creating captions for 

content that is uncaptioned, including 

through crowdsourcing techniques, and 

fixing incorrect or poorly implemented 

captions. Each of these activities could 

have different implications under a 

traditional fair use analysis. Absent 

specific facts pertaining to the 

particularized uses, however, such an 

analysis was not possible. 

NTIA supported proponents’ 

proposals but suggested that the Register 

should recraft the exemptions into three 

categories that it believes were 

supported by the record. Specifically, 

NTIA would have fashioned a class 

specifically aimed at those developing 

the tools to facilitate the creation, 

improvement, or rendering of captions 

and descriptive audio; another class 

specifically for those engaged in the 

creation of captions and descriptive 

audio; and a third class for those using 

the captions and descriptive audio. 

NTIA further noted that it did not 

support the inclusion of Blu-ray because 

DVD remains the dominant format, 

online video distribution is outpacing 

Blu-ray adoption, and the effect of the 

proposals on the Blu-ray market was 

uncertain. 

The Register and NTIA were in 

agreement on the need to ‘‘open the 

doors for innovation and empower the 

millions of Americans with visual and 

hearing disabilities to participate to the 

fullest possible extent in our society’s 

multimedia culture.’’ However, for the 

reasons described above, the Register 

determined that, based on the current 

record, a more narrowly tailored class to 

permit research and development of 

assistive technologies was appropriate. 

The Register nonetheless made a point 

of encouraging the continued 

development of accessibility 

technologies and future proposals for 

exemptions to advance such efforts. 

IV. Classes Considered But Not 

Recommended 

Upon the recommendation of the 

Register of Copyrights, the Librarian has 

determined that the following classes of 

works shall not be exempt from the 

prohibition against circumvention of 

technological measures set forth in 

Section 1201(a)(1)(A): 

A. Literary Works in the Public 

Domain—Digital Access 

The Register concluded that the 

requested exemption to access public 

domain works was beyond the scope of 

the rulemaking proceeding and declined 

to recommend its adoption. As further 

explained in the 2010 rulemaking, 

‘‘Section 1201 does not prohibit 

circumvention of a technological 

protection measure when it simply 

controls access to a public domain 

work; in such a case, it is lawful to 

circumvent the technological protection 

measure and there is no need for an 

exemption.’’ 

Proponent Open Book Alliance 

(‘‘OBA’’) proposed an exemption to 

permit the circumvention of literary 

works in the public domain to enable 

access to works that are digitally 

distributed. Proponent sought a 

‘‘clarification’’ that circumvention of 

technological measures for the purpose 

of accessing such literary works does 

not violate Section 1201(a)(1). 

As explained above, Section 

1201(a)(1) provides that ‘‘[n]o person 

shall circumvent a technological 

measure that effectively controls access 

to a work protected under this title.’’ 

The prohibition on circumvention of 

technological protection measures thus 

does not apply to public domain 

materials because such materials are not 

protected under Title 17. 

Joint Creators filed comments in 

response to OBA’s proposal. Joint 

Creators did not object to the conclusion 

that Section 1201(a)(1) is inapplicable to 

literary works that are in the public 

domain but cautioned that many 

distributions of such literary works 

contain ancillary copyrightable 

elements, such as cover art, inserts, 

photographs, prefaces, and the like. 

NTIA shared the proponent’s concern 

that ‘‘the implementation of 

[technological measures] restricts 

universal access’’ to public domain 

material, and that such restrictions 

‘‘may have a negative impact on 

educational institutions and research 

organizations,’’ as well as other adverse 

impacts on the public. NTIA also 

recognized, however, that works in the 

public domain are not affected by the 

prohibition on circumvention. 


emcdonald on DSK67QTVN1PROD with RULES
65272 Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 

Accordingly, NTIA agreed that an 

exemption is not required for this class 

of works. 

As Joint Creators observed, questions 

may arise when a technological measure 

controls access not only to a work in the 

public domain, but at the same time 

controls access to other works that are 

protected by copyright. There was no 

need for the Register to address this 

issue on the record presented, however, 

because proponents neither raised it nor 

presented any evidence relating to it. 

B. Video Game Consoles—Software 

Interoperability 

Because the Register determined that 

the evidentiary record failed to support 

a finding that the inability to 

circumvent access controls on video 

game consoles has, or over the course of 

the next three years likely would have, 

a substantial adverse impact on the 

ability to make noninfringing uses, the 

Register declined to recommend the 

proposed class. 

EFF, joined by Andrew ‘‘bunnie’’ 

Huang (‘‘Huang’’), FSF, SaurikIT, LLC 

(SaurikIT), and numerous individual 

supporters, sought an exemption to 

permit the circumvention of access 

controls on video game console 

computer code so that the consoles 

could be used with non-vendorapproved software that is lawfully 

acquired. 

EFF observed that modern video game 

consoles are increasingly sophisticated 

computing devices that are capable of 

running not only games but ‘‘entire 

computer operating systems.’’ All three 

major video game manufacturers, 

however—Sony, Microsoft, and 

Nintendo—have deployed technological 

restrictions that force console 

purchasers to limit their operating 

systems and software exclusively to 

vendor-approved offerings. These 

restrictions require a console owner 

who would like to install a computer 

operating system or run a ‘‘homebrew’’ 

(i.e., independently developed) 

application to defeat a number of 

technical measures before they can do 

so—a process that proponents refer to as 

‘‘jailbreaking.’’ Proponents sought an 

exemption from Section 1201(a)(1) to 

permit such jailbreaking of video game 

consoles. Because the class they 

proposed would enable interoperability 

only with ‘‘lawfully obtained software 

programs,’’ proponents asserted that the 

exemption would not authorize or foster 

infringing activities. 

In its comments, EFF explained the 

circumvention process with reference to 

Sony’s PlayStation 3 (‘‘PS3’’). Sony’s 

PS3 employs a series of technological 

protections so that the console can only 

install and run authenticated, encrypted 

code. One such measure is the 

encryption of the console’s firmware, 

which restricts access to the console. 

The firmware must be authenticated by 

the console’s ‘‘bootloader’’ software and 

decrypted before it can be used. Once 

the firmware has been authenticated 

and decrypted, it, in turn, authenticates 

applications before they can be installed 

or run on the PS3. EFF added that 

Microsoft’s Xbox 360 and Nintendo’s 

Wii employ similar authentication 

procedures as technological protection 

measures. 

In further support of its requested 

exemption, EFF recounted that when 

Sony launched the PS3 in 2006, it 

included a software application called 

‘‘OtherOS’’ that permitted users to 

install Linux and UNIX operating 

systems on their consoles. EFF provided 

examples of researchers who were able 

to use these earlier PS3 consoles in lieu 

of other computer systems to conduct 

various forms of scientific research, 

citing an Air Force project that made 

use of 1700 PS3s, as well as two 

academic projects employing clusters of 

PS3s to create high-performance 

computers. Some of these researchers 

chose to use clustered PS3s because 

they were less expensive than the 

available alternatives. In 2010, however, 

Sony issued a firmware update for the 

PS3 that removed the OtherOS 

functionality. PS3 users were not forced 

to upgrade, but the failure to adopt the 

upgrade precluded access to certain 

gameplay features and might make 

repair or replacement of the gaming 

system more difficult. 

