Federal Register / Vol. 75, No. 143 / Tuesday, July 27, 2010 / Rules and Regulations 43825 

Taking of Private Property 

This rule will not cause a taking of 

private property or otherwise have 

taking implications under Executive 

Order 12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights. 

Civil Justice Reform 

This rule meets applicable standards 

in sections 3(a) and 3(b)(2) of Executive 

Order 12988, Civil Justice Reform, to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

Protection of Children 

We have analyzed this rule under 

Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks. This rule is not 

an economically significant rule and 

does not create an environmental risk to 

health or risk to safety that may 

disproportionately affect children. 

Indian Tribal Governments 

This rule does not have tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does not have a substantial 

direct effect on one or more Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. 

Energy Effects 

We have analyzed this rule under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’ 

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The Administrator of the Office 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 023–01 and 

Commandant Instruction M16475.lD, 

which guide the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded this action is one of a 

category of actions which do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule is categorically 

excluded, under figure 2–1, paragraph 

(34)(g), of the Instruction. This rule 

involves establishing, disestablishing, or 

changing Regulated Navigation Areas 

and security or safety zones. An 

environmental analysis checklist and a 

categorical exclusion determination are 

available in the docket where indicated 

under ADDRESSES. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

■ For the reasons discussed in the 

preamble, the Coast Guard is amending 

33 CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; 

Pub. L. 107–295, 116 Stat. 2064; Department 

of Homeland Security Delegation No. 0170.1. 

■ 2. Add § 165.T14–199 to read as 

follows: 

§ 165.T14–205 Safety Zone; He’eia Kea 

Small Boat Harbor, Kaneohe Bay, Oahu, 

Hawaii. 

(a) Location. The following area is a 

temporary safety zone: All waters 

contained within a specified area 

around five moored vessels in the He’eia 

Kea Small Boat Harbor located in 

Kaneohe Bay, Oahu, Hawaii. This safety 

zone is bounded by the points: 

21°26′30.9′′ N, 157°48′40.4′′ W; 

21°26′53.4′′ N, 157°48′33.8′′ W (aka 

Light #2); 21°26′40.9′′ N, 157°48′10.5′′ 

W, and 21°26′30.4′′ N, 157°48′20.57′′ W 

(aka Kealohi Pt) thence along the coast 

to the beginning point. This safety zone 

extends from the surface of the water to 

the ocean floor. 

These coordinates are based upon the 

National Oceanic and Atmospheric 

Administration Coast Survey, Pacific 

Ocean, Oahu, Hawaii, chart 19359. 

(b) Regulations. (1) Entry into or 

remaining in the safety zone described 

in paragraph (a) of this section is 

prohibited unless authorized by the 

Coast Guard Captain of the Port 

Honolulu zone. 

(2) Persons desiring to transit in the 

safety zone may contact the Honolulu 

Captain of the Port on VHF channel 81A 

(157.075 MHz), VHF channel 16 

(156.800 MHz), or at telephone numbers 

1–808–563–9906 and 808–842–2600 to 

seek permission to transit the area with 

a designated escort vessel. If permission 

is granted, all persons and vessels must 

comply with the instructions of the 

Captain of the Port or his or her 

designated representative. 

(c) Effective period. This rule is 

effective from 5:00 a.m. local (HST) time 

on July 16, 2010 through 7:00 p.m. local 

(HST) time on August 13, 2010. 

(d) Regulations. In accordance with 

the general regulations in 33 CFR part 

165, Subpart C, no person or vessel may 

enter or remain in the zone except for 

support vessels and personnel, or other 

vessels authorized by the Captain of the 

Port or his designated representatives. 

(e) Penalties. Vessels or persons 

violating this rule would be subject to 

the penalties set forth in 33 U.S.C. 1232 

and 50 U.S.C. 192. 

Dated: June 24, 2010. 

R.E. McFarland, 

Commander, U.S. Coast Guard, Acting 

Captain of the Port Honolulu. 

[FR Doc. 2010–18268 Filed 7–26–10; 8:45 am] 

BILLING CODE 9110–04–P 

LIBRARY OF CONGRESS 

Copyright Office 

37 CFR Part 201 

[Docket No. RM 2008–8] 

Exemption to Prohibition on 

Circumvention of Copyright Protection 

Systems for Access Control 

Technologies 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Final rule. 

SUMMARY: The Librarian of Congress 

announces that the prohibition against 


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43826 Federal Register / Vol. 75, No. 143 / Tuesday, July 27, 2010 / Rules and Regulations 

circumvention of technological 

measures that effectively control access 

to copyrighted works shall not apply to 

persons who engage in noninfringing 

uses of six classes of copyrighted works. 

EFFECTIVE DATE: July 27, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Robert Kasunic, Assistant General 

Counsel, and David O. Carson, General 

Counsel, Copyright GC/I&R, P.O. Box 

70400, Washington, D.C. 20024. 

Telephone: (202) 707–8380. Telefax: 

(202) 707–8366. 

SUPPLEMENTARY INFORMATION: In this 

notice, the Librarian of Congress, upon 

the recommendation of the Register of 

Copyrights, announces that the 

prohibition against circumvention of 

technological measures that effectively 

control access to copyrighted works 

shall not apply to persons who engage 

in noninfringing uses of six classes of 

works. This announcement is the 

culmination of a rulemaking proceeding 

commenced by the Register on October 

6, 2008. A more comprehensive 

statement of the background and legal 

requirements of the rulemaking, a 

discussion of the record and the 

Register’s analysis may be found in the 

Register’s memorandum to the Librarian 

of Congress dated June 11, 2010, which 

contains the full explanation of the 

Register’s recommendation. A copy of 

the Register’s memorandum may be 

found at http://www.copyright.gov/ 

1201. This notice summarizes the 

Register’s recommendation, announces 

the Librarian’s determination, and 

publishes the regulatory text codifying 

the six exempted classes of works. 

I. Background 

A. Legislative Requirements for 

Rulemaking Proceeding 

The Digital Millennium Copyright Act 

(‘‘DMCA’’) was enacted to implement 

certain provisions of the WIPO 

Copyright Treaty and WIPO 

Performances and Phonograms Treaty. It 

established a wide range of rules that 

govern not only copyright owners in the 

marketplace for electronic commerce, 

but also consumers, manufacturers, 

distributors, libraries, educators, and 

on–line service providers. It defined 

whether consumers and businesses may 

engage in certain conduct, or use certain 

devices, in the course of transacting 

electronic commerce. 

Chapter 12 of title 17 of the United 

States Code prohibits circumvention of 

certain technological measures 

employed by or on behalf of copyright 

owners to protect their works (i.e., 

‘‘access controls’’). Specifically, Section 

1201(a)(1)(A) provides, in part, that no 

person shall circumvent a technological 

measure that effectively controls access 

to a work protected under this title. In 

order to ensure that the public will have 

continued ability to engage in 

noninfringing uses of copyrighted 

works, such as fair use, subparagraph 

(B) limits this prohibition. It provides 

that the prohibition against 

circumvention shall not apply to 

persons who are users of a copyrighted 

work which is in a particular class of 

works, if such persons are, or are likely 

to be in the succeeding three–year 

period, adversely affected by virtue of 

such prohibition in their ability to make 

noninfringing uses of that particular 

class of works under this title as 

determined in a rulemaking. The 

proceeding is conducted by the Register 

of Copyrights, who is to provide notice 

of the rulemaking, seek comments from 

the public, consult with the Assistant 

Secretary for Communications and 

Information of the Department of 

Commerce, and recommend final 

regulations to the Librarian of Congress. 

The regulations, to be issued by the 

Librarian of Congress, announce ‘‘any 

class of copyrighted works for which the 

Librarian has determined, pursuant to 

the rulemaking conducted under 

subparagraph (c), that noninfringing 

uses by persons who are users of a 

copyrighted work are, or are likely to be, 

adversely affected, and the prohibition 

contained in subparagraph (A) shall not 

apply to such users with respect to such 

class of works for the ensuing 3–year 

period.’’ This is the fourth Section 1201 

rulemaking. 

B. Responsibilities of Register of 

Copyrights and Librarian of Congress 

The primary responsibility of the 

Register and the Librarian in this 

rulemaking proceeding was to assess 

whether the implementation of access 

control measures is diminishing the 

ability of individuals to use copyrighted 

works in ways that are not infringing 

and to designate any classes of works 

with respect to which users have been 

adversely affected in their ability to 

make noninfringing uses. Congress 

intended that the Register solicit input 

that would enable consideration of a 

broad range of current or likely future 

adverse impacts. The statute directs that 

in conducting the rulemaking, the 

Register and the Librarian shall 

examine: 

(1) The availability for use of 

copyrighted works; 

(2) The availability for use of works 

for nonprofit archival, preservation, and 

educational purposes; 

(3) The impact that the prohibition on 

the circumvention of technological 

measures applied to copyrighted works 

has on criticism, comment, news 

reporting, teaching, scholarship, or 

research; 

(4) The effect of circumvention of 

technological measures on the market 

for or value of copyrighted works; and 

(5) Such other factors as the Librarian 

considers appropriate. 

These factors to be considered in the 

rulemaking process require the Register 

and the Librarian to carefully balance 

the availability of works for use, the 

effect of the prohibition on particular 

uses, and the effect of circumvention on 

copyrighted works. 

C. The Purpose and Focus of the 

Rulemaking 

1. Purpose of the Rulemaking 

The task of this rulemaking is to 

determine whether the availability and 

use of access control measures has 

already diminished or is about to 

diminish the ability of the users of any 

particular classes of copyrighted works 

to engage in noninfringing uses of those 

works similar or analogous to those that 

the public had traditionally been able to 

make prior to the enactment of the 

DMCA. In examining the factors set 

forth in Section 1201(a)(1)(C), the focus 

is on whether the implementation of 

technological protection measures has 

had an adverse impact on the ability of 

users to make lawful uses. 

2. The Necessary Showing 

Proponents of a class of works have 

the burden of proof. In order to make a 

prima facie case for designation of a 

class of works, proponents must show 

by a preponderance of the evidence that 

there has been or is likely to be a 

substantial adverse effect on 

noninfringing uses by users of 

copyrighted works. De minimis 

problems, isolated harm or mere 

inconveniences are insufficient to 

provide the necessary showing. 

Similarly, for proof of ‘‘likely’’ adverse 

effects on noninfringing uses, a 

proponent must prove by a 

preponderance of the evidence that the 

harm alleged is more likely than not; a 

proponent may not rely on speculation 

alone to sustain a prima facie case of 

likely adverse effects on noninfringing 

uses. It is also necessary to show a 

causal nexus between the prohibition on 

circumvention and the alleged harm. 

Proposed classes are reviewed de 

novo. The existence of a previously 

designated class creates no presumption 

for consideration of a new class, but 

rather the proponent of such a class of 

works must make a prima facie case in 

each three–year period. 


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Federal Register / Vol. 75, No. 143 / Tuesday, July 27, 2010 / Rules and Regulations 43827 

3. Determination of ‘‘Class of Works’’ 

The starting point for any definition 

of a ‘‘particular class’’ of works in this 

rulemaking must be one of the 

categories of works set forth in section 

102 of the Copyright Act. However, 

those categories are only a starting point 

and a ‘‘class’’ will generally constitute 

some subset of a section 102 category. 

The determnation of the appropriate 

scope of a ’’class of works’’; 

recommended for exemption will also 

take into account the likely adverse 

effects on noninfringing uses and the 

adverse effects that designation of the 

class may have on the market for or 

value of copyrighted works. 

