57526 Federal Register / Vol. 70, No. 190 / Monday, October 3, 2005 / Proposed Rules 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The Administrator of the Office 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

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

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This proposed rule does not use 

technical standards. Therefore, we did 

not consider the use of voluntary 

consensus standards. 

Environment 

We have analyzed this proposed rule 

under Commandant Instruction 

M16475.lD, which guides the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 

(NEPA)(42 U.S.C. 4321–4370f), and 

have concluded that there are no factors 

in this case that would limit the use of 

a categorical exclusion under section 

2.B.2 of the Instruction. Therefore, this 

proposed rule is categorically excluded, 

under figure 2–1, paragraph (32)(e) of 

the Instruction, from further 

environmental documentation because 

it has been determined that the 

promulgation of operating regulations 

for drawbridges are categorically 

excluded. 

List of Subjects in 33 CFR Part 117 

Bridges. 

Regulations 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 33 CFR part 117 as follows: 

PART 117 DRAWBRIDGE 

OPERATION REGULATIONS 

1. The authority citation for part 117 

continues to read as follows: 

Authority: 33 U.S.C. 499; Department of 

Homeland Security Delegation No. 0170.1; 33 

CFR 1.05–1(g); section 117.255 also issued 

under the authority of Pub. L. 102–587, 106 

Stat. 5039. 

2. Section 117.821 is amended by 

revising paragraph (a)(5) to read as 

follows: 

§ 117.821 Atlantic Intracoastal Waterway, 

Albermarle Sound to Sunset Beach. 

(a) * * * 

(5) S.R. 74 Bridge, mile 283.1, at 

Wrightsville Beach, NC, between 7 a.m. 

and 7 p.m., the draw need only open on 

the hour; except that from 7 a.m. to 11 

a.m. on the third and fourth Saturday in 

September of every year, the draw need 

not open for vessels due to the Triathlon 

run. 

* * * * * 

§ 117.823 [Redesignated] 

3. Redesignate § 117.823 as § 117.824. 

4. Add new § 117.823 to read as 

follows: 

§ 117.823 Cape Fear River. 

The draw or the Cape Fear Memorial 

Bridge, mile 26.8, at Wilmington need 

not open for the passage of vessel from 

8 a.m. to 10 a.m. on the second Saturday 

of July of every year, and from 7 a.m. to 

11 a.m. on the second Sunday of 

November of every year. 

5. Section 117.829 is amended by 

adding a new paragraph (a)(4) to read as 

follows: 

§ 117.829 Northeast Cape Fear River 

(a) * * * 

(4) From 8 a.m. to 10 a.m. on the 

second Saturday of July of every year, 

and from 7 a.m. to 11 a.m. on the second 

Sunday of November of every year, the 

draw need not open for vessels. 

* * * * * 

Dated: September 20, 2005. 

S.H. Ratti, 

Captain, U. S. Coast Guard, Acting 

Commander, Fifth Coast Guard District. 

[FR Doc. 05–19664 Filed 9–30–05; 8:45 am] 

BILLING CODE 4910–15–P 

LIBRARY OF CONGRESS 

Copyright Office 

37 CFR Part 201 

[Docket No. RM 2005–11] 

Exemption to Prohibition on 

Circumvention of Copyright Protection 

Systems for Access Control 

Technologies 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Notice of inquiry. 

SUMMARY: The Copyright Office of the 

Library of Congress is preparing to 

conduct proceedings in accordance with 

section 1201(a)(1) of the Copyright Act, 

which was added by the Digital 

Millennium Copyright Act and which 

provides that the Librarian of Congress 

may exempt certain classes of works 

from the prohibition against 

circumvention of technological 

measures that control access to 

copyrighted works. The purpose of this 

rulemaking proceeding is to determine 

whether there are particular classes of 

works as to which users are, or are 

likely to be, adversely affected in their 

ability to make noninfringing uses due 

to the prohibition on circumvention. 

This notice requests written comments 

from all interested parties, including 

representatives of copyright owners, 

educational institutions, libraries and 

archives, scholars, researchers and 

members of the public, in order to elicit 

evidence on whether noninfringing uses 

of certain classes of works are, or are 

likely to be, adversely affected by this 

prohibition on the circumvention of 

measures that control access to 

copyrighted works. 

DATES: Written comments are due by 

December 1, 2005. Reply comments are 

due by February 2, 2006. 

ADDRESSES: Electronic submissions 

must be made through the Copyright 

Office website: http:// 

www.copyright.gov/1201/ 

commentlforms; see section 3 of the 

SUPPLEMENTARY INFORMATION 

section for file formats and other 

information about electronic and non–

electronic filing requirements. 

