Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Proposed Rules 58073 

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 and the Department of 

Homeland Security Management 

Directive 5100.1, which guides the 

Coast Guard in complying with the 

National Environmental Policy Act of 

1969 (NEPA) (42 U.S.C. 4321–4370f), 

and have made a preliminary 

determination that this action is not 

likely to have a significant effect on the 

human environment because it simply 

promulgates the operating regulations or 

procedures for drawbridges. We seek 

any comments or information that may 

lead to the discovery of a significant 

environmental impact from this 

proposed rule. 

List of Subjects in 33 CFR Part 117 

Bridges. 

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; 33 CFR 1.05–1; 

Department of Homeland Security Delegation 

No. 0170.1. 

2. Revise § 117.733(e) to read as 

follows: 

§ 117.733 New Jersey Intracoastal 

Waterway. 

* * * * * 

(e) The draw of the Route 30 Bridge 

across Beach Thorofare, mile 67.2 at 

Atlantic City, shall open on signal 

except that from April 1 through 

October 31 from 7 a.m. to 11 p.m., the 

draw need only open on the hour; At all 

other times, the draw need only open if 

at least four hours notice is given. 

* * * * * 

Dated: September 25, 2008. 

N.O. Buschman, 

Captain, Acting Commander, Fifth Coast 

Guard District. 

[FR Doc. E8–23604 Filed 10–3–08; 8:45 am] 

BILLING CODE 4910–15–P 

LIBRARY OF CONGRESS 

Copyright Office 

37 CFR Part 201 

[Docket No. RM 2008–8] 

Exemption to Prohibition on 

Circumvention of Copyright Protection 

Systems for Access Control 

Technologies 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Notice of inquiry. 

SUMMARY: The Copyright Office of the 

Library of Congress is preparing to 

conduct proceedings in accordance with 

provisions added by the Digital 

Millennium Copyright Act which 

provide 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 must be 

received no later than December 2, 

2008. A notice of proposed rulemaking 

will be published in December 2008 that 

will identify proposed classes of works 

and solicit comments on those proposed 

classes, which will be due no later than 

February 2, 2009. 

ADDRESSES: Electronic submissions 

should be made through the Copyright 

Office website: http:// 

www.copyright.gov/1201/comment– 

forms; see section 3 of the 

SUPPLEMENTARY INFORMATION 

section for file formats and other 

information about electronic and non– 

electronic filing requirements. If a non– 

electronic submission is hand delivered 

by a private party, an original and ten 

copies of any comment must be 

delivered 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 Avenue, SE., 

Washington, DC 20559–6000. If hand 

delivered by a commercial courier, an 

original and ten copies of 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 continuing delays), comments 

should be addressed to 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: 

Robert 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 

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. 

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58074 Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Proposed Rules 

Subparagraph (C) provides that every 

three years, the Librarian of Congress, 

upon the ecommendation of the Register 

of Copyrights (who is to consult with 

the Assistant Secretary for 

Communications and Information of the 

Department of Commerce) must ‘‘make 

the determination in a rulemaking 

proceeding for purposes of 

subparagraph (B) of 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 under subparagraph (A) in 

their ability to make noninfringing uses 

under this title of a particular class of 

copyrighted works.’’ The Librarian, on 

the recommendation of the Register, has 

thus far made three determinations as to 

classes of works to be exempted from 

the prohibition. The exemptions 

promulgated by the Librarian in the first 

rulemaking were in effect for the 3–year 

period from October 28, 2000, through 

October 28, 2003. See Exemption to 

Prohibition on Circumvention of 

Copyright Protection Systems for Access 

Control Technologies, 65 FR 64556, 

64564 (2000) (hereinafter Final Reg. 

2000). On October 28, 2003, the 

Librarian of Congress published 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 remained 

in effect for a 3–year period. On 

November 27, 2006, the Librarian of 

Congress published the third 

determination. Exemption to 

Prohibition on Circumvention of 

Copyright Protection Systems for Access 

Control Technologies, 71 FR 68472, 

68480 (2006) (hereinafter Final Reg. 

2006). The six exemptions established 

in the third anticircumvention 

rulemaking will remain in effect until 

October 28, 2009. All three of the 

previous 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 fourth 

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. 

A. 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). 

B. 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., 

decryption or hacking of access controls 

such as passwords or serial numbers. 

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,’’ 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 having 

lawful access to a work 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. The 

trafficking in, inter alia, any device or 

service that enabled others to 

circumvent such a technological 

protection measure may, however, be 

actionable under section 1201(b). 

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 section 1201(a)(1)(A). 