While starting with a section 102 

category of works, or a subcategory 

thereof, the description of a ‘‘particular 

class’’of works ordinarily should be 

further refined by reference to other 

factors that assist in ensuring that the 

scope of the class addresses the scope of 

the harm to noninfringing uses. For 

example, the class might be defined in 

part by reference to the medium on 

which the works are distributed, or even 

to the access control measures applied 

to them. The description of a class of 

works may also be refined, in 

appropriate cases, by reference to the 

type of user who may take advantage of 

the designation of the class of works or 

by reference to the type of use of the 

work that may be made pursuant to the 

designation. The ‘‘class’’ must be 

properly tailored not only to address the 

harm demonstrated, but also to limit the 

adverse consequences that may result 

from the creation of an exempted class. 

In every case, the contours of a ‘‘class’’ 

will depend on the unique factual 

circumstances established in the 

rulemaking record on a case–by–case 

basis. 

D. Consultation with the Assistant 

Secretary for Communications and 

Information 

Section 1201(a)(1)(C) requires the 

Register of Copyrights to consult with 

the Assistant Secretary for 

Communications and Information of the 

Department of Commerce (who is also 

the Administrator of the National 

Telecommunications and Information 

Administration) and report and 

comment on the views of the Assistant 

Secretary (‘‘NTIA’’) when she makes her 

recommendation to the Librarian of 

Congress. 

In addition to informal consultations 

throughout the course of the rulemaking 

proceeding, NTIA formally 

communicated its views in letters to the 

Register on November 4, 2009, and 

April 16, 2010. NTIA’s views were 

considered by the Register in forming 

her recommendation. A discussion of 

NTIA’s substantive analysis of 

particular proposals is presented in the 

relevant sections of the Register’s 

recommendation. 

II. Solicitation of Public Comments and 

Hearings 

On October 6, 2008, the Register 

initiated this rulemaking proceeding 

pursuant to Section 1201(a)(1)(C) with 

publication of a Notice of Inquiry. The 

NOI requested written comments from 

all interested parties, including 

representatives of copyright owners, 

educational institutions, libraries and 

archives, scholars, researchers, and 

members of the public. 

During the initial comment period 

that ended on December 2, 2008, the 

Copyright Office received nineteen 

written comments proposing twenty– 

five classes of works, all of which were 

posted on the Office’s website. Because 

some of the initial comments contained 

similar or overlapping proposals, the 

Copyright Office arranged related 

classes into groups, and set forth and 

summarized all proposed classes in a 

Notice of Proposed Rulemaking 

(‘‘NPRM’’) published on December 29, 

2008. This NPRM did not present the 

initial classes in the form of proposed 

rule, but merely as ‘‘a starting point for 

further consideration.’’ 

The NPRM asked interested parties to 

submit comments providing support, 

opposition, clarification, or correction 

regarding the proposals, and to provide 

factual and/or legal arguments in 

support of their positions. The 

Copyright Office received a total of 

fifty–six responsive comments before 

the comment period closed on February 

2, 2009, all of which were posted on the 

Copyright Office website. 

Four days of public hearings were 

conducted by the Register in May 2009 

at Stanford University and the Library of 

Congress. Thirty–seven witnesses, 

representing proponents and opponents 

of proposed classes of works, testified 

on twenty–one proposed classes. 

Following the hearings, the Copyright 

Office sent follow–up questions to some 

of the hearing witnesses, and responses 

were received during the summer. The 

entire record in this and the previous 

section 1201(a)(1)(C) rulemakings are 

available on the Office’s website, http:// 

www.copyright.gov/1201/index.html. 

On October 27, 2009, the Librarian of 

Congress published in the Federal 

Register a Notice of an interim rule, 

extending the existing classes of works 

exempted from the prohibition until the 

conclusion of the current rulemaking 

proceeding and the designation of any 

classes of works to be exempt from the 

prohibition for the ensuing three–year 

period by the Librarian of Congress. 

III. The Designated Classes 

A. Motion pictures on DVDs that are 

lawfully made and acquired and that 

are protected by the Content 

Scrambling System when 

circumvention is accomplished solely 

in order to accomplish the 

incorporation of short portions of 

motion pictures into new works for the 

purpose of criticism or comment, and 

where the person engaging in 

circumvention believes and has 

reasonable grounds for believing that 

circumvention is necessary to fulfill the 

purpose of the use in the following 

instances: 

• Educational uses by college and 

university professors and by college 

and university film and media studies 

students; 

• Documentary filmmaking; 

• Noncommercial videos. 

DVDs protected by the Content 

Scrambling System (CSS) have been an 

issue in this rulemaking proceeding 

since its inception in 2000. In the 2006 

rulemaking proceeding, the Librarian 

designated a class of ‘‘[a]udiovisual 

works included in the educational 

library of a college or university’s film 

or media studies department, when 

circumvention is accomplished for the 

purpose of making compilations of 

portions of those works for educational 

use in the classroom by media studies 

or film professors.’’ 

In the current rulemaking, educators 

sought to renew and, in a number of 

ways, to expand the existing class of 

works designated in the last proceeding. 

The proposed expansions of the class 

involved extending the class to include 

all of the motion pictures on CSS– 

protected DVDs contained in a college 

or university library (rather than just a 

film or media studies department) and 

to encompass classroom use by all 

college and university professors and 

students as well as elementary and 

secondary school teachers and students. 

Apart from educators, others sought 

designation of similar classes of works 

to address what they contended are 

adverse impacts on their ability to 

engage in noninfringing uses of 

copyrighted works. Documentary 

filmmakers argued that the prohibition 

on circumvention adversely affects their 

ability to use portions of motion 

pictures in documentary films, many of 

which would qualify as noninfringing 

uses for the purposes of criticism or 

comment. Creators of noncommercial 

videos that incorporate portions of 


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43828 Federal Register / Vol. 75, No. 143 / Tuesday, July 27, 2010 / Rules and Regulations 

motion pictures contained on CSS– 

protected DVDs also alleged that the 

prohibition on circumvention adversely 

affected their ability to engage in 

noninfringing criticism or comment. 

Based on the record in this 

proceeding, the Register determines that 

CSS is a technological measure that 

protects access to copyrighted motion 

pictures. She also determined that a 

substantial number of uses in the record 

with respect to education, documentary 

filmmaking, and noncommercial videos 

qualify as noninfringing uses. 

NTIA supports expansion of the 

existing class of audiovisual works to 

include all college and university level 

instructors and students but does not 

believe the record justifies an expansion 

that would include elementary and 

secondary school teachers and students. 

NTIA also recommended limiting the 

class to address the use of DVDs 

included in the educational library or 

departments of the academic 

institutions. It also supported the 

proposal to designate a class of works 

for the benefit of documentary 

filmmakers. Finally, it expressed general 

support for the request to designate a 

class that would permit extraction of 

film clips for use in noncommercial 

videos, but suggested a requirement that 

the clips from the audiovisual work 

must be for remix videos that are used 

for social comment or criticism, or that 

are used in transformative–type works 

according to established fair use 

principles. 

Given that all of these proposed 

classes at issue involved motion 

pictures on CSS–protected DVDs, the 

Register recommends that the Librarian 

designate a single class addressing all of 

these adversely affected uses of DVDs. 

However, the Register concludes that 

the record does not support all of the 

proposed expansions of the existing 

class of audiovisual works and that in 

at least one respect, the record 

supported a contraction of that class. 

What the record does demonstrate is 

that college and university educators, 

college and university film and media 

studies students, documentary 

filmmakers, and creators of 

noncommercial videos frequently make 

and use short film clips from motion 

pictures to engage in criticism or 

commentary about those motion 

pictures, and that in many cases it is 

necessary to be able to make and 

incorporate high–quality film clips in 

order effectively to engage in such 

criticism or commentary. In such cases, 

it will be difficult or impossible to 

engage in the noninfringing use without 

circumventing CSS in order to make 

high–quality copies of short portions of 

the motion pictures. Because not all 

uses by educators, documentary 

filmmakers or makers of noncommerical 

videos will be noninfringing or will 

require such high–quality copies, the 

class of works recommended by the 

Register is not as extensive as what was 

requested by some proponents, and the 

class contains some limitations. First, 

proponents for educators failed to 

demonstrate that high–quality 

resolution film clips are necessary for 

K–12 teachers and students, or for 

college and university students other 

than film and media studies students. 

Because other means, such as the use of 

screen capture software, exist that 

permit the making of lower–quality film 

clips without circumventing access 

controls, the Register finds no 

justification in the record for expanding 

the class of works to include such 

persons as express beneficiaries of the 

designation of this class of works. 

Second, the circumvention of access 

controls must be accomplished solely in 

order to enable incorporation of short 

portions of motion pictures into new 

works for purposes of criticism of 

comment. The justification offered by 

proponents for designating a class of 

audiovisual works, and a key element of 

the Register’s conclusion that the 

intended uses will frequently be 

noninfringing fair uses, was that the 

uses that justify designation of the class 

were for purposes of criticism and 

commentary, which are classic ‘‘fair use’’ 

purposes. Moreover, all of the evidence 

in the rulemaking demonstrating 

noninfringing uses involved the use of 

short portions of motion pictures. While 

the Register is persuaded that it would 

be difficult and imprudent to quantify 

the precise contours of what constitutes 

a ‘‘short portion,’’ there was no evidence 

in the record to support the conclusion 

that anything more than incorporating 

relatively short portions of motion 

pictures into a new work for purposes 

of criticism or commentary would be a 

fair use. Similarly, in order to meet the 

requirements of the designated class of 

works, a new work must be created, 

whether that work is a compilation of 

clips for use in the classroom, or a 

documentary or video incorporating a 

clip or clips from a copyrighted motion 

picture. 

The final requirement of the 

recommended class is that the person 

engaging in the circumvention must 

reasonably believe that the 

circumvention is necessary in order to 

fulfill the purpose of the use – i.e., the 

noninfringing criticism or commentary. 

Because alternatives to circumvention 

such as video capture may suffice in 

many, and perhaps the vast majority of 

situations, users must make a reasonable 

determination that heightened quality is 

necessary to achieve the desired goal. 

The justification for designating this 

class of works is that some criticism 

and/or commentary requires the use of 

high–quality portions of motion pictures 

in order to adequately present the 

speech–related purpose of the use. 

Where alternatives to circumvention can 

be used to achieve the noninfringing 

purpose, such non–circumventing 

alternatives should be used. Thus, this 

limitation seeks to avoid an overly 

broad class of works given the limited 

number of uses that may require 

circumvention to achieve the intended 

noninfringing end. 

The class has also been limited to 

include only motion pictures rather 

than all audiovisual works. Because 

there was no evidence presented that 

addressed any audiovisual works other 

than motion pictures, there was no basis 

for including the somewhat broader 

class of audiovisual works (which 

includes not only motion pictures, but 

also works such as video games and 

slide presentations). 

B. Computer programs that enable 

wireless telephone handsets to execute 

software applications, where 

circumvention is accomplished for the 

sole purpose of enabling 

interoperability of such applications, 

when they have been lawfully obtained, 

with computer programs on the 

telephone handset. 

The Electronic Frontier Foundation 

(EFF) proposed a class that would allow 

circumvention of the technological 

measures contained on certain wireless 

phone handsets (known as 

‘‘smartphones’’) that prevent third–party 

software applications from being 

installed and run on such phones. This 

circumvention activity is colloquially 

referred to as ‘‘jailbreaking’’ a phone. 

The factual record with respect to this 

proposed class focused primarily on 

Apple’s iPhone, although there are 

allegations in the record involving other 

mobile phone manufacturers as well. 

EFF asserted, and Apple’s testimony 

confirmed, that any software or 

application to be used on the iPhone 

must be validated with the firmware 

that controls the iPhone’s operation. 

