73856 Federal Register / Vol. 79, No. 239 / Friday, December 12, 2014 / Proposed Rules 

Authority: 49 U.S.C. 106(g), 40103, 40113, 

40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 

1963 Comp., p. 389. 

§ 71.1 [Amended] 

■ 2. The incorporation by reference in 

14 CFR 71.1 of the Federal Aviation 

Administration Order 7400.9Y, Airspace 

Designations and Reporting Points, 

dated August 6, 2014, and effective 

September 15, 2014 is amended as 

follows: 

Paragraph 6006 En Route Domestic 

Airspace Areas. 

* * * * * 

AWP NV E6 Coaldale, NV [New] 

Coaldale VORTAC, NV 

(Lat. 38°00′12′′ N., long. 117°46′14′′ W.) 

That airspace extending upward from 

1,200 feet above the surface within an area 

bounded by a line beginning at lat. 39°39′28′′ 

N., long. 117°59′55′′ W.; to lat. 37°55′11′′ N., 

long. 117°53′37′′ W.; to lat. 38°13′30′′ N., 

long. 117°16′30′′ W.; to lat. 38°05′00′′ N., 

long. 117°16′00′′ W.; to lat. 37°53′00′′ N., 

long. 117°05′41′′ W.; to lat. 37°33′00′′ N., 

long. 117°05′41′′ W.; to lat. 37°26′30′′ N., 

long. 117°04′33′′ W.; to lat. 37°22′00′′ N., 

long. 117°00′30′′ W.; to lat. 37°12′00′′ N., 

long. 117°20′00′′ W.; to lat. 37°12′02′′ N., 

long. 117°53′49′′ W.; to lat. 37°12′00′′ N., 

long. 118°35′00′′ W.; to lat. 36°08′00′′ N., 

long. 118°35′00′′ W.; to lat. 36°08′00′′ N., 

long. 118°52′00′′ W.; to lat. 37°47′57′′ N., 

long. 120°22′00′′ W.; to lat. 38°53′30′′ N., 

long. 119°49′00′′ W.; thence to the point of 

beginning. 

Issued in Seattle, Washington, on 

December 2, 2014. 

Clark Desing, 

Manager, Operations Support Group, Western 

Service Center. 

[FR Doc. 2014–29184 Filed 12–11–14; 8:45 am] 

BILLING CODE 4910–13–P 

LIBRARY OF CONGRESS 

Copyright Office 

37 CFR Part 201 

[Docket No. 2014–07] 

Exemption to Prohibition on 

Circumvention of Copyright Protection 

Systems for Access Control 

Technologies 

AGENCY: U.S. Copyright Office, Library 

of Congress. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The United States Copyright 

Office is conducting the sixth triennial 

rulemaking proceeding under the Digital 

Millennium Copyright Act (‘‘DMCA’’) 

concerning possible exemptions to the 

DMCA’s prohibition against 

circumvention of technological 

measures that control access to 

copyrighted works. On September 17, 

2014, the Office published a Notice of 

Inquiry requesting petitions for 

proposed exemptions, and it has 

received forty-four petitions in 

response. With this Notice of Proposed 

Rulemaking, the Office is initiating 

three rounds of public comment on 

exemptions proposed in the petitions. 

Interested parties are invited to make 

full legal and evidentiary submissions 

in support of or opposition to the 

proposed exemptions, in accordance 

with the requirements set forth below. 

The Office is providing a ‘‘long 

comment’’ form for this purpose. The 

Office is also offering members of the 

public the opportunity to express 

general support for or opposition to any 

of the proposals via a ‘‘short comment’’ 

form. Commenters should carefully 

review the legal and evidentiary 

standards for the granting of exemptions 

under the DMCA, which are set forth in 

the September Notice of Inquiry. 

Commenters should also review the 

guidance provided in this document 

regarding specific areas of legal and 

factual interest with respect to each 

proposed exemption or category of 

exemptions, and the types of evidence 

that commenters may wish to submit for 

the record. This document also provides 

information concerning the 

recommended format and content for 

submissions, including documentary 

and multimedia evidence. 

DATES: Initial written comments 

(including documentary evidence) and 

multimedia evidence from proponents 

and other members of the public who 

support the adoption of a proposed 

exemption, as well as parties that 

neither support nor oppose an 

exemption but seek to share pertinent 

information about a proposal, are due 

February 6, 2015. Written response 

comments (including documentary 

evidence) and multimedia evidence 

from those who oppose the adoption of 

a proposed exemption are due March 

27, 2015. Written reply comments from 

supporters of particular proposals and 

parties that neither support nor oppose 

a proposal are due May 1, 2015. 

ADDRESSES: The Copyright Office 

strongly prefers that written comments 

be submitted electronically using the 

comment submission page on the 

Copyright Office Web site at http://

www.copyright.gov/1201/. Commenters 

are required to provide separate 

submissions for each proposed class 

during each stage of the public comment 

period. Although a single comment may 

not encompass more than one proposed 

class, the same party may submit 

comments on multiple classes. 

As noted, the Office is providing two 

comment forms on its Web site: A long 

form for those who wish to provide a 

full legal and evidentiary basis for their 

position in support of or opposition to 

a proposed exemption, and a short form 

for those who wish briefly to express 

general support for or opposition to a 

proposed exemption. The formats and 

content of these forms are described in 

the SUPPLEMENTARY INFORMATION section 

below. Long form comments should be 

submitted together with any 

documentary evidence. To meet 

accessibility standards, written 

comments and all associated 

documentary evidence (but not 

multimedia evidence, as discussed 

below) must be uploaded in a single file 

in either Portable Document File (PDF) 

format that contains searchable, 

accessible text (not an image); Microsoft 

Word; WordPerfect; Rich Text Format 

(RTF); or ASCII text file format (not a 

scanned document). The maximum file 

size is 6 megabytes (MB). The name of 

the submitter (and organization) should 

appear on both the submission form and 

the face of the comment. 

Commenters submitting long form 

comments may also separately submit 

multimedia evidence, as further 

explained in the SUPPLEMENTARY

INFORMATION section below. Commenters 

submitting multimedia evidence should 

so indicate on the first page of their 

written submission. Multimedia 

evidence should not be uploaded via the 

Web site; instead, it should be delivered 

to the Office, together with a hard copy 

of the written comment, on a CD–ROM, 

DVD–ROM, or flash drive in one of the 

acceptable file formats listed on the 

Copyright Office Web site at http://

copyright.gov/eco/help-file-types.html. 

The disc or flash drive should be 

labeled with the name of the submitter 

and the number of the proposed class to 

which the evidence pertains. The file 

name of each file contained on the disc 

or flash drive should consist of the 

submitter’s name, followed by the 

proposed class number and exhibit 

number, in the following format: ‘‘Jane 

Smith Class 1 Ex. 1.’’ Multimedia 

evidence may be submitted either by 

U.S. mail addressed to Copyright Office, 

Office of General Counsel, P.O. Box 

70400, Washington, DC 20024, or by 

hand delivery to Room LM–403 of the 

Copyright Office in the James Madison 

Memorial Building of the Library of 

Congress, 101 Independence Ave. SE., 

Washington, DC 20540. In either case, to 

ensure proper delivery, the package 

should be clearly labeled ‘‘Attention: 


rljohnson on DSK3VPTVN1PROD with PROPOSALS
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1 79 FR 55687 (Sept. 17, 2014). 

2 Id. at 55692–93. 

3See http://copyright.gov/1201/2014/petitions/. 

References to these petitions in this document are 

by party name followed by ‘‘Pet.’’ Where a single 

party has filed multiple petitions, the reference will 

include the party name and a short description of 

the relevant proposal (e.g., ‘‘EFF Jailbreaking Pet.’’). 

4 79 FR at 55689–91. 

5Pub. L. 113–144, sec. 2(b)–(c), 128 Stat. 1751, 

1751–52 (2014). 

6See 79 FR at 55692. 

7These submissions may suggest refinements to 

the proposed exemptions, but may not propose 

entirely new exemptions. 

Office of General Counsel—Section 

1201 Proceeding.’’ 

All written comments and 

documentary evidence will be posted 

publicly on the Copyright Office Web 

site in the form in which they are 

received. Depending upon technological 

constraints and other factors, the Office 

may also post some or all multimedia 

evidence on its Web site, with the 

remainder made available for inspection 

and copying at the Office upon written 

email request to the Office of General 

Counsel using the contact information 

provided below. If a commenter cannot 

meet a particular submission 

requirement, the commenter should 

contact the Copyright Office using the 

contact information provided below. 

FOR FURTHER INFORMATION CONTACT: 

Jacqueline C. Charlesworth, General 

Counsel and Associate Register of 

Copyrights, by email at jcharlesworth@

loc.gov or by telephone at 202–707– 

8350; Sarang V. Damle, Special Advisor 

to the General Counsel, by email at 

sdam@loc.gov or by telephone at 202– 

707–8350; or Stephen Ruwe, AttorneyAdvisor, by email at sruwe@loc.gov or 

by telephone at 202–707–8350. 

SUPPLEMENTARY INFORMATION: On 

September 17, 2014, the Copyright 

Office published a Notice of Inquiry 

(‘‘September Notice’’) in the Federal 

Register to initiate the sixth triennial 

rulemaking proceeding under 17 U.S.C. 

1201(a)(1) to determine whether there 

are any classes of copyrighted works for 

which noninfringing uses are, or in the 

next three years are likely to be, 

adversely affected by the prohibition on 

circumvention of technological 

protection measures (‘‘TPMs’’) that 

control access to copyrighted works 

(sometimes also referred to as ‘‘access 

controls’’).1 The September Notice 

invited interested parties to submit 

petitions for proposed exemptions that 

set forth the essential elements of the 

exemption.2

The Office received forty-four 

petitions in response to the September 

Notice, which are posted on the 

Copyright Office Web site.3 With this 

Notice of Proposed Rulemaking, the 

Office is initiating three rounds of 

public written comment regarding the 

proposed exemptions. 

I. Written Comments 

Persons wishing to address proposed 

exemptions in written comments should 

carefully review the September Notice 

to familiarize themselves with the 

substantive legal and evidentiary 

standards for the granting of an 

exemption under section 1201(a)(1).4 In 

addressing factual matters, commenters 

should be aware that the Office favors 

specific, ‘‘real-world’’ examples 

supported by evidence over speculative, 

hypothetical observations. For example, 

a proponent seeking to demonstrate that 

a TPM is having or is likely to have 

adverse effects should provide detailed 

evidence of actual noninfringing uses 

that are precluded by the TPM, rather 

than conclusory declarations or isolated 

harms. Likewise, an opponent seeking 

to establish, for instance, that alternative 

means of accessing the work obviate the 

need for an exemption should provide 

specific and detailed evidence of such 

alternatives rather than unsupported 

assertions. 

Commenters’ legal analysis should 

explain why the proposal meets or fails 

to meet the criteria for an exemption 

under section 1201(a)(1), including, 

without limitation, why the uses sought 

are or are not noninfringing as a matter 

of law. The legal analysis should also 

identify and discuss statutory or other 

legal provisions that could impact the 

necessity for or scope of the proposed 

exemption (for example, the Unlocking 

Consumer Choice and Wireless 

Competition Act (‘‘Unlocking Act’’),5 or 

17 U.S.C. 117). Legal assertions should 

be supported by statutory citations, 

relevant case law, and other pertinent 

authority. 

The Office is accepting comments in 

two ways. First, commenters who wish 

to provide a legal and evidentiary basis 

for their position may submit comments 

in a long form format as set forth below. 

To assist participants, the Office has 

posted a recommended form for such 

longer submissions on its Web site at 

http://copyright.gov/1201/. 

Second, for those commenters who 

wish only to briefly express general 

support for or opposition to a proposed 

exemption, the Office has provided a 

short form for single-page comments, 

also available at http://copyright.gov/

1201/, which may be completed and 

uploaded to the Office’s Web site. 

The deadlines for each round of 

submissions are set forth in the DATES

section above. Commenting parties 

should be aware that rather than reserve 

time for potential extensions of time to 

file comments, the Office has already 

established what it believes to be the 

most generous possible deadlines 

consistent with the goal of concluding 

the triennial proceeding in a timely 

fashion. 

To ensure a clear and definite record 

for each of the proposals, as explained 

in the September Notice, both long form 

and short form commenters are required 

to provide a separate submission for 

each proposed class during each stage 

of the public comment period. Although 

a single comment may not address more 

than one proposed class, the same party 

may submit multiple written comments 

on different proposals. For example, a 

commenter may not submit a single 

comment addressing both Class 7 and 

Class 8, but may submit two comments 

addressing each separately. The Office 

acknowledges that the requirement of 

separate submissions may require 

commenters to repeat certain 

information across multiple 

submissions, but the Office believes that 

the administrative benefits for both 

participants and the Office of creating a 

self-contained, separate record for each 

proposal will be worth the modest 

amount of added effort.6

The first round of public comment is 

limited to submissions from the 

proponents (i.e., those parties who 

proposed exemptions during the 

petition phase) and other members of 

the public who support the adoption of 

a proposed exemption, as well as any 

members of the public who neither 

support nor oppose an exemption but 

seek only to share pertinent information 

about a specific proposal.7 Proponents 

of exemptions—as well as supporters— 

should present their complete 

affirmative case for an exemption during 

the initial round of public comment, 

including all legal and evidentiary 

support for the proposal. Those who 

neither support nor oppose an 

exemption but seek to offer relevant 

evidence in response to a proposal 

should also file comments in the initial 

round. 

Members of the public who oppose an 

exemption should present the full legal 

and evidentiary basis for their 

opposition in the second round of 

public comment. 

The third round of public comment 

will be limited to proponents and 

supporters of particular proposals, and 

those who neither support nor oppose a 

proposal, in either case who seek to 

reply to points made in the earlier 


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73858 Federal Register / Vol. 79, No. 239 / Friday, December 12, 2014 / Proposed Rules 

rounds of comments. Reply comments 

should not raise new issues, but should 

instead be limited to addressing 

arguments and evidence presented by 

others. 

Parties seeking to make submissions 

who believe they cannot adhere to the 

guidelines set forth in this notice should 

contact the Office, using the contact 

information above, to discuss their 

concern. 

