[Federal Register Volume 79, Number 239 (Friday, December 12, 2014)]
[Proposed Rules]
[Pages 73856-73872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-29237]


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LIBRARY OF CONGRESS

 Copyright Office

37 CFR Part 201

[Docket No. 2014-07]


Exemption to Prohibition on Circumvention of Copyright Protection 
Systems for Access Control Technologies

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The United States Copyright Office is conducting the sixth 
triennial rulemaking proceeding under the Digital Millennium Copyright 
Act (``DMCA'') concerning possible exemptions to the DMCA's prohibition 
against circumvention of technological measures that control access to 
copyrighted works. On September 17, 2014, the Office published a Notice 
of Inquiry requesting petitions for proposed exemptions, and it has 
received forty-four petitions in response. With this Notice of Proposed 
Rulemaking, the Office is initiating three rounds of public comment on 
exemptions proposed in the petitions. Interested parties are invited to 
make full legal and evidentiary submissions in support of or opposition 
to the proposed exemptions, in accordance with the requirements set 
forth below. The Office is providing a ``long comment'' form for this 
purpose. The Office is also offering members of the public the 
opportunity to express general support for or opposition to any of the 
proposals via a ``short comment'' form. Commenters should carefully 
review the legal and evidentiary standards for the granting of 
exemptions under the DMCA, which are set forth in the September Notice 
of Inquiry. Commenters should also review the guidance provided in this 
document regarding specific areas of legal and factual interest with 
respect to each proposed exemption or category of exemptions, and the 
types of evidence that commenters may wish to submit for the record. 
This document also provides information concerning the recommended 
format and content for submissions, including documentary and 
multimedia evidence.

DATES: Initial written comments (including documentary evidence) and 
multimedia evidence from proponents and other members of the public who 
support the adoption of a proposed exemption, as well as parties that 
neither support nor oppose an exemption but seek to share pertinent 
information about a proposal, are due February 6, 2015. Written 
response comments (including documentary evidence) and multimedia 
evidence from those who oppose the adoption of a proposed exemption are 
due March 27, 2015. Written reply comments from supporters of 
particular proposals and parties that neither support nor oppose a 
proposal are due May 1, 2015.

ADDRESSES: The Copyright Office strongly prefers that written comments 
be submitted electronically using the comment submission page on the 
Copyright Office Web site at http://www.copyright.gov/1201/. Commenters 
are required to provide separate submissions for each proposed class 
during each stage of the public comment period. Although a single 
comment may not encompass more than one proposed class, the same party 
may submit comments on multiple classes.
    As noted, the Office is providing two comment forms on its Web 
site: A long form for those who wish to provide a full legal and 
evidentiary basis for their position in support of or opposition to a 
proposed exemption, and a short form for those who wish briefly to 
express general support for or opposition to a proposed exemption. The 
formats and content of these forms are described in the SUPPLEMENTARY 
INFORMATION section below. Long form comments should be submitted 
together with any documentary evidence. To meet accessibility 
standards, written comments and all associated documentary evidence 
(but not multimedia evidence, as discussed below) must be uploaded in a 
single file in either Portable Document File (PDF) format that contains 
searchable, accessible text (not an image); Microsoft Word; 
WordPerfect; Rich Text Format (RTF); or ASCII text file format (not a 
scanned document). The maximum file size is 6 megabytes (MB). The name 
of the submitter (and organization) should appear on both the 
submission form and the face of the comment.
    Commenters submitting long form comments may also separately submit 
multimedia evidence, as further explained in the Supplementary 
Information section below. Commenters submitting multimedia evidence 
should so indicate on the first page of their written submission. 
Multimedia evidence should not be uploaded via the Web site; instead, 
it should be delivered to the Office, together with a hard copy of the 
written comment, on a CD-ROM, DVD-ROM, or flash drive in one of the 
acceptable file formats listed on the Copyright Office Web site at 
http://copyright.gov/eco/help-file-types.html. The disc or flash drive 
should be labeled with the name of the submitter and the number of the 
proposed class to which the evidence pertains. The file name of each 
file contained on the disc or flash drive should consist of the 
submitter's name, followed by the proposed class number and exhibit 
number, in the following format: ``Jane Smith Class 1 Ex. 1.'' 
Multimedia evidence may be submitted either by U.S. mail addressed to 
Copyright Office, Office of General Counsel, P.O. Box 70400, 
Washington, DC 20024, or by hand delivery to Room LM-403 of the 
Copyright Office in the James Madison Memorial Building of the Library 
of Congress, 101 Independence Ave. SE., Washington, DC 20540. In either 
case, to ensure proper delivery, the package should be clearly labeled 
``Attention:

[[Page 73857]]

Office of General Counsel--Section 1201 Proceeding.''
    All written comments and documentary evidence will be posted 
publicly on the Copyright Office Web site in the form in which they are 
received. Depending upon technological constraints and other factors, 
the Office may also post some or all multimedia evidence on its Web 
site, with the remainder made available for inspection and copying at 
the Office upon written email request to the Office of General Counsel 
using the contact information provided below. If a commenter cannot 
meet a particular submission requirement, the commenter should contact 
the Copyright Office using the contact information provided below.