This validation process is intended to 

make it impossible for an owner of an 

iPhone to install and use third–party 

applications on the iPhone that have not 

been approved for distribution through 

Apple’s iTunes App Store. 

EFF argued that jailbreaking is a 

noninfringing activity for three reasons. 

First, it alleged that at least in some 

cases, jailbreaking can be done within 


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Federal Register / Vol. 75, No. 143 / Tuesday, July 27, 2010 / Rules and Regulations 43829 

the scope of what is authorized under 

the license Apple grants to every iPhone 

user. It stated that ‘‘[t]o the extent a 

jailbreaking technique does not modify 

any of the individual software programs 

that comprise the iPhone firmware 

collection, but instead simply adds 

additional software components to the 

collection, the practice may not exceed 

the scope of the license to ‘use the 

iPhone software’ or constitute a 

‘modification’ of any Apple software 

components, any more than the addition 

of a new printer driver to a computer 

constitutes a ‘modification’ of the 

operating system already installed on 

the computer.’’ 

Second, EFF asserted that ‘‘to the 

extent a jailbreak technique requires the 

reproduction or adaptation of existing 

firmware beyond the scope of any 

license or other authorization by the 

copyright owner, it would fall within 

the ambit of 17 U.S.C. § 1l7(a).’’ EFF 

contended that the iPhone owner is also 

the owner of the copy of the firmware 

on the iPhone and that jailbreaking falls 

within the owner’s privilege ‘‘to adapt 

those copies to add new capabilities, so 

long as the changes do not ‘‘harm the 

interests of the copyright proprietor.’’ 

Finally, EFF contended that in any 

event, jailbreaking constitutes fair use of 

the firmware because jailbreaking is a 

purely noncommercial, private use of 

computer software, a largely functional 

work that operates the phone, and that 

the phone owner must reuse the vast 

majority of the original firmware in 

order for the phone to operate. Because 

the phone owner is simply modifying 

the firmware for her own use on the 

phone, there is no harm to the market 

for the firmware. 

Apple responded that jailbreaking by 

purchasers of the iPhone is a violation 

of the prohibition against circumvention 

of access controls. It stated that its 

validation system is necessary to protect 

consumers and Apple from harm. Apple 

further contended that modifying 

Apple’s operating system constituted 

the creation of an infringing derivative 

work. Specifically, Apple argued that 

because purchasers of an iPhone are 

licensees, not owners, of the computer 

programs contained on the iPhone, 

Section 117 of the Copyright Act is 

inapplicable as an exemption to the 

adaptation right. Apple further argued 

that the fair use defense codified in 

§ 107 would not apply to jailbreaking 

activity under the statutory factors. 

Based on the record, the Register has 

determined that the encryption and 

authentication processes on the 

iPhone’s computer programs are 

technological measures that control 

access to the copyrighted work (the 

firmware) for purposes of § 1201(a)(1). 

Moreover, the Register finds that the 

evidence supports the contention that a 

technological protection measure is 

adversely affecting adding applications 

to the iPhone. The critical question is 

whether jailbreaking an iPhone in order 

to add applications to the phone 

constitutes a noninfringing use. 

The Register does not find that the 

contract between Apple and purchasers 

of the iPhone authorize modification of 

the iPhone. Moreover, the Register 

cannot clearly determine whether the 

various versions of the iPhone contracts 

with consumers constituted a sale or 

license of a copy of the computer 

programs contained on the iPhone. The 

contractual language is unclear with 

respect to particular copies of the 

computer programs. Although Apple 

retains ownership of the computer 

programs, the contracts also expressly 

grant users ownership of the device. 

Since the ‘‘copy’’ of the computer 

program is fixed in hardware of the 

device, it is unclear what ownership 

status is to be given to the particular 

copy of the computer program 

contained in the device. Apple 

unquestionably has retained ownership 

of the intangible works, but the 

ownership of the particular copies of 

those works is unclear. 

Moreover, the state of the law with 

respect to the determination of 

ownership is in a state of flux in the 

courts. Both proponents and opponents 

cited case law in support of their 

respective positions, but the Register 

finds it impossible to determine how a 

court would resolve the issue of 

ownership on the facts presented here. 

While both parties agreed that the 

Second Circuit’s decision in Krause v. 

Titleserv, 402 F.3d 119 (2d Cir. 2005) is 

‘‘good law,’’ that case dealt with a 

situation that is distinguishable in many 

respects from the present situation. The 

Register finds that the Krause case does 

not provide clear guidance as to how 

resolve the current issue. 

However, the Register does find that 

the proponent’s fair use argument is 

compelling and consistent with the 

congressional interest in 

interoperability. The four fair use factors 

tend to weigh in favor of a finding of fair 

use. 

Under the first factor in Section 107, 

it appears fair to say that the purpose 

and character of the modification of the 

operating system is to engage in a 

private, noncommercial use intended to 

add functionality to a device owned by 

the person making the modification, 

albeit beyond what Apple has 

determined to be acceptable. The user is 

not engaging in any commercial 

exploitation of the firmware, at least not 

when the jailbreaking is done for the 

user’s own private use of the device. 

The fact that the person engaging in 

jailbreaking is doing so in order to use 

Apple’s firmware on the device that it 

was designed to operate, which the 

jailbreaking user owns, and to use it for 

precisely the purpose for which it was 

designed (but for the fact that it has 

been modified to run applications not 

approved by Apple) favors a finding that 

the purpose and character of the use is 

innocuous at worst and beneficial at 

best. Apple’s objections to the 

installation and use of ‘‘unapproved’’ 

applications appears to have nothing to 

do with its interests as the owner of 

copyrights in the computer programs 

embodied in the iPhone, and running 

the unapproved applications has no 

adverse effect on those interests. Rather, 

Apple’s objections relate to its interests 

as a manufacturer and distributor of a 

device, the iPhone. 

Moreover, Congress has determined 

that reverse engineering for the purpose 

of making computer programs 

interoperable is desirable when certain 

conditions are met, and has crafted a 

specific exemption from Section 

1201(a)’s prohibition on circumvention 

in such cases. While an iPhone owner 

who ‘‘jailbreaks’’ does not fall within the 

four corners of the statutory exemption 

in Section 1201(f), the fact that he or she 

is engaging in jailbreaking in order to 

make the iPhone’s firmware 

interoperable with an application 

specially created for the iPhone suggests 

that the purpose and character of the 

use are favored. 

Turning to the second fair use factor, 

it is customary for operating systems – 

functional works – to enable third party 

programs to interoperate with them. It 

does not and should not infringe any of 

the exclusive rights of the copyright 

owner to run an application program on 

a computer over the objections of the 

owner of the copyright in the 

computer’s operating system. Thus, if 

Apple sought to restrict the computer 

programs that could be run on its 

computers, there would be no basis for 

copyright law to assist Apple in 

protecting its restrictive business model. 

The second factor decisively favors a 

finding of fair use. 

Turning to the third factor, ‘‘the 

amount and substantiality of the portion 

used in relation to the copyrighted work 

as a whole,’’ EFF admitted that because 

the Apple firmware is necessary in 

order to operate the iPhone, it is 

necessary for individuals who jailbreak 

their phones to reuse the vast majority 

of the original firmware. However, the 

amount of the copyrighted work 


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modified in a typical jailbreaking 

scenario is fewer than 50 bytes of code 

out of more than 8 million bytes, or 

approximately 1/160,000 of the 

copyrighted work as a whole. Where the 

alleged infringement consists of the 

making of an unauthorized derivative 

work, and the only modifications are so 

de minimis, the fact that iPhone users 

are using almost the entire iPhone 

firmware for the purpose for which it 

was provided to them by Apple 

undermines the significance of this 

factor. While the third factor arguably 

disfavors a fair use finding, the weight 

to be given to it under the circumstances 

is slight. 

Addressing the fourth factor, ‘‘the 

effect of the use upon the potential 

market for or value of the copyrighted 

work,’’ EFF asserted that the firmware 

has no independent economic value, 

pointing out that the iPhone firmware is 

not sold separately, but is simply 

included when one purchases an 

iPhone. EFF also argued that the ability 

to lawfully jailbreak a phone will 

increase, not decrease, overall sales of 

the phones because users will know that 

by jailbreaking, they can ‘‘take advantage 

of a wider array of third party 

applications. 

Apple responded that unauthorized 

uses diminish the value of the 

copyrighted works to Apple. However, 

Apple is not concerned that the practice 

of jailbreaking will displace sales of its 

firmware or of iPhones; indeed, since 

one cannot engage in that practice 

unless one has acquired an iPhone, it 

would be difficult to make that 

argument. Rather, the harm that Apple 

fears is harm to its reputation. Apple is 

concerned that jailbreaking will breach 

the integrity of the iPhone’s 

‘‘ecosystem.’’ The Register concludes 

that such alleged adverse effects are not 

in the nature of the harm that the fourth 

fair use factor is intended to address. 

NTIA does not support designating 

the proposed class. While 

acknowledging that permitting iPhone 

jailbreaking could facilitate innovation, 

better serve customers, and encourage 

the market to utilize open platforms, 

NTIA believes ‘‘it might just as likely 

deter innovation by not allowing the 

developer to recoup its development 

costs and to be rewarded for its 

innovation.’’ NTIA also believes that the 

proponents’ ‘‘public policy’’ arguments 

should properly be considered by expert 

regulatory agencies, the Department of 

Justice, and the Congress. It concludes 

that the ‘‘Register ought only to consider 

recommending the proposed class if she 

concludes that the access control 

measure would be a bar to actions that 

the above bodies might take in response 

to policy judgments made at those 

agencies. 

The Register appreciates that many 

regulatory and policy issues pertaining 

to jailbreaking and smartphones fall 

within the competence of other 

agencies, and the Register has no desire 

to interfere with those agencies’ 

jurisdiction. However, the only question 

before the Register and the Librarian is 

whether Section 1201(a)(1)’s prohibition 

on circumvention is adversely affecting 

the ability of users of smartphones from 

engaging in noninfringing uses of the 

firmware on their devices. No other 

agency has the power to limit the 

application of the prohibition on 

circumvention in this (or any other) 

context. Any future action by a federal 

agency to permit jailbreaking will be 

futile without an exemption from 

liability under Section 1201(a)(1), but if 

a class is not designated in this 

rulemaking, all that it will mean is that 

Section 1201 cannot be used to prevent 

jailbreaking, without prejudice to any 

other legal or regulatory authority that 

might limit or prohibit jailbreaking. 

On balance, the Register concludes 

that when one jailbreaks a smartphone 

in order to make the operating system 

on that phone interoperable with an 

independently created application that 

has not been approved by the maker of 

the smartphone or the maker of its 

operating system, the modifications that 

are made purely for the purpose of such 

interoperability are fair uses. Case law 

and Congressional enactments reflect a 

judgment that interoperability is 

favored. The Register also finds that 

designating a class of works that would 

permit jailbreaking for purposes of 

interoperability will not adversely affect 

the market for or value of the 

copyrighted works to the copyright 

owner. 

Accordingly, the Register 

recommends that the Librarian 

designate the following class of works: 

Computer programs that enable wireless 

communication handsets to execute 

software applications, where 

circumvention is accomplished for the 

sole purpose of enabling interoperability 

of such applications, when they have 

been lawfully obtained, with computer 

programs on the telephone handset. 

C. Computer programs, in the form of 

firmware or software, that enable used 

wireless telephone handsets to connect 

to a wireless telecommunications 

network, when circumvention is 

initiated by the owner of the copy of the 

computer program solely in order to 

connect to a wireless 

telecommunications network and 

access to the network is authorized by 

the operator of the network. 