Addresses for nonelectronic 

submissions are as follows: If hand 

delivered by a private party, deliver to 

Room LM–401 of the James Madison 

Memorial Building between 8:30 a.m. 

and 5 p.m. and the envelope should be 

addressed as follows: Office of the 

General Counsel, U.S. Copyright Office, 

James Madison Memorial Building, 

Room LM–401, 101 Independence 

Federal Register / Vol. 70, No. 190 / Monday, October 3, 2005 / Proposed Rules 57527 

Avenue, SE., Washington, DC 20559–

6000. If hand delivered by a commercial 

courier, any comment must be delivered 

to the Congressional Courier Acceptance 

Site located at Second and D Streets, 

NE., Washington, DC, between 8:30 a.m. 

and 4 p.m. The envelope should be 

addressed as follows: Copyright Office 

General Counsel, Room LM–403, James 

Madison Memorial Building, 101 

Independence Avenue, SE., Washington 

DC. If delivered by means of the United 

States Postal Service (see section 3 of 

the SUPPLEMENTARY INFORMATION 

about mail screening and possible 

delays), address to David O. Carson, 

General Counsel, Copyright GC/I&R, PO 

Box 70400, Washington, DC 20024–

0400. See SUPPLEMENTARY 

INFORMATION section for information 

about requirements and formats of 

submissions. Comments may not be 

delivered by means of overnight 

delivery services such as Federal 

Express, United Parcel Service, etc., due 

to delays in processing receipt of such 

deliveries. 

FOR FURTHER INFORMATION CONTACT: Rob 

Kasunic, Principal Legal Advisor, Office 

of the General Counsel, Copyright GC/ 

I&R, PO Box 70400, Washington, DC 

20024–0400. Telephone (202) 707–8380; 

telefax (202) 707–8366. 

SUPPLEMENTARY INFORMATION: 

1. Mandate for Rulemaking Proceeding 

The Digital Millennium Copyright 

Act, Pub. L. 105–304 (1998), amended 

title 17 of the United States Code to add 

a new Chapter 12, which among other 

things prohibits circumvention of access 

control technologies employed by or on 

behalf of copyright owners to protect 

their works. Specifically, subsection 

1201(a)(1)(A) provides, inter alia, that 

‘‘No person shall circumvent a 

technological measure that effectively 

controls access to a work protected 

under this title.’’

Subparagraph (B) limits this 

prohibition. It provides that prohibition 

against circumvention ‘‘shall not apply 

to persons who are users of a 

copyrighted work which is in a 

particular class of works, if such 

persons are, or are likely to be in the 

succeeding 3–year period, adversely 

affected by virtue of such prohibition in 

their ability to make noninfringing uses 

of that particular class of works under 

this title’’ as determined in this 

rulemaking. This prohibition on 

circumvention became effective two 

years after the date of enactment, on 

October 28, 2000. 

At the end of the 2–year period 

between the enactment and effective 

date of the provision, the Librarian of 

Congress made an initial determination 

as to classes of works to be exempted 

from the prohibition for the first 

triennial period. Exemption to 

Prohibition on Circumvention of 

Copyright Protection Systems for Access 

Control Technologies, 65 FR 64556, 

64564 (2000) (hereinafter Final Reg. 

2000). The exemptions promulgated by 

the Librarian in the first rulemaking 

remained in effect through October 27, 

2003. On October 28, 2003, the 

Librarian of Congress announced the 

second determination as to classes of 

works to be exempted from the 

prohibition. Exemption to Prohibition 

on Circumvention of Copyright 

Protection Systems for Access Control 

Technologies, 68 FR 62011, 62013 

(2003) (hereinafter Final Reg. 2003). The 

four exemptions created in the second 

anticircumvention rulemaking will be in 

effect through October 27, 2006 and any 

exemptions promulgated as a result of 

the third anticircumvention rulemaking 

will take effect the next day for a 3–year 

period lasting through October 27, 2009. 

Both determinations by the Librarian of 

Congress were made upon the 

recommendation of the Register of 

Copyrights following extensive 

rulemaking proceedings. This notice 

announces the initiation of the third 

section 1201 rulemaking required under 

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

2. Background 

Title I of the Digital Millennium 

Copyright Act was, inter alia, the 

congressional fulfillment of obligations 

of the United States under the WIPO 

Copyright Treaty and the WIPO 

Performances and Phonograms Treaty. 

For additional information on the 

historical background and the legislative 

history of Title I, see Exemption to 

Prohibition on Circumvention of 

Copyright Protection Systems for Access 

Control Technologies, 64 FR 66139, 

66140 (1999) [http://www.loc.gov/ 

copyright/fedreg/1999/64fr66139.html]. 

Section 1201 of title 17 of the United 

States Code prohibits two general types 

of activity: (1) the conduct of 

‘‘circumvention’’ of technological 

protection measures that control access 

to copyrighted works and (2) trafficking 

in any technology, product, service, 

device, component, or part thereof that 

protects either ‘‘access’’ to a copyrighted 

work or that protects the ‘‘rights of the 

copyright owner,’’ if that device or 

service meets one of three conditions. 