FOR FURTHER INFORMATION CONTACT: Jacqueline C. Charlesworth, General 
Counsel and Associate Register of Copyrights, by email at 
<a href="/cdn-cgi/l/email-protection#69030a01081b050c1a1e061b1d012905060a470e061f"><span class="__cf_email__" data-cfemail="96fcf5fef7e4faf3e5e1f9e4e2fed6faf9f5b8f1f9e0">[email protected]</span></a> or by telephone at 202-707-8350; Sarang V. Damle, 
Special Advisor to the General Counsel, by email at <a href="/cdn-cgi/l/email-protection#bac9dedbd7fad6d5d994ddd5cc"><span class="__cf_email__" data-cfemail="9ceff8fdf1dcf0f3ffb2fbf3ea">[email protected]</span></a> or by 
telephone at 202-707-8350; or Stephen Ruwe, Attorney-Advisor, by email 
at <a href="/cdn-cgi/l/email-protection#ee9d9c9b998bae82818dc0898198"><span class="__cf_email__" data-cfemail="730001060416331f1c105d141c05">[email protected]</span></a> or by telephone at 202-707-8350.

SUPPLEMENTARY INFORMATION: On September 17, 2014, the Copyright Office 
published a Notice of Inquiry (``September Notice'') in the Federal 
Register to initiate the sixth triennial rulemaking proceeding under 17 
U.S.C. 1201(a)(1) to determine whether there are any classes of 
copyrighted works for which noninfringing uses are, or in the next 
three years are likely to be, adversely affected by the prohibition on 
circumvention of technological protection measures (``TPMs'') that 
control access to copyrighted works (sometimes also referred to as 
``access controls'').\1\ The September Notice invited interested 
parties to submit petitions for proposed exemptions that set forth the 
essential elements of the exemption.\2\
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    \1\ 79 FR 55687 (Sept. 17, 2014).
    \2\ Id. at 55692-93.
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    The Office received forty-four petitions in response to the 
September Notice, which are posted on the Copyright Office Web site.\3\ 
With this Notice of Proposed Rulemaking, the Office is initiating three 
rounds of public written comment regarding the proposed exemptions.
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    \3\ See http://copyright.gov/1201/2014/petitions/. References to 
these petitions in this document are by party name followed by 
``Pet.'' Where a single party has filed multiple petitions, the 
reference will include the party name and a short description of the 
relevant proposal (e.g., ``EFF Jailbreaking Pet.'').
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I. Written Comments

    Persons wishing to address proposed exemptions in written comments 
should carefully review the September Notice to familiarize themselves 
with the substantive legal and evidentiary standards for the granting 
of an exemption under section 1201(a)(1).\4\ In addressing factual 
matters, commenters should be aware that the Office favors specific, 
``real-world'' examples supported by evidence over speculative, 
hypothetical observations. For example, a proponent seeking to 
demonstrate that a TPM is having or is likely to have adverse effects 
should provide detailed evidence of actual noninfringing uses that are 
precluded by the TPM, rather than conclusory declarations or isolated 
harms. Likewise, an opponent seeking to establish, for instance, that 
alternative means of accessing the work obviate the need for an 
exemption should provide specific and detailed evidence of such 
alternatives rather than unsupported assertions.
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    \4\ 79 FR at 55689-91.
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    Commenters' legal analysis should explain why the proposal meets or 
fails to meet the criteria for an exemption under section 1201(a)(1), 
including, without limitation, why the uses sought are or are not 
noninfringing as a matter of law. The legal analysis should also 
identify and discuss statutory or other legal provisions that could 
impact the necessity for or scope of the proposed exemption (for 
example, the Unlocking Consumer Choice and Wireless Competition Act 
(``Unlocking Act''),\5\ or 17 U.S.C. 117). Legal assertions should be 
supported by statutory citations, relevant case law, and other 
pertinent authority.
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    \5\ Pub. L. 113-144, sec. 2(b)-(c), 128 Stat. 1751, 1751-52 
(2014).
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    The Office is accepting comments in two ways. First, commenters who 
wish to provide a legal and evidentiary basis for their position may 
submit comments in a long form format as set forth below. To assist 
participants, the Office has posted a recommended form for such longer 
submissions on its Web site at http://copyright.gov/1201/.
    Second, for those commenters who wish only to briefly express 
general support for or opposition to a proposed exemption, the Office 
has provided a short form for single-page comments, also available at 
http://copyright.gov/1201/, which may be completed and uploaded to the 
Office's Web site.
    The deadlines for each round of submissions are set forth in the 
DATES section above. Commenting parties should be aware that rather 
than reserve time for potential extensions of time to file comments, 
the Office has already established what it believes to be the most 
generous possible deadlines consistent with the goal of concluding the 
triennial proceeding in a timely fashion.
    To ensure a clear and definite record for each of the proposals, as 
explained in the September Notice, both long form and short form 
commenters are required to provide a separate submission for each 
proposed class during each stage of the public comment period. Although 
a single comment may not address more than one proposed class, the same 
party may submit multiple written comments on different proposals. For 
example, a commenter may not submit a single comment addressing both 
Class 7 and Class 8, but may submit two comments addressing each 
separately. The Office acknowledges that the requirement of separate 
submissions may require commenters to repeat certain information across 
multiple submissions, but the Office believes that the administrative 
benefits for both participants and the Office of creating a self-
contained, separate record for each proposal will be worth the modest 
amount of added effort.\6\
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    \6\ See 79 FR at 55692.
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    The first round of public comment is limited to submissions from 
the proponents (i.e., those parties who proposed exemptions during the 
petition phase) and other members of the public who support the 
adoption of a proposed exemption, as well as any members of the public 
who neither support nor oppose an exemption but seek only to share 
pertinent information about a specific proposal.\7\ Proponents of 
exemptions--as well as supporters--should present their complete 
affirmative case for an exemption during the initial round of public 
comment, including all legal and evidentiary support for the proposal. 
Those who neither support nor oppose an exemption but seek to offer 
relevant evidence in response to a proposal should also file comments 
in the initial round.
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    \7\ These submissions may suggest refinements to the proposed 
exemptions, but may not propose entirely new exemptions.
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    Members of the public who oppose an exemption should present the 
full legal and evidentiary basis for their opposition in the second 
round of public comment.
    The third round of public comment will be limited to proponents and 
supporters of particular proposals, and those who neither support nor 
oppose a proposal, in either case who seek to reply to points made in 
the earlier