Commerce Comm. Report, at 36. This 

anticircumvention rulemaking is 

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Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Proposed Rules 58075 

1See infra for a discussion of proposals raised 

after the initial comment period has expired. 

2 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. 

Continued 

authorized to monitor the effect of the 

prohibition against ‘‘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). 

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, 65 FR at 64558. 

The ‘‘substantial’’ adverse 

requirement has also been described as 

a requirement that the proponent of an 

exemption must demonstrate ‘‘distinct, 

verifiable, and measurable impacts,’’ 

and more than ‘‘de minimis impacts.’’ 

See Final Reg. 2003, 68 FR at 62013. 

Whatever label one uses, proponents of 

an exemption bear the burden of 

providing sufficient evidence under this 

standard 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 evidence of 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 

currently 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. See 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, (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.’’). Conjecture alone is 

insufficient to support a finding of 

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

65 FR 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 justify 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. 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 cannot satisfy 

the requisite showing. House Manager’s 

Report, at 6. Proponents of exemptions 

must show sufficient harm to warrant an 

exemption from the default rule 

established by Congress – the 

prohibition against circumvention. 

There is a presumption that the 

section 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, 65 FR 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 justify an exemption 

in any particular rulemaking could find 

factual support in the context and on 

the record of another rulemaking. 

Evidence in support or in opposition 

to an exemption should be contained in 

the initial comments or, after 

publication of the proposed classes in 

the Federal Register, in the comments 

on the proposed exemptions. The 

purpose of this rulemaking is to survey 

interested parties in the digital 

environment to discover whether 

section 1201(a)(1) is adversely affecting 

noninfringing uses of particular classes 

of copyrighted works. The proposals 

received in the initial comments will 

frame the inquiry throughout the rest of 

the rulemaking process. The comments 

submitted in response to this Notice of 

Inquiry will be posted on the Copyright 

Office website shortly after submission, 

and a Notice of Proposed Rulemaking 

identifying the classes of works 

proposed will be published in the 

Federal Register shortly thereafter.1 The 

Notice of Proposed Rulemaking will 

invite copyright owners and other 

interested parties to offer their 

comments in support of or opposition to 

the proposed classes. Comments 

responsive to the proposed classes may 

also propose modest refinements to the 

proposed classes and supply additional 

evidence, but may not propose 

completely new classes of works. Since 

opponents to exemptions have only one 

comment period to provide written 

responses to the exemptions proposed, 

opponents should have sufficient notice 

of the exemptions to be addressed in the 

rulemaking. Copyright owners and other 

interested parties, however, should be 

vigilant in monitoring classes proposed 

in the initial comment period that may 

implicate their interests as such classes 

may be further refined in the ensuing 

rulemaking process. 

The Office will post all of the 

comments, hearing transcripts, and 

other relevant material in this 

rulemaking proceeding, as the Office 

has done since the inception of this 

rulemaking proceeding, on the 

Copyright Office’s website at: 

www.copyright.gov/1201.2

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58076 Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Proposed Rules 

If such material is available on the Internet, the 

comment should identify where the material may 

be found. 

3Proponents of an exemption may do so in their 

comments proposing exemptions. Opponents of an 

exemption should do so in their comments filed in 

response to the forthcoming Notice of Proposed 

Rulemaking. 

The Copyright Office will also 

conduct a series of hearings on the 

proposed exemptions in the Spring in 

Washington, DC and at a location or 

locations to be determined in California. 

These hearings will offer proponents 

and opponents of exemptions an 

opportunity to present arguments and 

answer questions from the Register and 

her staff. These hearings–the time, date 

and subject matter of which will be 

announced early in 2009–will not 

provide a forum in which to raise new 

proposals or to submit wholly new 

evidence. Evidence that demonstrates 

how a technological measure operates 

and affects noninfringing uses as well as 

evidence that is responsive to earlier 

disputes raised in the comment process 

is welcomed, and is encouraged, at 

these hearings. However, the hearings 

may not be used as a vehicle for surprise 

or to present untimely proposals. 

The Register is also likely to pose 

post–hearing questions to specific 

parties or witnesses that participated in 

the rulemaking proceeding. These 

questions have historically sought 

clarification of legal and factual 

questions, including specific requests to 

explain the operation of a technological 

measure at issue. Such post–hearing 

questions should not be construed as a 

general public post–hearing comment 

phase–there simply will not be 

sufficient time to consider another 

round of general public comments by 

the statutory deadline for the 

announcement of the newly exempted 

classes–but rather are invitations 

addressed to specific witnesses who 

have offered testimony on an issue to 

provide further clarification in response 

to specific questions from the Register. 