EFF further asserted that none of the 

three major console manufacturers 

currently allows the installation of 

independently developed applications 

on their consoles unless the developer 

has obtained approval of the software 

from the manufacturer through a 

‘‘stringent’’ process that may require the 

developer to license costly development 

tools. As a result, hobbyists and 

homebrew developers engage in 

circumvention to defeat technical 

restrictions in order to create and run 

games and other applications on the 

PS3, Wii, and Xbox consoles. 

EFF noted over 450 independently 

created games and applications for 

Nintendo’s Wii available on the 

homebrew site WiiBrew.org, as well as 

some 18 homebrew games and several 

nongaming applications developed for 

the PS3—including a file backup 

program called ‘‘Multiman’’ and an 

application that transforms the PS3 into 

an FTP server—and a handful of other 

homebrew applications for other 

platforms and handheld gaming devices. 

EFF pointed out that there is no strong 

homebrew community for the Xbox360, 

attributing this phenomenon to a 

Microsoft development program that 

allows developers to publish games 

‘‘with relative ease.’’ 

Proponents argued that 

manufacturers’ technological 

restrictions on video game consoles not 

only constrain consumer choice but also 

inhibit scientific research and 

homebrew development activities. 

Pointing to the Register’s determination 

in the last Section 1201 rulemaking that 

circumvention of technological 

measures on smartphones to enable 

interoperability with lawfully obtained 

applications was a permissible fair use, 

proponents urged that the same logic 

should apply here. According to 

proponents, the restrictions on video 

game consoles do not protect the value 

or integrity of copyrighted works but 

instead reflect a business decision to 

restrict the applications that users can 

run on their devices. 

EFF explained that a ‘‘large 

community’’ of console jailbreakers 

currently exists for all three major video 

game consoles but noted that such 

jailbreakers face potential liability under 

Section 1201(a)(1). As evidence of this, 

EFF cited recent litigation pursued by 

Sony against an individual and others 

who developed a method for 

jailbreaking the PS3. EFF explained that 

in January 2010, George Hotz (also 

known by his online name ‘‘GeoHot’’) 

published a method for jailbreaking the 

PS3. In response, Sony initiated a 

lawsuit against Hotz and others alleging, 

among other things, that the defendants 

had conspired to violate the DMCA. 

Finally, a few supporters of EFF’s 

proposal suggested potential scenarios 

in which a console might need to be 

jailbroken to effectuate a repair but did 

not provide any specific evidence of 

actual repair issues. 

The proposal to permit circumvention 

of video game consoles was vigorously 

opposed by the Entertainment Software 

Association (‘‘ESA’’), Sony Computer 

Entertainment America LLC (‘‘SCEA’’ or 

‘‘Sony’’), and Joint Creators. Opponents 

filed extensive comments in response to 

EFF’s request. 

ESA characterized video game 

consoles as ‘‘the center of an intellectual 

property ecosystem’’ which makes 

copyrighted content readily and legally 

accessible, stating that the entire system 

depends upon effective and secure 

access controls. ESA explained that 

there are at least two potential access 

controls at issue. To play an 

unauthorized application, the user must 

circumvent not only the encryption on 

the console’s firmware, but also modify 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 65273 

the firmware to defeat the 

authentication check access control. It 

added that once modified, the firmware 

will operate, but the access controls will 

be circumvented, effectively allowing 

the console to run unauthorized 

content. 

SCEA’s comments focused on its PS3 

console (the dominant example 

addressed in EFF’s proposal). SCEA 

confirmed that the technological 

restrictions controlling access to the PS3 

protect both its firmware and the 

copyrighted video games that are 

developed for that system. As explained 

by SCEA, allowing circumvention of the 

PS3 access controls would mean that 

the basic security checks could be 

skipped and the firmware freely 

modified to bypass or eliminate the 

process by which the video games are 

authenticated for use on the console, 

thus making it ‘‘virtually certain that 

successful hackers, under the guise of 

the exemption, will create the tools that 

enable even novice users to make, 

distribute, download, and play back 

illegal copies of games.’’ 

Throughout their comments, 

opponents stressed piracy as an 

overriding concern, noting that once a 

user circumvents a console’s security 

measures—even for an ostensibly 

benign purpose—it becomes a vehicle 

for unauthorized content. In their view, 

EFF’s attempt to limit the exemption to 

interoperability with lawful 

applications would make no difference 

in practice, because ‘‘all known 

methods for circumventing game 

console [technological protection 

measures] necessarily eliminate the 

measures’ ability to preclude the play, 

reproduction and distribution of 

infringing content.’’ 

In support of their contentions 

regarding the link between 

circumvention and piracy, opponents 

provided documentation of console 

‘‘hacking packages’’ that come bundled 

with applications to play pirated 

content. They further noted, again with 

supporting materials, that the homebrew 

channel installed with a popular Wii 

hacking package automatically includes 

applications that enable the console to 

play pirated content. They pointed out, 

with still further support in the record, 

that the ‘‘Multiman’’ backup system 

referenced by EFF as an example of a 

useful application enabled by jailbroken 

PS3s is used to decrypt and copy 

protected PS3 games so they can be 

illegally distributed. Other documentary 

evidence submitted by opponents 

showed that the PS3 FTP file server 

application described by EFF is used as 

a means to transfer illegal files. 

Opponents also furnished multiple 

examples of advertisements for console 

jailbreaking services that included (for 

an all-in price) a library of pirated 

games. 

Opponents pointed to online forums 

and other sources that specifically 

referenced George Hotz’s hack of the 

PS3—described sympathetically by EFF 

in its proposal—as permitting users to 

play pirated games and content, and 

provided representative postings. The 

documentation evidenced a broadly 

shared perception in the gaming 

community that jailbreaking leads to 

piracy. Notably, some of those providing 

commentary made the further 

observation that such piracy would 

negatively impact the development of 

new games. 

Possibly referring to Hotz, SCEA 

elaborated on the hacking issue by 

commenting specifically on the events 

surrounding a 2010 breach of its PS3 

system. In that case, hackers announced 

that they had successfully circumvented 

the technological measures on PS3 

firmware, which was accomplished by 

exploiting vulnerabilities in Linux 

operating in the OtherOS environment. 

Although the hackers stated that they 

did not endorse or condone piracy, one 

hacker subsequently published PS3’s 

encryption keys on the Internet, which 

were quickly used to create jailbreak 

software to permit the use of illegally 

made games. Sony saw an immediate 

rise in the number of illegal copies but 

no increase in homebrew development, 

while sales of legitimate software 

‘‘declined dramatically.’’ As a result of 

the hack, Sony decided it had no choice 

but to discontinue OtherOS and issued 

a system upgrade that disabled OtherOS 

functionality for those who wished to 

maintain access to Sony’s PlayStation 

network. 