In 2006, the Librarian designated a 

class of ‘‘Computer programs in the form 

of firmware that enable wireless 

telephone handsets to connect to a 

wireless telephone communication 

network, when circumvention is 

accomplished for the sole purpose of 

lawfully connecting to a wireless 

telephone communication network,’’ in 

order to permit the circumvention of 

access controls that prevent the owner 

of a cellphone from switching service on 

that cellphone to another wireless 

communication network. The access 

controls in question are embedded in 

the mobile phone’s firmware or software 

and prevent the mobile phone owner 

from gaining access to the settings that 

connect the mobile phone to a network 

(e.g., Verizon’s) other than the original 

network (e.g., AT&T’s). Beneficiaries of 

that designation have now requested 

that the Librarian again designate a 

similar class of works. Representatives 

of wireless communication networks 

have opposed the request. 

As she did three years ago, the 

Register recognizes that the requests fall 

within the zone of interest subject to 

this rulemaking. That is, circumventing 

a mobile phone lock, without the 

authority of the copyright owner, to gain 

access to the protected work (i.e., the 

firmware) is likely actionable under 

Section 1201(a)(1) of the Act. Further, a 

wireless carrier who is harmed by the 

circumvention of the software lock may 

bring an action for violation of Section 

1201(a)(1) against anyone who 

circumvents such a technological 

protection measure. 

The proponents of this class have 

presented a prima facie case that the 

prohibition on circumvention has had 

an adverse effect on noninfringing uses 

of firmware on wireless telephone 

handsets. Proponents have shown that 

mobile phone locks prevent consumers 

from legally accessing alternative 

wireless networks with the phone of 

their choice. This is the same type of 

activity that was at issue when the 

existing class of works was being 

considered in 2006. 

The wireless networks asserted that 

by using a cellphone on another 

network, an act that is not authorized 


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under their contracts, the customers 

infringe the exclusive right to reproduce 

copies of the computer software, 

because use of the mobile phones 

necessarily involves the making of 

copies in the random access memory of 

the mobile phone. Moreover, they 

asserted that the alteration of the 

computer programs in order enable the 

mobile phones to connect to another 

network constituted the unlawful 

making of derivative works, in violation 

of the copyright owner’s exclusive right 

to prepare derivative works. 

Proponents of the class asserted that 

the owners of mobile phones are also 

the owners of the copies of the 

computer programs on those phones 

and that as owners they are entitled to 

exercise their privileges under Section 

117 of the Copyright Act, which gives 

the owner of a copy of a computer 

program the privilege to make or 

authorize the making of another copy or 

adaptation of that computer program 

under certain circumstances. The 

wireless networks responded that their 

contracts with their customers restrict 

the uses of the customers’ mobile 

phones and retain ownership of the 

copies of the computer programs that 

are loaded onto the mobile phones and 

enable the phones to operate. They also 

asserted those contractual restrictions 

make the networks – and not the 

customers – the owners of the copies of 

the computer programs, and therefore 

the privilege under Section 117 to make 

copies and adaptations of computer 

programs does not apply because that 

privilege is enjoyed only by the owner 

of the copy of the computer program. 

They also argued that the privilege does 

not extend to the customers’ conduct 

because the making of a new copy or 

adaptation in order to use the mobile 

phone on a network other than the 

original network is not, as the statute 

requires, ‘‘an essential step in the 

utilization of the computer program in 

conjunction with a machine.‘‘ 

The Register has reviewed the 

appropriate case law with respect to 

who is the ‘‘owner’’ of a copy of a 

computer program for purposes of 

Section 117 when a license or 

agreement imposes restrictions on the 

use of the computer program and has 

concluded that the state of the law is 

unclear. The Register cannot determine 

whether most mobile phone owners are 

also the owners of the copies of the 

computer programs on their mobile 

phones. However, based on the record 

in this proceeding, the Register finds 

that the proponents of the class have 

made a prima facie case that mobile 

phone owners are the owners of those 

copies. While the wireless networks 

have made a case that many mobile 

phone owners may not own the 

computer program copies because the 

wireless network’s contract with the 

consumer retains ownership of the 

copies, they have not presented 

evidence that this is always the case 

even if their interpretation of the law 

governing ownership is correct. The 

record therefore leads to the conclusion 

that a substantial portion of mobile 

phone owners also own the copies of 

the software on their phones. 

The Register also concludes that when 

the owner of a mobile makes RAM 

copies of the software in order to 

operate the phone – even if she is 

operating it on another network – she is 

making a noninfringing use of the 

software under Section 117 because the 

making of that copy is an essential step 

in the utilization of that software in 

conjunction with a machine. 

Similarly, the making of 

modifications in the computer program 

in order to enable the mobile phone to 

operate on another network would be a 

noninfringing act under Section 117. As 

a general rule, anyone who wishes to 

switch her mobile phone from one 

network to another must alter some 

information embedded in the device. 

However, in a substantial number of 

cases those alterations do not appear to 

implicate Section 117 because the 

elimination and insertion of codes or 

digits, or completely reflashing a phone, 

cannot be considered an infringement of 

the computer program controlling the 

device. When specific codes or digits 

are altered to identify the new network 

to which the phone will connect, those 

minor alterations of data also do not 

implicate any of the exclusive rights of 

copyright owners. And complete 

reflashing does not even constitute 

circumvention of an access control 

because it actually deletes the copy of 

the entire work that had been protected 

by the access control, thereby 

permanently denying access to that 

work. 

In those cases where more substantial 

changes must be made to the computer 

program in order to enable use of the 

mobile phone on another network, those 

changes might implicate the exclusive 

right to prepare derivative works. 

However, those changes would be 

privileged under Section 117, which 

permits the making of ‘‘a new copy or 

adaptation’’ that is created as an 

essential step in the utilization of the 

computer program in conjunction with 

a machine. 

Section 1201(a)(1)(C) factors. As was 

the case in 2006, the Register finds that 

the four factors enumerated in Section 

1201(a)(1)(C)(i)–(iv) do not weigh either 

in favor of or against designation of the 

proposed class of works. Moreover, 

because it appears that the opposition to 

designating the proposed class is based 

primarily on the desires of wireless 

carriers to preserve an existing business 

model that has little if anything to do 

with protecting works of authorship, it 

is appropriate to address the additional 

factor (‘‘such other factors as the 

Librarian considers appropriate’’) set 

forth in Section 1201(a)(1)(C)(v). It 

seems clear that the primary purpose of 

the locks is to keep consumers bound to 

their existing networks, rather than to 

protect the rights of copyright owners in 

their capacity as copyright owners. This 

observation is not a criticism of the 

mobile phone industry’s business plans 

and practices, which may well be 

justified for reasons having nothing to 

do with copyright law and policy, but 

simply a recognition of existing 

circumstances. Because there appear to 

be no copyright–based reasons why 

circumvention under these 

circumstances should not be permitted, 

the Register recommends that the 

Librarian designate a class of works 

similar to the class designated in 2006. 

The Register notes that the 2006 class, 

and the new one designated herein, are 

both narrow, apply only to claims under 

Section 1201(a)(1), and do not establish 

a general federal policy of ensuring that 

customers have the freedom to switch 

wireless communications service 

providers. The designated classes, both 

new and old, simply reflect a 

conclusion that unlocking a mobile 

phone to be used on another wireless 

network does not ordinarily constitute 

copyright infringement and that Section 

1201(a)(1), a statute intended to protect 

copyright interests, should not be used 

to prevent mobile phone owners from 

engaging in such noninfringing activity. 

NTIA supported designation of a class 

similar to the class designated in 2006, 

but proposed that while non–profit 

entities should be permitted to take 

advantage of the exemption, commercial 

users should not. The Register’s 

recommendation, in contrast, would 

permit some commercial activity, so 

long as it (1) involves only used 

handsets, (2) is done by the owner of the 

copy of the computer program, and (3) 

is done ‘‘solely in order to access such 

a wireless telecommunications network 

and access to the network is authorized 

by the operator of the network.’’ The 

Register believes that these limitations 

ensure that the designation of this class 

will not benefit those who engage in the 

type of commercial activity that is at the 

heart of the objections of opponents of 

the proposed class: the ‘‘bulk resellers’’ 

who purchase new mobile phone 


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handsets at subsidized prices and, 

without actually using them on the 

networks of the carriers who market 

those handsets, resell them for profit. 

The type of commercial activity that 

would be permitted would be the resale 

of used handsets after the owners of the 

handsets have used them and then given 

or sold them to somebody else, who 

then resells them just as a used 

bookstore sells used books. The Register 

acknowledges that NTIA’s general view 

that the class should not extend to any 

commercial activity is inconsistent with 

aspects of the Register’s 

recommendation, but believes that to 

the extent her recommendation goes 

beyond what NTIA was willing to 

endorse, it does so in a way that, in 

NTIA’s words, ‘‘prevents unlawful use 

by those that would misuse the 

exemption for commercial purposes.’’ 

However, the applicability of the 

proposed class to commercial recyclers, 

such as the ones who had proposed the 

original class of works, is limited. When 

the commercial recycler has made a 

derivative work that is within Section 

117’s privilege for making ‘‘adaptations,’’ 

the recycler is subject to a significant 

limitation contained within Section 117: 

such adaptations may be transferred 

only with the authorization of the 

copyright owner. Thus, a recycler who 

prepares such an adaptation may not 

transfer ownership of the copy of the 

adapted computer program to anybody 

else without the authorization of the 

copyright owner. On the other hand, a 

recycler who has not prepared an 

adaptation is free to resell the mobile 

phone along with the copy of the 

computer program contained within it. 

The new class is also cabined by 

existing law in two important respects. 

First, as with any regulation under 

Section 1201(a)(1)(C) and (D), the 

designation of this class offers no safe 

harbor from liability under Section 

1201(a)(2) which strictly prohibits an 

entity from offering a circumvention 

service. Second, a wireless carrier’s 

‘‘Terms of Purchase’’ and ‘‘Terms of 

Service’’, which are binding contracts, 

still impose use restrictions on 

consumers notwithstanding the 

designation of this class. However, the 

wireless carrier must seek a remedy by 

asserting a claim of breach of contract, 

and not a claim under Section 

1201(a)(1). 

D. Video games accessible on personal 

computers and protected by 

technological protection measures that 

control access to lawfully obtained 

works, when circumvention is 

accomplished solely for the purpose of 

good faith testing for, investigating, or 

correcting security flaws or 

vulnerabilities, if: 

•The information derived from the 

security testing is used primarily to 

promote the security of the owner or 

operator of a computer, computer 

system, or computer network; and 

•The information derived from the 

security testing is used or maintained in 

a manner that does not facilitate 

copyright infringement or a violation of 

applicable law. 

Professor J. Alex Halderman proposed 

two classes of works relating to 

investigating and correcting security 

flaws or vulnerabilities created or 

exploited by technological measures 

protecting certain kinds of works. The 

Register concludes that Halderman has 

made the case for a class pertaining to 

video games, but has not made the case 

for a broader class pertaining to literary 

works, sound recordings and 

audiovisual works. 

In each case, Halderman qualified the 

scope of the proposed class by 

restricting it to (1) lawfully obtained 

works protected by access control 

measures that create or exploit security 

flaws or vulnerabilities that compromise 

the security of personal computers, and 

(2) cases where circumvention is 

accomplished solely for the purpose of 

good faith testing, investigating, or 

correcting such security flaws or 

vulnerabilities. 