The first type of activity, the conduct of 

circumvention, is prohibited in section 

1201(a)(1). The latter activities, 

trafficking in devices or services that 

circumvent ‘‘access’’ or ‘‘the rights of 

the copyright owner’’ are contained in 

sections 1201(a)(2) and 1201(b), 

respectively. In addition to these 

prohibitions, section 1201 also includes 

a series of section–specific limitations 

and exemptions to the prohibitions of 

section 1201. 

The Anticircumvention Provision At 

Issue 

Subsection 1201(a)(1) applies when a 

person who is not authorized by the 

copyright owner to gain access to a work 

does so by circumventing a 

technological measure put in place with 

the authority of the copyright owner to 

control access to the work. See the 

Report of the House Committee on 

Commerce on the Digital Millennium 

Copyright Act of 1998, H.R. Rep. No. 

105–551, pt. 2, at 36 (1998) (hereinafter 

Commerce Comm. Report). 

That section provides that ‘‘No person 

shall circumvent a technological 

measure that effectively controls access 

to a work protected under this title.’’ 17 

U.S.C. 1201(a)(1)(A) (1998). 

The relevant terms are defined: 

(3) As used in this subsection–

(A) to ‘‘circumvent a technological 

measure’’ means to descramble a 

scrambled work, to decrypt an 

encrypted work, or otherwise to avoid, 

bypass, remove, deactivate, or impair a 

technological measure, without the 

authority of the copyright owner; and 

(B) a technological measure 

‘‘effectively controls access to a work’’

if the measure, in the ordinary course of 

its operation, requires the application of 

information, or a process or a treatment, 

with the authority of the copyright 

owner, to gain access to the work. 

17 U.S.C. 1201(a)(3). 

Scope of the Rulemaking 

The statutory focus of this rulemaking 

is limited to one subsection of section 

1201: the prohibition on the conduct of 

circumvention of technological 

measures that control access to 

copyrighted works. 17 U.S.C. 

1201(a)(1)(C) [http:// 

www.copyright.gov/title17/ 

92chap12.htmlι1201]. The Librarian of 

Congress has no authority to limit either 

of the anti–trafficking provisions 

contained in subsections 1201(a)(2) or 

1201(b). 17 U.S.C. 1201(a)(1)(E). 

Moreover, for a proposed exemption to 

be considered in this rulemaking, there 

must be a causal connection between 

the prohibition in 1201(a)(1) and the 

adverse effect on noninfringing uses. 

This rulemaking addresses only the 

prohibition on the conduct of 

circumventing measures that control 

‘‘access’’ to copyrighted works,e.g., 

prohibiting unauthorized decryption of 

an encrypted work or bypassing 

57528 Federal Register / Vol. 70, No. 190 / Monday, October 3, 2005 / Proposed Rules 

passwords used to restrict access to 

copyrighted works. The structure of 

section 1201 is such that there exists no 

comparable prohibition on the conduct 

of circumventing technological 

measures that protect the ‘‘rights of the 

copyright owner’’ in 1201(b), e.g., the 

section 106 rights to reproduce, adapt, 

distribute, publicly perform, or publicly 

display a work. Circumventing a 

technological measure that protects 

these section 106 rights of the copyright 

owner is governed not by section 1201, 

but rather by the traditional copyright 

rights and the applicable limitations in 

the Copyright Act. For example, if a 

person circumvents a measure that 

prohibits printing or saving an 

electronic copy of an article, there is no 

provision in section 1201 that precludes 

this activity. Instead, it would be 

actionable as copyright infringement of 

the section 106 right of reproduction 

unless an applicable limitation applied, 

e.g., fair use. Since section 1201 

contains no prohibition on the 

circumvention of technological 

measures that protect the ‘‘rights of the 

copyright owner,’’ sometimes referred to 

as ‘‘use’’ or ‘‘copy’’ control measures, 

any effect these measures may have on 

noninfringing uses would not be 

attributable to a section 1201 

prohibition. 

On the other hand, because there is a 

prohibition on the act of circumventing 

a technological measure that controls 

access to a work, and since traditional 

Copyright Act limitations are not 

defenses to the act of circumventing a 

technological measure that controls 

access, Congress chose to create the 

current rulemaking proceeding as a 

‘‘fail–safe mechanism’’ to monitor the 

effect of the anticircumvention 

provision in 1201(a)(1)(A). Commerce 

Comm. Report, at 36. This 

anticircumvention rulemaking is 

authorized to monitor the effect of the 

prohibition on ‘‘access’’ circumvention 

on noninfringing uses of copyrighted 

works. In this triennial rulemaking 

proceeding, effects on noninfringing 

uses that are unrelated to section 

1201(a)(1)(A) may not be considered. 17 

U.S.C. 1201(a)(1)(C). 