Mindful of the exemption established 

by the Librarian in the prior proceeding 

to permit jailbreaking of smartphones, 

opponents urged that video game 

consoles are not the equivalent of 

iPhones, asserting that the technological 

measures on game consoles legitimately 

protect the creation and dissemination 

of copyrighted works by discouraging 

pirated content and protecting creators’ 

investment in new games. Opponents 

distinguished the development of a 

video game—a long and intensive 

process ‘‘akin to * * * motion picture 

production’’ involving a team of 

developers that can cost tens of millions 

of dollars—from the relative ease and 

inexpensiveness of creating a 

smartphone application. According to 

opponents, the development of new 

video games would be significantly 

impaired without reliable technological 

protections to protect developers’ 

investments. 

With respect to the need to jailbreak 

consoles to permit the operation of 

Linux-based homebrew programs, 

opponents observed that while EFF’s 

request focused on the PS3, the 

homebrew community for that device is 

small, as evidenced by the fact that less 

than one-tenth of one percent of PS3 

users (fewer than 2,000 in all) had made 

use of the PS3’s OtherOS feature. In any 

event, they noted, there are over 4,000 

devices on which Linux can be run 

without the need for circumvention, and 

homebrew games and applications can 

be played on a wide array of open 

platform devices. Opponents further 

observed that each of the three major 

video game console manufacturers has a 

program to support independent 

developers in creating and publishing 

compatible games. 

Finally, opponents disputed 

proponents’ suggestion that 

circumvention is necessary to repair 

broken game consoles, explaining that 

each console maker offers authorized 

repair services free of charge for 

consoles still under warranty for a 

nominal fee thereafter. 

Although EFF sought to rely upon the 

Register’s 2010 determination that 

modification of smartphone software to 

permit interoperability with nonvendor-approved applications was a fair 

use, the Register concluded that the fair 

use analysis for video consoles diverged 

from that in the smartphone context. 

Unlike in the case of smartphones, the 

record demonstrated that access 

controls on gaming consoles protect not 

only the console firmware, but the video 

games and applications that run on the 

console as well. The evidence showed 

that video games are far more difficult 

and complex to produce than 

smartphone applications, requiring 

teams of developers and potential 

investments in the millions of dollars. 

While the access controls at issue might 

serve to further manufacturers’ business 

interests, they also protect highly 

valuable expressive works—many of 

which are created and owned by the 

manufacturers—in addition to console 

firmware itself. 

The Register noted that research 

activities and functional applications 

that proponents claimed would be 

enabled by circumvention might well 

constitute transformative uses. On the 

other hand, circumventing console code 

to play games and other entertainment 

content (even if lawfully acquired) is 

not a transformative use, as the 

circumvented code is serving the same 

fundamental purpose as the unbroken 

code. While the second and third fair 


emcdonald on DSK67QTVN1PROD with RULES
65274 Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 

use factors did not greatly affect the 

analysis, on the significant question of 

market harm, the Register concluded 

that opponents had provided 

compelling evidence that circumvention 

of access controls to permit 

interoperability of video game 

consoles—regardless of purpose—had 

the effect of diminishing the value of, 

and impairing the market for, the 

affected code, because the compromised 

code could no longer serve as a secure 

platform for the development and 

distribution of legitimate content. The 

Register noted that instead of countering 

this evidence with a factual showing to 

prove opponents wrong, EFF merely 

asserted that its proposal would not 

permit infringing uses. The Register did 

not believe that this response satisfied 

proponents’ obligation to address the 

‘‘real-world impact’’ of their proposed 

exemption. Overall, the Register found 

that proponents had failed to fulfill their 

obligation to establish persuasively that 

fair use could serve as a basis for the 

exemption they sought. 

The Register further found that even 

if proponents had satisfied their burden 

of establishing noninfringing uses, they 

nonetheless failed to demonstrate that 

video game console access controls have 

or are likely to have a substantial 

adverse impact on such uses. 

Proponents identified two broad 

categories of activities that were 

allegedly threatened by the prohibition 

on circumvention, scientific research 

and homebrew software development. 

With respect to scientific research, a 

small number of research projects 

involving only one type of gaming 

console, the PS3, suggested a de 

minimis impact, if any. This conclusion 

was reinforced by record evidence 

indicating that Sony had in fact 

cooperated with and been a supporter of 

research efforts and that alternative 

computing resources for such projects 

were available in the marketplace. 

Nor, according to the Register’s 

analysis, did the record support a 

finding that Section 1201(a)(1) is having 

a substantial adverse impact on lawful 

homebrew activities. The most 

significant level of homebrew activity 

identified by EFF appears to have 

occurred in relation to the Wii, but the 

record was relatively sparse in relation 

to other gaming platforms. Concerning 

the use of video game consoles to 

operate Linux software generally, the 

record showed that only a very small 

percentage of PS3 users availed 

themselves of the (now discontinued) 

OtherOS option that permitted users to 

run Linux on their PS3s. At the same 

time, there are thousands of alternative 

devices that can be used to develop and 

run Linux-based video games and other 

applications. In addition, the record 

indicated that developers can and do 

take advantage of various manufacturer 

programs to pursue independent 

development activities. 

Finally, as noted above, the Register 

determined that proponents offered no 

factual basis in support of their 

suggestion that users are having 

difficulty repairing their consoles as a 

result of Section 1201(a)(1). This 

appeared to be only a hypothetical 

concern, as proponents failed to 

document any actual instances of users 

seeking to make repairs. 

The Register therefore concluded that 

proponents had failed to establish that 

the prohibition on circumvention, as 

applied to video game console code, is 

causing substantial adverse effects. 

Turning to the statutory factors, the 

Register took issue with proponents’ 

view that piracy was an irrelevant 

consideration because the exemption 

they sought was only to allow 

interoperability with ‘‘lawfully obtained 

applications.’’ The Register explained 

that she could not ignore the record 

before her. Even if piracy were not the 

initial or intended purpose for 

circumvention, the record substantiated 

opponents’ assessment that in the case 

of video games, console jailbreaking 

leads to a higher level of infringing 

activity, thus sharply distinguishing the 

case of video consoles from 

smartphones, where the record did not 

support the same finding. The evidence 

also suggested that the restriction 

limiting the proposed class to ‘‘lawfully 

obtained’’ applications—which the 

Register has found effective in other 

contexts—did not provide adequate 

assurance in this case. The Register 

noted that simply to suggest, as 

proponents had, that unlawful uses 

were outside the scope of the exemption 

and therefore of no concern was not a 

persuasive answer. 

Finally, the Register agreed with 

proponents’ assessment that the access 

controls protecting video game console 

code facilitate a business model, as 

many technological restrictions do. But 

the Register concluded that in the case 

of gaming platforms, that was not the 

sole purpose. Console access controls 

protect not only the integrity of the 

console code, but the copyrighted works 

that run on the consoles. In so doing, 

they provide important incentives to 

create video games and other content for 

consoles, and thus play a critical role in 

the development and dissemination of 

highly innovative copyrighted works. 