Long Form Comment Guidelines 

Commenters who wish to submit long 

form comments are strongly encouraged 

to use the long comment form template 

available on the Office’s Web site at 

http://copyright.gov/1201/. Long form 

comments should be limited to 25 pages 

in length (which may be single-spaced 

but should be in at least 12-point type), 

not including any documentary 

evidence attached to the comment. 

Proponents’ initial comments should, 

at a minimum, address the below points 

in separately labeled sections, as 

indicated below and set forth on the 

long comment form template. Others 

who wish to provide a legal and/or 

evidentiary submission in support of or 

in opposition to an exemption should 

follow the same format, as should those 

submitting reply comments. While, as 

noted, proponents should complete 

each portion of the long form in making 

their initial submission, other 

commenters (including reply 

commenters) may note ‘‘N/A’’ in any 

substantive section of the template that 

they do not wish to complete. 

• Commenter Information. Identify 

the commenter, and, if desired, provide 

a means for others to contact the 

submitter or an authorized 

representative of the submitter by email 

and/or telephone. (Parties should keep 

in mind that any private, confidential, 

or personally identifiable information 

appearing in their submissions will be 

accessible to the public.) 

• Proposed Class Addressed. Identify 

the proposed exemption the comment 

addresses by the number and name of 

the class set forth in this Notice of 

Proposed Rulemaking (e.g., ‘‘Proposed 

Class 7: Audiovisual works— 

noncommercial remix videos). 

• Overview. Provide a brief, general 

explanation of the circumvention 

activity sought to be exempted or 

opposed and why. 

• Technological Protection 

Measure(s) and Method(s) of 

Circumvention. Describe the TPM(s) 

that control access to the work and 

method(s) of circumvention. The 

description should provide sufficient 

information to allow the Office to 

understand the nature and basic 

operation of the relevant technologies, 

as well as how they are disabled or 

bypassed. 

• Asserted Noninfringing Use(s). 

Explain the asserted noninfringing 

use(s) of copyrighted works said to be 

facilitated by the proposed exemption. 

Commenters should provide an 

evidentiary basis to support their 

arguments regarding noninfringing uses, 

including discussion or refutation of 

specific examples of such uses and, if 

available, relevant documentary and/or 

multimedia evidence. This section 

should identify all statutory provisions, 

case law, and/or other legal authority 

the commenter wishes the Office to 

consider in connection with the analysis 

of whether the asserted uses are 

noninfringing. 

• Adverse Effects. Explain whether 

the inability to circumvent the TPM(s) 

at issue has or is likely to have adverse 

effects on the asserted noninfringing 

use(s). The adverse effects can be 

current, or may be adverse effects that 

are likely to occur during the next three 

years, or both. Commenters should also 

address potential alternatives that 

permit users to engage in the asserted 

noninfringing use(s) without the need 

for circumvention. Commenters should 

provide an evidentiary basis to support 

their arguments regarding asserted 

adverse effects, including discussion or 

refutation of specific examples of such 

uses and, if available, relevant 

documentary or multimedia evidence. 

This section should identify all 

statutory provisions, case law, and/or 

other legal authority the commenter 

wishes the Office to consider in 

connection with the analysis of the 

claimed adverse effects. 

• Statutory Factors. Evaluate the 

proposed exemption in light of each of 

the statutory factors set forth in 17 

U.S.C. 1201(a)(1)(C): (i) The availability 

for use of copyrighted works; (ii) the 

availability for use of works for 

nonprofit archival, preservation, and 

educational purposes; (iii) the impact 

that the prohibition on the 

circumvention of TPMs applied to 

copyrighted works has on criticism, 

comment, news reporting, teaching, 

scholarship, or research; (iv) the effect 

of circumvention of TPMs on the market 

for or value of copyrighted works; and 

(v) any other factor that may be 

appropriate for the Librarian to consider 

in evaluating the exemption. This 

section should identify all statutory 

provisions, case law, and/or other legal 

authority the commenter wishes the 

Office to consider in connection with 

the analysis of these factors. 

• Documentary evidence. 

Commenters are encouraged to submit 

documentary evidence to support or 

illustrate the information and arguments 

addressed in the written comments. As 

indicated in the ADDRESSES section 

above, such documentary evidence must 

be attached to the written comment 

(though it does not count towards the 

25-page limit). 

• Multimedia evidence. Commenters 

are also encouraged, when feasible, to 

submit multimedia evidence to support 

or illustrate relevant technologies or 

points made in written comments. 

Multimedia evidence must be submitted 

separately via mail or hand-delivered to 

the Office and must be contained on 

specified digital media, in an approved 

file format, and appropriately labeled, as 

described in the ADDRESSES section 

above. Where possible and permissible 

to post the multimedia submission on a 

publicly accessible Web site, 

commenters may wish to include a link 

to the materials in their comments 

(although providing such a link is not a 

substitute for the submission of a 

physical copy to the Office for inclusion 

in the official record). As noted above, 

the Office may post some or all 

multimedia evidence to its Web site, 

depending upon file types and sizes, 

overall volume, and other constraints. 

To the extent a multimedia submission 

is not made available on the Office’s 

Web site, the Office will make it 

available for public inspection and 

copying at the Copyright Office upon 

written email request. Copying charges 

for multimedia files will be assessed at 

the applicable Office rate under 37 CFR 

201.3 for copies of the relevant type. If 

there are unusual practical or other 

constraints that preclude the submission 

of multimedia evidence with the initial 

written comment, the commenter 

should contact the Office at least 21 

days before the applicable submission 

deadline to discuss whether it would be 

appropriate to provide a live 

demonstration at the public hearing 

and, if so, how any such demonstration 

would be captured for the official 

record. 

Short Form Comment Guidelines 

• Commenters who wish to submit a 

brief statement in support of or 

opposition to a particular proposed 

exemption are strongly encouraged to 

use the short comment form template 

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

1201/. After supplying the Commenter 

Information and noting the Proposed 

Class Addressed as described above, the 

commenter may offer a general 

statement of support or opposition. 

Short form comment submissions 

should not exceed one single-spaced 

typed page (in at least 12-point type). 


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Federal Register / Vol. 79, No. 239 / Friday, December 12, 2014 / Proposed Rules 73859 

8 ‘‘DRM,’’ or digital rights management, is content 

protection software intended to prevent 

unauthorized redistribution of copyrighted 

material. See, e.g., In re Sony BMG Audio Compact 

Disc Litig., 429 F. Supp. 2d 1378, 1380 (J.P.M.L. 

2006). 

9See Eldridge Alexander Pet. at 1 (asking the 

Office to ‘‘add an exemption to the DMCA that 

allows for the removal of DRM for personal, legal 

uses.’’); Ed Grossheim Pet. at 1 (‘‘If I purchase a 

product it should be mine to do with as I choose 

without violating copyright.’’); Jeremy Putnam Pet. 

at 1 (‘‘I ask that legal exceptions be made for 

consumers to remove DRM from all digital content 

without repercussion.’’). 

10 17 U.S.C. 1201(a)(1)(B) (emphasis added); see 

also 79 FR at 55690–91. 

11Report of the H. Comm. on Commerce on the 

Digital Millennium Copyright Act of 1998, H.R. Rep. 

No. 105–551, pt. 2, at 38 (1992) (emphasis added). 

12 Id. at 36 (emphases added). 

13See id. at 37; see also 17 U.S.C. 1201(a)(1)(C). 

14See 79 FR at 55693. 

15 Id. at 55692. 

16 Id. at 55693. 

17 37 CFR 201.40(b)(4)–(7) (2013). See 77 FR 

65260, 65266–70 (Oct. 26, 2012) (discussing the 

most recent prior exemptions). 

II. Review and Classification of 

Proposed Exemptions 

The Office has reviewed and 

classified the proposed exemptions set 

forth in the forty-four petitions received 

in response to its September Notice, in 

some cases combining overlapping or 

similar proposed exemptions, and in 

other cases subdividing proposals to 

allow for a more focused record, as 

detailed below. 

At the outset, the Office observes that 

three of the petitions seek an exemption 

that cannot be granted as a matter of 

law, as each seeks to permit 

circumvention of any and all TPMs 

constituting ‘‘DRM’’ 8 with respect to 

unspecified types of copyrighted works 

for the purpose of engaging in 

unidentified personal and/or consumer 

uses.9 As the Office explained in its 

September Notice, the DMCA provides 

that any exemptions adopted as part of 

this rulemaking must be defined based 

on ‘‘a particular class of works.’’ 10 And, 

as legislative history elaborates, ‘‘the 

‘particular class of copyrighted works’ 

[is intended to] be a narrow and focused 

subset of the broad categories of works 

. . . identified in Section 102 of the 

Copyright Act.’’ 11 That is because the 

purpose of the rulemaking is to ‘‘allow 

the enforceability of the prohibition 

against the act of circumvention to be 

selectively waived, for limited time 

periods, if necessary to prevent a 

diminution in the availability to 

individual users of a particular category 

of copyrighted materials.’’ 12

In contrast, the three petitions at issue 

seek an exemption for all works in all 

media. Moreover, these broad petitions 

fail to identify ‘‘distinct’’ and 

‘‘measurable’’ impacts on noninfringing 

uses as contemplated by the DMCA.13

Because it is apparent that the Office 

may not adopt the sweeping type of 

exemption proposed by these three 

petitions consistent with the standards 

of section 1201(a)(1), the Office declines 

to put these proposals forward for 

public comment.14

The Office has studied the remaining 

forty-one proposals and categorized 

them into twenty-seven proposed 

classes of works. In some cases, 

overlapping proposals have been 

merged into a single proposed class. In 

other cases, individual proposals that 

encompass multiple proposed uses have 

been subdivided. For administrative 

convenience, similar or related classes 

have also been grouped into overarching 

categories; the Office notes, however, 

that it will be considering exemptions 

on a class-by-class basis. 

The Office further notes that it has not 

put forward precise regulatory language 

for the proposed classes, because any 

specific language for exemptions that 

the Register ultimately recommends to 

the Librarian will necessarily depend on 

the full record developed during this 

rulemaking.15 Instead, each proposed 

class is briefly described in Part III 

below; additional information about the 

proposals can be found in the 

underlying petitions posted on the 

Office’s Web site. As explained in the 

September Notice, the proposed classes 

as described here ‘‘represent only a 

starting point for further consideration 

in the rulemaking proceeding, and will 

be subject to further refinement based 

on the record.’’ 16

In addition, after examining the 

petitions, the Office has preliminarily 

identified some initial legal and factual 

areas of interest with respect to each 

proposed class. The Office, accordingly, 

offers guidance below concerning legal 

and factual issues that commenters may 

wish to address in connection with 

particular proposals, as well as 

particular types of evidence that they 

may wish to submit. The Office stresses, 

however, that this preliminary guidance 

is not exhaustive, and commenters 

should consider and offer all legal 

argument and evidence they believe 

necessary to create a complete record. In 

addition, the Office’s early observations 

are offered without prejudice to the 

Office’s ability to raise other questions 

or concerns at later stages of the 

proceeding. 

III. The Proposed Classes 

A. Audiovisual Works on DVD, Blu-Ray, 

and Downloaded/Streamed Video 

Several petitions seek exemptions for 

circumvention of access controls 

protecting audiovisual works embodied 

on DVDs, on Blu-ray discs, and/or in 

downloaded or streamed videos in 

connection with three general categories 

of uses—educational uses; derivative 

uses; and format and space-shifting. 

These proposals raise some shared 

concerns, including the impact of TPMs 

on the alleged noninfringing uses of 

audiovisual works and whether 

alternative methods of accessing the 

content, such as screen-capture 

technology, could alleviate potential 

adverse impacts. Nonetheless, the 

evidentiary support for these proposed 

exemptions is likely to vary according to 

the specific formats and proposed uses. 

For example, a film studies professor 

may have a different need to access 

higher-resolution material than a 

teacher displaying an excerpt of a 

copyrighted work to a kindergarten 

class, and distribution standards for 

commercial documentary films may 

require use of higher-resolution material 

than required for use in noncommercial 

remix videos. Accordingly, the Office 

has further subdivided the three general 

categories of uses into more specific 

individual classes to permit proponents 

to better focus their submissions. 

1. Audiovisual Works—Educational 

Uses 

Multiple petitions seek exemptions 

for educational uses of audiovisual 

works. The Office notes that prior 

rulemakings have granted exemptions 

relating to uses of motion picture 

excerpts for commentary, criticism, and 

educational uses by college and 

university faculty and staff and by 

kindergarten through twelfth-grade 

educators.17 The current petitions 

generally seek to readopt those 

previously granted exemptions, and 

some also seek to expand an exemption 

to accommodate additional 

technologies, such as Blu-ray discs, or 

new users, such as museums, libraries, 

or students and faculty participating in 

Massive Open Online Courses 

(‘‘MOOCs’’). 

The Office has identified some legal 

and factual issues that appear common 

to all of the proposed classes relating to 

educational uses of audiovisual works. 

In addition to other more specific areas 

of concern, for each of these proposals, 

the Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the legal and 

evidentiary requirements of section 

1201(a)(1), to also address—including 

through the submission of relevant 

evidence—the following: 


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18 ‘‘‘Motion pictures’ are audiovisual works 

consisting of a series of related images which, when 

shown in succession, impart an impression of 

motion, together with accompanying sounds, if 

any.’’ 17 U.S.C. 101. 

19 ‘‘‘Audiovisual works’ are works that consist of 

a series of related images which are intrinsically 

intended to be shown by the use of machines or 

devices such as projectors, viewers, or electronic 

equipment, together with accompanying sounds, if 

any, regardless of the nature of the material objects, 

such as films or tapes, in which the works are 

embodied.’’ Id. 

20 Joint Educators propose, in relevant part, the 

following regulatory language: ‘‘audiovisual works 

embodied in physical media (such as DVDs and 

Blu-Ray Discs) or obtained online (such as through 

online distribution services and streaming media) 

that are lawfully made and acquired and that are 

protected by various technological protection 

measures, where the circumvention is 

accomplished by college and university students or 

faculty (including teaching and research 

assistants).’’ Joint Educators Pet. at 1. See 37 CFR 

201.40(b)(4)–(7) (2013); 77 FR at 65266–70. 

21Hobbs proposes ‘‘an exemption that enables 

educators and students in grades K–12 . . . to ‘rip’ 

encrypted or copy-protected lawfully accessed 

audiovisual works used for educational purposes.’’ 