[[Page 73858]]

rounds of comments. Reply comments should not raise new issues, but 
should instead be limited to addressing arguments and evidence 
presented by others.
    Parties seeking to make submissions who believe they cannot adhere 
to the guidelines set forth in this notice should contact the Office, 
using the contact information above, to discuss their concern.

Long Form Comment Guidelines

    Commenters who wish to submit long form comments are strongly 
encouraged to use the long comment form template available on the 
Office's Web site at http://copyright.gov/1201/. Long form comments 
should be limited to 25 pages in length (which may be single-spaced but 
should be in at least 12-point type), not including any documentary 
evidence attached to the comment.
    Proponents' initial comments should, at a minimum, address the 
below points in separately labeled sections, as indicated below and set 
forth on the long comment form template. Others who wish to provide a 
legal and/or evidentiary submission in support of or in opposition to 
an exemption should follow the same format, as should those submitting 
reply comments. While, as noted, proponents should complete each 
portion of the long form in making their initial submission, other 
commenters (including reply commenters) may note ``N/A'' in any 
substantive section of the template that they do not wish to complete.
    <bullet> Commenter Information. Identify the commenter, and, if 
desired, provide a means for others to contact the submitter or an 
authorized representative of the submitter by email and/or telephone. 
(Parties should keep in mind that any private, confidential, or 
personally identifiable information appearing in their submissions will 
be accessible to the public.)
    <bullet> Proposed Class Addressed. Identify the proposed exemption 
the comment addresses by the number and name of the class set forth in 
this Notice of Proposed Rulemaking (e.g., ``Proposed Class 7: 
Audiovisual works--noncommercial remix videos).
    <bullet> Overview. Provide a brief, general explanation of the 
circumvention activity sought to be exempted or opposed and why.
    <bullet> Technological Protection Measure(s) and Method(s) of 
Circumvention. Describe the TPM(s) that control access to the work and 
method(s) of circumvention. The description should provide sufficient 
information to allow the Office to understand the nature and basic 
operation of the relevant technologies, as well as how they are 
disabled or bypassed.
    <bullet> Asserted Noninfringing Use(s). Explain the asserted 
noninfringing use(s) of copyrighted works said to be facilitated by the 
proposed exemption. Commenters should provide an evidentiary basis to 
support their arguments regarding noninfringing uses, including 
discussion or refutation of specific examples of such uses and, if 
available, relevant documentary and/or multimedia evidence. This 
section should identify all statutory provisions, case law, and/or 
other legal authority the commenter wishes the Office to consider in 
connection with the analysis of whether the asserted uses are 
noninfringing.
    <bullet> Adverse Effects. Explain whether the inability to 
circumvent the TPM(s) at issue has or is likely to have adverse effects 
on the asserted noninfringing use(s). The adverse effects can be 
current, or may be adverse effects that are likely to occur during the 
next three years, or both. Commenters should also address potential 
alternatives that permit users to engage in the asserted noninfringing 
use(s) without the need for circumvention. Commenters should provide an 
evidentiary basis to support their arguments regarding asserted adverse 
effects, including discussion or refutation of specific examples of 
such uses and, if available, relevant documentary or multimedia 
evidence. This section should identify all statutory provisions, case 
law, and/or other legal authority the commenter wishes the Office to 
consider in connection with the analysis of the claimed adverse 
effects.
    <bullet> Statutory Factors. Evaluate the proposed exemption in 
light of each of the statutory factors set forth in 17 U.S.C. 
1201(a)(1)(C): (i) The availability for use of copyrighted works; (ii) 
the availability for use of works for nonprofit archival, preservation, 
and educational purposes; (iii) the impact that the prohibition on the 
circumvention of TPMs applied to copyrighted works has on criticism, 
comment, news reporting, teaching, scholarship, or research; (iv) the 
effect of circumvention of TPMs on the market for or value of 
copyrighted works; and (v) any other factor that may be appropriate for 
the Librarian to consider in evaluating the exemption. This section 
should identify all statutory provisions, case law, and/or other legal 
authority the commenter wishes the Office to consider in connection 
with the analysis of these factors.
    <bullet> Documentary evidence. Commenters are encouraged to submit 
documentary evidence to support or illustrate the information and 
arguments addressed in the written comments. As indicated in the 
ADDRESSES section above, such documentary evidence must be attached to 
the written comment (though it does not count towards the 25-page 
limit).
    <bullet> Multimedia evidence. Commenters are also encouraged, when 
feasible, to submit multimedia evidence to support or illustrate 
relevant technologies or points made in written comments. Multimedia 
evidence must be submitted separately via mail or hand-delivered to the 
Office and must be contained on specified digital media, in an approved 
file format, and appropriately labeled, as described in the ADDRESSES 
section above. Where possible and permissible to post the multimedia 
submission on a publicly accessible Web site, commenters may wish to 
include a link to the materials in their comments (although providing 
such a link is not a substitute for the submission of a physical copy 
to the Office for inclusion in the official record). As noted above, 
the Office may post some or all multimedia evidence to its Web site, 
depending upon file types and sizes, overall volume, and other 
constraints. To the extent a multimedia submission is not made 
available on the Office's Web site, the Office will make it available 
for public inspection and copying at the Copyright Office upon written 
email request. Copying charges for multimedia files will be assessed at 
the applicable Office rate under 37 CFR 201.3 for copies of the 
relevant type. If there are unusual practical or other constraints that 
preclude the submission of multimedia evidence with the initial written 
comment, the commenter should contact the Office at least 21 days 
before the applicable submission deadline to discuss whether it would 
be appropriate to provide a live demonstration at the public hearing 
and, if so, how any such demonstration would be captured for the 
official record.