NTIA supported the ‘‘innovative spirit 

epitomized by independent developers 

and researchers whose needs 

proponents contemplate in this class,’’ 

but noted that the evidence in the 

record was insufficient to support the 

considerable breadth of the proposed 

class. NTIA asserted that the record was 

unclear with respect to the need for an 

exemption to enable software 

interoperability, and that there was 

compelling evidence of reasonable 

alternatives available for research 

purposes. NTIA was also ‘‘cognizant of 

the proposal’s likely negative impact on 

the underlying business model that has 

enabled significant growth and 

innovation in the video game industry.’’ 

Although NTIA did not support the 

exemption as requested by proponents, 

it did support a limited exemption to 

allow videogame console owners to 

repair or replace hardware components, 

or to ‘‘obtain unlicensed repairs when 

the console is out of warranty or when 

the console and authorized replacement 

parts are no longer on the market.’’ As 

explained above, however, the Register 

found that the record lacked any factual 

basis upon which to recommend the 

designation of even such a limited class. 

C. Personal Computing Devices— 

Software Interoperability 

While the Register recognized that the 

concern expressed by proponents—that 

a broad implementation of restrictive 

access controls could preclude users 

from installing operating systems and 

applications of their choice—is a 

significant one, she found that 

proponents had relied heavily on 

speculation and failed to present 

specific and compelling evidence in 

support of a focused exemption. The 

Register therefore declined to 

recommend the adoption of the 

proposed class. 

Software Freedom Law Center 

(‘‘SFLC’’), supported by FSF, Mozilla, 

SaurikIT, New Yorkers for Fair Use, 

Huang, and others, sought an exemption 

to permit the circumvention of 

computer programs on personal 

computing devices to enable the 

installation of other software, including 

alternative operating systems, when 

such software is lawfully obtained. The 

proposed exemption would have 

allowed circumvention by the device 

owner or by someone acting at the 

device owner’s request. 

In requesting this exemption, SFLC 

explained that there are two broad 

categories of access controls on personal 

computing devices: ‘‘application locks,’’ 

which effectively prevent users from 

installing certain software applications, 

and ‘‘OS locks,’’ which effectively 

prevent users from installing 

replacement operating systems. Citing 

the Librarian’s 2010 determination 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 65275 

permitting jailbreaking of smartphones 

to enable interoperability, SFLC asserted 

that the restrictions addressed by the 

smartphone exemption have become 

commonplace on other mobile 

computing devices and have begun to 

appear on personal computers. 

Accordingly, SFLC contended that the 

smartphone exemption should be 

‘‘expanded’’ to include ‘‘all personal 

computing devices’’ so as to permit 

circumvention for the purpose of 

installing any software the user chooses, 

including a new operating system. 

SFLC explained that the mobile 

device market, which includes not only 

smartphones but also tablet computers, 

is dominated by Google’s Android 

operating system and Apple’s iOS, 

which together account for 94 percent of 

the market. The two most popular ebook 

readers, Amazon’s Kindle and Barnes & 

Noble’s Nook, are Android-based 

devices. According to SFLC, ‘‘[a]ll of the 

restrictions addressed by the 

[smartphone] exemption are reproduced 

on the new formats.’’ Thus, the iOS on 

the iPhone and iPad limits applications 

to those obtained from Apple’s store. In 

the case of Android, users are allowed 

to install applications obtained from 

channels other than Google’s Android 

Marketplace, but Android withholds 

‘‘many vital privileges’’ (i.e., important 

device functionalities) from 

alternatively sourced applications. In 

addition, even though the Kindle and 

Nook are Android-based, Amazon and 

Barnes & Noble have substituted their 

own exclusive distribution channels, 

which cannot be avoided without 

jailbreaking. 

SFLC further observed that Microsoft 

has announced that it will require 

hardware manufacturers for the 

forthcoming Windows 8 operating 

system to enable a secure boot system— 

which can function as a type of OS 

lock—‘‘by default.’’ It asserted that 

because Microsoft controls nearly 90 

percent of the operating system market, 

secure boot will be a ‘‘nearly 

ubiquitous’’ feature on personal 

computers in the next year. According 

to SFLC, this will ‘‘decimate’’ what is 

now a thriving market for alternative PC 

operating systems. In a further 

submission to the Copyright Office, 

however, SFLC conceded that Microsoft 

had established a program to enable 

developers to ‘‘have their operating 

systems signed by Microsoft’’—i.e., to 

acquire a secure boot key—for a fee of 

99 dollars. 

SFLC acknowledged that the stated 

justification for OS locks is to protect 

device owners from malicious software 

by making it impossible for viruses to 

gain access to, or replace, a device’s 

operating system. But in SFLC’s words, 

‘‘[t]his ‘security feature’ is undiscerning: 

it will reject the device owner’s 

intentional installation of an operating 

system just as it will reject a virus’s 

payload.’’ SFLC observed that ‘‘[t]o the 

extent the firmware lock being 

circumvented merely prevents 

unauthorized operating systems from 

running, it does not protect access to a 

copyrighted work of the device 

producer, but rather prevents access to 

a competing copyrighted work to which 

the device owner has a license.’’ 

On the question of noninfringing use, 

SFLC asserted that it is not infringing 

for the owner of a device to install 

applications that have not been 

approved by the device’s manufacturer. 

According to SFLC, this conclusion— 

drawn from the Register’s analysis and 

findings in the 2010 rulemaking 

proceeding—applies with equal force to 

application locks on devices other than 

smartphones, as well as to OS locks. 

SFLC noted that in 2010, the Register 

determined that circumvention for the 

purpose of achieving interoperability 

was either ‘‘noninfringing or fair.’’ SFLC 

further opined that, while modification 

of a preinstalled operating system is 

sometimes necessary to circumvent an 

application lock, the same is not true of 

OS locks, as removal of a device’s 

default operating system does not 

implicate any of the exclusive rights of 

the owner of the operating system. 

The proposed class was opposed by 

Joint Creators, who argued that the 

requested exemption ‘‘targets every 

device and every platform, and creates 

an open-ended standard for 

circumvention.’’ In their view, if 

granted, the exemption ‘‘would strip 

any copyright owner, distributor, or 

licensee from exercising any choices 

with respect to how to construct a 

distribution system related to personal 

computing, and would thus expose 

copyright owners and their business 

partners to unnecessary risk, piracy, and 

unpredictability.’’ Joint Creators 

characterized proponents’ request as, 

‘‘at best, premature,’’ and maintained 

that proponents had failed to meet the 

substantial burden required for an 

exemption. 

Joint Creators also contended that the 

‘‘primary effects’’ of such an exemption 

would be to enable distribution of 

pirated applications, and to remove 

technical limitations that would 

otherwise protect trial versions of 

applications. According to Joint 

Creators, circumvention of technical 

measures on computer programs is 

accomplished primarily to unlock trial 

versions of software or enable access to 

pirated copies or unauthorized modified 

versions. 