Hobbs Pet. at 1. LCA requests ‘‘renewal of the 

exemption granted in the 2012 rulemaking for 

motion picture excerpts. The exemption should be 

broadened to apply to all storage media, including 

Blu-Ray. Further, the exemption for educational 

purposes should be expanded to apply to students 

in kindergarten through twelfth grade. LCA also 

seeks simplification of the exemption so that it 

could be readily understood by the authors, 

filmmakers, students, and educators it is intended 

to benefit.’’ LCA Motion Picture Pet. at 1. See 37 

CFR 201.40(b)(4)–(7) (2013); 77 FR at 65266–70. 

22 Joint Educators, in relevant part, propose the 

following regulatory language: ‘‘audiovisual works 

embodied in physical media (such as DVDs and 

Blu-Ray Discs) or obtained online (such as through 

online distribution services and streaming media) 

that are lawfully made and acquired and that are 

protected by various technological protection 

measures, where the circumvention is 

accomplished by . . . students and faculty 

participating in Massive Open Online Courses 

(MOOCs) for the purpose of criticism or comment.’’ 

Joint Educators Pet. at 1. 

• Whether the proposed exemptions 

may be limited to ‘‘motion pictures’’ as 

defined under the Copyright Act 18 as 

opposed to all ‘‘audiovisual works’’ 19 (a 

broader category that encompasses, for 

example, video games). 

• For each type of requested use, 

whether circumvention alternatives, 

such as licensing or screen-capture 

technology, obviate the need for an 

exemption. 

• Specific examples illustrating the 

need for the exemption to extend 

beyond DVDs to other formats, such as 

Blu-ray discs and TPM-protected 

content distributed online. 

(a) Proposed Class 1: Audiovisual 

Works—Educational Uses—Colleges 

and Universities 

This proposed class would allow 

college and university faculty and 

students to circumvent access controls 

on lawfully made and acquired motion 

pictures and other audiovisual works for 

purposes of criticism and comment. 

This exemption has been requested for 

audiovisual material made available in 

all formats, including DVDs protected 

by the Content Scramble System 

(‘‘CSS’’), Blu-ray discs protected by the 

Advanced Access Content System 

(‘‘AACS’’), and TPM-protected online 

distribution services. 

Professor Peter Decherney, the College 

Art Association, the International 

Communication Association, and the 

Society for Cinema and Media Studies 

(collectively referred to here as ‘‘Joint 

Educators’’) have filed a petition seeking 

adoption of a revised version of the 

previously granted exemptions to 

permit circumvention of TPMs on 

DVDs, Blu-ray discs, and videos 

acquired via online distribution 

services, for purposes of facilitating 

educational uses of motion picture 

excerpts at the college and university 

level.20

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• The proposed scope of the 

exemption, such as (a) whether it can be 

limited to uses requiring close analysis 

of the copyrighted work (such as in a 

film studies course), as opposed to 

general-purpose classroom uses, (b) 

whether it needs to extend to Blu-ray in 

addition to other formats, and (c) 

whether the exemption should be 

extended to students in addition to 

materials prepared by faculty. 

• Any changed circumstances in the 

need for an exemption over the last 

three years, including whether any 

viable alternatives to circumvention 

have emerged or evolved during this 

period. 

• Whether the previously granted 

exemption has had an adverse effect on 

the marketplace for the accessed 

copyrighted works. 

(b) Proposed Class 2: Audiovisual 

Works—Educational Uses—Primary and 

Secondary Schools (K–12) 

This proposed class would allow 

kindergarten through twelfth-grade 

educators and students to circumvent 

access controls on lawfully made and 

acquired motion pictures and other 

audiovisual works for educational 

purposes. This exemption has been 

requested for audiovisual material made 

available in all formats, including DVDs 

protected by CSS, Blu-ray discs 

protected by AACS, and TPM-protected 

online distribution services. 

Two submitters—Professor Renee 

Hobbs and the Library Copyright 

Alliance (‘‘LCA’’)—filed petitions 

seeking adoption of a revised version of 

the previously granted exemption to 

permit circumvention of TPMs on 

DVDs, Blu-ray discs, and videos 

acquired via online distribution 

services, for purposes of facilitating 

educational uses of motion picture 

excerpts by kindergarten through 

twelfth grade educators and students.21

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• The proposed scope of the 

exemption, such as (a) whether it can be 

limited to uses requiring close analysis 

of the copyrighted work, as opposed to 

general-purpose classroom uses, (b) 

whether it needs to extend to Blu-ray in 

addition to other formats, and (c) 

whether it can be limited to materials 

prepared by faculty. 

• Any changed circumstances in the 

need for an exemption over the last 

three years, including whether any 

viable alternatives to circumvention 

have emerged or evolved during this 

period. 

• Whether the previously granted 

exemption has had an adverse effect on 

the marketplace for the accessed 

copyrighted works. 

(c) Proposed Class 3: Audiovisual 

Works—Educational Uses—Massive 

Open Online Courses (‘‘MOOCs’’) 

This proposed class would allow 

students and faculty participating in 

Massive Open Online Courses 

(‘‘MOOCs’’) to circumvent access 

controls on lawfully made and acquired 

motion pictures and other audiovisual 

works for purposes of criticism and 

comment. This exemption has been 

requested for audiovisual material made 

available in all formats, including DVDs 

protected by CSS, Blu-ray discs 

protected by AACS, and TPM-protected 

online distribution services. 

The Joint Educators petition requests 

that any exemption for college and 

university faculty and staff include 

those participating in MOOCs, a type of 

distance education which has become 

increasingly popular over the last few 

years.22

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 


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23Hobbs proposes that the Register recommend 

‘‘an exemption that enables . . . educators and 

learners in libraries, museum and nonprofit 

organizations to ‘rip’ encrypted or copy-protected 

lawfully accessed audiovisual works used for 

educational purposes.’’ Hobbs Pet. at 1. 

24See 37 CFR 201.40(b)(4)–(7) (2013); 77 FR at 

65266–70. 

25Authors Alliance requests an exemption ‘‘that 

permits authors of multimedia e-books to 

circumvent Content Scramble System (‘‘CSS’’) on 

DVDs, Advanced Access Content System (‘‘AACS’’) 

on Blu-ray discs, and encryption and authentication 

protocols on digitally transmitted video in order to 

make fair use of motion picture content in their ebooks.’’ Authors Alliance Pet. at 2. See 37 CFR 

201.40(b)(4)–(7) (2013); 77 FR at 65266–70. 

26See Authors Alliance Pet. at 2. 

submission of relevant evidence—the 

following: 

• The definition of a ‘‘MOOC’’ for 

purpose of the proposed exemption, 

with reference to the various 

distinctions among MOOCs in relation 

to the proposed exemption, including 

but not limited to (a) courses offered 

with free and open content versus 

courses that require course materials to 

be licensed by users, (b) courses 

requiring registration and/or identity 

verification versus courses without such 

requirements, (c) courses offered for free 

versus paid courses, and (d) whether the 

provider is a nonprofit or for-profit 

entity. 

• How the proposed exemption might 

affect the market for or value of the 

accessed copyrighted works, including 

how access to materials resulting from 

circumvention of TPMs could be limited 

to the intended audience. 

• Whether or how the exception in 17 

U.S.C. 110(2) for distance education is 

relevant the proposed exemption. 

• The proposed scope of the 

exemption (in light of the proposed 

definition of MOOC), including (a) 

whether the exemption can be limited to 

lower-resolution content, (b) whether it 

can be limited to uses requiring close 

analysis of the copyrighted work, and 

(c) whether it can be limited to materials 

prepared by faculty. 

(d) Proposed Class 4: Audiovisual 

Works—Educational Uses—Educational 

Programs Operated by Museums, 

libraries, or Nonprofits 

This proposed class would allow 

educators and learners in libraries, 

museums and nonprofit organizations to 

circumvent access controls on lawfully 

made and acquired motion pictures and 

other audiovisual works for educational 

purposes. This exemption has been 

requested for audiovisual material made 

available in all formats, including DVDs 

protected by CSS, Blu-ray discs 

protected by AACS, and TPM-protected 

online distribution services. 

Professor Hobbs has proposed that 

any exemption for kindergarten through 

twelfth-grade educators and students 

include ‘‘educators and learners’’ in 

libraries, museums, and nonprofit 

organizations.23

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• The proposed scope of the 

exemption, such as (a) whether the 

exemption can be limited to video 

production, film, and media studies 

and/or other close analysis of 

copyrighted works, (b) whether it can be 

limited to lower-resolution media, (c) 

the people who would be entitled to use 

the exemption, including an 

explanation of who would be included 

in the proposed categories of 

‘‘educators’’ and ‘‘learners,’’ (d) whether 

the exemption can be limited to 

prepared presentations by museums, 

libraries and non-profit entities, and (e) 

whether the exemption can be limited to 

use and display within physical spaces 

as opposed to online use and display. 

• How the proposed exemption might 

affect the market for or value of the 

accessed copyrighted works, including 

how access to materials resulting from 

circumvention of TPMs could be limited 

to the intended users and intended uses. 

2. Audiovisual Works—Derivative Uses 

Multiple petitions seek exemptions 

for derivative uses of audiovisual works, 

including for use in multimedia ebooks, in filmmaking, and in noncommercial remix videos. The Office 

notes that prior rulemakings have 

granted exemptions relating to uses of 

motion picture excerpts in 

noncommercial videos, documentary 

films, and nonfiction multimedia ebooks offering film analysis.24 The 

current petitions generally seek to 

readopt the most recent previously 

granted exemption while expanding its 

contours to encompass additional 

technologies or types of uses. 

The Office has identified some legal 

and factual issues that appear common 

to all of the proposed classes relating to 

derivative uses of audiovisual works. In 

addition to other more specific areas of 

concern, for each of these proposals, the 

Office encourages commenters, in the 

course of detailing how the proposed 

exemption meets the requirements of 

section 1201(a)(1), to address— 

including through the submission of 

relevant evidence—the following: 

• Whether circumvention 

alternatives, such as licensing or screencapture technology, would be suitable 

for each type of requested use. 

• Specific examples illustrating the 

need for the exemption to extend 

beyond DVDs to other formats, such as 

Blu-ray discs and TPM-protected 

content distributed online. 

(a) Proposed Class 5: Audiovisual 

Works—Derivative Uses—Multimedia 

E-Books 

This proposed class would allow 

circumvention of access controls on 

lawfully made and acquired motion 

pictures used in connection with 

multimedia e-book authorship. This 

exemption has been requested for 

audiovisual material made available in 

all formats, including DVDs protected 

by CSS, Blu-ray discs protected by 

AACS, and TPM-protected online 

distribution services. 

Authors Alliance and Professor 

Bobette Buster (collectively referred to 

here as ‘‘Authors Alliance’’) seek 

adoption of a revised version of the 

previously granted exemption for 

multimedia e-books, to permit 

circumvention of TPMs on DVDs, Bluray discs, and videos acquired via 

online distribution services, for 

purposes of facilitating uses of motion 

picture excerpts in nonfiction 

multimedia e-books offering film 

analysis.25

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• Whether the exemption should be 

limited to multimedia e-books 

containing film analysis or whether a 

broader exemption is warranted. 

• Whether and how the need for an 

exemption has increased over the last 

three years due to ‘‘new authorship 

tools, sophisticated digital distribution 

networks, and widespread consumer 

adoption of e-book readers.’’26

• Any changed circumstances in the 

need for an exemption over the last 

three years, including whether any 

viable alternatives to circumvention 

have emerged or evolved during this 

period. 

• Whether the previously granted 

exemption has had an adverse effect on 

the marketplace for the accessed 

copyrighted works. 

(b) Proposed Class 6: Audiovisual 

Works—Derivative Uses—Filmmaking 

Uses 

This proposed class would allow 

circumvention of access controls on 


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27 IDA requests an exemption for filmmakers who 

seek to make fair use in their filmmaking of 

copyrighted motion pictures protected by TPMs on 

DVDs, Blu-Ray discs, and digitally transmitted 

video, such as streaming video, digital downloads, 

or transmissions captured on digital video 

recorders. IDA Pet. at 2–3. See 37 CFR 201.40(b)(4)– 

(7) (2013); 77 FR at 65266–70. 

28EFF/OTW filed two petitions which relate to 

this class; one for DVD and Blu-ray discs, and one 

for online content. The respective petitions seek 

exemptions for ‘‘[a]udiovisual works on DVDs and 

Blu-Ray discs that are lawfully made and acquired 

and that are protected by Digital Rights 

Management schemes, where circumvention is 

undertaken for the sole purpose of extracting clips 

for inclusion in noncommercial videos that do not 

infringe copyright’’ and ‘‘[a]udiovisual works that 

are lawfully made and acquired via online 

distribution services, where circumvention is 

undertaken solely for the purpose of extracting clips 

for inclusion in noncommercial videos that do not 

infringe copyright.’’ See EFF/OTW Disc Remix Pet. 

at 1; EFF/OTW Online Remix Pet. at 1. See 37 CFR 

201.40(b)(4)–(7) (2013); 77 FR at 65266–70. 

29Public Knowledge proposes ‘‘an exemption for 

digital rights management-encrypted motion 

pictures and other audiovisual works on lawfully 

made and lawfully acquired DVDs, Blu-ray discs 

(‘BDs’), and downloaded files, when circumvention 

is accomplished for the purpose of noncommercial 

space shifting of the contained audiovisual 

content.’’ Public Knowledge Space-Shifting Pet. at 

1. Relatedly, in addition, in the context of a general 

objection to digital rights management technology, 

Alpheus Madsen has requested an exemption to 

allow circumvention of CSS for purposes of playing 

DVDs on the Linux Operating System. See Madsen 

Pet. at 1. 

30See 77 FR at 65276–77; 71 FR 68472, 68478 

(Nov. 27, 2006). The Librarian also previously 

declined to adopt an exemption to allow motion 

pictures on DVDs to be played on the Linux 

operating system. See 68 FR 62011, 62017 (Oct. 31, 

2003). 

lawfully made and acquired motion 

pictures for filmmaking purposes. This 

exemption has been requested for 

audiovisual material made available in 

all formats, including DVDs protected 

by CSS, Blu-ray discs protected by 

AACS, and TPM-protected online 

distribution services. 