The questions and the responses to the 

questions will be posted on the 

Copyright Office’s website after the 

responses have been received. 

D. 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 at that time that the vast 

majority of these works were also 

available in analog format on VHS tapes. 

Final Reg. 2000, 65 FR 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 charged 

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, 65 FR 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. 

E. The Scope of the Term ‘‘Class of 

Works’’ 

Section 1201 does not define a critical 

term for the rulemaking process: a 

‘‘class of works.’’ With respect to this 

issue and others, commenters should 

familiarize themselves with the 

Register’s recommendation and the 

Librarian’s determination in the first 

rulemaking and in the subsequent two 

rulemakings, since many of the issues 

which were unsettled at the start of the 

first rulemaking have been addressed 

and developed in the three 

determinations. While the approach 

taken in resolving the issues raised in 

these rulemakings may continue to 

develop in this and subsequent 

proceedings, interested parties should 

assume that the standards developed 

thus far will continue to apply in the 

current proceeding. Of course, 

commenters may argue for adoption of 

alternative approaches,3 but a 

persuasive case will have to be made to 

warrant reconsideration of previous 

decisions regarding interpretation of 

section 1201. 

In the first rulemaking, the Register 

elicited views on the scope and meaning 

of the term ‘‘class of works.’’ After 

review of the statutory language, the 

legislative history and the extensive 

record in the proceeding [see Final Reg., 

65 FR at 64557 for a description of the 

record in the last rulemaking 

proceeding], the Register reached 

certain conclusions on the scope of this 

term. [For a more detailed discussion, 

see Final Reg., 65 FR at 64559.] 

The Register found that the statutory 

language required that the Librarian 

identify a ‘‘class of works’’ primarily 

based upon attributes of the works 

themselves, and not by reference to 

some external criteria such as the 

intended use or the 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. 

Therefore, 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., 65 FR at 

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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. 

In the first anticircumvention 

rulemaking, the Register recommended 

and the Librarian agreed that two 

classes of works should be exempted: 

1) Compilations consisting of lists of 

websites blocked by filtering software 

applications; and 

2) Literary works, including 

computer programs and databases, 

protected by access control mechanisms 

that fail to permit access because of 

malfunction, damage or obsoleteness. 

While the first class exempted fits 

comfortably within the approach to 

classification discussed above, the 

second class includes the entire 

category of literary works, but narrows 

the exemption by reference to attributes 

of the technological measures that 

controls access to the works. 

In the 2006 rulemaking, the Register 

determined that a further refinement of 

the approach to determining a particular 

class of works was warranted. Even 

though a class must begin, as its starting 

point, by reference to one of the 

categories of authorship enumerated in 

section 102 of the Copyright Act (or 

some subset thereof), that class should 

be further tailored to address the harm 

(actual or likely) alleged. The proper 

tailoring of a class will depend on the 

specific facts, but in some cases, the 

most appropriate manner of further 

tailoring the category or sub–category 

may be to limit the class in relation to 

particular uses or users. 

The impetus for this refinement was 

a proposed exemption for film and 

media studies professors. The 

proponents of the exemption 

demonstrated that the reproduction and 

public performance of short portions of 

motion pictures or other audiovisual 

works in the course of face–to–face 

teaching activities of a film or media 

studies course would generally 

constitute a noninfringing use. The 

proponents further demonstrated that 

the digital version of the motion 

pictures distributed on DVDs was not 

merely a preferred format, but that the 

digital version of these works was the 

only version of the work that met the 

pedagogical needs of the film and media 

studies professors. The proponents of 

the exemption also demonstrated that 

their otherwise noninfringing uses of 

the digital versions of these motion 

pictures were adversely affected by the 

prohibition on circumvention of 

technological measures protecting 

access to these works, because the 

Content Scrambling System (CSS) 

contained on most commercially 

released DVDs was an access control 

system that prevented the making of a 

compilation of film clips for classroom 

use. Although opponents of the 

exemption demonstrated a DVD player 

that was alleged to meet the pedagogical 

needs of educators, the device presented 

obstacles for classroom use that were 

found to be more than a mere 

inconvenience for a subset of users – 

film and media studies professors. 