Joint Creators stressed that 

proponents’ arguments in favor of the 

proposed class were based on 

speculation rather than facts. They 

asserted that proponents’ comments 

presented ‘‘theories’’ about what might 

occur but failed to demonstrate that the 

scenarios they portrayed were more 

likely than not. In particular, with 

respect to the secure boot issue, Joint 

Creators pointed out that proponents 

had not identified a single platform that 

precluded the installation of an 

alternative operating system. 

Finally, Joint Creators asserted that 

the proposed class—in purporting to 

immunize circumvention, ‘‘performed 

* * * at the request of the device’s 

owner’’—amounted to a request to 

exempt the provision of circumvention 

services, which is prohibited under 

Section 1201(a)(1)(E). 

The Register found that proponents 

had offered very little support for their 

claim that the uses for which they 

sought an exemption are noninfringing, 

even though it is a threshold 

requirement before an exemption can be 

considered. Instead, proponents chose 

to rest their case upon the Register’s 

conclusion in the 2010 rulemaking—in 

the context of smartphones—that it was 

not an infringement to install 

applications that have not been 

approved by a device’s manufacturer. 

The Register opined that proponents’ 

conclusory declaration that the 

expansive set of uses upon which they 

premised their request was 

noninfringing was inadequate in the 

context of the rulemaking. 

The Register noted that the record was 

murky on the especially critical issue of 

whether the removal of an operating 

system from a device in its entirety—an 

activity proponents sought to facilitate 

through the rulemaking process— 

required the circumvention of technical 

measures before erasing the operating 

system, or whether it was possible to 

remove an operating system without 

prior circumvention (even if such 

removal also simultaneously removed 

the access controls for that operating 

system). At the hearings, the Copyright 

Office sought clarification on this point 

from the parties, but the results were 

inconclusive. Another question that was 

not answered by the record was whether 

an OS lock preventing the operation of 

an alternative operating system is in fact 

a technological measure protecting a 

copyrighted work within the meaning of 

Section 1201(a). 

The Register explained that to the 

extent an operating system can be 

removed without having first to gain 


emcdonald on DSK67QTVN1PROD with RULES
65276 Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 

access to the work through an act of 

circumvention, even if such work is 

protected for other purposes by 

technological measures, such removal 

would not constitute a violation of 

Section 1201(a)(1). This is because upon 

deletion of the work, any such 

technological measure is no longer 

‘‘effectively control[ling] access’’ to the 

work. In such a case, of course, an 

exemption is unnecessary. 

The Register also observed that much 

of proponents’ concern appeared to be 

centered on Microsoft’s to be launched 

Windows 8 operating system and its 

‘‘secure boot’’ functionality. But 

proponents’ own statements indicated 

that this concern was speculative. It 

appeared undisputed in the record that, 

at least as of today, purchasers of PCs 

are able to install alternative operating 

systems without resorting to 

circumvention. Indeed, proponents 

conceded that the specification 

allegedly adopted by Microsoft ‘‘does 

not prevent manufacturers from 

allowing users to disable the lock or add 

non-Microsoft keys,’’ and also 

acknowledged that Microsoft permitted 

developers to acquire keys for 99 

dollars. 

The Register determined that 

proponents’ suppositions concerning 

the features of forthcoming software fell 

short of making a case that the harmful 

effects they posited were more likely to 

occur than not. The Register reiterated 

that mere speculation cannot support an 

exception to Section 1201(a)(1); rather, 

predicted adverse effects are only 

cognizable ‘‘in extraordinary 

circumstances in which the evidence of 

likelihood of future adverse impact is 

highly specific, strong and persuasive.’’ 

The Register concluded that proponents 

had failed to offer any such evidence 

here. 

The Register additionally observed 

that granting an exemption for such a 

sweeping class would be without 

precedent in the history of Section 1201 

rulemakings. In the past, faced with a 

proposed class with respect to which 

the proponents have offered substantial 

and persuasive evidence, but for which 

the definition proposed is not fully 

congruent with the proponents’ 

showing, the Register has—to the extent 

a sufficient basis exists in the record— 

refined the class definition to ensure 

that it is appropriately tailored to her 

findings. But such refinement is only 

possible where the proponent of the 

proposed class has otherwise succeeded 

in demonstrating that some version of 

its exemption is warranted. The Register 

cannot delineate the appropriate 

contours of a class ‘‘in a factual 

vacuum.’’ 

As a final consideration, the Register 

noted that to the extent the proposed 

class would effectively permit the 

provision of circumvention services to 

others—as it appeared to do—it must be 

rejected, as the provision of such 

services to others is forbidden under 

Section 1201(a)(2) of the DMCA. 

NTIA was ‘‘not convinced that Secure 

Boot constitutes ‘a technological 

measure that effectively controls access 

to a work’ protected by U.S. copyright 

law.’’’ It further noted that proponents 

had failed to present evidence that the 

secure boot functionality restricted 

access to Windows 8 or any other work 

for purposes of protecting copyright. 

NTIA thus did not support the 

designation of the proposed class. 

D. Motion Pictures and Other Works on 

DVDs and Other Media—Space Shifting 

The Register concluded that 

proponents had failed to establish that 

the prohibition on circumvention is 

imposing an adverse impact on 

noninfringing uses and declined to 

recommend the requested exemptions 

for space shifting. 

Proponent Public Knowledge, as well 

as proponents Cassiopaea, Tambolini, 

Susan Fuhs, Kellie Heistand, Andy 

Kossowsky, and Curt Wiederhoeft, 

sought similar exemptions to permit the 

circumvention of motion pictures and 

other works on DVDs and other media 

to enable ‘‘space shifting,’’ i.e., the 

copying of complete works to permit 

personal use on alternative devices. 

Proponent Public Knowledge stated a 

desire to move lawfully acquired motion 

pictures on DVDs to consumer 

electronic devices, such as tablet 

computers and laptop computers, that 

lack DVD drives. It asserted that 

consumers’ inability to play lawfully 

acquired DVDs on the newest devices 

adversely affected noninfringing uses of 

the works contained on DVDs, and that 

a reasonable solution was for these 

consumers to copy the motion pictures 

into a format that could be viewed on 

the new devices. Public Knowledge 

urged that such an exemption ‘‘would 

merely allow a user to make use of a 

motion picture she has already 

acquired.’’ The space shifting proposals 

by the additional proponents—most of 

which were one page or less—sought 

similar exemptions, but offered few 

factual details and little or no legal 

analysis. 

The current proposals were not unlike 

the proposal sought in the 2006 

rulemaking. In that rulemaking, the 

Register declined to recommend a space 

shifting exemption in part because the 

proponents failed to offer persuasive 

legal arguments that space shifting was 

a noninfringing use. The Register also 

addressed space shifting in the 2003 

rulemaking in her consideration of a 

requested exemption regarding 

‘‘tethering.’’ In her 2003 

recommendation, the Register observed 

that ‘‘no court has held that ‘spaceshifting’ is a fair use.’’ 

Public Knowledge cited RIAA v. 