International Documentary 

Association, Film Independent, 

Kartemquin Educational Films, Inc., and 

National Alliance for Media Arts and 

Culture (collectively referred to here as 

‘‘IDA’’) seek adoption of a revised 

version of the previously granted 

exemption to permit circumvention of 

TPMs on DVDs, Blu-ray discs, and 

videos acquired via online distribution 

services, for purposes of facilitating uses 

of motion picture excerpts in 

documentary films.27

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• Whether the proposed exemption 

should extend to commercial uses in 

fictional (i.e., nondocumentary) films, 

including whether such uses could 

supplant derivative markets for the 

copyrighted works used. 

• Whether the exemption can be 

limited to use of only short portions or 

clips of motion pictures or, if not, the 

basis for a broader exemption. 

• Specific examples of whether 

access to Blu-ray content or other highresolution content is necessary to meet 

applicable distribution standards for 

documentary and/or fictional 

filmmaking. 

• Any changed circumstances in the 

need for an exemption over the last 

three years, including whether any 

viable alternatives to circumvention 

have emerged or evolved during this 

period. 

• Whether the previously granted 

exemption has had an adverse effect on 

the marketplace for the accessed 

copyrighted works. 

(c) Proposed Class 7: Audiovisual 

Works—Derivative Uses— 

Noncommercial Remix Videos 

This proposed class would allow 

circumvention of access controls on 

lawfully made and acquired audiovisual 

works for the sole purpose of extracting 

clips for inclusion in noncommercial 

videos that do not infringe copyright. 

This exemption has been requested for 

audiovisual material made available on 

DVDs protected by CSS, Blu-ray discs 

protected by AACS, and TPM-protected 

online distribution services. 

Electronic Frontier Foundation 

(‘‘EFF’’) and Organization for 

Transformative Works (‘‘OTW’’) jointly 

seek adoption of a revised version of the 

previously granted exemption to permit 

circumvention of TPMs on DVDs, Bluray discs, or videos acquired via online 

distribution services, for purposes of 

facilitating uses of motion picture 

excerpts in noncommercial remix 

videos.28

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• The proposed scope of the 

exemption, including whether the 

exemption can be limited to: (a) 

‘‘Motion pictures’’ as defined under the 

Copyright Act rather than extending to 

all ‘‘audiovisual works,’’ (b) uses of 

short portions or clips of motion 

pictures or audiovisual works, (c) uses 

for purposes of criticism, comment, or 

education, as opposed to other 

‘‘noninfringing’’ or ‘‘fair’’ uses, (d) 

‘‘noncommercial videos’’ as opposed to 

‘‘primarily noncommercial videos,’’ (e) 

with respect to works distributed 

online, those works that are not readily 

available on DVD and/or Blu-ray disc, 

and (f) with respect to Blu-ray discs, 

those works or content that are not 

readily available on DVD. 

• Any changed circumstances in the 

need for an exemption over the last 

three years, including whether any 

viable alternatives to circumvention 

have emerged or evolved during this 

period. 

• Whether the previously granted 

exemption has had an adverse effect on 

the marketplace for the accessed 

copyrighted works. 

3. Proposed Class 8: Audiovisual 

Works—Space-Shifting and FormatShifting 

This proposed class would allow 

circumvention of access controls on 

lawfully made and acquired audiovisual 

works for the purpose of noncommercial 

space-shifting or format-shifting. This 

exemption has been requested for 

audiovisual material made available on 

DVDs protected by CSS, Blu-ray discs 

protected by AACS, and TPM-protected 

online distribution services. 

Public Knowledge filed a petition 

seeking an exemption permitting 

circumvention of TPMs on DVDs, Bluray discs, and videos acquired via 

online distribution services for spaceshifting or format-shifting for personal 

use.29 The Office notes that in the 2006 

and 2012 triennial rulemakings, the 

Librarian rejected proposed exemptions 

for space-shifting or format-shifting, 

finding that the proponents had failed to 

establish under applicable law that 

space-shifting is a noninfringing use.30

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• Legal and factual bases that 

establish that space-shifting and formatshifting are noninfringing fair uses. 

• The potential adverse effects likely 

to be suffered over the next three years 

in the absence of the requested 

exemption. 

• Evidentiary support for the 

contention that the DVD is becoming 

obsolete and incompatible with 

currently produced computing devices, 

and any contention that the same 

concern also applies to Blu-ray discs or 

downloaded video files. 


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31AFB/ACB request an exemption to allow 

‘‘people who are blind, visually impaired, or print 

disabled, as well as the authorized entities that 

serve them, to circumvent technological protection 

measures . . . that prevent or interfere with the use 

of assistive technologies with electronically 

distributed literary works.’’ AFB/ACB Pet. at 2. See 

37 CFR 201.40 (2013); 77 FR at 65262–63. 

32AFB/ACB Pet. at 5. 

33Meadows proposes that ‘‘[c]onsumers should 

be legally permitted to remove DRM from electronic 

books that they have purchased in order to back 

them up, read them on other e-book platforms, or 

otherwise make section 107 fair use of the 

material.’’ Meadows Pet. at 1. 

34See 77 FR at 65276–77; 68 FR at 62015–17; 71 

FR at 68478. The Register also declined to 

recommend, and the Librarian declined to adopt, an 

exemption for creating back-up copies. See 71 FR 

at 68479. 

35Pub. L. 113–144, sec. 2(b), 128 Stat. at 1751; see 

also 79 FR at 55688 (explaining the Unlocking Act). 

36 70 FR at 55689. 

37 Id. 

38See, e.g., 77 FR at 65265. 

• The specific TPMs sought to be 

circumvented, including whether they 

are access or copy controls. 

• Whether the proposed exemption 

can be limited to ‘‘motion pictures’’ as 

defined under the Copyright Act rather 

than extending to all ‘‘audiovisual 

works.’’ 

• Whether viable alternatives to 

circumvention exist, such as screencapture technology, external drives, 

alternative playback devices, online 

subscription services, etc. 

B. Literary Works Distributed 

Electronically 

1. Proposed Class 9: Literary Works 

Distributed Electronically—Assistive 

Technologies 

This proposed class would allow 

circumvention of access controls on 

lawfully made and acquired literary 

works distributed electronically for 

purposes of accessibility for persons 

who are print disabled. This exemption 

has been requested for literary works 

distributed electronically, including ebooks, digital textbooks, and PDF 

articles. 

The American Foundation for the 

Blind (‘‘AFB’’) and the American 

Council of the Blind (‘‘ACB’’) have 

jointly requested renewal of an 

exemption allowing accessibility for 

persons who are print disabled.31 The 

AFB/ACB petition notes that granting 

such an exemption has historically been 

relatively uncontroversial and that no 

one appeared at the 2012 triennial 

rulemaking hearing to oppose this 

exemption.32

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• Specific evidence relating to 

whether and the extent to which the 

prohibition on circumvention has or is 

likely to have an adverse effect on the 

ability of persons who are blind, 

visually impaired, or print disabled to 

engage in noninfringing uses, such as by 

providing a significant representative 

sample of titles across various e-book 

formats that are otherwise inaccessible. 

• Any changed circumstances in the 

need for an exemption over the last 

three years, including whether previous 

similar exemptions have improved 

accessibility for persons who are blind, 

visually impaired, or print disabled. 

• Whether the previously granted 

exemption has had an adverse effect on 

the marketplace for the accessed 

copyrighted works and whether the 

market has evolved to enhance 

accessibility. 

• How accessibility software interacts 

with TPMs and e-book technology to 

improve accessibility for persons who 

are blind, visually impaired, or print 

disabled. 

• To what extent the ‘‘anti-copying 

encryptions’’ mentioned in the petition 

can be described as access controls 

within the meaning of 1201(a)(1). 

2. Proposed Class 10: Literary Works 

Distributed Electronically—SpaceShifting and Format-Shifting 

This proposed class would allow 

circumvention of access controls on 

lawfully made and acquired literary 

works distributed electronically for the 

purpose of noncommercial spaceshifting or format-shifting. This 

exemption has been requested for 

literary works distributed electronically 

in e-books. 

Christopher Meadows has requested 

an exemption to allow space-shifting 

and format-shifting of lawfully 

purchased e-books.33 As noted above, in 

previous rulemakings, upon 

recommendation by the Register, the 

Librarian declined to adopt an 

exemption for purposes of spaceshifting and format-shifting due to the 

lack of legal precedent establishing that 

space-shifting and format-shifting are 

noninfringing uses.34

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• Legal and factual bases that 

establish that space-shifting and formatshifting are noninfringing fair uses. 

• Existing alternatives in the market, 

if any, that may ameliorate potential 

adverse effects, such as the extent to 

which people can purchase material in 

DRM-free formats. 

• Evidentiary support for the concern 

that e-books distributed by vendors that 

have gone out of business will become, 

or have become, unreadable due to 

TPMs. 

• Whether allowing an exemption 

could harm the market for e-books, 

including e-book subscription and 

lending services. 

C. Software/firmware That Enable 

Devices To Connect to a Wireless 

Network That Offers 

Telecommunications and/or 

Information Services (‘‘Unlocking’’) 

The Office has received several 

petitions seeking exemptions permitting 

the circumvention of access controls on 

computer programs that enable wireless 

telephone handsets (i.e., cellphones) 

and other wireless devices to connect to 

a mobile wireless communications 

network, for purpose of allowing the 

device to connect to an alternate 

network. This process is commonly 

known as ‘‘unlocking.’’ Consistent with 

the Unlocking Act,35 the Office will be 

considering whether to grant an 

exemption for wireless telephone 

handsets and whether to ‘‘extend’’ any 

exemption for wireless telephone 

handsets to ‘‘any other category of 

wireless devices.’’ 36

A few petitions address multiple 

types of wireless devices. As the Office 

indicated in its September Notice, 

however, ‘‘[t]he evaluation of whether 

an exemption would be appropriate 

under section 1201(a)(1)(C) is likely to 

be different for different types of 

wireless devices, requiring distinct legal 

and evidentiary showings.’’37 For 

instance, in past rulemakings, 

determining the existence of a 

noninfringing use has involved asking 

whether the software is owned or 

licensed by the owner of the wireless 

device.38 The answer to that question 

may vary for different types of devices. 

In addition, the marketplace for 

cellphones and that for, e.g., tablet 

computing devices may be quite 

different with respect to carrier 

subsidies, service commitments, 

availability of unlocked devices, and 

other factors. These differences 

necessarily will impact the factual and 

legal analysis. Accordingly, the Office 

has categorized the petitions into the 

five proposed classes below, with 

Proposed Classes 11 through 13 each 

covering a specific type of device, 

Proposed Class 14 generally covering 


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39Pub. L. 113–144, sec. 2(c)(2), 128 Stat. at 1752 

(emphasis added); see also 37 CFR 201.40(c). 

40The Office does not understand the concept of 

‘‘unlocking’’ to be relevant to other types of wireless 

communications, such as those using the IEEE 

802.11 standard employed in Wi-Fi routers, the 

Bluetooth standard, or the ANT wireless network 

technology, though it invites comment on that issue 

to the extent the Office may misunderstand the 

proposals. 

41Consumers Union’s proposed regulatory 

language reads as follows: ‘‘Computer programs, in 

the form of firmware or software, that enable a 

mobile wireless communications device to connect 

to a wireless communications network, when 

circumvention is initiated by—(1) the owner of the 

device, (2) another person at the direction of the 

owner, (3) a provider of a commercial mobile radio 

service or a commercial mobile data service at the 

direction of such owner or other person, solely in 

order to enable the device to connect to other 

wireless communications networks, subject to the 

connection to any such other wireless 

communications network being authorized by the 

operator of such network. The term ‘mobile wireless 

communications device’ means (1) a wireless 

telephone handset, or (2) a hand-held mobile 

wireless device used for any of the same wireless 

communications functions, and using equivalent 

technology, as a wireless telephone handset.’’ 

Consumers Union Pet. at 3. 

42CCA’s proposed regulatory language reads as 

follows: ‘‘Computer programs, in the form of 

firmware, software, or data used by firmware or 

software, that enable wireless handsets to connect 

to a wireless network that offers 

telecommunications and/or information services, 

when circumvention is initiated by the owner of the 

device, or by another person at the direction of the 

owner of the device, in order to connect to a 

wireless network that offers telecommunications 

and/or information services, and access to the 

network is authorized by the operator of the 

network.’’ CCA Cellphone Unlocking Pet. at 1–2. 

43 ISRI’s proposed regulatory language reads as 

follows: ‘‘Computer programs, in the form of 

firmware or software, that enable wireless 

telephone handsets to connect to a wireless 

telecommunications network, when circumvention, 

including individual and bulk circumvention for 

used devices, is initiated by the owner of any such 

handset, by another person at the direction of the 

owner, or by a provider of a commercial mobile 

radio service or a commercial mobile data service 

at the direction of such owner or other person, 

solely in order to enable such owner, family 

member of such owner, or subsequent owner or 

purchaser of such handset to connect to a wireless 

telecommunications network when such 

connection is authorized by the operator of such 

network.’’ ISRI Cellphone Unlocking Pet. at 1. 

44Pymatuning’s proposed regulatory language 

reads as follows: ‘‘Computer programs, in the form 

of firmware or software, that enable used wireless 

telephone handsets and other used wireless 

telecommunications devices 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.’’ Pymatuning Pet. at 2. 

45RWA’s proposal would ‘‘allow for the 

circumvention of the technological measures that 

control access to Wireless Telephone Handset 

software and firmware to allow the owner of a 

lawfully acquired handset, or a person designated 

by the owner of the lawfully acquired handset, to 

modify the device’s software and firmware so that 

the wireless device may be used on a 

technologically compatible wireless network of the 

customer’s choosing when the connection to the 

network is authorized by the operator of the 

network.’’ See RWA Cellphone Unlocking Pet. at 1– 

2. 

‘‘wearable’’ wireless devices, and 

Proposed Class 15 representing a broad 

exemption for all ‘‘consumer 

machines.’’ While Proposed Classes 14 

and 15 appear challenging because of 

the wide range of devices they purport 

to cover, the Office hopes to encourage 

the creation of an adequate 

administrative record for as many types 

of devices as possible within the 

unlocking category. 