In the current proceeding, Halderman 

did not present any evidence that the 

prohibition on circumvention is 

adversely affecting or is likely, in the 

next three years, to adversely affect the 

ability to engage in noninfringing uses 

of sound recordings or audiovisual 

works, or of literary works except to the 

extent that video games may be 

considered, in part, to constitute 

audiovisual works associated with such 

sound recordings. There is no 

information in the record that would 

justify again exempting the class 

designated three years ago. 

However, Halderman did present 

evidence and legal analysis in support 

of a class of works limited to video 

games. Under Section 102(a) of the 

Copyright Act, video games are ‘‘hybrid’’ 

in that they fall within two statutory 

classes of works. Video games typically 

are, in part, computer programs, which 

are a subset of the statutory category of 

‘‘literary works.’’ The evidence related to 

two types of access controls applied to 

video games: Macrovision’s SafeDisc 

software and Sony’s SecuRom software. 

Halderman asserted that the measures 

constitute access controls because, in 

both cases, the measures authenticate 

discs and enforce access policies. 

The alleged underlying noninfringing 

use involved is two–fold. First, 

purchasers of video games (including 

researchers) are engaged in 

noninfringing use when they install, 

access, and play authorized copies of 

such video games while further seeking 

to protect the security of their 

computers. Second, researchers in 

lawful possession of copies of games are 

engaged in noninfringing uses when 

they seek solely to research and 

investigate whether a video game, or the 

technological measure protecting it, 

creates security vulnerabilities or flaws. 

Professor Halderman asserted that such 

good faith research that does not cause 

or promote infringement generally 

constitutes fair use. 

Halderman alleged that SecuROM 

may create security flaws or 

vulnerabilities. He referred to a number 

of articles and class action lawsuits 

suggesting that SecuROM may contain 

flaws or cause vulnerabilities. He 

further stated that a single definitive 

scientific study might quell the ‘‘panic, 

protests, and litigation’’ to ‘‘what may 

turn out to be nonexistent or easily 

reparable faults.’’ 

Halderman also alleged that harm is 

caused by Macrovision’s SafeDisc. He 

alleged that SafeDisc was pre–installed 

on ‘‘nearly every copy of the Microsoft 

Windows XP and Windows 2003 

operating systems, [and that] the 

vulnerability affected nearly one billion 

PCs, two thousand times more than the 

[Sony] rootkit,’’‘‘ the security 

vulnerability that serviced as the factual 

basis for designating a class in the last 

rulemaking. He claimed that the 

security flaw created by SafeDisc was 

much more dangerous than the Sony 

rootkit flaw involved in the previous 

rulemaking that concluded in 2006, 

because this flaw allowed attackers to 

execute unrestricted ‘kernel–level’ code 

and read or write to any area of the hard 

disk or memory of the PC, thus 

facilitating the complete compromise of 

the security of the PC. 

Opponents raised three principal 

arguments against Halderman’s 

proposal. First, they argued that he 

provided little concrete or documented 

evidence that any security flaws or 

vulnerabilities associated with access 

control mechanisms used in connection 

with video games exist. Second, they 

argued that there is no evidence that 

research has been chilled, pointing to 


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what they called a robust ecosystem 

within which security experts routinely 

identify such flaws, collaborate on 

remedies, and disseminate information 

to alert computer users of the problems 

and them to solutions. Third, they 

argued that Professor Halderman failed 

to establish that the conduct at issue is 

prohibited by Section 1201(a)(1), since a 

statutory exemption (in particular, 17 

U.S.C. 1201(j) might apply to the 

security research. 

NTIA has advised the Register that he 

believes the record supports designating 

the requested class relating to video 

games and other works accessible on 

personal computers. NTIA believed that 

the proponents have ‘‘persuasively 

argued that without a research 

exemption, research into all current and 

future vulnerabilities will be and is 

chilled now,’’ and concurred with the 

Librarian’s conclusion in 2006 that the 

research may not be covered completely 

by the existing statutory exemptions. 

NTIA further believes that although the 

Sony Rootkit vulnerability no longer 

exists, ‘‘it seems to be a certainty that 

new vulnerabilities will emerge in the 

next three years.’’ 

Overall, the Register has concluded 

that the factors set forth in 17 U.S.C. 107 

tend to strongly support a finding that 

such good faith research constitutes fair 

use. The socially productive purpose of 

investigating computer security and 

informing the public do not involve use 

of the creative aspects of the work and 

are unlikely to have an adverse effect on 

the market for or value of the 

copyrighted work itself. The proponents 

established an underlying noninfringing 

use. 

The next question is whether the 

prohibition is causing an adverse effect 

on such noninfringing uses. The record 

is essentially limited to SecuRom and 

SafeDisc. The evidence relating to 

SecuRom tends to be highly speculative, 

but Professor Halderman asserted that 

‘‘this situation has been crying out for an 

investigation by reputable security 

researchers in order to rigorously 

determine the nature of the problem that 

this system cause[s], and dispel this 

uncertainty about exactly what’s going 

on.’’ He believed that the prohibition on 

circumvention is at least in part to 

blame for the lack of rigorous, 

independent analysis. 

In contrast to SecuROM, SafeDisc has 

created a verifiable security 

vulnerability on a large number of 

computers. Opponents of the proposed 

class did not dispute that SafeDisc 

created a security vulnerability, but they 

argued that the security flaw was 

patched by Microsoft in 2007, without 

the need of an exemption. However, 

SafeDisc was pre–loaded on nearly 

every copy of Microsoft’s Windows XP 

and Windows 2003 operating systems 

and was on the market for over six years 

before a security researcher discovered 

malware exploiting the security. The 

vulnerability had the capacity to affect 

nearly one billion PCs. 

The record supports the conclusion 

that since the 2006 rulemaking, 

substantial vulnerabilities have existed 

with respect to video games – certainly 

with respect to SafeDisc and possibly 

with respect to SecuROM. Within the 

same class of works, security 

researchers have proposed investigation 

of unconfirmed allegations of security 

vulnerabilities on another technological 

protection measure (SecureROM) that 

protects access, but have expressed 

unwillingness to do so without clear 

legal authority. Aggregating the 

evidentiary record, the proponents have 

shown that they need to be able to fix 

flaws that are identified in this class of 

works and they need to be able to 

investigate other alleged security 

vulnerabilities in this class. 

Opponents argued that there may be 

no need to designate a class in this 

proceeding because circumvention may 

already be excused pursuant to Section 

1201(j), which provides an exemption 

for security testing. However, the 

Register has concluded, as she did three 

years ago, that it is unclear whether 

Section 1201(j) applies in cases where 

the person engaging in security testing 

is not seeking to gain access to, in the 

words of Section 1201(j), ‘‘a computer, 

computer system, or computer 

network.’’ Therefore, it is appropriate to 

designate a class of works in this 

proceeding. 

Section 1201(j) does, however, 

influence both the decision to 

recommend designation of a class and 

the decision on how to fashion the class. 

Section 1201(j) is evidence of Congress’s 

general concern to permit 

circumvention under appropriate 

circumstances for purposes of security 

testing, and it also is evidence of the 

conditions Congress believes should be 

imposed on those who take advantage of 

an exemption for security testing. 

Accordingly the Register recommends 

that the Librarian designate a class of 

video games protected by access 

controls, when circumvention is done 

for the purpose of good faith testing for, 

investigating, or correcting security 

flaws or vulnerabilities. Further 

refinements to the class include a 

requirement that the information 

derived from the testing be used 

primarily to promote the security of the 

owner or operator of a computer, 

computer system, or computer network; 

and a requirement that that information 

be used or maintained in a manner that 

does not facilitate copyright 

infringement or a violation of applicable 

law. 

E. Computer programs protected by 

dongles that prevent access due to 

malfunction or damage and which are 

obsolete. A dongle shall be considered 

obsolete if it is no longer manufactured 

or if a replacement or repair is no 

longer reasonably available in the 

commercial marketplace. 

Three years ago, the Librarian 

designated the above–referenced class of 

works, which is similar to classes of 

works designated in each of the 

previous rulemakings. In the current 

proceeding the proponent of that class, 

Joseph V. Montoro, Jr., on behalf of 

Spectrum Software, Inc., has proposed 

an expanded class of works related to 

dongles. Dongles are a type of hardware 

that attach to either the printer port or 

the USB port of a computer in order to 

make secured software function. 

Montoro stated that dongles are sold 

along with certain types of software and 

are necessary for the user to access that 

software on a computer. He further 

explained that in order for the dongle to 

operate properly, the operating system 

must support the hardware and the 

required device driver must be installed. 

Montoro submitted that there are four 

situations where an exemption is 

necessary to rectify actual harm: (1) 

when dongles become obsolete; (2) 

when dongles fail; (3) where there are 

incompatibilities between the dongle 

and the operating system, and (4) where 

there are incompatibilities between the 

dongle and certain hardware. Montoro 

had stressed that his proposal is as 

much about the computer ecosystem as 

it is about dongles, in particular. He said 

that it is important to realize that the 

dongle, the operating system software 

and the computer hardware work in 

tandem and that the proposed class 

necessarily covers all of these parts. 

Representatives of the computer 

software industry stated that they do not 

oppose renewing the existing class of 

works, but object to expanding it 

beyond its current terms. 

As in 2006, the Register finds that the 

case has been made for designation of a 

class of works protected by dongles. 

Montoro has effectively met his burden 

of proof for a class relating to dongles 

that are malfunctioning or damaged and 

that are obsolete, a point on which there 

is no disagreement in the record. When 

the dongle no longer functions and is 

obsolete, there is a substantial adverse 

effect on noninfringing uses because 

there is no other means to access the 


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lawfully acquired software. When a 

dongle malfunctions or becomes 

obsolete, a person lawfully entitled to 

access the software should be able to 

rely on self–help if remedial measures 

are not reasonably available in the 

commercial marketplace. Moreover, the 

record reveals no evidence of harm to 

the market for, or value of, copyrighted 

works protected by dongles since the 

designation of the original class of 

works in 2000. 

The class, however, should not 

include cases where a replacement 

dongle is reasonably available or can be 

easily repaired. Some copyright owners 

legitimately use dongles to control 

access to a computer program by 

unauthorized users and are entitled to 

the full benefit of the prohibition as long 

as reasonable accommodations are 

offered for malfunctioning or damaged 

dongles. Montoro has not demonstrated 

that the standard previously applied – 

reasonably available in the marketplace 

– is insufficient to meet the needs of 

users of copyrighted works whose 

dongles malfunction or are damaged. 

Montoro also argues that the current 

class should be expanded to reach 

situations involving incompatibility 

between the dongle and a new or 

upgraded version of an operating 

system. The Register finds that he has 

failed to submit cogent evidence to 

support an expanded class in this 

context. A sufficient record would 

require more detail about the precise 

cause of the problems, the scope of the 

problem, and the noninfringing means 

available to resolve the problem. 

The evidence presented in the record 

also does not support Montoro’s request 

to expand the class in relation to 

obsolete hardware, specifically parallel 

ports on computers. While it appears to 

be the case that parallel ports may be 

obsolescent, there is insufficient 

evidence in the record to support the 

conclusion that parallel ports are 

currently, or in the next three years will 

be, obsolete. In order to make a case for 

an expanded class in relation to obsolete 

hardware, Montoro would have to 

demonstrate that the hardware is, or is 

likely to be, obsolete in the next three 

year period (either as a pre–installed 

item or as an optional configuration), 

that the unavailability of this obsolete 

hardware would adversely affect 

noninfringing uses, and that copyright 

owners are not meeting the legitimate 

needs of existing users. 

IV. Other Classes Considered, but Not 

Recommended 

A. Subscription based services that 

offer DRM–protected streaming video 

where the provider has only made 

available players for a limited number 

of platforms, effectively creating an 

access control that requires a specific 

operating system version and/or set of 

hardware to view purchased material; 

and Motion pictures protected by anti– 

access measures, such that access to the 

motion picture content requires use of 

a certain platform. 