Burden of Proof 

In the first rulemaking, the Register 

concluded from the language of the 

statute and the legislative history that a 

determination to exempt a class of 

works from the prohibition on 

circumvention must be based on a 

showing that the prohibition has or is 

likely to have a substantial adverse 

effect on noninfringing uses of a 

particular class of works. It was 

determined that proponents of an 

exemption bear the burden of proof that 

an exemption is warranted for a 

particular class of works and that the 

prohibition is presumed to apply to all 

classes of works unless an adverse 

impact has been shown. See Commerce 

Comm. Report, at 37 and see also, Final 

Reg. 2000, at 64558. 

Some have objected to the Register’s 

use of a standard that requires a 

showing of a ‘‘substantial’’ adverse 

effect on noninfringing uses, and have 

asserted that the Register has increased 

the evidentiary standard higher than the 

statutory requirement. In the most 

recent rulemaking in 2003, the Register 

addressed this criticism and found it to 

be misplaced, noting that 

Use of the term ‘‘substantial’’ does not 

impose a ‘‘heightened’’ requirement; it 

imposes the requirement found throughout 

the legislative history, which is variously 

stated as ‘‘substantial adverse impact,’’

‘‘distinct, verifiable, and measurable 

impacts,’’ and more than ‘‘de minimis 

impacts.’’ As is apparent from the 

dictionary definition of ‘‘substantial,’’ and 

the Supreme Court’s treatment of the term 

(e.g., in its articulation of the substantial 

evidence rule), requiring that one’s proof 

be ‘‘substantial’’ simply means that it must 

have substance. 

Final Reg. 2003, at 62013. 

Whatever label one uses, proponents 

of an exemption bear the burden of 

providing sufficient evidence under the 

foregoing standards to support an 

exemption. How much evidence is 

sufficient will vary with the factual 

context of the alleged harm. Further, 

proof of harm is never the only 

consideration in the rulemaking 

process, and therefore the sufficiency of 

the harm will always be relative to other 

considerations, such as, the availability 

of the affected works for use, the 

availability of the works for nonprofit 

archival, preservation, and educational 

purposes, the impact that the 

prohibition has on criticism, comment, 

news reporting, teaching, scholarship, 

or research, the effect of circumvention 

on the market for or value of 

copyrighted works, and any other 

relevant factors. 

In order to meet the burden of proof, 

proponents of an exemption must 

provide evidence either that actual harm 

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

the ensuing 3–year period. Actual 

instances of verifiable problems 

occurring in the marketplace are 

generally necessary in order to prove 

actual harm. The most compelling cases 

of actual harm will be based on first–

hand knowledge of such problems. 

Circumstantial evidence may also 

support a claim of present or likely 

harm, but such evidence must also 

reasonably demonstrate that a measure 

protecting access was the cause of the 

harm and that the adversely affected use 

was, in fact, noninfringing. ‘‘Likely’’

adverse effects may also support an 

exemption. This standard of 

‘‘likelihood’’ requires proof that adverse 

effects are more likely than not to occur. 

Claims based on ‘‘likely’’ adverse effects 

cannot be supported by speculation 

alone. The House Manager’s Report 

stated that an exemption based on 

‘‘likely’’ future adverse impacts during 

the applicable period should only be 

made ‘‘in extraordinary circumstances 

in which the evidence of likelihood is 

highly specific, strong and persuasive.’’

Staff of House Committee on the 

Judiciary, 105th Cong., Section–By–

Section Analysis of H.R. 2281 as Passed 

by the United States House of 

Representatives on August 4, 1998, 

(hereinafter House Manager’s Report), at 

6. This statement could be interpreted 

as raising the burden beyond a standard 

of a preponderance of the evidence. The 

statutory language enacted, however, –

‘‘whether persons who are users of a 

copyrighted work are, or are likely to be 

in the succeeding 3–year period, 

adversely affected by the prohibition’’ –

does not specify a standard beyond 

mere likelihood and thus the 

preponderance standard will be applied 

by the Register. Nevertheless, as the 

Register’s final recommendation of 2000 

explained, the expectation of ‘‘distinct, 

verifiable and measurable impacts’’ in 

the legislative history as to actual harm 

suggests that conjecture alone would be 

insufficient to support a finding of 

‘‘likely’’ adverse effect. Final Reg. 2000, 

at 64559. Although a showing of 

‘‘likely’’ adverse impact will necessarily 

involve prediction, the burden of 

proving that the expected adverse effect 

is more likely than other possible 

outcomes rests firmly on the proponent 

of the exemption. 

The identification of existing or likely 

problems is not, however, the end of the 

analysis. In order for an exemption of a 

particular class of works to be 

warranted, a proponent must show that 

such problems warrant an exemption in 

light of all of the relevant facts. The 

identification of isolated or anecdotal 

problems will be generally insufficient 

to warrant an exemption of a class of 

works. Similarly, the mere fact that the 

digital format would be more 

convenient to use for noninfringing 

purposes is generally insufficient factual 

support for an exemption. Further, 

purely theoretical critiques of Section 

1201 will never satisfy the requisite 

showing. House Manager’s Report, at 6. 