The Office has identified some legal 

and factual issues that appear common 

to all of the proposed classes relating to 

unlocking. In addition to other more 

specific areas of concern, for each of 

these proposals, the Office encourages 

commenters, in the course of detailing 

how the proposed exemption meets the 

requirements of section 1201(a)(1), to 

also address—including through the 

submission of relevant evidence—the 

following: 

• Whether an owner of a device at 

issue in the class also owns the 

firmware and/or software that runs the 

device for purposes of 17 U.S.C. 117, 

which gives software owners certain 

rights to copy and adapt such programs. 

In addition, the Office is interested in 

the relevance, if any, to the section 117 

analysis of section 2(c)(2) of the 

Unlocking Act, which provides that the 

current cellphone unlocking exemption 

and any future unlocking exemptions 

may be initiated ‘‘by the owner of any 

such handset or other device.’’ 39

• The technical details of how each 

type of locking mechanism operates— 

e.g., service provider code locks, system 

operator code locks, band order locks, 

and subscriber identity module locks— 

and how those locks are circumvented. 

In particular, the Office is interested in 

determining with precision the 

instances in which unlocking merely 

involves changing underlying variables 

relied upon by the device firmware, and 

those in which unlocking requires 

copying or rewriting the firmware itself. 

• The Office understands that the 

unlocking exemption is aimed at 

permitting a device to connect to an 

alternative mobile wireless 

telecommunications or data network, 

such as CDMA, GSM, HSPA+, LTE, or 

other similar networks.40 The petitions 

use differing terminology to refer to 

these networks, including ‘‘wireless 

communications networks,’’ ‘‘wireless 

telecommunications networks,’’ 

‘‘wireless networks that offer 

telecommunications and/or information 

services.’’ The Office invites discussion 

on what terminology most accurately 

describes the networks to which the 

proposed unlocking exemptions would 

apply. 

1. Proposed Class 11: Unlocking— 

Wireless Telephone Handsets 

This proposed class would allow the 

unlocking of wireless telephone 

handsets. ‘‘Wireless telephone 

handsets’’ includes all mobile 

telephones including feature phones, 

smart phones, and ‘‘phablets’’ that are 

used for two-way voice 

communications. 

Five parties—Consumers Union,41 the 

Competitive Carriers Association 

(‘‘CCA’’),42 the Institute of Scrap 

Recycling Industries (‘‘ISRI’’),43

Pymatuning Communications 

(‘‘Pymatuning’’),44 and the Rural 

Wireless Association (‘‘RWA’’)45—seek, 

in essence, renewal of the unlocking 

exemption for wireless telephone 

handsets (as reinstated by the Unlocking 

Act) for another three-year period. Two 

of the petitions vary in their particulars, 

however. Pymatuning’s proposal is 

limited to ‘‘used’’ handsets, but does not 

define that term. ISRI asks that the 

exemption specifically allow both 

‘‘individual and bulk circumvention.’’ 

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• The current cellphone unlocking 

policies for all significant wireless 

carriers, including (a) whether those 

carriers are adhering to mobile wireless 

device unlocking guidelines issued by 

CTIA-The Wireless Association, (b) 

whether, under those policies, a 

consumer’s completion of the term of a 

service contract, or payment of early 

termination fees, affects his or her 

ability to unlock a cellphone, and (c) the 

extent to which those policies obviate 

the need for an exemption. 

• The extent to which unlocked 

mobile phones are available for 

purchase, and whether the availability 

of such phones is a viable alternative to 

circumvention. 

• Whether the exemption should be 

limited to ‘‘used’’ handsets, and what 

would qualify a handset as ‘‘used.’’ 

• The practice and market effects of 

‘‘bulk circumvention’’ (or unlocking), 

and whether the exemption should 

address ‘‘bulk circumvention.’’ 

• Any changed circumstances in the 

need for an exemption over the last 

three years, including whether any 


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46CCA’s proposed regulatory language reads as 

follows: ‘‘Computer programs, in the form of 

firmware or software, or data used by firmware or 

software, that enable all-purpose tablet computers 

to connect to a wireless network that offers 

telecommunications and/or information services, 

when circumvention is initiated by the owner of the 

device, or by another person at the direction of the 

owner of the device, in order to connect to a 

wireless network that offers telecommunications 

and/or information services, and access to the 

network is authorized by the operator of the 

network.’’ CCA Tablet Unlocking Pet. at 1–2. 

47 ISRI’s proposed regulatory language reads as 

follows: ‘‘Computer programs, in the form of 

firmware or software, that enable all-purpose tablet 

computers to connect to a wireless 

telecommunications network, when circumvention, 

including individual and bulk circumvention for 

used devices, is initiated by the owner of any such 

tablet, by another person at the direction of the 

owner, or by a provider of a commercial mobile 

radio service or a commercial mobile data service 

at the direction of such owner or other person, 

solely in order to enable such owner, family 

member of such owner, or subsequent owner or 

purchaser of such tablet to connect to a wireless 

telecommunications network when such 

connection is authorized by the operator of such 

network.’’ ISRI Tablet Unlocking Pet. at 1. 

48RWA’s proposal would ‘‘allow for the 

circumvention of the technological measures that 

control access to all purpose tablet computer 

(‘Tablet’) software and firmware to allow the owner 

of a lawfully acquired Tablet, or a person 

designated by the owner of the lawfully acquired 

Tablet, to modify the device’s software and 

firmware so that the wireless device may be used 

on a technologically compatible wireless network of 

the customer’s choosing, and when the connection 

to the network is authorized by the operator of the 

network.’’ See RWA Tablet Unlocking Pet. at 1–2. 

49Consumers Union Pet. at 2–3 (‘‘Consumers 

Union’s proposed exemption accordingly includes 

all hand-held mobile wireless devices that are used 

for essentially the same functions and in the same 

manner as wireless telephone handsets, including 

tablets.’’). 

50Pymatuning Pet. at 2 (stating that because ‘‘the 

justifications underlying the [Unlocking] Act also 

apply to all portable computers, tablets and other 

types of devices that communicate via wireless 

telecommunications networks, and that are often 

locked much the same as wireless telephone 

handsets, Pymatuning requests that the scope of 

‘handsets’ be clarified to include all such wireless 

telecommunications devices.’’). 

51CCA’s proposed regulatory language reads as 

follows: ‘‘Computer programs, in the form of 

firmware or software, or data used by firmware or 

software, that enable mobile hotspots and MiFi 

devices to connect to a wireless network that offers 

telecommunications and/or information services, 

when circumvention is initiated by the owner of the 

device, or by another person at the direction of the 

owner of the device, in order to connect to a 

wireless network that offers telecommunications 

and/or information services, and access to the 

network is authorized by the operator of the 

network.’’ CCA Mobile Hotspot and MiFi Device 

Unlocking Pet., at 2. 

52RWA filed two petitions, one addressed to 

mobile broadband wireless modems, and the other 

addressed to mobile hotspots. See RWA Mobile 

Broadband Wireless Unlocking Pet. at 1–2 (seeking 

exemption ‘‘to allow for the circumvention of the 

technological measures that control access to the 

software and firmware of mobile broadband 

wireless modems, which are also known as wireless 

air cards (‘Air Card’), to allow the owner of a 

lawfully acquired Air Card, or a person designated 

by the owner of the lawfully acquired Air Card, to 

modify the Air Card’s software and firmware so that 

the device may be used on a technologically 

compatible wireless network of the customer’s 

choosing, and when the connection to the network 

is authorized by the operator of the network’’); 

RWA Mobile Hotspot Unlocking Pet. at 1–2 (same, 

except that it seeks to circumvent access controls 

on ‘‘Mobile Wireless Personal Hotspot (‘Mobile 

Hotspot’) software and firmware’’). 

viable alternatives to circumvention 

have emerged or evolved during this 

period. 

• Whether the previously granted 

exemption has had an adverse effect on 

the marketplace for the accessed 

copyrighted works. 

2. Proposed Class 12: Unlocking—AllPurpose Tablet Computers 

This proposed class would allow the 

unlocking of all-purpose tablet 

computers. This class would encompass 

devices such as the Apple iPad, 

Microsoft Surface, Amazon Kindle Fire, 

and Samsung Galaxy Tab, but would 

exclude specialized devices such as 

dedicated e-book readers and dedicated 

handheld gaming devices. 

The Office received several 

petitions—from CCA,46 ISRI,47 and 

RWA48—that specifically seek an 

exemption to allow the unlocking of allpurpose tablet computers. Two other 

petitions—from Consumers Union 49

and Pymatuning 50—seek tablet 

exemptions as part of their cellphone 

unlocking petitions. Again, 

Pymatuning’s proposal is limited to 

‘‘used’’ tablets, but does not define that 

term, and ISRI asks that the exemption 

specifically allow both ‘‘individual and 

bulk circumvention.’’ 

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• The definition of ‘‘all-purpose tablet 

computer’’ that would govern the 

proposed exemption. 

• The marketplace for tablets with 

mobile data connections, including (a) 

any relevant differences between the 

marketplace for cellphones and that for 

tablets, (b) the extent to which wireless 

carriers subsidize consumer purchases 

of tablets, and require service 

commitments in return, and (c) the 

tablet unlocking policies for all 

significant wireless carriers, including 

the extent to which those policies 

obviate the need for an exemption. 

• The extent to which unlocked 

tablets are available for purchase, and 

whether the availability of such tablets 

is a viable alternative to circumvention. 

• Whether the exemption should be 

limited to ‘‘used’’ tablets, and what 

would qualify a tablet as ‘‘used.’’ 

• The practice and market effects of 

‘‘bulk circumvention’’ (or unlocking), 

and whether the exemption for tablets 

should address ‘‘bulk circumvention.’’ 

3. Proposed Class 13: Unlocking— 

Mobile Connectivity Devices 

This proposed class would allow the 

unlocking of mobile connectivity 

devices. ‘‘Mobile connectivity devices’’ 

are devices that allow users to connect 

to a mobile data network through either 

a direct connection or the creation of a 

local Wi-Fi network created by the 

device. The category includes mobile 

hotspots and removable wireless 

broadband modems. 

Two petitions—from CCA 51 and 

RWA52—seek an exemption to allow the 

unlocking of mobile connectivity 

devices such as mobile hotspots and 

aircards. 

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• The marketplace for mobile 

connectivity devices, including (a) any 

relevant differences between the 

marketplace for cellphones and that for 

mobile connectivity devices, (b) the 

extent to which wireless carriers 

subsidize consumer purchases of such 

devices, and require service 

commitments in return, and (c) the 

unlocking policies for all significant 

wireless carriers with respect to mobile 

connectivity devices. 

• The extent to which unlocked 

mobile connectivity devices are 

available for purchase, and whether the 

availability of such mobile connectivity 

devices is a viable alternative to 

circumvention. 

4. Proposed Class 14: Unlocking— 

Wearable Computing Devices 

This proposed class would allow the 

unlocking of wearable wireless devices. 

‘‘Wearable wireless devices’’ include all 

wireless devices that are designed to be 

worn on the body, including smart 

watches, fitness devices, and health 

monitoring devices. 


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53CCA addressed what it called ‘‘consumer 

wearables’’ in the course of its broad catch-all 

proposal, the remainder of which is addressed in 

Proposed Class 15. See CCA Connected Wearables 

and Consumer Machines Unlocking Pet. at 1–2. 54RWA’s proposed exemption would ‘‘allow for 

the circumvention of the technological measures 

that control access to wearable mobile wireless 

device (‘Wearable Wireless Device’) software and 

firmware to allow the owner of a lawfully acquired 

Wearable Wireless Device, or a person designated 

by the owner of the lawfully acquired Wearable 

Wireless Device, to modify the device’s software 

and firmware so that the Wearable Wireless Device 

may be used on a technologically compatible 

wireless network of the customer’s choosing, and 

when the connection to the network is authorized 

by the operator of the network.’’ RWA Wearable 

Wireless Device Unlocking Pet. at 1–2. RWA 

explains that ‘‘[a] Wearable Wireless Device is a 

wearable Internet-connected, voice and touch 

screen enabled, mobile wireless computing device 

that is designed to be worn on the body, including 

but not limited to a smart watch.’’ Id. at 2 n.3. 

55 In relevant part, CCA proposes the following 

regulatory language: ‘‘Computer programs, in the 

form of firmware or software, or data used by 

firmware or software, that enable . . . consumer 

machines to connect to a wireless network that 

offers telecommunications and/or information 

services, when circumvention is initiated by the 

owner of the device, or by another person at the 

direction of the owner of the device, in order to 

connect to a wireless network that offers 

telecommunications and/or information services, 

and access to the network is authorized by the 

operator of the network.’’ CCA Connected 

Wearables and Consumer Machines Unlocking Pet. 

at 2. CCA states that the ‘‘consumer machines’’ 

category encompasses ‘‘smart meters, connected 

appliances, connected precision-guided commercial 

equipment, among others.’’ Id. at 1. 

56See, e.g., 77 FR at 65263–64 (wireless telephone 

handsets); id. at 65272–76 (video game consoles); 

id. at 65274–75 (personal computing devices). 

CCA 53 and RWA 54 both propose an 

exemption to permit unlocking of 

wearable mobile wireless devices, a 

broad category that would include smart 

watches, fitness devices, health 

monitoring devices, and perhaps 

devices such as Google Glass. 

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• The specific types of devices that 

would fall under the proposed 

exemption. 

• The Office’s understanding is that 

most smart watches, and most if not all 

fitness and health monitoring devices, 

do not employ mobile 

telecommunications or data networks 

(e.g., HSPA+ or LTE networks) for 

wireless connections, but instead use 

either Wi-Fi to connect to a local 

wireless network, or Bluetooth or ANT 

technologies to connect to a smartphone 

or computer. The Office is interested in 

the extent to which there are wearable 

wireless devices that directly connect 

with mobile telecommunications or data 

networks—and what those devices are— 

or whether the exemption seeks to 

permit circumvention of access controls 

on devices that use Wi-Fi, Bluetooth, or 

ANT technologies. 

• The marketplace for wearable 

computing devices, including (a) the 

extent to which wireless carriers 

subsidize consumer purchases of such 

devices, and require service 

commitments in return, and (b) the 

unlocking policies for all significant 

wireless carriers with respect to 

wearable computing devices. 