Two proposals sought designation of 

classes of works that would allow 

circumvention of technological 

protection measures in order to provide 

access to motion pictures on platforms 

other than those authorized by content 

providers or their licensees. 

Megan Carney proposed a class of 

works in order to allow circumvention 

of DRM–protected streaming videos 

offered by subscription based services, 

where the provider has made players 

available only for a limited number of 

platforms. She argued that this 

restriction of viewing options effectively 

constitutes an access control by 

requiring a specific operating system 

version and/or set of hardware to view 

purchased material. She sought to use 

Netflix’s ‘‘Watch Instantly’’ streaming 

video feature, which installs digital 

rights management and runs only on 

certain platforms of computer software 

and hardware. ‘‘Watch Instantly’’ is 

included, at no charge, in the monthly 

Netflix membership, but Carney said 

that she is unable to use it because she 

does not own a computer that operates 

on a compatible platform (PCs running 

Windows or Apple computers with Intel 

chips). Carney proposed that the 

Librarian designate a class or works in 

order to allow a user in her situation to 

create a separate program to circumvent 

the DRM on the streaming service 

system in order to view streaming video 

content made available by Netflix. 

Another proponent, Mark Rizik, 

proposed a class of works to allow the 

circumvention of motion pictures on 

DVDs protected by the CSS access 

control system, which requires the use 

of a certain platform for access. 

Specifically, Rizik would like to view, 

on a Linux–based computer that does 

not have a CSS–licensed video player, 

DVDs that are only viewable on CSS– 

licensed players. Rizik sought 

designation of a class in order to permit 

the creation of an unencrypted digital 

copy of the DVD by decrypting and 

extracting contents of DVDs for personal 

viewing purposes on Linux operating 

systems. 

The Motion Picture Association of 

America, Time Warner, and a coalition 

of copyright industry trade associations 

(the ‘‘Joint Creators’’) opposed these 

requests. NTIA has advised that it 

believes that the record does not 

support granting the requests. 

The proponents of both classes of 

works sought to circumvent the access 

controls because, they contended, it is 

too expensive to acquire the hardware 

and software with the minimum 

requirements necessary to view motion 

pictures on the distribution mechanism 

of their choice. They also argued that 

there are no reasonable, noninfringing 

alternatives to circumvention for those 

wishing to engage in the activity 

affected by these platform requirements. 

Similar classes to those proposed by 

Carney and Rizik have been requested 

and denied in the past three 

rulemakings. Although the streaming 

video proposal presents a new factual 

situation, the Register concludes that 

the legal arguments are fundamentally 

similar to the proposals relating to the 

viewing of DVDs on computers with 

Linux operating systems that were 

advanced in the previous three 

rulemakings, when those proposals 

were rejected. Likewise, arguments for 

the streaming video and Linux classes 

fail for fundamentally the same reasons 

as the earlier Linux proposals, and the 

Register cannot recommend that the 

Librarian designate either of these 

proposed classes of works. 

In these rulemakings, proposed 

classes have regularly been rejected in 

cases where a user who wished to 

engage in a noninfringing use of a work 

using a particular device already had 

the ability lawfully to engage in the 

same noninfringing use of the work 

using a different device. The same 

principle applies here. Alternative 

means exist to gain access to and view 

the motion pictures that Carney and 

Rizik wish to view after circumventing 

access controls. In any event, it is 

unclear from the record regarding 

streaming videos what is actually 

prohibiting Carney from being able to 

access the Netflix ‘‘Watch Instantly’’ 

feature and, in particular, whether the 

technological issue is centered around 

an access control. It cannot be discerned 

from the record whether Carney cannot 

gain access due to digital rights 

management or due to software and/or 

hardware incompatibility. 

Regarding DVD circumvention, many 

operating systems on the market enable 

authorized access to the works 

contained on CSS–protected DVDs. 

Moreover, CSS–compatible DVD players 

are in fact available for some Linux 

systems. 


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Further, many alternatives exist for 

both Carney and Rizik, including other 

streaming video alternatives and online 

content download sites. There are many 

reasonably–priced alternatives that may 

fulfill consumers’ wants and needs, 

including purchasing a DVD player. 

Mere consumer inconvenience is not 

sufficient to support the designation of 

a class of works. The statute does not 

provide that this rulemaking is to enable 

the most convenient method of 

consuming video content. The 

proponents have merely advanced 

requests in order to satisfy their 

convenience and preferences as to how 

they would like to access media and 

have failed to demonstrate a need for 

remedial action. Accordingly, the 

Register cannot recommend the 

Librarian designate either proposed 

class in light of the alternatives that 

exist in the marketplace today. 

B. Lawfully purchased sound 

recordings, audiovisual works, and 

software programs distributed 

commercially in digital format by 

online music and media stores and 

protected by technological measures 

that depend on the continued 

availability of authenticating servers, 

when such authenticating servers cease 

functioning because the store fails or 

for other reasons; and 

Lawfully purchased sound 

recordings, audiovisual works, and 

software programs distributed 

commercially in digital format by 

online music and media stores and 

protected by technological measures 

that depend on the continued 

availability of authenticating servers, 

prior to the failure of the servers for 

technologists and researchers studying 

and documenting how the 

authenticating servers that effectuate 

the technological measures function. 

Christopher Soghoian of the Berkman 

Center for Internet & Society at Harvard 

University has proposed two classes of 

works to allow the circumvention of 

technological measures that depend on 

the continued availability of 

authenticating servers (or ‘‘DRM 

servers’’) for the following uses: (1) by 

consumers, for access to and ordinary 

enjoyment of purchased works, and (2) 

by technologists and researchers, 

documenting the function of the 

technological measures. The 

technological measures in question 

regulate user access to copyrighted 

works via connections to remote online 

authenticating servers, and therefore 

always require that the server be 

operational; if the server is shut down, 

the authentication process cannot take 

place and access for the user will be 

denied. 

Joint Creators and Time Warner 

opposed Soghoian’s requests, and NTIA 

has advised the Register that it believes 

that the record does not support them. 

Soghoian’s first proposal, regarding 

DRM servers that control access to 

lawfully purchased sound recordings, 

audiovisual works and software 

programs, was based upon several 

recent instances where ‘‘online music 

and media stores’’ that tethered their 

commercial distribution of digital works 

to DRM servers ceased operations. The 

proposal would not permit 

circumvention of operational DRM 

servers, but would cover only situations 

in which the particular authentication 

server has ceased to function. Soghoian 

argued that when the DRM servers 

malfunction or are shut down by their 

operators, consumers lose the ability to 

engage in the legitimate, noninfringing 

usage of content that they lawfully 

purchased and reasonably expected to 

continue using. However, there is no 

evidence that such a loss of rights has 

actually occurred thus far. 

Soghoian argued that, given the 

record he presents of digital media 

stores shutting down their DRM servers, 

and given the increased migration of 

customers from physical CDs to 

downloads, it is likely that in the next 

three years at least one DRM–media 

store and/or its authenticating servers 

will shut down, adversely affecting the 

ability to engage in noninfringing use of 

the protected works by those who 

purchased them. He proposed that 

exempting circumvention of DRM server 

technology after a server has stopped 

functioning is a reasonable remedy for 

these adverse effects under three of the 

four Section 1201(a)(1)(C) factors. 

The Register cannot recommend this 

proposed class for the simple reason 

that the proponent has not sustained his 

burden of demonstrating that the 

prohibition on circumvention of access 

controls either has produced, or is likely 

to produce, any adverse effects on 

noninfringing uses of the proposed class 

of works. Here, no such instances of 

adverse effects have been shown. If, in 

the absence of current adverse effect, 

designation of a class of works is to be 

based solely upon anticipated harm, 

‘‘the evidence of likelihood of future 

adverse impact during that time period 

[must be] highly specific, strong and 

persuasive.’’ Evidence of such a 

compelling nature is lacking here as 

well. 

The fundamental question in 

evaluating this proposal is whether the 

adverse effects complained of by the 

proponent, ‘‘DRM–based stores that 

cease to operate or abandon their 

authenticating server system cause their 

customers to lose full, and often any, 

access to, and thus use of, their lawfully 

purchased works,’’ are real, verifiable 

and reasonably likely to recur. There are 

several persuasive reasons in the record 

to answer this question in the negative. 

Regarding the three categories of 

copyrighted works that Soghoian 

identified in his proposal, he presented 

no information that one of them, 

software in this instance, is even being 

sold by online retailers using 

authentication servers. Thus, the 

Register’s review of adverse effects must 

be restricted to sound recordings and 

audiovisual works. Soghain asserts that 

such works were sold by two entities, 

Circuit City and Google, who, upon 

deciding to withdraw from the market, 

fully refunded their customers’ 

purchase costs. In his testimony, 

Soghoian stated that he was willing to 

narrow the proposed class to permit 

circumvention only ‘‘in the event that 

the service does not provide any remedy 

for consumers.’’ He further stated that a 

‘‘refund is a totally appropriate and 

satisfactory remedy.’’ Since the record of 

DRM–protected audiovisual works 

reveal only two defunct services and 

reveals that both provided acceptable 

remedies, there is no reason for the 

Register to consider this category of 

works in her determination. 

With regard to sound recordings, of 

the three retailers who stopped selling 

DRM–protected works, Yahoo Music 

has provided full refunds. The two 

others, MSN Music and Walmart, 

announced in response to consumer 

backlash that they would keep their 

servers operational. The record 

demonstrates that, thus far, there have 

been no adverse effects on the 

noninfringing use of DRM–protected 

sound recording downloads since 

purchasers retain identical access and 

use abilities. 

Soghoian’s proposed class focused 

more on future harm, arguing that ‘‘there 

is no reason to believe that other 

companies or services that fail or are 

shut down in the future will provide 

similar corrective steps.’’ He predicted 

that companies smaller than Microsoft 

and Walmart will not have the resources 

to provide refunds or keep 

authentication servers operating and 

that given the state of the economy, 

more companies will be jettisoning their 

DRM–protected music businesses and 

may decide simply to deactivate their 

authentication servers without advance 

warning. This appears to be pure 

conjecture. Soghoian presented no 

evidence supporting his claim that if 

another online retailer decides to 


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disable its authentication server, it will 

leave affected consumers without a 

remedy. To the contrary, the record 

shows that the two companies (MSN 

Music and Walmart) that have 

discontinued their services are still 

keeping the servers operational. Thus, 

the prediction that, within the next 

three years, consumers will be 

prevented from accessing and using 

DRM–protected works due to the 

cessation of operations by an 

authentication server is purely 

hypothetical. 

The Register therefore recommends 

rejection of this proposed class. 

Soghoian’s second proposal relates to 

circumvention of the same DRM servers 

controlling access to the same categories 

of works as his first proposal. However, 

instead of being for the direct benefit of 

consumers, it would aid ‘‘technologists 

and researchers studying and 

documenting how the authenticating 

servers that effectuate the technological 

measures function.’’ Such study and 

documentation, the proposal states, 

would take place ‘‘prior to the failure of 

the servers.’’ This is intended to support 

Soghoian’s first proposed user class by 

providing consumers with 

documentation about how DRM servers 

function, so that they can actually 

understand how to engage in 

circumvention of works in his first 

proposed class. 