Proponents of exemptions must show 

sufficient harm to warrant an exemption 

Federal Register / Vol. 70, No. 190 / Monday, October 3, 2005 / Proposed Rules 57529 

from the default rule established by 

Congress – the prohibition in 

circumvention. 

There is a presumption that the § 1201 

prohibition will apply to any and all 

classes of works, including previously 

exempted classes, unless a new showing 

is made that an exemption is warranted. 

Final Reg. 2000, at 64558. Exemptions 

are reviewed de novo and prior 

exemptions will expire unless sufficient 

new evidence is presented in each 

rulemaking that the prohibition has or is 

likely to have an adverse effect on 

noninfringing uses. The facts and 

argument that supported an exemption 

during any given 3–year period may be 

insufficient within the context of the 

marketplace in a different 3–year 

period. Similarly, proposals that were 

not found to warrant an exemption in 

any particular rulemaking could find 

factual support in the context of another 

rulemaking. 

Availability of Works in Unprotected 

Formats 

Other statutory considerations must 

also be balanced with evidence of 

adverse effects attributable to the 

prohibition. In making her 

recommendation to the Librarian, the 

Register is instructed to consider the 

availability for use of copyrighted 

works. 17 U.S.C. 1201(a)(1)(C)(i). This 

inquiry demands that the Register 

consider whether ‘‘works’’ protected by 

technological measures that control 

access are also available in the 

marketplace in formats that are 

unprotected. The fact that a ‘‘work’’ (in 

contrast to a particular ‘‘copy’’ of a 

work) is available in a format without 

technological protection measures may 

be significant because the unprotected 

formats might allow the public to make 

noninfringing uses of the work even 

though other formats of the work would 

not. For example, in the first 

rulemaking, many users claimed that 

the technological measures on motion 

pictures contained on Digital Versatile 

Disks (DVDs) restricted noninfringing 

uses of the motion pictures. A balancing 

consideration was that the record 

revealed that at that time, the vast 

majority of these works were also 

available in analog format on VHS tapes. 

Final Reg. 2000, at 64568. Thus, the full 

range of availability of a work for use is 

necessary to consider in assessing the 

need for an exemption to the 

prohibition on circumvention. 

Another consideration relating to the 

availability for use of copyrighted works 

is whether the measure supports a 

distribution model that benefits the 

public generally. For example, while a 

measure may limit the length of time 

that a work may be accessed (time–

limited) or may limit the scope of access 

(scope–limited), e.g., access to only a 

portion of work, those limitations may 

benefit the public by providing ‘‘use–

facilitating’’ models that allow users to 

obtain access to works at a lower cost 

than they would otherwise be able to 

obtain were such restrictions not in 

place. If there is sufficient evidence that 

particular classes of works would not be 

offered at all without the protection 

afforded by technological protection 

measures that control access, this 

evidence must be considered. House 

Manager’s Report, at 6. Accord, Final 

Reg. 2000, at 64559. Thus, the Register’s 

inquiry must assess any benefits to the 

public resulting from the prohibition as 

well as the adverse effects that may be 

established. 

The Scope of the Term ‘‘Class of Works’’ 

Section 1201 does not define a critical 

term for the rulemaking process: ‘‘class 

of works.’’ In the first rulemaking, the 

Register elicited views on the scope and 

meaning of this term. After review of the 

statutory language, the legislative 

history and the extensive record in the 

proceeding [see Final Reg. 2000, at 

64557 for a description of the record in 

the 2000 rulemaking proceeding], the 

Register reached certain conclusions on 

the scope of this term and requested 

further congressional guidance. [For a 

more detailed discussion, see Final Reg. 

2000, at 64559.] 

The Register found that the statutory 

language required that the Librarian 

identify ‘‘classes of works’’ based upon 

attributes of the works themselves, and 

not by reference to some external 

criteria such as the intended use or 

users of the works. The phrase ‘‘class of 

works’’ connotes that the shared, 

common attributes of the ‘‘class’’ relate 

to the nature of authorship in the 

‘‘works.’’ Thus, a ‘‘class of works’’ was 

intended to be a ‘‘narrow and focused 

subset of the broad categories of works 

of authorship * * * identified in 

section 102.’’ Commerce Comm. Report, 

at 38. The starting point for a proposed 

exemption of a particular class of works 

must be the section 102 categories of 

authorship: literary works; musical 

works; dramatic works; pantomimes and 

choreographic works; pictorial, graphic 

and sculptural works; motion pictures 

and other audiovisual works; sound 

recordings; and architectural works. 

This determination is supported by 

the House Manager’s Report, which 

discussed the importance of 

appropriately defining the proper scope 

of the exemption. House Manager’s 

Report, at 7. The legislative history 

stated that it would be highly unlikely 

for all literary works to be adversely 

affected by the prohibition and 

therefore, determining an appropriate 

subcategory of the works in this 

category would be the goal of the 

rulemaking. Id. 