Diamond Multimedia Systems Inc., 180 

F.3d 1072 (1999), and Sony Corporation 

of America v. Universal City Studios, 

Inc., 464 U.S. 417 (1984), in support of 

its contention that space shifting is a 

noncommercial personal use, and 

therefore a fair use. It applied the fourfactor fair use test of Section 107 in 

support of its assertion that the sort of 

space shifting for which it sought an 

exemption is a noninfringing use. Public 

Knowledge further argued that the space 

shifting would not negatively impact the 

availability of, or harm the market for, 

copyrighted works, or contribute to 

piracy. Finally, Public Knowledge 

claimed that there were no reasonable 

alternatives to such space shifting. 

Public Knowledge asked the Register 

to evaluate the legitimacy of personal 

space shifting through ‘‘independent 

examination.’’ According to Public 

Knowledge, the Section 1201(a) 

rulemaking process of ‘‘recommending, 

consulting, determining, and 

speculating necessarily requires the 

Register to draw conclusions beyond 

parroting the statute and existing case 

law.’’ 

Proponents of the additional 

proposals sought to exempt other digital 

works, including sound recordings and 

ebooks, in addition to motion pictures, 

for purposes of space shifting. They 

offered insufficient factual or legal 

analysis in support of their proposed 

exemptions, however. 

DVD CCA opposed the requested 

exemptions by first observing that, 

although many new electronic devices 

are made without DVD drives, 

consumers can still play DVDs on such 

devices through the use of peripheral 

tools, i.e., external drives that connect to 

the devices and are capable of playing 

DVDs. DVD CCA argued that just 

because a consumer prefers a portable 

device for certain purposes, it does not 

mean that the consumer is foreclosed 

from using a different device to play 

DVDs or that an exemption for space 

shifting is warranted. 

DVDCCA further noted that, contrary 

to the statements made by Public 

Knowledge, consumers have not 

purchased the motion picture itself, but 

a DVD copy of the motion picture, 

which affords only the right to access 

the work according to the DVD format 

specifications, i.e., through the use of a 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 65277 

DVD player. DVDCCA explained that 

consumers are able to purchase the copy 

at its retail price—typically less than 20 

dollars—because it is distributed on a 

specific medium that will only play 

back on a licensed player. It stated that 

the Register has previously recognized 

that there is no unqualified right to 

access a work on a particular device. 

DVDCCA alleged that the proposed 

exemption would harm the market for 

works distributed in the DVD medium 

as well as that for works offered in other 

digital media, explaining that the 

proposed exemption would displace 

sales for existing and forthcoming 

digital offerings that the DMCA was 

meant to encourage. It further alleged 

that the proposed exemption would 

create ‘‘public confusion’’ as to what is 

permitted activity. 

Joint Creators similarly disputed 

Public Knowledge’s assertion that 

consumers are adversely affected by an 

inability to play DVDs on electronic 

devices that are not designed to play 

DVDs, pointing to services that provide 

access to numerous titles for low 

subscription prices. They argued that it 

was not the purpose of the rulemaking 

to provide consumers with the most 

cost-effective manner to obtain 

commercial video content. 

AACS LA opposed an exemption for 

space shifting that would apply to 

AACS technology protecting Blu-ray 

discs. It noted that proponents had 

failed to satisfy their burden to 

demonstrate that an exemption is 

warranted or that space shifting is a 

noninfringing act. 

The Register recognized that there is 

significant consumer interest in the 

proposed exemption. Proponents, 

however, had the burden of 

demonstrating that the requested use 

was noninfringing. Neither of the two 

key cases relied upon by proponents, 

however, addresses or informs the space 

shifting activities at issue. 

The Register noted that she had 

previously explained that Diamond 

Multimedia—a case in which the court 

was called upon to interpret the Audio 

Home Recording Act (‘‘AHRA’’)—‘‘did 

not hold that ‘space-shifting’ is fair use. 

It did state, in dicta, that ‘space-shifting’ 

of digital and analog musical recordings 

is a noncommercial personal use 

consistent with the Audio Home 

Recording Act.’’ Notably, neither 

Diamond Multimedia, nor the statute it 

interpreted, addressed motion pictures, 

the focus of Public Knowledge’s 

proposal. 

Turning to Sony, the Register clarified 

that that case involved ‘‘time-shifting,’’ 

defined by the Supreme Court as ‘‘the 

practice of recording a program to view 

it once at a later time, and thereafter 

erasing it.’’ It did not address the 

legality of ‘‘librarying,’’ i.e., the 

maintenance of copies of copyrighted 

works. Here, by contrast, librarying was 

among the activities contemplated by 

the proposed exemptions. 

The Register further observed that the 

law does not guarantee access to 

copyrighted material in a user’s 

preferred format or technique. Indeed, 

copyright owners typically have the 

legal authority to decide whether and 

how to exploit new formats. The 

Register noted that while the law may 

someday evolve to accommodate some 

of proponents’ proposed uses, more 

recent cases touching upon space 

shifting confirm that the fair use 

implications of various forms of space 

shifting are far from settled. The 

Register reiterated her view that the 

Section 1201 rulemaking process was 

‘‘not the forum in which to break new 

ground on the scope of fair use.’’ She 

then proceeded to assess the proposed 

exemptions under the traditional fair 

use factors. 

In urging that space shifting is a fair 

use, Public Knowledge characterized the 

copying of motion pictures for use on 

personal devices as a ‘‘paradigmatic 

noncommercial personal use’’ that 

could facilitate a transformative use. It 

further asserted that integrating 

reproductions of motion pictures from 

DVDs into a consumer’s media 

management software was analogous to 

the integration of thumbnail images into 

Internet search engines found to be a 

transformative use in Perfect 10, Inc. v. 

Amazon.com, Inc., 487 F.3d 701 (9th 

Cir. 2007). 

The Register did not agree with this 

analysis. In her view, the incorporation 

of reproductions of motion pictures 

from DVDs into a consumer’s media 

management software is not equivalent 

to the provision of public search engine 

functionality. Rather, it is simply a 

means for an individual consumer to 

access content for the same 

entertainment purpose as the original 

work. Put another way, it does not 

‘‘add[] something new, with a further 

purpose or different character, altering 

the first with new expression, 

meaning,’’ or advance criticism, 

comment, or any other interest 

enumerated in the preamble of Section 

107. The Register therefore concluded 

that the first fair use factor did not favor 

a finding of fair use. The Register 

additionally determined that where 

creative works were being copied in 

their entirety, factors two and three also 

weighed against fair use, and that there 

was an inadequate basis in the record to 

conclude that the developing market for 

the online distribution of motion 

pictures would not be harmed by the 

proposed uses. 

Finally, the Register concluded that 

proponents had failed to demonstrate 

that the use of a reasonably priced 

peripheral, a different device, or an 

online subscription service to access 

and play desired content did not offer 

a reasonable alternative to 

circumvention. Accordingly, the 

Register was not persuaded that the 

inability to engage in the space shifting 

activities described by proponents is 

having a substantial adverse impact on 

consumers’ ability to make 

noninfringing uses of copyrighted 

works. 