• The extent to which unlocked 

devices are available for purchase, and 

whether the availability of such devices 

is a viable alternative to circumvention. 

5. Proposed Class 15: Unlocking— 

consumer machines 

This proposed class would allow the 

unlocking of all wireless ‘‘consumer 

machines,’’ including smart meters, 

appliances, and precision-guided 

commercial equipment. 

CCA has proposed a broad, openended exemption for all ‘‘consumer 

machines’’—or ‘‘the ‘Internet of 

Things’ ’’—which would encompass a 

diverse range of devices and 

equipment.55 At least as currently 

framed, it appears that it may be 

difficult to build an adequate 

administrative record for this exemption 

in light of the fact-bound analysis 

required by section 1201(a)(1). For 

example, CCA’s proposal refers to 

‘‘precision-guided commercial 

equipment’’ but provides no 

explanation as to the kind of equipment 

to which it refers. The Office invites 

commenters to provide targeted 

argument and evidence that would 

allow the Office to narrow this category 

appropriately. 

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• The extent to which devices 

understood to be in this class use 

mobile telecommunications or data 

networks (e.g., HSPA+ or LTE networks) 

for wireless connections, rather than 

Wi-Fi or Bluetooth, or some other 

technology, and whether parties are 

seeking to circumvent access controls 

on devices that use such other 

technologies. 

• The extent to which consumers, 

rather than the device manufacturer or 

some other entity, select and/or pay for 

the mobile wireless connection for a 

smart meter, an appliance, or a piece of 

precision-guided commercial 

equipment. 

• Specific examples demonstrating 

adverse effects stemming from a 

consumer’s inability to choose the 

mobile wireless communications 

provider used by a smart meter, an 

appliance, or a piece of precisionguided commercial equipment. 

D. Software That Restricts the Use of 

Lawfully Obtained Software 

(‘‘Jailbreaking’’) 

The Office received several petitions 

for exemptions to allow users to 

circumvent TPMs protecting computer 

programs in devices such as cellphones, 

all-purpose tablets, and smart TVs and 

that prevent users from running certain 

software on, or removing preinstalled 

software from, these devices. This type 

of circumvention is commonly referred 

to as the ‘‘jailbreaking’’ or ‘‘rooting’’ of 

a device, and has been the subject of 

proposed classes in the last triennial 

rulemaking and earlier proceedings.56

The Office has categorized the proposals 

into Proposed Classes 16 through 20, 

with each class covering a different type 

of device. 

The Office has identified some legal 

and factual issues that appear common 

to all of the proposed classes relating to 

jailbreaking. In addition to other more 

specific areas of concern, for each of 

these proposals, the Office encourages 

commenters, in the course of detailing 

how the proposed exemption meets the 

requirements of section 1201(a)(1), to 

also address—including through the 

submission of relevant evidence—the 

following: 

• The extent to which consumers may 

legally purchase devices that do not 

contain the complained-of access 

controls, and whether the availability of 

such devices eliminates the need for an 

exemption. 

• Whether jailbreaking the device 

facilitates infringing uses, including 

access to or consumption of infringing 

content. The Office is particularly 

interested in specific examples of 

noninfringing versus infringing uses, 

and any available evidence regarding 

the relative volume of lawful versus 

pirated content installed on or 

consumed via jailbroken devices, as 

well as whether there is a practical way 

to segregate lawful from unlawful uses. 

1. Proposed Class 16: Jailbreaking— 

Wireless Telephone Handsets 

This proposed class would permit the 

jailbreaking of wireless telephone 

handsets to allow the devices to run 

lawfully acquired software that is 

otherwise prevented from running, or to 


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57EFF’s petition encompassed wireless telephone 

handsets and other all-purpose mobile computing 

devices. See EFF Jailbreaking Pet. at 1 (suggesting 

an exemption for ‘‘[c]omputer programs that enable 

mobile computing devices, such as telephone 

handsets and tablets, to execute lawfully obtained 

software, where circumvention is accomplished for 

the sole purposes of enabling interoperability of 

such software with computer programs of the 

device, or removing software from the device’’). 

Proposed Class 16 encompasses EFF’s proposal 

with respect to wireless telephone handsets, and 

Proposed Class 17 encompasses the remainder of 

EFF’s proposal. See 37 CFR 201.40(b)(2) (2013); see 

also 77 FR at 65263–64. 

58EFF Jailbreaking Pet. at 4. 

59EFF’s petition seeks, in relevant part, the 

following proposed class: ‘‘Computer programs that 

enable mobile computing devices, such as . . . 

tablets, to execute lawfully obtained software, 

where circumvention is accomplished for the sole 

purposes of enabling interoperability of such 

software with computer programs on the device, or 

removing software from the device.’’ EFF 

Jailbreaking Pet. at 1. 

60Mr. Pangasa’s tablet jailbreaking petition 

encompasses two distinct proposals. Pangasa Tablet 

Jailbreaking Pet. at 1–4. The Office has consolidated 

the portion of Mr. Pangasa’s petition addressing 

jailbreaking of general purpose tablets with the 

EFF’s proposal in Proposed Class 17. See id. at 1 

(‘‘I would like to request an exemption to the Digital 

Millennium Copyright Act for jail-breaking or 

rooting tablets like the Apple iPad Air & iPad Mini, 

Amazon’s Kindle Fire HD, Microsoft Surface line of 

tablets (particularly the RT version to install hacks 

that permit running desktop applications on RT 

devices.’’). Mr. Pangasa’s proposal with respect to 

e-book readers is made part of Proposed Class 18. 

61See 37 CFR 201.40(b)(2) (2013). 

62See 77 FR at 65264. 

63 Id. 

64See EFF Jailbreaking Pet. at 2. 

65 Id. at 4. 

66See Pangasa Tablet Jailbreaking Pet. at 2–4 (‘‘I 

therefore request an exemption to the Digital 

Millennium Copyright Act be granted extending the 

protections for (class #5) mobile phones to include 

. . . dedicated e-readers like the Amazon Kindle.’’). 

remove unwanted preinstalled software 

from the device. 

EFF seeks readoption of an existing 

exemption allowing the jailbreaking of 

wireless telephone handsets to allow 

those devices to interoperate with 

lawfully obtained software and to allow 

users to remove unwanted preinstalled 

software from the device.57

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• Whether the previously granted 

exemption has had an adverse effect on 

the marketplace for wireless telephone 

handsets or the applications that run on 

them. 

• Specific examples of the following: 

(a) The manner in which access controls 

are being used to prevent installation of 

software that competes with software 

offered by the device manufacturer, and 

(b) ‘‘unwanted software installed by the 

manufacturer’’ that ‘‘consumes energy, 

shortens the device’s battery life, or 

sends personal information to 

advertisers’’ that cannot be 

uninstalled.58

2. Proposed Class 17: Jailbreaking—AllPurpose Mobile Computing Devices 

This proposed class would permit the 

jailbreaking of all-purpose mobile 

computing devices to allow the devices 

to run lawfully acquired software that is 

otherwise prevented from running, or to 

remove unwanted preinstalled software 

from the device. The category ‘‘allpurpose mobile computing device’’ 

includes all-purpose non-phone devices 

(such as the Apple iPod touch) and allpurpose tablets (such as the Apple iPad 

or the Google Nexus). The category does 

not include specialized devices such as 

e-book readers or handheld gaming 

devices, or laptop or desktop computers. 

EFF 59 and Maneesh Pangasa 60 seek to 

extend any exemption allowing the 

jailbreaking of wireless telephone 

handsets 61 to other all-purpose mobile 

computing devices, including nonphone handheld devices and allpurpose tablets. In the 2012 triennial 

rulemaking, the Librarian rejected a 

jailbreaking exemption for tablets 

because ‘‘the record lacked a sufficient 

basis to develop an appropriate 

definition for the ‘tablet’ category of 

devices, a necessary predicate to 

extending the exemption beyond 

smartphones.’’ 62 The Librarian 

acknowledged, however, that ‘‘[i]n 

future rulemakings, as mobile 

computing technology evolves, such a 

definition may be more attainable.’’ 63

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• The specific types of devices that 

would be encompassed by the 

exemption. 

• Whether there are any relevant 

differences between wireless telephone 

handsets and other all-purpose 

computing devices, such as non-phone 

handheld computing devices and 

tablets, for purposes of analyzing the 

proposed exemption. 

• Although the EFF’s proposed 

exemption encompasses all-purpose 

mobile computing devices, it 

specifically excludes laptop and 

desktop computers.64 The Office is 

interested in the rationale for that 

exclusion, and how any exemption 

would distinguish between those 

devices that would fall within the 

exemption and those that would fall 

outside it. 

• Specific examples of the following: 

(a) The manner in which access controls 

are being used to prevent installation of 

software that competes with software 

offered by the device manufacturer, and 

(b) ‘‘unwanted software installed by the 

manufacturer’’ that ‘‘consumes energy, 

shortens the device’s battery life, or 

sends personal information to 

advertisers’’ that cannot be 

uninstalled.65

3. Proposed Class 18: Jailbreaking— 

Dedicated E-Book Readers 

This proposed class would permit the 

jailbreaking of dedicated e-book readers 

to allow those devices to run lawfully 

acquired software that is otherwise 

prevented from running. 

Maneesh Pangasa filed a petition that, 

in relevant part, seeks an exemption to 

allow jailbreaking of dedicated e-book 

readers such as Amazon’s Kindle 

Paperwhite and Barnes and Noble’s 

Nook.66 Mr. Pangasa provided only a 

limited explanation of the noninfringing 

uses that would be facilitated by 

jailbreaking e-book readers, or of the 

adverse effects caused by the relevant 

access controls. In part, it appears his 

concern may be related to the inability 

to format-shift or space-shift e-books, a 

topic that is addressed in Proposed 

Class 10. Mr. Pangasa also makes a 

passing reference to enabling ‘‘universal 

access functionality’’; the Office notes 

that e-book accessibility concerns are 

addressed in Proposed Class 9. Reading 

the petition generously, Mr. Pangasa 

does appear to raise a concern that 

dedicated e-readers may not be able to 

run lawfully acquired third-party 

applications. Accordingly, the Office 

has elected to put forward this proposed 

class for further comment. 

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• The TPMs that are included with 

dedicated e-book readers, and how they 

prevent access to the e-book reader’s 

firmware or software. 

• Specific examples of noninfringing 

uses that are facilitated by the 

jailbreaking of a dedicated e-book 

reader, other than enabling accessibility 

for persons who are print disabled. 


rljohnson on DSK3VPTVN1PROD with PROPOSALS
73868 Federal Register / Vol. 79, No. 239 / Friday, December 12, 2014 / Proposed Rules 

67Mr. Panagasa seeks an exemption ‘‘for jailbreaking or rooting home video game consoles like 

Nintendo’s Wii U, Sony’s Play Station 4, Microsoft’s 

Xbox One and home media devices like Apple TV 

which may in future gain the ability to natively play 

video games.’’ Pangasa Video Game Console 

Jailbreaking Pet. at 1. 

68 77 FR at 65272–74. 

69 Id. at 65274. 

70 Id. 

71SFC’s proposal would ‘‘permit owners of 

computer-embedded televisions (‘Smart TVs’) to 

circumvent firmware encryption and administrative 

access controls that control access to the TVs’ 

operating systems, for the purpose of accessing 

lawfully-acquired media, installing licensed 

applications, and enabling interoperability with 

external devices.’’ SFC Pet. at 1. 

72 Id. at 3. 

73 Id. 

• Whether allowing an exemption 

could harm the market for e-books, 

including e-book subscription and 

lending services. 

4. Proposed Class 19: Jailbreaking— 

Video Game Consoles 

This proposed class would permit the 

jailbreaking of home video game 

consoles. Asserted noninfringing uses 

include installing alternative operating 

systems, running lawfully acquired 

applications, preventing the reporting of 

personal usage information to the 

manufacturer, and removing region 

locks. The requested exemption would 

apply both to older and currently 

marketed game consoles. 

Maneesh Pangasa has proposed an 

exemption to permit circumvention of 

home video game consoles for an 

assortment of asserted noninfringing 

uses, including installing alternative 

operating systems and removing region 

locks.67 In the 2012 triennial 

rulemaking, the Librarian rejected a 

proposed class seeking an exemption for 

jailbreaking of video game consoles.68

Among other things, the Librarian 

concluded based on the evidentiary 

record that the jailbreaking of video 

game consoles ‘‘leads to a higher level 

of infringing activity.’’ 69 At the same 

time, the Librarian determined that 

there was insufficient evidence of 

adverse impacts on noninfringing uses, 

because the asserted noninfringing uses 

were not substantial, and there were 

alternative devices that allowed users to 

engage in those uses.70

Particularly in light of those earlier 

conclusions, the Office encourages 

commenters, in the course of detailing 

how the proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• The nature of the specific TPMs at 

issue and how they operate, and the 

particular acts of circumvention 

required for the jailbreaking of video 

game consoles as sought in the proposal 

(including any significant differences 

among platforms). 

• The relationship between the ability 

to jailbreak consoles and the 

dissemination and consumption of 

pirated content, including any practical 

means to limit the exemption to 

facilitate noninfringing rather than 

infringing conduct. 

• Specific evidence regarding the 

adverse impact of access controls in 

video game consoles on noninfringing 

uses, including an explanation of why it 

is necessary to employ the console for 

particular uses rather than an alternative 

device such as a general-purpose 

computer. 

• Whether allowing an exemption 

could harm the market for video game 

consoles or video games. 

• Whether the Librarian’s analysis 

should distinguish between currentgeneration game consoles and older 

game consoles and, if so, how. 

5. Proposed Class 20: Jailbreaking— 

Smart TVs 

This proposed class would permit the 

jailbreaking of computer-embedded 

televisions (‘‘smart TVs’’). Asserted 

noninfringing uses include accessing 

lawfully acquired media on external 

devices, installing user-supplied 

licensed applications, enabling the 

operating system to interoperate with 

local networks and external peripherals, 

and enabling interoperability with 

external devices, and improving the 

TV’s accessibility features (e.g., for 

hearing-impaired viewers). The TPMs at 

issue include firmware encryption and 

administrative access controls that 

prevent access to the TV’s operating 

system. 