Short Form Comment Guidelines

    <bullet> Commenters who wish to submit a brief statement in support 
of or opposition to a particular proposed exemption are strongly 
encouraged to use the short comment form template available at http://www.copyright.gov/1201/. After supplying the Commenter Information and 
noting the Proposed Class Addressed as described above, the commenter 
may offer a general statement of support or opposition. Short form 
comment submissions should not exceed one single-spaced typed page (in 
at least 12-point type).

[[Page 73859]]

II. Review and Classification of Proposed Exemptions

    The Office has reviewed and classified the proposed exemptions set 
forth in the forty-four petitions received in response to its September 
Notice, in some cases combining overlapping or similar proposed 
exemptions, and in other cases subdividing proposals to allow for a 
more focused record, as detailed below.
    At the outset, the Office observes that three of the petitions seek 
an exemption that cannot be granted as a matter of law, as each seeks 
to permit circumvention of any and all TPMs constituting ``DRM'' \8\ 
with respect to unspecified types of copyrighted works for the purpose 
of engaging in unidentified personal and/or consumer uses.\9\ As the 
Office explained in its September Notice, the DMCA provides that any 
exemptions adopted as part of this rulemaking must be defined based on 
``a particular class of works.'' \10\ And, as legislative history 
elaborates, ``the `particular class of copyrighted works' [is intended 
to] be a narrow and focused subset of the broad categories of works . . 
. identified in Section 102 of the Copyright Act.'' \11\ That is 
because the purpose of the rulemaking is to ``allow the enforceability 
of the prohibition against the act of circumvention to be selectively 
waived, for limited time periods, if necessary to prevent a diminution 
in the availability to individual users of a particular category of 
copyrighted materials.'' \12\
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    \8\ ``DRM,'' or digital rights management, is content protection 
software intended to prevent unauthorized redistribution of 
copyrighted material. See, e.g., In re Sony BMG Audio Compact Disc 
Litig., 429 F. Supp. 2d 1378, 1380 (J.P.M.L. 2006).
    \9\ See Eldridge Alexander Pet. at 1 (asking the Office to ``add 
an exemption to the DMCA that allows for the removal of DRM for 
personal, legal uses.''); Ed Grossheim Pet. at 1 (``If I purchase a 
product it should be mine to do with as I choose without violating 
copyright.''); Jeremy Putnam Pet. at 1 (``I ask that legal 
exceptions be made for consumers to remove DRM from all digital 
content without repercussion.'').
    \10\ 17 U.S.C. 1201(a)(1)(B) (emphasis added); see also 79 FR at 
55690-91.
    \11\ Report of the H. Comm. on Commerce on the Digital 
Millennium Copyright Act of 1998, H.R. Rep. No. 105-551, pt. 2, at 
38 (1992) (emphasis added).
    \12\ Id. at 36 (emphases added).
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    In contrast, the three petitions at issue seek an exemption for all 
works in all media. Moreover, these broad petitions fail to identify 
``distinct'' and ``measurable'' impacts on noninfringing uses as 
contemplated by the DMCA.\13\ Because it is apparent that the Office 
may not adopt the sweeping type of exemption proposed by these three 
petitions consistent with the standards of section 1201(a)(1), the 
Office declines to put these proposals forward for public comment.\14\
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    \13\ See id. at 37; see also 17 U.S.C. 1201(a)(1)(C).
    \14\ See 79 FR at 55693.
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    The Office has studied the remaining forty-one proposals and 
categorized them into twenty-seven proposed classes of works. In some 
cases, overlapping proposals have been merged into a single proposed 
class. In other cases, individual proposals that encompass multiple 
proposed uses have been subdivided. For administrative convenience, 
similar or related classes have also been grouped into overarching 
categories; the Office notes, however, that it will be considering 
exemptions on a class-by-class basis.
    The Office further notes that it has not put forward precise 