NTIA suggested what it described as 

a ‘‘more narrowly-constructed’’ version 

of Public Knowledge’s proposed 

exemption. Specifically, it supported an 

exemption to allow circumvention of 

lawfully acquired DVDs ‘‘when the DVD 

neither contains nor is accompanied by 

an additional copy of the work in an 

alternative digital format, and when 

circumvention is undertaken solely in 

order to accomplish the noncommercial 

space shifting of the contained motion 

picture.’’ NTIA voiced support for the 

motion picture industry’s efforts to 

make content available on the wide 

range of new devices, and encouraged 

the industry to continue developing 

new offerings. It contended that by 

limiting the exemption to circumstances 

in which the market had not supplied 

alternatives to DVDs, ‘‘the potential 

adverse effect on the market is 

minimal.’’ 

The Register likewise expressed 

support for the motion picture 

industry’s innovation and the 

development of market approaches to 

satisfy the demand for electronically 

distributed content. But while the 

Register was sympathetic to the desire 

to consume content on a variety of 

different devices, she noted that there is 

no basis under current law to assume 

that the space shifting activities that 

would be permitted under NTIA’s 

proposal would be noninfringing. 

Moreover, in light of the record before 

her, the Register did not find that such 

activities would not adversely affect the 

legitimate future markets of copyright 

owners. 

V. Conclusion 

Having considered the evidence in the 

record, the contentions of the 

commenting parties, and the statutory 

objectives, the Register of Copyrights 

has recommended that the Librarian of 

Congress publish certain classes of 

works, as designated above, so that the 

prohibition against circumvention of 


emcdonald on DSK67QTVN1PROD with RULES
65278 Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 

technological measures that effectively 

control access to copyrighted works 

shall not apply to persons who engage 

in noninfringing uses of those particular 

classes of works. 

Dated: October 22, 2012. 

Maria A. Pallante, 

Register of Copyrights. 

Determination of the Librarian of 

Congress 

Having duly considered and accepted 

the Recommendation of the Register of 

Copyrights, which Recommendation is 

hereby incorporated by reference, 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 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). 

List of Subjects in 37 CFR Part 201 

Copyright, Exemptions to prohibition 

against circumvention. 

Final Regulations 

For the reasons set forth in the 

preamble, 37 CFR part 201 is amended 

as follows: 

PART 201—GENERAL PROVISIONS 

■ 1. The authority citation for part 201 

continues to read as follows: 

Authority: 17 U.S.C. 702. 

■ 2. Section 201.40 is amended by 

revising paragraph (b) to read as follows: 

§ 201.40 Exemption to prohibition against 

circumvention. 

* * * * * 

(b) Classes of copyrighted works. 

Pursuant to the authority set forth in 17 

U.S.C. 1201(a)(1)(C) and (D), and upon 

the recommendation of the Register of 

Copyrights, the Librarian has 

determined that the prohibition against 

circumvention of technological 

measures that effectively control access 

to copyrighted works set forth in 17 

U.S.C. 1201(a)(1)(A) shall not apply to 

persons who engage in noninfringing 

uses of the following classes of 

copyrighted works: 

(1) Literary works, distributed 

electronically, that are protected by 

technological measures which either 

prevent the enabling of read-aloud 

functionality or interfere with screen 

readers or other applications or assistive 

technologies in the following instances: 

(i) When a copy of such a work is 

lawfully obtained by a blind or other 

person with a disability, as such a 

person is defined in 17 U.S.C. 121; 

provided, however, the rights owner is 

remunerated, as appropriate, for the 

price of the mainstream copy of the 

work as made available to the general 

public through customary channels; or 

(ii) When such work is a nondramatic 

literary work, lawfully obtained and 

used by an authorized entity pursuant to 

17 U.S.C. 121. 

(2) Computer programs that enable 

wireless telephone handsets to execute 

lawfully obtained software applications, 

where circumvention is accomplished 

for the sole purpose of enabling 

interoperability of such applications 

with computer programs on the 

telephone handset. 

(3) Computer programs, in the form of 

firmware or software, that enable a 

wireless telephone handset originally 

acquired from the operator of a wireless 

telecommunications network or retailer 

no later than ninety days after the 

effective date of this exemption to 

connect to a different wireless 

telecommunications network, if the 

operator of the wireless 

communications network to which the 

handset is locked has failed to unlock it 

within a reasonable period of time 

following a request by the owner of the 

wireless telephone handset, and when 

circumvention is initiated by the owner, 

an individual consumer, who is also the 

owner of the copy of the computer 

program in such wireless telephone 

handset, solely in order to connect to a 

different wireless telecommunications 

network, and such access to the network 

is authorized by the operator of the 

network. 

(4) Motion pictures, as defined in 17 

U.S.C. 101, on DVDs that are lawfully 

made and acquired and that are 

protected by the Content Scrambling 

System, where the person engaging in 

circumvention believes and has 

reasonable grounds for believing that 

circumvention is necessary because 

reasonably available alternatives, such 

as noncircumventing methods or using 

screen capture software as provided for 

in alternative exemptions, are not able 

to produce the level of high-quality 

content required to achieve the desired 

criticism or comment on such motion 

pictures, and where circumvention is 

undertaken solely in order to make use 

of short portions of the motion pictures 

for the purpose of criticism or comment 

in the following instances: 

(i) In noncommercial videos; 

(ii) In documentary films; 

(iii) In nonfiction multimedia ebooks 

offering film analysis; and 

(iv) For educational purposes in film 

studies or other courses requiring close 

analysis of film and media excerpts, by 

college and university faculty, college 

and university students, and 

kindergarten through twelfth grade 

educators. For purposes of this 

exemption, ‘‘noncommercial videos’’ 

includes videos created pursuant to a 

paid commission, provided that the 

commissioning entity’s use is 

noncommercial. 

(5) Motion pictures, as defined in 17 

U.S.C. 101, that are lawfully made and 

acquired via online distribution services 

and that are protected by various 

technological protection measures, 

where the person engaging in 

circumvention believes and has 

reasonable grounds for believing that 

circumvention is necessary because 

reasonably available alternatives, such 

as noncircumventing methods or using 

screen capture software as provided for 

in alternative exemptions, are not able 

to produce the level of high-quality 

content required to achieve the desired 

criticism or comment on such motion 

pictures, and where circumvention is 

undertaken solely in order to make use 

of short portions of the motion pictures 

for the purpose of criticism or comment 

in the following instances: 

(i) In noncommercial videos; 

(ii) In documentary films; 

(iii) In nonfiction multimedia ebooks 

offering film analysis; and 

(iv) For educational purposes in film 

studies or other courses requiring close 

analysis of film and media excerpts, by 

college and university faculty, college 

and university students, and 

kindergarten through twelfth grade 

educators. For purposes of this 

exemption, ‘‘noncommercial videos’’ 

includes videos created pursuant to a 

paid commission, provided that the 

commissioning entity’s use is 

noncommercial. 