The Register concluded that the 

starting point for identifying a particular 

‘‘class of works’’ to be exempted must 

be one of the section 102 categories. 

Final Reg. 2000, at 64559–64561. From 

that starting point, it is likely that the 

scope or boundaries of a particular class 

would need to be further limited to 

remedy the particular harm to 

noninfringing uses identified in the 

rulemaking. 

As a result of the Register’s 

recommendation in 2003,the Librarian 

of Congress decided that four classes of 

works should be exempted: 

(1) Compilations consisting of lists of Internet 

locations blocked by commercially 

marketed filtering software applications 

that are intended to prevent access to 

domains, websites or portions of websites, 

but not including lists of Internet locations 

blocked by software applications that 

operate exclusively to protect against 

damage to a computer or a computer 

network or lists of Internet locations 

blocked by software applications that 

operate exclusively to prevent receipt of 

email. 

(2) Computer programs protected by dongles 

that prevent access due to malfunction or 

damage and which are obsolete. 

(3) Computer programs and video games 

distributed in formats that have become 

obsolete and which require the original 

media or hardware as a condition of access. 

A format shall be considered obsolete if the 

machine or system necessary to render 

perceptible a work stored in that format is 

no longer manufactured or is no longer 

reasonably available in the commercial 

marketplace. 

(4) Literary works distributed in ebook format 

when all existing ebook editions of the 

work (including digital text editions made 

available by authorized entities) contain 

access controls that prevent the enabling of 

the ebook’s read–aloud function and that 

prevent the enabling of screen readers to 

render the text into a specialized format. 

Commenters should familiarize 

themselves with the Register’s 

recommendation in the prior 

rulemaking proceedings, since many of 

the issues addressed may provide 

guidance for current showings either for 

or against an exemption. 

This notice requests written 

comments from all interested parties. In 

addition to the necessary showing 

discussed above, in order to make a 

prima facie case for a proposed 

exemption, at least three critical points 

should be established. 

First, a proponent must attempt to 

identify the specific technological 

measure that is the causal source of the 

57530 Federal Register / Vol. 70, No. 190 / Monday, October 3, 2005 / Proposed Rules 

1 If a comment includes attached material that 

appears to be protected by copyright and there is 

no indication that the material was attached with 

permission of the copyright owner, the attached 

material will not be placed on the Office’s website. 

alleged problem, and show why that 

technological measure ‘‘effectively 

controls access to a [copyrighted] 

work.’’

Second, a proponent must specifically 

explain what noninfringing activity the 

prohibition is adversely affecting. 

Third, a proponent must establish that 

the prevented activity is, in fact, a 

noninfringing use under current law. 

The nature of the Librarian’s inquiry 

is further delineated by the statutory 

areas to be examined: 

(i) the availability for use of copyrighted 

works; 

(ii) the availability for use of works for 

nonprofit archival, preservation, and 

educational purposes; 

(iii) the impact that the prohibition on the 

circumvention of technological measures 

applied to copyrighted works has on 

criticism, comment, news reporting, 

teaching, scholarship, or research; 

(iv) the effect of circumvention of 

technological measures on the market for 

or value of copyrighted works; and 

(v) such other factors as the Librarian 

considers appropriate. 

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

These statutory considerations require 

examination and careful balancing. The 

harm identified by a proponent of an 

exemption must be balanced against the 

harm that would result from an 

exemption. In certain circumstances, an 

exemption could have a greater adverse 

effect on the public than would the 

adverse effects on noninfringing uses 

identified. The ultimate determination 

of the Librarian must take all of these 

factors into consideration. Therefore, a 

commenter’s analysis should also 

address these considerations. 

For the entire record of the two 

previous anticircumvention 

rulemakings, including all comments, 

testimony and notices published, see 

the Copyright Office’s website at: http:// 

www.loc.gov/copyright/1201/. 

3. Written Comments 

In the first rulemaking, the Register 

determined that the burden of proof is 

on the proponent of an exemption to 

come forward with evidence supporting 

an exemption for a particular class of 

works. In this third triennial 

rulemaking, the Register shall continue 

with the procedure adopted in the 

second rulemaking: Comments 

submitted in the initial comment period 

should be confined to proposals for 

exempted classes. They should 

specifically identify particular classes of 

works adversely affected by the 

prohibition and provide evidentiary 

support for the need for the proposed 

exemptions. 

For each particular class of works that 

a commenter proposes for exemption, 

the commenter should first identify that 

class, followed by a summary of the 

argument in favor of exempting that 

proposed class. The commenter should 

then specify the facts and evidence 

providing a basis for this exemption. 

Finally, the commenter should state any 

legal arguments in support of the 

exemption. This format of class/ 

summary/facts/argument should be 

sequentially followed for each class of 

work proposed as necessary. 