regulatory language for the proposed classes, because any specific 
language for exemptions that the Register ultimately recommends to the 
Librarian will necessarily depend on the full record developed during 
this rulemaking.\15\ Instead, each proposed class is briefly described 
in Part III below; additional information about the proposals can be 
found in the underlying petitions posted on the Office's Web site. As 
explained in the September Notice, the proposed classes as described 
here ``represent only a starting point for further consideration in the 
rulemaking proceeding, and will be subject to further refinement based 
on the record.'' \16\
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    \15\ Id. at 55692.
    \16\ Id. at 55693.
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    In addition, after examining the petitions, the Office has 
preliminarily identified some initial legal and factual areas of 
interest with respect to each proposed class. The Office, accordingly, 
offers guidance below concerning legal and factual issues that 
commenters may wish to address in connection with particular proposals, 
as well as particular types of evidence that they may wish to submit. 
The Office stresses, however, that this preliminary guidance is not 
exhaustive, and commenters should consider and offer all legal argument 
and evidence they believe necessary to create a complete record. In 
addition, the Office's early observations are offered without prejudice 
to the Office's ability to raise other questions or concerns at later 
stages of the proceeding.

III. The Proposed Classes

A. Audiovisual Works on DVD, Blu-Ray, and Downloaded/Streamed Video

    Several petitions seek exemptions for circumvention of access 
controls protecting audiovisual works embodied on DVDs, on Blu-ray 
discs, and/or in downloaded or streamed videos in connection with three 
general categories of uses--educational uses; derivative uses; and 
format and space-shifting. These proposals raise some shared concerns, 
including the impact of TPMs on the alleged noninfringing uses of 
audiovisual works and whether alternative methods of accessing the 
content, such as screen-capture technology, could alleviate potential 
adverse impacts. Nonetheless, the evidentiary support for these 
proposed exemptions is likely to vary according to the specific formats 
and proposed uses. For example, a film studies professor may have a 
different need to access higher-resolution material than a teacher 
displaying an excerpt of a copyrighted work to a kindergarten class, 
and distribution standards for commercial documentary films may require 
use of higher-resolution material than required for use in 
noncommercial remix videos. Accordingly, the Office has further 
subdivided the three general categories of uses into more specific 
individual classes to permit proponents to better focus their 
submissions.
1. Audiovisual Works--Educational Uses
    Multiple petitions seek exemptions for educational uses of 
audiovisual works. The Office notes that prior rulemakings have granted 
exemptions relating to uses of motion picture excerpts for commentary, 
criticism, and educational uses by college and university faculty and 
staff and by kindergarten through twelfth-grade educators.\17\ The 
current petitions generally seek to readopt those previously granted 
exemptions, and some also seek to expand an exemption to accommodate 
additional technologies, such as Blu-ray discs, or new users, such as 
museums, libraries, or students and faculty participating in Massive 
Open Online Courses (``MOOCs'').
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    \17\ 37 CFR 201.40(b)(4)-(7) (2013). See 77 FR 65260, 65266-70 
(Oct. 26, 2012) (discussing the most recent prior exemptions).-
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    The Office has identified some legal and factual issues that appear 
common to all of the proposed classes relating to educational uses of 
audiovisual works. In addition to other more specific areas of concern, 
for each of these proposals, the Office encourages commenters, in the 
course of detailing how the proposed exemption meets the legal and 
evidentiary requirements of section 1201(a)(1), to also address--
including through the submission of relevant evidence--the following:

[[Page 73860]]

    <bullet> Whether the proposed exemptions may be limited to ``motion 
pictures'' as defined under the Copyright Act \18\ as opposed to all 
``audiovisual works'' \19\ (a broader category that encompasses, for 
example, video games).
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    \18\ ```Motion pictures' are audiovisual works consisting of a 
series of related images which, when shown in succession, impart an 
impression of motion, together with accompanying sounds, if any.'' 
17 U.S.C. 101.
    \19\ ```Audiovisual works' are works that consist of a series of 
related images which are intrinsically intended to be shown by the 
use of machines or devices such as projectors, viewers, or 
electronic equipment, together with accompanying sounds, if any, 
regardless of the nature of the material objects, such as films or 
tapes, in which the works are embodied.'' Id.
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    <bullet> For each type of requested use, whether circumvention 
alternatives, such as licensing or screen-capture technology, obviate 
the need for an exemption.
    <bullet> Specific examples illustrating the need for the exemption 
to extend beyond DVDs to other formats, such as Blu-ray discs and TPM-
protected content distributed online.
(a) Proposed Class 1: Audiovisual Works--Educational Uses--Colleges and 
Universities
    This proposed class would allow college and university faculty and 
students to circumvent access controls on lawfully made and acquired 
motion pictures and other audiovisual works for purposes of criticism 
and comment. This exemption has been requested for audiovisual material 
made available in all formats, including DVDs protected by the Content 
Scramble System (``CSS''), Blu-ray discs protected by the Advanced 
Access Content System (``AACS''), and TPM-protected online distribution 
services.
    Professor Peter Decherney, the College Art Association, the 
International Communication Association, and the Society for Cinema and 
Media Studies (collectively referred to here as ``Joint Educators'') 
have filed a petition seeking adoption of a revised version of the 
previously granted exemptions to permit circumvention of TPMs on DVDs, 
Blu-ray discs, and videos acquired via online distribution services, 
for purposes of facilitating educational uses of motion picture 
excerpts at the college and university level.\20\
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    \20\ Joint Educators propose, in relevant part, the following 
regulatory language: ``audiovisual works embodied in physical media 
(such as DVDs and Blu-Ray Discs) or obtained online (such as through 
online distribution services and streaming media) that are lawfully 
made and acquired and that are protected by various technological 
protection measures, where the circumvention is accomplished by 
college and university students or faculty (including teaching and 
research assistants).'' Joint Educators Pet. at 1. See 37 CFR 
201.40(b)(4)-(7) (2013); 77 FR at 65266-70.
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    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> The proposed scope of the exemption, such as (a) whether 
it can be limited to uses requiring close analysis of the copyrighted 
work (such as in a film studies course), as opposed to general-purpose 
classroom uses, (b) whether it needs to extend to Blu-ray in addition 
to other formats, and (c) whether the exemption should be extended to 
students in addition to materials prepared by faculty.
    <bullet> Any changed circumstances in the need for an exemption 
over the last three years, including whether any viable alternatives to 
circumvention have emerged or evolved during this period.
    <bullet> Whether the previously granted exemption has had an 
adverse effect on the marketplace for the accessed copyrighted works.
(b) Proposed Class 2: Audiovisual Works--Educational Uses--Primary and 
Secondary Schools (K-12)
    This proposed class would allow kindergarten through twelfth-grade 
educators and students to circumvent access controls on lawfully made 
and acquired motion pictures and other audiovisual works for 
educational purposes. This exemption has been requested for audiovisual 
material made available in all formats, including DVDs protected by 
CSS, Blu-ray discs protected by AACS, and TPM-protected online 
distribution services.
    Two submitters--Professor Renee Hobbs and the Library Copyright 
Alliance (``LCA'')--filed petitions seeking adoption of a revised 
version of the previously granted exemption to permit circumvention of 
TPMs on DVDs, Blu-ray discs, and videos acquired via online 
distribution services, for purposes of facilitating educational uses of 
motion picture excerpts by kindergarten through twelfth grade educators 
and students.\21\
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    \21\ Hobbs proposes ``an exemption that enables educators and 
students in grades K-12 . . . to `rip' encrypted or copy-protected 
lawfully accessed audiovisual works used for educational purposes.'' 
Hobbs Pet. at 1. LCA requests ``renewal of the exemption granted in 
the 2012 rulemaking for motion picture excerpts. The exemption 
should be broadened to apply to all storage media, including Blu-
Ray. Further, the exemption for educational purposes should be 
expanded to apply to students in kindergarten through twelfth grade. 
LCA also seeks simplification of the exemption so that it could be 
readily understood by the authors, filmmakers, students, and 
educators it is intended to benefit.'' LCA Motion Picture Pet. at 1. 
See 37 CFR 201.40(b)(4)-(7) (2013); 77 FR at 65266-70.
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> The proposed scope of the exemption, such as (a) whether 
it can be limited to uses requiring close analysis of the copyrighted 
work, as opposed to general-purpose classroom uses, (b) whether it 
needs to extend to Blu-ray in addition to other formats, and (c) 
whether it can be limited to materials prepared by faculty.
    <bullet> Any changed circumstances in the need for an exemption 
over the last three years, including whether any viable alternatives to 
circumvention have emerged or evolved during this period.
    <bullet> Whether the previously granted exemption has had an 
adverse effect on the marketplace for the accessed copyrighted works.
(c) Proposed Class 3: Audiovisual Works--Educational Uses--Massive Open 
Online Courses (``MOOCs'')
    This proposed class would allow students and faculty participating 
in Massive Open Online Courses (``MOOCs'') to circumvent access 
controls on lawfully made and acquired motion pictures and other 
audiovisual works for purposes of criticism and comment. This exemption 
has been requested for audiovisual material made available in all 
formats, including DVDs protected by CSS, Blu-ray discs protected by 
AACS, and TPM-protected online distribution services.
    The Joint Educators petition requests that any exemption for 
college and university faculty and staff include those participating in 
MOOCs, a type of distance education which has become increasingly 
popular over the last few years.\22\
---------------------------------------------------------------------------