The Software Freedom Conservancy 

(‘‘SFC’’) has proposed an exemption to 

permit circumvention of TPMs that 

protect access to firmware and software 

on ‘‘smart TVs.’’ 71 It asserts that 

although modern smart TVs are ‘‘fullfeatured computers,’’ manufacturers 

limit their capabilities in a number of 

ways. For instance, SFC asserts that 

while smart TVs are internet enabled, 

they are ‘‘limited to accessing only 

services chosen by the manufacturer.’’ 72

In addition, SFC asserts that many TVs 

have USB ports that ‘‘can only be used 

to install manufacturer-supplied 

updates and connect to manufacturersanctioned devices.’’ 73

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• The specific TPMs on smart TVs, 

how they operate, and methods of 

circumventing such access controls. 

• Specific examples of noninfringing 

uses that would be facilitated by 

circumvention. 

• What users seek to do with 

jailbroken smart TVs, including specific 

examples of the following: (a) Usersupplied software that users wish to 

install, (b) external hardware users are 

prevented from connecting absent 

circumvention, (c) improvements to 

accessibility for hearing-impaired users 

that would be facilitated by jailbreaking, 

and (d) external storage devices through 

which users seek to access media. 

• The reasons smart TV 

manufacturers limit end users’ ability to 

install third-party applications and/or 

restrict interoperability with external 

devices. 

• The role of any licensing 

arrangements between smart TV 

manufacturers and content or 

application providers and the extent to 

which the TPMs at issue protect opensource software. 

E. Vehicle Software 

Several petitions seek exemptions to 

permit circumvention of TPMs on 

software that is embedded in vehicles. 

The Office has initially consolidated 

these proposals into the two classes 

below based on the asserted 

noninfringing uses and may further 

refine the two proposed classes based 

on the record as it develops. 

The Office has identified certain areas 

of inquiry that appear to be common to 

both of these proposed classes. In 

addition to other more specific areas of 

concern, for each of these proposals, the 

Office encourages commenters, in the 

course of detailing how the proposed 

exemption meets the requirements of 

section 1201(a)(1), to also address— 

including through the submission of 

relevant evidence—the following: 

• The computers and TPMs used in 

connection with different types of 

vehicles, including personal 

automobiles, commercial motor 

vehicles, and agricultural machinery, 

and how they operate. 

• Whether the proposed exemption is 

warranted for all types of motorized 

land vehicles—including personal 

automobiles, commercial motor 

vehicles, and agricultural machinery— 

and whether and how the analysis may 

differ for each type of vehicle. 


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74EFF’s proposed regulatory language reads as 

follows: ‘‘Lawfully-obtained computer programs 

that control or are intended to control the 

functioning of a motorized land vehicle, including 

firmware and firmware updates, where 

circumvention is undertaken by or on behalf of the 

lawful owner of such a vehicle for the purpose of 

lawful aftermarket personalization, improvement, 

or repair.’’ EFF Vehicle Software Repair Pet. at 1. 

75U.S.C. Law filed two petitions relating 

agricultural machinery software. The first seeks an 

exemption to ‘‘allow[ ] farmers to circumvent . . . 

TPMs for the purpose of modifying their own 

agricultural machinery to improve efficiency and/ 

or functionality.’’ U.S.C. Law Vehicle Software 

Modification Pet. at 1. The second seeks an 

exemption to ‘‘allow[ ] farmers to circumvent . . . 

TPMs for the purpose of diagnosing and/or 

repairing their own agricultural machinery.’’ U.S.C. 

Law Vehicle Software Repair Pet. at 1. At least at 

this stage of the rulemaking, the Office believes that 

the two petitions are similar enough that they may 

be addressed as part of the same proposed class. 

76EFF Vehicle Software Repair Pet. at 5. 

77U.S.C. Law Vehicle Software Modification Pet. 

at 2. 

78U.S.C. Law Vehicle Software Repair Pet. at 1. 

79EFF’s proposed regulatory language reads as 

follows: ‘‘Lawfully-obtained computer programs 

that control or are intended to control the 

functioning of a motorized land vehicle, including 

firmware and firmware updates, where 

circumvention is undertaken by or on behalf of the 

lawful owner of such a vehicle for the purpose of 

researching the security or safety of such vehicles.’’ 

EFF Vehicle Software Security Pet. at 1. 

80EFF Vehicle Software Security Pet. at 2. 

1. Proposed Class 21: Vehicle 

Software—Diagnosis, Repair, or 

Modification 

This proposed class would allow 

circumvention of TPMs protecting 

computer programs that control the 

functioning of a motorized land vehicle, 

including personal automobiles, 

commercial motor vehicles, and 

agricultural machinery, for purposes of 

lawful diagnosis and repair, or 

aftermarket personalization, 

modification, or other improvement. 

Under the exemption as proposed, 

circumvention would be allowed when 

undertaken by or on behalf of the lawful 

owner of the vehicle. 

EFF has proposed an exemption to 

allow the circumvention of TPMs on 

computer programs that are embedded 

in vehicles for purposes of 

personalization, modification, or other 

improvement and would apply to all 

motorized land vehicles.74 The 

Intellectual Property & Technology Law 

Clinic of the University of Southern 

California Gould School of Law (‘‘U.S.C. 

Law’’) has proposed a similar exemption 

for agricultural machinery 

specifically.75 EFF explains that 

‘‘[v]ehicle owners expect to be able to 

repair and tinker with their vehicles[,]’’ 

but TPMs on vehicle software ‘‘block 

such legitimate activities, forcing 

vehicle owners to choose between 

breaking the law or tinkering and 

repairing their vehicles.’’ 76 U.S.C. Law 

similarly observes that farmers 

specifically require unfettered access to 

this vehicle software ‘‘to make any 

significant modifications to the 

efficiency and/or functionality of . . . 

their increasingly sophisticated 

agricultural machinery’’ 77 and to 

‘‘obtain vital diagnostic information.’’ 78

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• Specific examples of the adverse 

effects of the TPMs, including how they 

prevent vehicle owners or others from 

engaging in lawful diagnosis, repair, or 

modification activities. 

• With respect to each of the 

proposed uses—diagnosis, repair, and 

modification—(a) the extent to which 

any of the asserted noninfringing 

activities merely requires examination 

or changing of variables or codes relied 

upon by the vehicle software, or instead 

requires copying or rewriting of the 

vehicle software, and (b) whether 

vehicle owners can properly be 

considered ‘‘owners’’ of the vehicle 

software. 

• The applicability (or not) of the 

statutory exemption for reverse 

engineering in 17 U.S.C. 1201(f) to the 

proposed uses. 

• Whether a third party—rather than 

the owner of the vehicle—may lawfully 

offer or engage in the proposed 

circumvention activities with respect to 

that vehicle pursuant to an exemption 

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

2. Proposed Class 22: Vehicle 

Software—Security and Safety Research 

This proposed class would allow 

circumvention of TPMs protecting 

computer programs that control the 

functioning of a motorized land vehicle 

for the purpose of researching the 

security or safety of such vehicles. 

Under the exemption as proposed, 

circumvention would be allowed when 

undertaken by or on behalf of the lawful 

owner of the vehicle. 

EFF seeks an exemption that would 

permit circumvention of TPMs on 

computer programs that are embedded 

in vehicles for purposes of researching 

the security or safety of that vehicle.79

According to EFF, TPMs on vehicle 

software prevent researchers from 

‘‘discover[ing] programming errors that 

endanger passengers’’ or ‘‘errors that 

would allow a remote attacker to take 

control of a vehicle’s functions.’’ 80

Thus, separate and apart from Proposed 

Class 21, EFF seeks a specific exemption 

to permit vehicle safety and security 

research. 

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• Specific examples of the adverse 

effects of the TPMs, including how they 

prevent vehicle owners or others from 

engaging in lawful safety and security 

research activities. 

• With respect to the proposed uses, 

(a) the extent to which any of the 

asserted noninfringing activities merely 

requires examination or changing of 

variables or codes relied upon by the 

vehicle software, or instead requires 

copying or rewriting of the vehicle 

software, and (b) whether vehicle 

owners can properly be considered 

‘‘owners’’ of the vehicle software. 

• Whether granting the exemption 

could have negative repercussions with 

respect to the safety or security of 

vehicles, for example, by making it 

easier for wrongdoers to access a 

vehicle’s software. 

• The applicability (or not) of the 

statutory exemptions for reverse 

engineering in 17 U.S.C. 1201(f) and 

encryption research in 17 U.S.C. 1201(g) 

to the proposed uses. 

• Whether a third party—rather than 

the owner of the vehicle—may lawfully 

offer or engage in the proposed 

circumvention activities with respect to 

that vehicle pursuant to an exemption 

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

F. Abandoned Software 

1. Proposed Class 23: Abandoned 

Software—Video Games Requiring 

Server Communication 

This proposed class would allow 

circumvention of TPMs on lawfully 

acquired video games consisting of 

communication with a developeroperated server for the purpose of either 

authentication or to enable multiplayer 

matchmaking, where developer support 

for those server communications has 

ended. This exception would not apply 

to video games whose audiovisual 

content is primarily stored on the 

developer’s server, such as massive 

multiplayer online role-playing games. 

EFF has proposed an exemption to 

permit circumvention of TPMs on video 

games that require communication with 

a server to ‘‘enable core functionality’’— 

that is, either ‘‘single-player or 

multiplayer play’’—where the developer 

no longer supports the requisite server 


rljohnson on DSK3VPTVN1PROD with PROPOSALS
73870 Federal Register / Vol. 79, No. 239 / Friday, December 12, 2014 / Proposed Rules 

81EFF’s proposed regulatory language reads as 

follows: ‘‘Literary works in the form of computer 

programs, where circumvention is undertaken for 

the purpose of restoring access to single-player or 

multiplayer video gaming on consoles, personal 

computers or personal handheld gaming devices 

when the developer and its agents have ceased to 

support such gaming.’’ EFF Abandoned Video 

Games Pet. at 1. 

82 Id. at 1–2. 

83Mr. Kelley alone proposed specific regulatory 

language as follows: ‘‘(1) Obsolete software/

hardware combinations protected by a software 

based copy protection mechanism (software dongle) 

when the manufacturer is unable (because of no 

longer being in business) or unwilling to provide 

access via this system to those who are otherwise 

entitled access; (2) Obsolete software/hardware 

combinations protected by a software based copy 

protection mechanism (software dongle) that 

prevents the hardware and software from running 

on current operating systems or current hardware 

by those otherwise entitled to access to the software 

and hardware.’’ Kelley Pet. at 1; see also McCloskey 

Pet. at 1 (seeking ‘‘a minor broadening of a previous 

exemption, namely ‘Computer programs protected 

by dongles that prevent access due to malfunction 

or damage and which are obsolete’’); Yanoska Pet. 

at 1 (seeking exemption to allow ‘‘[e]limination of 

the PACE control on recording software that was 

created and sold over 15 years ago (which is no 

longer sold or supported by the creating 

company)’’). 

84Professor Green’s proposed regulatory language 

reads as follows: ‘‘Computer programs and software, 

a subcategory of literary works, accessible on 

personal computers and personal devices and 

protected by technological protection measures 

(‘TPMs’) that control access to lawfully obtained 

works when circumvention is accomplished for the 

purposes of good faith testing, investigating, or 

correcting security flaws and vulnerabilities, 

commentary, criticism, scholarship, or teaching.’’ 

Green Pet. at 1. 

85Security Researchers’ proposed regulatory 

language reads as follows: ‘‘Literary works, 

including computer programs and databases, 

protected by access control mechanisms that 

potentially expose the public to risk of harm due 

to malfunction, security flaws or vulnerabilities 

when (a) circumvention is accomplished for the 

purposes of good faith testing for, investigating, or 

correcting such malfunction, security flaws or 

vulnerabilities in a technological protection 

measures or the underlying work it protects; OR (b) 

circumvention was part of the testing or 

investigation into a malfunction, security flaw or 

vulnerability that resulted in the public 

dissemination of security research when (1) a 

copyright holder fails to comply with the standards 

set forth in ISO 29147 and 30111; or (2) the finder 

of the malfunction, security flaw or vulnerability 

reports the malfunction, security flaw or 

vulnerability to the copyright holder by providing 

the information set forth in Form A* in advance of 

or concurrently with public dissemination of the 

security research.’’ Security Researchers Pet. at 1. 

or services.81 EFF claims that an 

exemption allowing video game owners 

to circumvent relevant authentication 

and multiplayer TPMs is necessary to 

‘‘serve player communities that wish to 

continue playing their purchased games, 

as well as archivists, historians, and 

other academic researchers who 

preserve and study videogames.’’ 82

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• Specific descriptions of the TPMs 

and methods of circumvention 

involved. 

• Specific examples of video games 

that would be covered by this proposed 

class, including games that can no 

longer be played at all and games for 

which single-player play remains 

possible but cannot be played in 

multiplayer mode. 

• Whether the exemption would 

threaten the current market for video 

games (a) by allowing users of 

unlawfully acquired video games to 

similarly bypass server checks, (b) by 

contributing to the circumvention of 

client-server protocols for nonabandoned video games, or (c) by 

threatening the market for older video 

games or discouraging the market for 

backward compatibility of video games. 

• The standard for determining when 

developer support has ended, including 

whether that standard should have a 

notice or grace period for developers 

before the exemption can be used. 

• The proposed scope of an 

exemption, including (a) whether the 

exemption should differ with respect to 

games that cannot be played at all 

because developer support has ended, 

and those for which only multiplayer 

support has ended, (b) whether it 

should exclude video games that are 

hosted on or played through a remote 

server, and (c) whether it should be 

limited to libraries, archivists, 

historians, or other academic 

researchers who preserve or study video 

games. 

• Whether the exemption should 

differ with respect to video games that 

are made for personal computers, those 

made for consoles, and those made for 

handheld devices. 

2. Proposed Class 24: Abandoned 

Software—Music Recording Software 

This proposed class would allow 

circumvention of access controls 

consisting of the PACE content 

protection system, which restricts 

access to the full functionality of 

lawfully acquired Ensoniq PARIS music 

recording software. 