(6)(i) Motion pictures, as defined in 

17 U.S.C. 101, on DVDs that are lawfully 

made and acquired and that are 

protected by the Content Scrambling 

System, where the circumvention, if 

any, is undertaken using screen capture 

technology that is reasonably 

represented and offered to the public as 

enabling the reproduction of motion 

picture content after such content has 

been lawfully decrypted, when such 

representations have been reasonably 

relied upon by the user of such 

technology, when the person engaging 

in the circumvention believes and has 

reasonable grounds for believing that 

the circumvention is necessary to 

achieve the desired criticism or 

comment, and where the circumvention 

is undertaken solely in order to make 

use of short portions of the motion 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012 / Rules and Regulations 65279 

pictures for the purpose of criticism or 

comment in the following instances: 

(A) In noncommercial videos; 

(B) In documentary films; 

(C) In nonfiction multimedia ebooks 

offering film analysis; and 

(D) For educational purposes by 

college and university faculty, college 

and university students, and 

kindergarten through twelfth grade 

educators. 

(ii) For purposes of this exemption, 

‘‘noncommercial videos’’ includes 

videos created pursuant to a paid 

commission, provided that the 

commissioning entity’s use is 

noncommercial. 

(7)(i) Motion pictures, as defined in 

17 U.S.C. 101, that are lawfully made 

and acquired via online distribution 

services and that are protected by 

various technological protection 

measures, where the circumvention, if 

any, is undertaken using screen capture 

technology that is reasonably 

represented and offered to the public as 

enabling the reproduction of motion 

picture content after such content has 

been lawfully decrypted, when such 

representations have been reasonably 

relied upon by the user of such 

technology, when the person engaging 

in the circumvention believes and has 

reasonable grounds for believing that 

the circumvention is necessary to 

achieve the desired criticism or 

comment, and where the circumvention 

is undertaken solely in order to make 

use of short portions of the motion 

pictures for the purpose of criticism or 

comment in the following instances: 

(A) In noncommercial videos; 

(B) In documentary films; 

(C) In nonfiction multimedia ebooks 

offering film analysis; and 

(D) For educational purposes by 

college and university faculty, college 

and university students, and 

kindergarten through twelfth grade 

educators. 

(ii) For purposes of this exemption, 

‘‘noncommercial videos’’ includes 

videos created pursuant to a paid 

commission, provided that the 

commissioning entity’s use is 

noncommercial. 

(8) Motion pictures and other 

audiovisual works on DVDs that are 

protected by the Content Scrambling 

System, or that are distributed by an 

online service and protected by 

technological measures that control 

access to such works, when 

circumvention is accomplished solely to 

access the playhead and/or related time 

code information embedded in copies of 

such works and solely for the purpose 

of conducting research and 

development for the purpose of creating 

players capable of rendering visual 

representations of the audible portions 

of such works and/or audible 

representations or descriptions of the 

visual portions of such works to enable 

an individual who is blind, visually 

impaired, deaf, or hard of hearing, and 

who has lawfully obtained a copy of 

such a work, to perceive the work; 

provided however, that the resulting 

player does not require circumvention 

of technological measures to operate. 

* * * * * 

Dated: October 22, 2012. 

James H. Billington, 

The Librarian of Congress. 

[FR Doc. 2012–26308 Filed 10–25–12; 8:45 am] 

BILLING CODE 1410–30–P 

POSTAL SERVICE 

39 CFR Part 111 

Domestic Competitive Products 

Pricing and Mailing Standards 

Changes 

AGENCY: Postal ServiceTM. 

ACTION: Final rule. 

SUMMARY: The Postal Service is revising 

Mailing Standards of the United States 

Postal Service, Domestic Mail Manual 

(DMM®), to reflect changes to prices and 

mailing standards for the following 

competitive products: Express Mail®, 

Priority Mail®, First-Class Package 

ServiceTM, Parcel Select®, Parcel Post®, 

Extra Services, Return Services, Mailer 

Services, and Recipient Services. 

DATES: Effective Date: January 27, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Margaret Choiniere (202) 268–7231 or 

Garry Rodriguez (202) 268–7281. 

SUPPLEMENTARY INFORMATION: This final 

rule describes new prices and product 

features for competitive products, by 

class of mail, established by the 

Governors of the United States Postal 

Service®. New prices are available 

under Docket Number CP2013–3 on the 

Postal Regulatory Commission’s (PRC) 

Web site at http://www.prc.gov, and are 

also located on the Postal Explorer®

Web site at http://pe.usps.com. 

Competitive product prices and 

changes are identified by product as 

follows: 

Express Mail 

Prices 

Overall, Express Mail prices will 

increase 5.9 percent. Express Mail will 

continue to offer zoned Retail, 

Commercial BaseTM and Commercial 

PlusTM pricing tiers. 

Retail prices will increase an average 

of 6.5 percent. The price for the Retail 

Flat Rate Envelope, Legal Flat Rate 

Envelope, and the recently-introduced 

Padded Flat Rate Envelope is increasing 

to $19.95. The Flat Rate Box price will 

remain at $39.95. 

The existing Commercial Base prices 

offer lower prices to customers who use 

online and other authorized postage 

payment methods. Commercial Base 

prices will increase 2.0 percent. 

The existing Commercial Plus price 

category offers price incentives to large 

volume customers. Commercial Plus 

prices will increase 1.0 percent. 

Priority Mail 

Prices 

Overall, Priority Mail prices will 

increase 6.3 percent. The price increase 

varies by price cell and price tier. 

Retail prices will increase an average 

of 9.0 percent, but Retail Priority Mail 

will now include USPS® tracking and 

confirmation of delivery at no 

additional charge, offsetting about 3 

percent of the increase. The regular Flat 

Rate envelope will be priced at $5.60, 

with the Legal Flat Rate Envelope priced 

at $5.75 and Padded Flat Rate Envelope 

priced at $5.95. Flat Rate Box prices will 

be: Small, $5.80; Medium, $12.35; 

Large, $16.85 and Large APO/FPO, 

$14.85. 

Commercial Base prices offer lower 

prices to customers who use online and 

other authorized postage payment 

methods. Commercial Base prices will 

increase an average of 3.7 percent. 

Commercial Base pricing will offer an 

average 11.3 percent discount off retail 

prices. 

Commercial Plus price category offers 

attractive price incentives to large 

volume customers. Commercial Plus 

prices will increase an average of 3.8 

percent. Commercial Plus pricing will 

offer an average 16.2 percent discount 

off retail prices. 

Critical Mail 

Critical Mail® letters and flats are 

enhanced with a new option, signature 

upon delivery, as part of the service 

offering. The Critical Mail letter with 

signature option is priced at $4.60; the 

Critical Mail flat with signature option 

is priced at $5.35. 

Critical Mail Returns 

The Postal Service is providing a new 

option within the suite of USPS Returns 

Services to include Critical Mail pieces. 

This new product will afford customers 

the ability to expedite their returns by 

using barcoded USPS Critical Mail 

(letters and flats). 


emcdonald on DSK67QTVN1PROD with RULES