The proponents met their burden of 

proving that section 1201(a)(1) was 

adversely affecting film and media 

studies educators’ ability to engage in 

noninfringing uses for the ensuing 3– 

year period and that no reasonable 

substitute for the pedagogically 

beneficial digital content was available 

or likely to become available in the next 

three years. The opponents of the 

proposal expressed concern that if the 

proposed class of works–audiovisual 

works included in the educational 

library of a college or university’s film 

or media studies department and that 

are protected by technological measures 

that prevent their educational use–was 

based only on attributes of the work 

itself, the exemption would necessarily 

exempt a much broader range of uses 

than those in which the film professors 

wished to engage. Moreover, copyright 

owners were concerned that such an 

exemption would create public 

confusion about the circumstances in 

which circumvention was appropriate. 

Given the expanse of such a class of 

works and the adverse effects that could 

occur as a result of confusion about the 

class, copyright owners argued that 

overall harm of such an exemption 

would outweigh the marginal benefits to 

this subset of educators. 

The Register concluded that a further 

refinement of the scope of a class of 

works was the proper balance to the 

valid concerns of both educators and 

copyright owners. By delineating the 

class in relation to the relevant 

noninfringing use proven to be, or likely 

to be, adversely affected by the 

prohibition on circumvention, film and 

media studies educators’ needs could be 

met while leaving the statutory 

prohibition against circumvention intact 

for that class with respect to other uses. 

In all proposed exemptions, the 

starting point for a class of works must 

be a section 102 category of authorship, 

or a subset thereof. That category or 

subset should then be tailored by other 

criteria as appropriate under the 

particular facts presented. The goal is to 

fashion an exemption that is neither too 

narrow nor too broad to remedially 

address the evidence of present and 

likely harm. An appropriately fashioned 

exemption will assist users and 

copyright owners alike, by temporarily 

suspending the prohibition on 

circumvention for appropriately tailored 

adversely affected classes, while 

preserving the prohibition in all other 

classes. 

The exemptions published for each 

three–year period are temporary and 

expire when the succeeding 

determination of the Librarian of 

Congress is published. This rulemaking 

will examine adverse effects existing in 

the marketplace or likely to exist in the 

next three–year period to determine 

whether any exemptions to the 

prohibition on circumvention of 

technological protection measures that 

effectively control access to copyrighted 

works are warranted by the evidence 

raised during this rulemaking. 

F. Considerations to Address within a 

Comment 

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, certain critical points 

should be established. First, a 

proponent should identify the 

technological measure that is the 

ultimate source of the alleged problem, 

and the proponent should explain how 

the technological measure effectively 

controls access to a copyrighted work. 

Second, a proponent must specifically 

explain what noninfringing activity the 

prohibition on circumvention is 

preventing. Third, a proponent should 

establish that the prevented activity is, 

in fact, a noninfringing use under 

current law. A proponent should also 

demonstrate why the access–protected 

copy of a work is needed for the 

noninfringing use and why alternate 

means of engaging in the noninfringing 

uses (including use of available copies 

of the work in unprotected formats), if 

they exist, are an insufficient substitute 

for accomplishing the noninfringing 

use. 

The nature of the Librarian’s inquiry 

is further delineated by the statutory 

areas to be examined by the Register of 

Copyrights: 

(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; 

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(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 with the 

harm that would result from an 

exemption. In some circumstances, the 

adverse effect of a proposed exemption 

in light of these considerations may be 

greater than the harm posed by the 

prohibition on circumvention of works 

in the proposed class. Perhaps the 

proper balance can be resolved by 

carefully tailoring the scope of the class, 

but ultimately, the determination of the 

Librarian must take all of these factors 

into account. 

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 fourth triennial 

rulemaking, the Register shall continue 

with the procedure adopted in the 

second and third rulemakings: 

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 (see section F above). 

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. 

This factual information should ideally 

include the technological measure that 

controls access and the manner in 

which this technological measure 

operates to control access to a 

copyrighted work. Finally, the 

commenter should state any legal 

arguments in support of the exemption, 

including the activity that is claimed to 

be noninfringing, the legal basis for this 

claim, and why this noninfringing 

activity cannot be accomplished in 

other ways. 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. 

Comments subsequently submitted in 

response to exemptions proposed in the 

first round of comments should provide 

factual information and legal argument 

addressing whether or not a proposed 

exemption should be adopted. Since the 

comments in this second round are 

intended to be responsive to the initial 

comments, commenters must identify 

which proposal(s) they are responding 

to, whether in opposition, support, 

amplification or correction. As with 

initial comments, these responsive 

comments should first identify the 

proposed class or classes to which the 

comment 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 comment 

responsive to a particular class of work 

proposed. 