    \22\ Joint Educators, in relevant part, propose the following 
regulatory language: ``audiovisual works embodied in physical media 
(such as DVDs and Blu-Ray Discs) or obtained online (such as through 
online distribution services and streaming media) that are lawfully 
made and acquired and that are protected by various technological 
protection measures, where the circumvention is accomplished by . . 
. students and faculty participating in Massive Open Online Courses 
(MOOCs) for the purpose of criticism or comment.'' Joint Educators 
Pet. at 1.
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the

[[Page 73861]]

submission of relevant evidence--the following:
    <bullet> The definition of a ``MOOC'' for purpose of the proposed 
exemption, with reference to the various distinctions among MOOCs in 
relation to the proposed exemption, including but not limited to (a) 
courses offered with free and open content versus courses that require 
course materials to be licensed by users, (b) courses requiring 
registration and/or identity verification versus courses without such 
requirements, (c) courses offered for free versus paid courses, and (d) 
whether the provider is a nonprofit or for-profit entity.
    <bullet> How the proposed exemption might affect the market for or 
value of the accessed copyrighted works, including how access to 
materials resulting from circumvention of TPMs could be limited to the 
intended audience.
    <bullet> Whether or how the exception in 17 U.S.C. 110(2) for 
distance education is relevant the proposed exemption.
    <bullet> The proposed scope of the exemption (in light of the 
proposed definition of MOOC), including (a) whether the exemption can 
be limited to lower-resolution content, (b) whether it can be limited 
to uses requiring close analysis of the copyrighted work, and (c) 
whether it can be limited to materials prepared by faculty.
(d) Proposed Class 4: Audiovisual Works--Educational Uses--Educational 
Programs Operated by Museums, libraries, or Nonprofits
    This proposed class would allow educators and learners in 
libraries, museums and nonprofit organizations to circumvent access 
controls on lawfully made and acquired motion pictures and other 
audiovisual works for educational purposes. This exemption has been 
requested for audiovisual material made available in all formats, 
including DVDs protected by CSS, Blu-ray discs protected by AACS, and 
TPM-protected online distribution services.
    Professor Hobbs has proposed that any exemption for kindergarten 
through twelfth-grade educators and students include ``educators and 
learners'' in libraries, museums, and nonprofit organizations.\23\
---------------------------------------------------------------------------

    \23\ Hobbs proposes that the Register recommend ``an exemption 
that enables . . . educators and learners in libraries, museum and 
nonprofit organizations to `rip' encrypted or copy-protected 
lawfully accessed audiovisual works used for educational purposes.'' 
Hobbs Pet. at 1.
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> The proposed scope of the exemption, such as (a) whether 
the exemption can be limited to video production, film, and media 
studies and/or other close analysis of copyrighted works, (b) whether 
it can be limited to lower-resolution media, (c) the people who would 
be entitled to use the exemption, including an explanation of who would 
be included in the proposed categories of ``educators'' and 
``learners,'' (d) whether the exemption can be limited to prepared 
presentations by museums, libraries and non-profit entities, and (e) 
whether the exemption can be limited to use and display within physical 
spaces as opposed to online use and display.
    <bullet> How the proposed exemption might affect the market for or 
value of the accessed copyrighted works, including how access to 
materials resulting from circumvention of TPMs could be limited to the 
intended users and intended uses.
2. Audiovisual Works--Derivative Uses
    Multiple petitions seek exemptions for derivative uses of 
audiovisual works, including for use in multimedia e-books, in 
filmmaking, and in non-commercial remix videos. The Office notes that 
prior rulemakings have granted exemptions relating to uses of motion 
picture excerpts in noncommercial videos, documentary films, and 
nonfiction multimedia e-books offering film analysis.\24\ The current 
petitions generally seek to readopt the most recent previously granted 
exemption while expanding its contours to encompass additional 
technologies or types of uses.
---------------------------------------------------------------------------