Soghoian’s legal argument in support 

of the ‘‘researcher’’ class rested upon a 

comparison with a similar class relating 

to ‘‘rootkits’’ that was designated in the 

2006 rulemaking, where the Librarian 

designated a class to permit 

circumvention technological measures 

that (1) control access to lawfully 

purchased sound recordings and 

associated audiovisual works on CDs 

and (2) create or exploit security flaws 

or vulnerabilities that compromise the 

security of personal computers, when 

circumvention is accomplished solely 

for the purpose of good faith testing, 

investigating, or correcting such security 

flaws or vulnerabilities. Soghoian’s 

proposal focused on the purpose of the 

existing ‘‘rootkit’’ class, contending that 

because his researcher class is also 

intended solely for good faith testing, 

investigation, and correction, it too 

meets the requirements for exemption 

from the anti–circumvention statute. He 

did point out, however, that the cases of 

failed DRM and copy protection systems 

do not easily fit into the category of 

‘‘security flaw or vulnerability.’’ 

Soghoian’s proposed ‘‘research’’ class 

of works ultimately rests upon the same 

speculative argument as his ‘‘user’’ class. 

Since the record makes clear that the 

purpose of designating the research 

class is to facilitate circumvention of 

works in the ‘‘user’’ class, the arguments 

supporting the research class fail on the 

same basis as those supporting the user 

class. Accordingly, the Register 

recommends the rejection of this 

proposed class. 

C. Software and information recorded, 

produced, stored, manipulated or 

delivered by the software, that a 

forensic investigator seeks to copy, 

activate, or reverse engineer in order to 

obtain evidence in a court proceeding. 

Glenn Pannenborg proposed 

designating a class of works for the 

benefit of forensic investigators (i.e., 

court–appointed evidence examiners) 

seeking evidence in a court proceeding. 

According to Pannenborg, forensic 

examiners practicing in the fields of 

financial or information technology may 

be faced with evidence that is recorded, 

produced, stored, manipulated or 

delivered by software covered under 17 

U.S.C. 1201, or evidence that may be the 

software itself, as in a patent or 

licensing dispute. He asserted that in 

order to obtain access to such evidence, 

a forensic investigator may have to 

circumvent a technological protection 

measure in violation of Section 

1201(a)(1)(A). 

Joint Creators opposed Pannenborg’s 

proposal, and NTIA has advised the 

Register that it believes the record does 

not support granting the request. 

The Register finds that the proponent 

in this case has not met the statutory 

burden of proof. Pannenborg failed to 

intelligibly describe the nature of 

authorship of the proposed class of 

works. Moreover, he presented no 

compelling evidence, and provides no 

concrete examples, that noninfringing 

uses of works in the proposed class have 

been or will be affected by the 

circumvention ban. Indeed, he provided 

little information about the works to 

which he has apparently been denied 

access. Because of the lack of such 

information in the record, an evaluation 

of whether and the extent to which the 

prohibition on circumvention caused an 

adverse effect on noninfringing uses was 

not possible. The Register, therefore, 

declines to recommend that the 

Librarian designate this proposed class 

of works. 

D. Audiovisual works delivered by 

digital television (‘‘DTV’’) transmission 

intended for free, over–the–air 

reception by anyone, which are marked 

with a ‘‘broadcast flag’’ indicator that 

prevents, restricts, or inhibits the 

ability of recipients to access the work 

at a time of the recipient’s choosing and 

subsequent to the time of transmission, 

or using a machine owned by the 

recipient but which is not the same 

machine that originally acquired the 

transmission. 

In the 2006 rulemaking, a number of 

commenters sought the designation of 

classes of works that target broadcast 

flags for television and radio broadcasts, 

noting that such restrictions could 

possibly interfere with the personal 

recording of digital broadcast content 

for time–shifting and format–shifting 

purposes. The Register rejected those 

requests, stating that there was no 

broadcast flag mandate in effect for 

either television or radio at that time 

and concluding that no relief could be 

granted based upon non–existent 

regulations. The broadcast flag can be 

described as a digital code embedded in 

a digital television (‘‘DTV’’) broadcasting 

stream, which prevents digital 

television reception equipment from 

redistributing broadcast content. The 

FCC had broadcast flag restrictions, but 

they were overturned by the United 

States Court of Appeals for the District 

of Columbia Circuit. 

In the current proceeding, Matt 

Perkins proposed a new ‘‘broadcast flag’’ 

class based upon the belief that 

broadcasters and copyright owners will 

experiment with copy protection 

measures to restrict the recording of 

broadcast television content after the 

completion of the transition to DTV. He 

asserted that consumers will experience 

frustration if their television recording 

privileges are in any way restricted. 

The National Association of 

Broadcasters (‘‘NAB’’) opposed this 

request, and NTIA advised the Register 

that it believes the record does not 

support the request. 

Perkins has failed to make his case for 

designating the proposed class. He has 

generally stated that a broadcast flag 

would interfere with the recording of 

digital television programming for 

personal use. However, he has not met 

his burden of proof in showing that 

regulatory action by the Librarian is 

warranted. There is no broadcast flag 

mandate for digital television broadcasts 

in effect, and it is highly speculative as 

to whether broadcasters and copyright 

owners will work to implement 

measures to restrict consumer recording 

privileges in the new DTV era. 


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In addition, the record does not 

indicate that there currently are any 

devices that include broadcast flags. 

Furthermore, Perkins’ theory in support 

of his request lacks any explanation or 

justification as to what noninfringing 

use would be prevented by the 

prohibition on circumvention with 

respect to the broadcast flag and fails to 

provide evidence that actual harm exists 

or that it is ‘‘likely’’ to occur in the 

ensuing three year period. The proposed 

class is also misguided because it affects 

redistribution of content and does not 

appear to be related to an access control 

technology measure for purposes of 

Section 1201(a)(1). For the reasons 

stated above, the Register cannot 

recommend that the proposed request 

be granted. 

E. Audiovisual works embedded in a 

physical medium (such as Blu–ray 

discs) which are marked for ‘‘down– 

conversion’’ or ‘‘down–resolutioning’’ 

(such as by the presence of an Image 

Constraint Token ‘‘ICT‘‘) when the work 

is to be conveyed through any of a 

playback machine’s existing audio or 

visual output connectors, and therefore 

restricts the literal quantity of the 

embedded work available to the user 

(measured by visual resolution, 

temporal resolution, and color fidelity). 

Matt Perkins proposed a class of 

works based on audiovisual works 

embedded in Blu–ray discs. He stated 

that the Blu–ray disc’s data structure 

allows a disc publisher to assign an 

image constraint token to an audiovisual 

work. He further explained that a 

licensed Blu–ray disc player responds to 

that token by ‘‘down–rezzing’’ the 

electronic video signal when conveyed 

over an ‘‘untrusted’’ analog connection 

(i.e., a trio of RCA cables). He asserted 

that no such constraints occur when the 

signal is conveyed over the preferred, 

‘‘trusted’’ digital pathway (High– 

Definition Multimedia Interface 

[‘‘HDMI’’] incorporating High– 

bandwidth Digital Content Protection 

[‘‘HDCP’’]). He argued that ICT denies 

access to discarded video details until a 

condition is satisfied (HDMI 

connectivity), and therefore that ICT 

qualifies as an access control measure 

under Section 1201. He admitted that 

there is little evidence that ICTs are 

currently embedded in available Blu– 

ray discs, but nevertheless asserted that 

the possible inclusion of an image 

constraint token will cause user 

frustration because program content will 

not be seen in the promised high 

definition format. 

Advanced Access Content System 

Licensing Administrator, LLC (‘‘AACS 

LA’’) opposed the request, and NTIA has 

advised the Register that it believes the 

record does not support granting the 

request. 

Perkins’ request cannot withstand 

scrutiny. He has failed to meet his 

burden of proof demonstrating that 

relief is warranted with regard to the 

willful down–conversion of high 

definition programming recorded on 

Blu–ray discs. He has not shown that 

the prohibition on circumvention has 

had or is likely to have a substantial 

adverse effect on a clearly identifiable 

noninfringing use. Similarly, he has not 

demonstrated the existence of actual 

harm, or the likelihood of future harm 

that designation of the proposed class 

would necessarily rectify. Specifically, 

he has not provided evidence that ICTs 

are currently being used on Blu–ray 

discs to restrict users from accessing the 

highest resolution format offered by 

Blu–ray discs. Further, the request is 

unnecessary because the potential 

problem described by Perkins is a 

rapidly disappearing legacy issue 

related to early generation high 

definition televisions. The Register 

recommends that the proposed class of 

works be rejected. 

F. Literary works distributed in ebook 

format when all existing ebook editions 

of the work (including digital text 

editions made available by authorized 

entities) contain access controls that 

prevent the enabling either of the 

book’s read–aloud function or of screen 

readers that render the text into a 

specialized format. 

In 2006, the Librarian designated a 

class consisting of ‘‘Literary works 

distributed in ebook format when all 

existing electronic book (‘‘ebook’’) 

editions of the work (including digital 

text editions made available by 

authorized entities) contain access 

controls that prevent the enabling either 

of the book’s read–aloud function or of 

screen readers that render the text into 

a specialized format.’’ The American 

Foundation for the Blind (‘‘AFB’’), 

which was the principal proponent of 

ebook exemptions in 2003 and 2006, has 

proposed that the Librarian redesignate 

the existing class to ensure that people 

who are blind or visually impaired are 

not excluded from the digital revolution 

in education, information and 

entertainment. 

In support of its proposal, AFB 

offered an examination of five ebooks, 

two which it tested in the PDF format 

and three which it tested in the 

Microsoft Lit format. AFB stated that of 

these five books, only one—or twenty 

percent of the sample—was accessible. 

In order to make its case, the AFB had 

to demonstrate that the prohibition on 

circumvention has adversely affected, or 

is likely to adversely affect, users’ 

ability to make noninfringing uses of a 

particular class of works. There was no 

dispute that making an ebook accessible 

to blind and visually impaired persons 

is a noninfringing use. Therefore, the 

main question is whether the 

prohibition on circumvention of 

technological measures that control 

access has adversely affected the ability 

of blind and visually impaired persons 

to gain access to the literary content in 

ebooks. 

In short, the proponents surveyed five 

ebook titles and found that three 

(Brian’s Hunt, The Bridges of Madison 

County, and The Einstein Theory of 

Relativity) were not accessible in 

editions published in the Microsoft Lit 

format, one (The Sign of the Fish) was 

not accessible in an edition published in 

the Adobe PDF format, and one (The 

Complete Works of Edgar Alan Poe 

Volume 1) was accessible in the Adobe 

PDF format. Thus, four out of the five 

titles sampled were available in formats 

that were not accessible. 

Proponents of the class presented no 

other factual information relating to 

whether (and the extent to which) the 

prohibition on circumvention actually 

has had an adverse effect on the ability 

of blind and visually impaired persons 

to engage in the noninfringing use of 

reading ebooks by using screen readers 

and the read–aloud function offered in 

many ebooks. 

Joint Creators did not oppose the 

request, but did question whether the 

prohibition on circumvention of access 

controls was to blame for the 

discrepancy between access for the fully 

sighted and access for the visually 

impaired. NTIA has advised the Register 

that it believes that an exemption based 

on this proposals should be renewed. 

NTIA did not state that the record 

supports granting the requested 

exemption; in fact, it observed that the 

case made by proponents is weak. 

Nevertheless, NTIA concluded that 

despite the limited level of information 

provided, it is persuaded that harm to 

these uses and users is likely to exist. 