In three similar petitions, Richard 

Kelley, James McCloskey, and Michael 

Yanoska have proposed an exemption to 

permit circumvention of a TPM called 

PACE that protects access to a specific 

hardware and software system used for 

music production called Ensoniq 

PARIS.83 The petitions explain that, 

when PARIS is installed on a new 

computer or the hosting computer is 

modified in some way, the PACE access 

control requires the user to enter a 

response code, but these codes soon will 

no longer be available. Petitioners assert 

that an exemption will allow for both 

continued use of the PARIS system and 

access to existing sound recording files 

saved using that system, which would 

otherwise be unrecoverable. 

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• Specific evidence that response 

codes will no longer be provided to 

Ensoniq PARIS owners. 

• The applicability (or not) of 17 

U.S.C. 117 to the maintenance or repair 

of the hardware and software 

comprising Ensoniq PARIS or the PACE 

protection system. 

• Whether any portions of the 

Ensoniq PARIS hardware or software 

will remain functional without the 

ability to circumvent the PACE access 

control. 

• Whether the proposed 

circumvention could impact others, if 

any, who use the PACE protection 

system, including federal agencies and 

state and local law enforcement 

personnel who apparently rely upon 

services from Intelligent Devices, the 

current proprietor of the PACE access 

control system. 

G. Miscellaneous 

1. Proposed Class 25: Software— 

Security Research 

This proposed class would allow 

researchers to circumvent access 

controls in relation to computer 

programs, databases, and devices for 

purposes of good-faith testing, 

identifying, disclosing, and fixing of 

malfunctions, security flaws, or 

vulnerabilities. 

Two submissions—by Professor 

Matthew D. Green,84 and by a group of 

academic security researchers 

comprising Professors Steven M. 

Bellovin, Matt Blaze, Edward W. Felten, 

J. Alex Halderman, and Nadia Heninger 

(‘‘Security Researchers’’) 85—seek 

exemptions for researchers performing 

good-faith security research. According 

to the submissions, an exemption is 

needed to identify, disclose, and fix 

malfunctions, security flaws, and/or 

vulnerabilities across a wide range of 

systems and devices. Petitioners seek to 

circumvent TPMs in medical devices; 

car components; supervisory control 

and data acquisition (‘‘SCADA’’) 


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Federal Register / Vol. 79, No. 239 / Friday, December 12, 2014 / Proposed Rules 73871 

86See Security Researchers Pet. at 2. 

87 Green Pet. at 4; see also Security Researchers 

Pet. at 2. 

88Security Researchers Pet. at 3. The Office notes 

that prior exemptions granted in 2006 and 2010 

addressed circumvention for investigation or 

security purposes for the more limited categories of 

compact discs or video games accessible on 

personal computers. See 37 CFR 201.40(b)(6) (2007) 

(compact discs); 37 CFR 201.40(b)(4) (2011) (video 

games); 71 FR at 68477; 75 FR 43825, 43832 (July 

27, 2010). 

89Public Knowledge ‘‘seeks an exemption for 

users of 3D printers that are protected by control 

technologies when circumvention is accomplishe[d] 

solely for the purpose of using non-manufacturer 

approved feedstock in the printer.’’ Public 

Knowledge 3D Printer Pet. at 2. 

90The Medical Device Research Coalition’s 

proposed regulatory language reads as follows: 

‘‘Computer programs, in the form of firmware or 

software, including the outputs generated by those 

programs, that are contained within or generated by 

medical devices and their corresponding 

monitoring systems, when such devices are 

designed for attachment to or implantation in 

patients, and where such circumvention is at the 

direction of a patient seeking access to information 

generated by his or her own device or at the 

direction of those conducting research into the 

safety, security, and effectiveness of such devices.’’ 

Medical Device Research Coalition Pet. at 1–2. 

91 Id. at 2. 

systems; and other critical 

infrastructure, such as the computer 

code that controls nuclear power plants, 

smartgrids, and industrial control 

systems; smartphones that operate 

critical applications, such as pacemaker 

applications; internet-enabled consumer 

goods in the home; and transit 

systems.86 According to petitioners, the 

exemptions codified in subsection (f) of 

17 U.S.C. 1201 for reverse engineering, 

subsection (g) for encryption research, 

subsection (i) for protection of 

personally identifying information, and 

subsection (j) for security testing do not 

sufficiently capture the breadth of the 

research they seek to facilitate, and 

suffer from ‘‘ambiguities . . . and 

burdensome requirements to qualify for 

those exemptions.’’ 87 As a result, the 

petitioners say that they have ‘‘chosen 

not to perform specific acts of security 

research that they believe would have 

prevented harms to and benefited [the] 

safety of human persons.’’ 88

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• Specific examples of the types of 

noninfringing uses that are, or in the 

next three years, are likely to be 

adversely affected by a prohibition on 

circumvention, including the security 

risks sought to be avoided. 

• The specific TPMs sought to be 

circumvented in connection with 

particular classes of works and the 

methods for circumventing those access 

controls, including the environment 

(academic or otherwise) in which the 

circumvention would be accomplished. 

• Specific examples of acts of security 

research that have been foregone or 

delayed due to the current lack of the 

proposed exemption. 

• Whether granting the exemption 

could have negative repercussions with 

respect to the safety or security of the 

works that are subject to research, for 

example, by making it easier for 

wrongdoers to access sensitive 

applications or databases. 

• Any industry standards that the 

Office should consider in evaluating 

this request, such as the ISO 29147 and 

ISO 30111 security guidelines, 

including an explanation of how these 

standards may relate to the proposed 

exemption. 

2. Proposed Class 26: Software—3D 

Printers 

This proposed class would allow 

circumvention of TPMs on firmware or 

software in 3D printers to allow use of 

non-manufacturer-approved feedstock 

in the printer. 

Public Knowledge seeks an exemption 

to circumvent TPMs on computer 

programs used in 3D printers to allow 

use of non-manufacturer-approved 

feedstock in such printers.89

The Office encourages commenters, in 

the course of detailing how the 

proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• Specific examples of 3D printers 

that include the complained-of access 

controls, including a description of the 

applicable TPMs, how they operate, and 

methods of circumvention. 

• The extent to which there are 

available for purchase 3D printers that 

do not include such access controls, and 

whether the existence of such printers 

obviates the need for an exemption. 

3. Proposed Class 27: Software— 

Networked Medical Devices 

The proposed class would allow 

circumvention of TPMs protecting 

computer programs in medical devices 

designed for attachment to or 

implantation in patients and in their 

corresponding monitoring devices, as 

well as the outputs generated through 

those programs. As proposed, the 

exemption would be limited to cases 

where circumvention is at the direction 

of a patient seeking access to 

information generated by his or her own 

device, or at the direction of those 

conducting research into the safety, 

security, and effectiveness of such 

devices. The proposal would cover 

devices such as pacemakers, 

implantable cardioverter defibrillators, 

insulin pumps, and continuous glucose 

monitors. 

This proposal, filed by a coalition of 

medical device patients and researchers 

(‘‘Medical Device Research Coalition’’), 

seeks an exemption to allow 

circumvention of TPMs in the firmware 

or software of medical devices and their 

corresponding monitoring systems at 

patient direction or for purposes of 

safety, security, or effectiveness 

research.90 According to the petition, 

‘‘[m]any medical device manufacturers 

use measures to control access’’ to 

medical device software, including 

password systems and encryption of 

outputs.91 The Office encourages 

commenters, in the course of detailing 

how the proposed exemption meets the 

requirements of section 1201(a)(1), to 

address—including through the 

submission of relevant evidence—the 

following: 

• Specific examples demonstrating 

the noninfringing uses and adverse 

effects of the TPMs, including how 

patients seeking access to information 

generated by their own devices, and/or 

those seeking to conduct research into 

the safety, security, and effectiveness of 

such devices, are prevented from 

engaging in lawful activities because of 

the TPMs. 

• Whether the exemption should 

distinguish among different users 

(researchers, patients, healthcare 

providers at the direction of the deviceuser patient, etc.) and/or the proposed 

use (examining output of devices, 

research into safety, security, and 

effectiveness of devices, etc.). 

• Whether the outputs generated by 

the medical device programs constitute 

copyright-protected materials. 

• Whether granting the exemption 

could have negative repercussions with 

respect to the safety or security of the 

relevant medical devices, for example, 

by making it easier for wrongdoers to 

access such medical devices’ software or 

outputs. 

• The relevance of the statutory 

exemptions for reverse engineering in 

17 U.S.C. 1201(f) and for encryption 

research in 17 U.S.C. 1201(g) to the 

proposed uses. 

• Whether a third party—rather than 

the owner of the device—may lawfully 

offer or engage in the proposed 

circumvention activities with respect to 

that device pursuant to an exemption 

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


rljohnson on DSK3VPTVN1PROD with PROPOSALS
73872 Federal Register / Vol. 79, No. 239 / Friday, December 12, 2014 / Proposed Rules 

Dated: December 9, 2014. 

Jacqueline C. Charlesworth, 

General Counsel and Associate Register of 

Copyrights. 

[FR Doc. 2014–29237 Filed 12–11–14; 8:45 am] 

BILLING CODE 1410–30–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2005–TX–0002; FRL–9920– 

33–Region 6] 

Approval and Promulgation of Air 

Quality Implementation Plans; Texas; 

Repeal of Lead Emission Rules for 

Stationary Sources in El Paso and 

Dallas County 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

revision to the State Implementation 

Plan (SIP) for Texas which repeals lead 

emission rules which cover stationary 

sources in El Paso and Dallas county 

that are no longer in existence. This 

action is being taken under section 

110(k) and part D of the Clean Air Act. 

DATES: Written comments should be 

received on or before January 12, 2015. 

ADDRESSES: Comments may be mailed to 

Mr. Guy Donaldson, Chief, Air Planning 

Section (6PD–L), Environmental 

Protection Agency, 1445 Ross Avenue, 

Suite 1200, Dallas, Texas 75202–2733. 

Comments may also be submitted 

electronically or through hand delivery/ 

courier by following the detailed 

instructions in the ADDRESSES section of 

the direct final rule located in the rules 

section of this Federal Register. 

FOR FURTHER INFORMATION CONTACT: 

Kenneth W. Boyce, (214) 665–7259, 

boyce.kenneth@epa.gov. 

SUPPLEMENTARY INFORMATION: In the 

final rules section of this Federal 

Register, EPA is approving the State’s 

SIP submittal repealing lead emission 

rules which cover stationary sources 

that are no longer operating in both El 

Paso County and Dallas County. We are 

taking this action as a direct final rule 

without prior proposal because the 

Agency views this as a noncontroversial 

action and anticipates no adverse 

comments. A detailed rationale for the 

proposed approval is set forth in the 

direct final rule. If no relevant adverse 

comments are received in response to 

this action no further activity is 

contemplated. If EPA receives relevant 

adverse comments, the direct final rule 

will be withdrawn and all public 

comments received will be addressed in 

a subsequent final rule based on this 

proposed rule. EPA will not institute a 

second comment period. Any parties 

interested in commenting on this action 

should do so at this time. 

For additional information, see the 

direct final rule which is located in the 

rules section of this Federal Register 

and the electronic docket found in the 

www.regulations.gov Web site (Docket 

ID No. EPA–R06–OAR–2005–TX–0002). 

Dated: November 19, 2014. 

Ron Curry, 

Regional Administrator, Region 6. 

[FR Doc. 2014–29144 Filed 12–11–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 60 and 63 

[EPA–HQ–OAR–2012–0522; FRL–9920–39– 

OAR] 

RIN 2060–AQ20 

Phosphoric Acid Manufacturing and 

Phosphate Fertilizer Production RTR 

and Standards of Performance for 

Phosphate Processing; Extension of 

Comment Period 

AGENCY: Environmental Protection 

Agency. 

ACTION: Notice of proposed rulemaking; 

extension of public comment period. 

SUMMARY: On November 7, 2014, the 

Environmental Protection Agency (EPA) 

proposed amendments to the national 

emission standards for hazardous air 

pollutants for Phosphoric Acid 

Manufacturing and Phosphate Fertilizer 

Production source categories and to new 

source performance standards for 

several phosphate processing categories. 

The EPA is extending the deadline for 

written comments on the proposed 

amendments by 30 days to January 21, 

2015. The EPA received requests for an 

extension from The Fertilizer Institute, 

several phosphate facilities and a testing 

company that supports the industry. 

The Fertilizer Institute has requested the 

extension in order to allow more time to 

review the proposed rule and associated 

emissions data, risk assessment and 

technology review. 

DATES: Comments. The public comment 

period for the proposed rule published 

in the Federal Register on November 7, 

2014, (79 FR 66512) is being extended 

for 30 days to January 21, 2015. 

ADDRESSES: Comments. Written 

comments on the proposed rule may be 

submitted to the EPA electronically, by 

mail, by facsimile or through hand 

delivery/courier. Please refer to the 

proposal for the addresses and detailed 

instructions. 

Docket. The EPA has established a 

docket for this rulemaking under Docket 

ID Number EPA–HQ–OAR–2012–0522. 

All documents in the docket are listed 

in the http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., confidential business information 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy. 

Publicly available docket materials are 

available either electronically in http:// 

www.regulations.gov or in hard copy at 

the EPA Docket Center, Room 3334, 

EPA WJC West Building, 1301 

Constitution Avenue NW., Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the EPA 

Docket Center is (202) 566–1742. 

World Wide Web. The EPA Web site 

for this rulemaking is at http://

www.epa.gov/ttn/atw/phosph/

phosphpg.html. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Tina Ndoh, Sector Policies and 

Programs Division (D243–02), Office of 

Air Quality Planning and Standards, 

U.S. Environmental Protection Agency, 

Research Triangle Park, North Carolina 

27711; telephone number: (919) 541– 

2750; fax number: (919) 541–5450; and 

email address: Ndoh.Tina@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Comment Period 

After considering requests received 

from industry to extend the public 

comment period, the EPA has decided 

to extend the public comment period for 

an additional 30 days. Therefore, the 

public comment period will end on 

January 21, 2015, rather than December 

22, 2014. This extension will help 

ensure that the public has sufficient 

time to review the proposed rule and 

the supporting technical documents and 

data available in the docket. 

Dated: December 5, 2014. 

Mary E. Henigin, 

Acting Director, Office of Air Quality Planning 

and Standards. 

[FR Doc. 2014–29193 Filed 12–11–14; 8:45 am] 

BILLING CODE 6560–50–P 


rljohnson on DSK3VPTVN1PROD with PROPOSALS