As discussed above, the best evidence 

in support of an exemption would 

consist of concrete examples or specific 

instances in which the prohibition on 

circumvention of technological 

measures protecting access has had or is 

likely to have an adverse effect on 

noninfringing uses. It would also be 

useful for the commenter to quantify the 

adverse effects in order to explain the 

scope of the present or likely problem. 

In the reply comments, persons who 

oppose or support any exemptions 

proposed in the initial comments will 

have the opportunity to respond to the 

proposals made in the initial comments 

and to provide factual information and 

legal argument addressing whether or 

not a proposed exemption should be 

adopted. Since the reply comments are 

intended to be responsive to the initial 

comments, reply commenters must 

identify which proposal(s) they are 

responding to, whether in opposition, 

support, amplification or correction. As 

with initial comments, reply comments 

should first identify the proposed class 

to which the reply is responsive, 

provide a summary of the argument, and 

then provide the factual and/or legal 

support for their argument. This format 

of class/summary/facts and/or legal 

argument should be repeated for each 

reply to a particular class of work 

proposed. 

The Copyright Office intends to place 

the comments and reply comments that 

are submitted in this proceeding on its 

public website (http:// 

www.copyright.gov/1201).1 Regardless 

of the mode of submission, all 

comments must, at a minimum, contain 

the legal name of the submitter and the 

entity, if any, on whose behalf the 

comment was submitted. If persons do 

not wish to have their address, 

telephone number, or email address 

publicly displayed on the Office’s 

website, comments should not include 

such information on the document itself 

but should only include the legal name 

of the commenter. The Office prefers 

that comments and reply comments be 

submitted in electronic form. However, 

the Office recognizes that persons may 

be unable to submit their comments 

through the Office’s website or to 

deliver their comments in person. 

Therefore, comments may also be 

delivered through the United States 

Postal Service, addressed to the General 

Counsel, Copyright GC/I&R, PO Box 

70400, Southwest Station, Washington, 

DC 20024–0400. Due to mail screening 

on Capitol Hill and possible delays in 

delivery, submission by means of the 

United States Postal Service is 

discouraged and there is a risk that the 

comment will not be received at the 

Copyright Office in time to be 

considered. Electronic filing or hand–

delivery will help insure timely receipt 

of comments by the Office. Electronic 

comments successfully submitted 

through the Office’s website will 

generate a confirmation receipt to the 

submitter and submitters hand–

delivering comments may request a date 

stamp on an extra copy provided by the 

submitter. 

Submission of Comments 

Comments may be submitted in the 

following ways: If submitted through 

the Copyright Office’s website: The 

Copyright Office’s website will contain 

a submission page at: http:// 

www.copyright.gov/1201/ 

commentlforms. Approximately thirty 

days prior to each applicable deadline 

(see DATES), the form page will be 

activated on the Copyright Office 

website allowing information to be 

entered into the required fields, 

including the name of the person 

making the submission, mailing 

address, telephone number, and email 

address. There will also be non–

required fields for, e.g., the commenter’s 

title, the organization that the 

commenter is representing, whether the 

commenter is likely to request to testify 

at public hearings and if so, whether the 

commenter is likely to prefer to testify 

in Washington, DC or a location in 

California. For initial comments, there 

will be two additional fields required: 1) 

the proposed class or classes of 

copyrighted work(s) to be exempted, 

and 2) a brief summary of the 

argument(s). For reply comments, there 

will be two similar required fields: 1) 

the class or classes to which the reply 

is responsive, including the initial 

comment numbers, and 2) a brief 

summary of the argument. 

The comment or reply comment itself 

must be sent as an attachment, and must 

be in a single file in either Adobe 

Portable Document File (PDF) format 

(preferred), Microsoft Word Version 

Federal Register / Vol. 70, No. 190 / Monday, October 3, 2005 / Proposed Rules 57531 

2003 or earlier, WordPerfect 9.0 or 

earlier, Rich Text Format (RTF), or 

ASCII text file format. There will be a 

browse button on the form that will 

allow submitters to attach the comment 

file to the form and then to submit the 

completed form to the Office. The 

personal information entered into the 

required fields on the form page will not 

be publicly posted on the Copyright 

Office website, but the Office intends to 

post on its website the proposed class 

and the summary of the argument, as 

well as the entire, attached comment 

document. Only the commenter’s name 

is required on the comment document 

itself and a commenter who does not 

want other personal information posted 

on the Office’s website should avoid 

including other private information on 

the comment itself. Except in 

exceptional circumstances, changes to 

the submitted comment will not be 

allowed and it will become a part of the 

permanent public record of this 

rulemaking. 