In reviewing the evidence presented 

in support of designating the proposed 

class, the first issue that is readily 

apparent is that two of the five works 

examined by AFB (The Einstein Theory 

of Relativity and The Complete Works of 

Edgar Alan Poe Volume 1) are in the 

public domain. Section 1201 does not 

prohibit circumvention of a 

technological protection measure when 

it simply controls access to a public 

domain work; in such a case, it is lawful 

to circumvent the technological 

protection measure and there is no need 


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43838 Federal Register / Vol. 75, No. 143 / Tuesday, July 27, 2010 / Rules and Regulations 

for an exemption. Thus, the two works 

in the public domain included in the 

tiny sample – forty percent of the entire 

sample – are irrelevant to the case for 

an exemption. Even though one of these 

two public domain works was found to 

be inaccessible, the prohibition on 

circumvention cannot be said to be 

adversely affecting uses of that work 

given that the prohibition does not 

apply to public domain works. 

Two of the other ebooks cited in 

support of designating the class –– 

Brian’s Hunt and The Bridges of 

Madison County, –– are alleged to be 

inaccessible in Microsoft Lit format. 

However, the proponents did not state 

whether those titles are accessible and 

available in other formats, such as the 

widely–used PDF format. Because the 

proposed class, like the classes 

approved in 2003 and 2006, requires 

that ‘‘all existing ebook editions of the 

work (including digital text editions 

made available by authorized entities) 

contain access controls that prevent the 

enabling either of the book’s read–aloud 

function or of screen readers that render 

the text into a specialized format,’’ the 

evidence relating to these two titles is 

insufficient to justify the designation of 

the proposed class. If Brian’s Hunt and 

The Bridges of Madison County are 

available in other editions that provide 

read–aloud and screen reader 

accessibility, then they are not examples 

of works justifying redesignation of the 

class. In failing to even check to see 

whether Brian’s Hunt and The Bridges 

of Madison County are available in an 

accessible format, the proponents failed 

to meet their burden of proof with 

respect to those two titles. 

The final book offered as an example 

of inaccessibility was The Sign of the 

Fish, by Joann Klusmeyer. The 

proponents of the class stated that the 

book ‘‘opened in Acrobat, but content 

was not accessible.’’ Nothing was said 

about whether the book was also 

available in other formats (and, if so, 

whether those formats were accessible). 

Again, the proponents presented 

insufficient evidence to evaluate 

whether yet another of the limited 

number of titles in their sample was 

inaccessible in all ebook formats. 

Although the Register could 

recommend against designation of the 

proposed class based simply upon the 

proponents’ failure to provide sufficient 

evidence to evaluate whether any of the 

three non–public domain books cited by 

the proponents are inaccessable in all 

ebook formats, the Register’s staff 

conducted some additional research to 

determine whether the case could be 

made that any or all of those books are 

inaccessible in all formats. With respect 

to Brian’s Hunt and The Bridges of 

Madison County, a quick review of the 

market revealed that both of these works 

are available as digital texts through 

Bookshare.org. However, The Sign of 

the Fish is not available in any edition 

that permits the enabling of the ebook 

read–aloud function or of screen 

readers. However, the Register cannot 

conclude that the prohibition on 

circumvention has had an adverse effect 

on the noninfringing use of reading 

ebooks with screen readers or the read– 

aloud function when the evidence 

reveals the case is built upon a single 

obscure book. 

The Register fully supports universal 

accessibility to ebooks for the blind and 

visually impaired. However, the 

rulemaking established by Congress 

requires proponents to demonstrate, de 

novo, in each rulemaking proceeding, 

that relief relating to a particular class 

of works is warranted for the ensuing 

three–year period. The Register is 

sympathetic to the needs of the blind 

and visually impaired, and agrees that 

as a matter of policy, access to e–books 

for the visually impaired should be 

encouraged and that, when there is 

evidence that the prohibition on 

circumvention is having an adverse 

impact on that goal, an appropriate class 

of works should be designated in this 

rulemaking. The Register has not 

hesitated to recommend such classes 

when the record has supported such a 

recommendation. However, unless the 

burden of presenting a prima facie case 

is met, the statutory standard 

established for this rulemaking does not 

permit the designation of a class of 

works. Presenting strong policy 

arguments in favor of exempting a class 

of works from the prohibition on 

circumvention is only part of the battle 

that a proponent must wage; it is also 

necessary to provide sufficient facts to 

justify a finding that the prohibition 

actually is having or is likely to have an 

adverse effect on noninfringing uses. 

For all of the reasons set forth above, 

the Register finds no factual basis for 

designating the proposed class of works. 

While the Register’s recommendations 

in previous rulemakings made clear that 

the Register understands and accepts 

the legal and policy reasons for such an 

exemption, the constraints established 

by Congress in this rulemaking 

proceeding do not permit the 

designation of a class of works in the 

absence of a factual record that supports 

the need for the designation. No such 

showing has been made in this 

proceeding. 

IV. Conclusion 

Having considered the evidence in the 

record, the contentions of the parties, 

and the statutory objectives, the Register 

of Copyrights recommends that the 

Librarian of Congress publish the five 

classes of copyrighted works designated 

above, so that the prohibition against 

circumvention of technological 

measures that effectively control access 

to copyrighted works shall not apply to 

persons who engage in noninfringing 

uses of those particular classes of works. 

Dated: July 19, 2010 

Marybeth Peters, 

Register of Copyrights. 

Determination of the Librarian of 

Congress 

Having duly considered the 

recommendation of the Register of 

Copyrights as summarized above and 

having accepted that recommendation 

with respect to all but one of the classes 

of works under consideration, the 

Librarian of Congress is exercising his 

authority under 17 U.S.C. 1201(a)(1)(C) 

and (D) and is publishing as a new rule 

the six classes of copyrighted works that 

shall be subject to the exemption found 

in 17 U.S.C. 1201(a)(1)(B) from the 

prohibition against circumvention of 

technological measures that effectively 

control access to copyrighted works set 

forth in 17 U.S.C. 1201(a)(1)(A). 

The Librarian has considered but 

rejected the Register’s recommendation 

with respect to the proposed class of 

works consisting of literary works 

distributed in ebook format. This class 

of works was proposed by the American 

Foundation for the Blind (AFB) and is 

identical to that for which an exemption 

was granted in 2006 and similar to the 

class for which an exemption was 

granted in 2003. 

The Librarian understands, and agrees 

with, the Register regarding the 

requirement that a decision on a 

proposed class of works be made based 

on the record developed in the 

rulemaking proceeding. In the view of 

the Librarian, the proposed exemption 

should be granted because: (1) the 

record includes statements on the 

likelihood of access not being available 

to blind individuals, (2) no one opposed 

the exemption, and (3) there are broad 

benefits to society in making works 

accessible to the visually impaired. The 

Librarian notes that, in contrast with its 

actions in both 2003 and 2006, the 

Copyright Office did not submit any 

post–hearing questions on this proposed 

exemption. Such development of the 

record would have been helpful. The 

Librarian also notes that the Assistant 

Secretary for Communications and 

Information of the Department of 


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Federal Register / Vol. 75, No. 143 / Tuesday, July 27, 2010 / Rules and Regulations 43839 

Commerce, with whom the Register is 

required by Section 1201(a)(l)(C) to 

consult when she makes her 

recommendation, supports granting the 

exemption. 

Accordingly, the Librarian is 

designating the class of works relating to 

literary works distributed in ebook 

format. 

Notwithstanding the above, the 

Librarian is aware that, in the past two 

years, the Register and her legal staff 

have invested a great deal of time in 

analyzing the myriad of issues that 

combine to make it difficult for blind 

and print–disabled persons to obtain 

access to certain e–books. The Copyright 

Office has hosted comprehensive 

meetings with stakeholders, solicited 

public comment on the application of 

domestic and international law to 

accessibility, participated in interagency 

and intergovernmental meetings in 

Washington, DC and Geneva, and, with 

the World Intellectual Property 

Organization, co–sponsored a major 

international training program for 

experts from developing countries. 

Through this work, the Register has 

come to believe that more general 

Congressional attention on the issue of 

accessibility is merited. I agree with the 

Register in this determination. 

The section 1201 process is a 

regulatory process that is at best ill– 

suited to address the larger challenges of 

access for blind and print–disabled 

persons. The exemption that the 

Librarian is approving here offers a 

solution to specific concerns that were 

raised in the narrow context of the 

rulemaking. Moreover, it is a temporary 

solution, as the 1201 process begins 

anew every three years. 

Outside of section 1201and the issue 

of technological protection measures, 

the Register has been examining 

whether copyright law, and to some 

extent related disabilities and education 

laws, adequately serve the blind and 

print–disabled population in the digital 

age. In particular, the Register has 

learned that, even where books are 

published electronically for the general 

public, the digital format used or 

licensed may be employed in a way that 

is incompatible with Braille readers and 

other assistive technologies on which 

blind and print-disabled persons rely. In 

the long run, this incompatibility may 

lead to delays, cost challenges and 

standards issues that may off-set the 

long-awaited benefits of digital media. 

Copyright and content issues cannot be 

divorced from the general goal of 

ensuring that hardware devices are 

designed with accessibility in mind. 

The Librarian fully supports the Register 

in her examination of these issues and 

urges Congress to work with the 

Copyright Office to consider 

accessibility beyond the contours of this 

1201 rulemaking. 

List of Subjects in 37 CFR 201 

Copyright, Exemptions to prohibition 

against circumvention. 

Final Regulations 

For the reasons set forth in the 

preamble, 37 CFR part 201 is amended 

as follows: 

PART 201–GENERAL PROVISIONS 

■ 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 five classes of 

copyrighted works: 

(1) Motion pictures on DVDs that are 

lawfully made and acquired and that are 

protected by the Content Scrambling 

System when circumvention is 

accomplished solely in order to 

accomplish the incorporation of short 

portions of motion pictures into new 

works for the purpose of criticism or 

comment, and where the person 

engaging in circumvention believes and 

has reasonable grounds for believing 

that circumvention is necessary to fulfill 

the purpose of the use in the following 

instances: 

(i) Educational uses by college and 

university professors and by college and 

university film and media studies 

students; 

(ii) Documentary filmmaking; 

(iii) Noncommercial videos. 

(2) Computer programs that enable 

wireless telephone handsets to execute 

software applications, where 

circumvention is accomplished for the 

sole purpose of enabling interoperability 

of such applications, when they have 

been lawfully obtained, with computer 

programs on the telephone handset. 

(3) Computer programs, in the form 

of firmware or software, that enable 

used wireless telephone handsets to 

connect to a wireless 

telecommunications network, when 

circumvention is initiated by the owner 

of the copy of the computer program 

solely in order to connect to a wireless 

telecommunications network and access 

to the network is authorized by the 

operator of the network. 

(4) Video games accessible on 

personal computers and protected by 

technological protection measures that 

control access to lawfully obtained 

works, when circumvention is 

accomplished solely for the purpose of 

good faith testing for, investigating, or 

correcting security flaws or 

vulnerabilities, if: 

(i) The information derived from the 

security testing is used primarily to 

promote the security of the owner or 

operator of a computer, computer 

system, or computer network; and 

(ii) The information derived from the 

security testing is used or maintained in 

a manner that does not facilitate 

copyright infringement or a violation of 

applicable law. 

(5) Computer programs protected by 

dongles that prevent access due to 

malfunction or damage and which are 

obsolete. A dongle shall be considered 

obsolete if it is no longer manufactured 

or if a replacement or repair is no longer 

reasonably available in the commercial 

marketplace. 

(6) Literary works distributed in 

ebook format when all existing ebook 

editions of the work (including digital 

text editions made available by 

authorized entities) contain access 

controls that prevent the enabling either 

of the book’s read–aloud function or of 

screen readers that render the text into 

a specialized format. 

Dated: July 20, 2010 

James H. Billington, 

The Librarian of Congress. 

[FR Doc. 2010–18339 Filed 7–26–10; 8:45 am] 

BILLING CODE 1410–30–S 


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