Regardless of the mode of submission 

(see section 4 below), 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 all comments be 

submitted in electronic form and the 

electronic form will provide a place to 

provide the required information 

separately from the attached comment 

submission. 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 Office of the 

General Counsel, Copyright GC/I&R, PO 

Box 70400, Washington, DC 20024– 

0400. A comment submitted by mail or 

hand–delivery should include a cover 

sheet that includes the required 

information about the submitter (e.g., 

address, telephone, and email) and 

should not include this information in 

the comment itself if such information 

is not desired to be placed on the 

Copyright Office’s website. 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 ensure timely receipt 

of comments by the Office. Electronic 

comments successfully submitted 

through the Office’s website will 

generate a confirmation receipt to the 

submitter. 

4. 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/ 

comment–forms. 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. In addition, commenters 

proposing classes of works in the first 

round of comments will be required to 

fill in two additional fields: (1) the 

proposed class or classes of copyrighted 

work(s) to be exempted, and (2) a brief 

summary of the argument(s). 

Commenters submitting comments in 

response to the initial proposals will 

similarly be required to fill in two 

additional required fields: (1) the class 

or classes to which the comment is 

responsive, including the initial 

comment numbers, and (2) a brief 

summary of the argument. 

All comments submitted 

electronically 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 2003 or earlier, 

WordPerfect 12.0 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 name of the 

proponent, the proposed class and the 

summary of the argument, as well as the 

entire, attached comment document. 

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Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Proposed Rules 58079 

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 personal 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 submitted by means of the United 

States Postal Service or hand delivery: 

a. Electronic copies: 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 

2007 or earlier (.doc or .docx), 

WordPerfect Version 12.0 or earlier 

(.wpd) , Rich Text Format (.rtf), or ASCII 

text file (.txt) 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. 

b. Paper copies: 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 ten 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, fax 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 comment 

responsive to a proposed exemption. 

Comments will be accepted for a 30– 

day period, 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 3, 2008, until 

December 2, 2008, at 5:00 P.M. Eastern 

Standard Time, at which time the 

submission form will be removed from 

the website. The deadline for the second 

round of comments will be announced 

in the Notice of Proposed Rulemaking to 

be published in December, and will 

probably be on or about February 2, 

2008. 

5. Hearings 

As mentioned above, after the 

conclusion of the comment periods, the 

Register intends to hold public hearings 

in the Spring in Washington, DC and in 

California. The Washington, DC 

hearings will most likely take place in 

the James Madison Memorial Building 

of the Library of Congress. The dates 

and confirmed location of hearings in 

Washington, DC and California, have 

not yet been determined. 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 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 2009. 

As noted above, following the 

hearings, the Copyright Office may 

request additional information from 

parties who have been involved in the 

rulemaking process. Such requests for 

responses to questions will take the 

form of a letter from the Copyright 

Office and will be addressed to 

particular parties involved in an issue in 

which more information is sought. 

These inquiries will include deadlines 

based on when the requests for 

information are sent. After the receipt of 

all responses to all inquiries from the 

Copyright Office, the Office will post 

the questions, the parties to whom the 

questions were sent, and the responses 

on the Copyright Office’s website. 

6. Process for Untimely Submissions 

based on Exceptional or Unforeseen 

Circumstances 

To provide sufficient flexibility in this 

proceeding, in the event that unforeseen 

developments occur after the deadlines 

for the filing of initial comments, a 

person wishing to propose an 

exemption for a particular class of 

works after the specified deadline for 

initial comments may petition the 

Register to consider an additional 

exemption. 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 ten copies of a 

comment that meets the requirements 

for initial comments set forth in section 

3 above, 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. A person wishing to file any 

other untimely submission may also 

petition the Register to consider such 

submission, but such untimely 

submissions will be disfavored. 

Exceptional or unforeseen 

circumstances generally entail 

information that did not exist at the 

time of the comment periods. The 

Register will make a determination 

whether to accept a petition based on 

the stage of the rulemaking process at 

which the request is made and the 

merits of the petition. A substantively 

meritorious petition may be denied if 

the petition comes so late in the process 

that adequate notice and comment 

cannot be accommodated within the 

statutory time frame of the rulemaking 

process. The mere fact that an interested 

party was unaware of this proceeding or 

of any particular exemptions proposed 

in this proceeding is not a valid 

justification for a late submission. If a 

petition is accepted, the Register will 

publish the proposal in the Federal 

Register and announce deadlines for 

comments. If a petition is denied, the 

Register will set forth the reasons for the 

denial in a letter to the petitioner. All 

petitions and responses will become 

part of the public record in this 

rulemaking process. 

October 1, 2008 

Marybeth Peters, 

Register of Copyrights. 

[FR Doc. E8–23576 Filed 10–3–08; 8:45 am] 

BILLING CODE 1410–33–S 

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