If by means of the United States 

Postal Service or hand delivery: Send, to 

the appropriate address listed above, 

two copies, each on a 3.5–inch write–

protected diskette or CD–ROM, labeled 

with the legal name of the person 

making the submission and the entity 

on whose behalf the comment was 

submitted, if any. The document itself 

must be in a single file in either Adobe 

Portable Document File (PDF) format 

(preferred), Microsoft Word Version 

2003 or earlier, WordPerfect Version 9 

or earlier, Rich Text Format (RTF), or 

ASCII text file document. If the 

comment is hand delivered or mailed to 

the Office and the submitter does not 

wish to have the address, telephone 

number, or email address publicly 

displayed on the Office’s website, the 

comment should not include such 

information on the document itself, but 

only the name and affiliation, if any, of 

the commenter. In that case, a cover 

letter should be included with the 

comment that contains the commenter’s 

address, phone number, email address, 

and for initial comments, the proposed 

class of copyrighted work to be 

exempted and a brief summary of the 

argument. 

Anyone who is unable to submit a 

comment in electronic form (on the 

website as an attachment or by means of 

the United States Postal Service or hand 

delivery on disk or CD–ROM) should 

submit an original and fifteen paper 

copies by hand or by means of the 

United States Postal Service to the 

appropriate address listed above. It may 

not be feasible for the Office to place 

these comments on its website. 

General Requirements for all 

submissions: All submissions (in either 

electronic or non–electronic form 

delivered through the website, by means 

of the United States Postal Service by 

hand–delivery or by courier) must 

contain on the comment itself, the name 

of the person making the submission 

and his or her title and affiliation, if the 

comment is being submitted on behalf 

of that organization. The mailing 

address, telephone number, telefax 

number, if any, and email address need 

not be included on the comment itself, 

but must be included in some form, e.g., 

on the website form or in a cover letter 

with the submission. All submissions 

must also include the class/summary/ 

factual and/or legal argument format in 

the comment itself for each class of 

work proposed or for each reply to a 

proposal. 

Initial comments and reply comments 

will be accepted for a 30–day period in 

each round, and a form will be placed 

on the Copyright Office website at least 

30 days prior to the deadline for 

submission. Initial comments will be 

accepted from November 2, 2005 until 

December 1, 2005, at 5:00 P.M. Eastern 

Standard Time, at which time the 

submission form will be removed from 

the website. Reply comments will be 

accepted from January 4, 2006 until 

February 2, 2006, at 5:00 P.M. Eastern 

Standard Time. 

4. Hearings and Further Comments 

The Register also plans on holding 

public hearings in the Spring after 

receipt of the comments and reply 

comments. The tentative dates for the 

Washington, DC hearings are currently 

March 29 and 31, 2006, and April 3 and 

4, 2006, and the hearings most likely 

will take place in the James Madison 

Memorial Building of the Library of 

Congress in Washington, DC. The dates 

and location of hearings for the West 

Coast have yet to be decided. A separate 

notice for details on all hearings in this 

rulemaking proceeding will be 

published at a later time in the Federal 

Register and on the Copyright Office’s 

website. In order to assist the Copyright 

Office in identifying the number of days 

for hearings, the comment and reply 

comment form page will contain non–

required fields asking whether the 

commenter is likely to request to testify 

and if so, in which location. Formal 

requests to testify will be solicited early 

in 2006. 

To provide sufficient flexibility in this 

proceeding, in the event that unforeseen 

developments occur that would 

significantly affect the Register’s 

recommendation, an opportunity to 

petition the Register for consideration of 

new information will be made available 

after the deadlines specified. A petition, 

including proposed new classes of 

works to be exempted, must be in 

writing and must set forth the reasons 

why the information could not have 

been made available earlier and why it 

should be considered by the Register 

after the deadline. A petition must also 

be accompanied by fifteen copies of any 

new proposed exemption that includes 

the proposed class of works to be 

exempted, a summary of the argument, 

the factual basis for such an exemption 

and the legal argument supporting such 

an exemption. These materials must be 

delivered to the Copyright Office at the 

address listed above. The Register will 

make a determination whether to accept 

such a petition based on the stage of the 

rulemaking process at which the request 

is made and the merits of the petition. 

If a petition is accepted, the Register 

will announce deadlines for comments 

in response to the petition. 

Dated: September 27, 2005 

Marybeth Peters, 

Register of Copyrights. 

[FR Doc. 05–19721 Filed 9–30–05; 8:45 am] 

BILLING CODE 1410–33–S 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 62 

[R07–OAR–2005–MO–0006; FRL–7978–2] 

Partial Approval and Partial 

Disapproval of Implementation Plans; 

State of Missouri 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: This action proposes to 

partially approve and partially 

disapprove a State Implementation Plan 

(SIP) submission by the state of 

Missouri which revises the Restriction 

of Emission of Sulfur Compounds rule. 

The Missouri rule establishes general 

requirements for emissions of sulfur 

compounds from various source 

categories, and establishes specific 

emissions requirements for certain 

named sources. 

We propose to approve most of the 

revisions to the rule because they 

involve clarifications, updates, and 

other improvements to the current rule. 

This proposed action does not include 

a portion of the rule that regulates 

ambient concentrations of sulfur 

compounds, because this provision is 

not in the current SIP, and we do not