    \24\ See 37 CFR 201.40(b)(4)-(7) (2013); 77 FR at 65266-70.
---------------------------------------------------------------------------

    The Office has identified some legal and factual issues that appear 
common to all of the proposed classes relating to derivative uses of 
audiovisual works. In addition to other more specific areas of concern, 
for each of these proposals, the Office encourages commenters, in the 
course of detailing how the proposed exemption meets the requirements 
of section 1201(a)(1), to address--including through the submission of 
relevant evidence--the following:
    <bullet> Whether circumvention alternatives, such as licensing or 
screen-capture technology, would be suitable for each type of requested 
use.
    <bullet> Specific examples illustrating the need for the exemption 
to extend beyond DVDs to other formats, such as Blu-ray discs and TPM-
protected content distributed online.
(a) Proposed Class 5: Audiovisual Works--Derivative Uses--Multimedia E-
Books
    This proposed class would allow circumvention of access controls on 
lawfully made and acquired motion pictures used in connection with 
multimedia e-book authorship. This exemption has been requested for 
audiovisual material made available in all formats, including DVDs 
protected by CSS, Blu-ray discs protected by AACS, and TPM-protected 
online distribution services.
    Authors Alliance and Professor Bobette Buster (collectively 
referred to here as ``Authors Alliance'') seek adoption of a revised 
version of the previously granted exemption for multimedia e-books, to 
permit circumvention of TPMs on DVDs, Blu-ray discs, and videos 
acquired via online distribution services, for purposes of facilitating 
uses of motion picture excerpts in nonfiction multimedia e-books 
offering film analysis.\25\
---------------------------------------------------------------------------

    \25\ Authors Alliance requests an exemption ``that permits 
authors of multimedia e-books to circumvent Content Scramble System 
(``CSS'') on DVDs, Advanced Access Content System (``AACS'') on Blu-
ray discs, and encryption and authentication protocols on digitally 
transmitted video in order to make fair use of motion picture 
content in their e-books.'' Authors Alliance Pet. at 2. See 37 CFR 
201.40(b)(4)-(7) (2013); 77 FR at 65266-70.
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> Whether the exemption should be limited to multimedia e-
books containing film analysis or whether a broader exemption is 
warranted.
    <bullet> Whether and how the need for an exemption has increased 
over the last three years due to ``new authorship tools, sophisticated 
digital distribution networks, and widespread consumer adoption of e-
book readers.''\26\
---------------------------------------------------------------------------

    \26\ See Authors Alliance Pet. at 2.
---------------------------------------------------------------------------

    <bullet> Any changed circumstances in the need for an exemption 
over the last three years, including whether any viable alternatives to 
circumvention have emerged or evolved during this period.
    <bullet> Whether the previously granted exemption has had an 
adverse effect on the marketplace for the accessed copyrighted works.
(b) Proposed Class 6: Audiovisual Works--Derivative Uses--Filmmaking 
Uses
    This proposed class would allow circumvention of access controls on

[[Page 73862]]

lawfully made and acquired motion pictures for filmmaking purposes. 
This exemption has been requested for audiovisual material made 
available in all formats, including DVDs protected by CSS, Blu-ray 
discs protected by AACS, and TPM-protected online distribution 
services.
    International Documentary Association, Film Independent, Kartemquin 
Educational Films, Inc., and National Alliance for Media Arts and 
Culture (collectively referred to here as ``IDA'') seek adoption of a 
revised version of the previously granted exemption to permit 
circumvention of TPMs on DVDs, Blu-ray discs, and videos acquired via 
online distribution services, for purposes of facilitating uses of 
motion picture excerpts in documentary films.\27\
---------------------------------------------------------------------------

    \27\ IDA requests an exemption for filmmakers who seek to make 
fair use in their filmmaking of copyrighted motion pictures 
protected by TPMs on DVDs, Blu-Ray discs, and digitally transmitted 
video, such as streaming video, digital downloads, or transmissions 
captured on digital video recorders. IDA Pet. at 2-3. See 37 CFR 
201.40(b)(4)-(7) (2013); 77 FR at 65266-70.
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> Whether the proposed exemption should extend to commercial 
uses in fictional (i.e., nondocumentary) films, including whether such 
uses could supplant derivative markets for the copyrighted works used.
    <bullet> Whether the exemption can be limited to use of only short 
portions or clips of motion pictures or, if not, the basis for a 
broader exemption.
    <bullet> Specific examples of whether access to Blu-ray content or 
other high-resolution content is necessary to meet applicable 
distribution standards for documentary and/or fictional filmmaking.
    <bullet> Any changed circumstances in the need for an exemption 
over the last three years, including whether any viable alternatives to 
circumvention have emerged or evolved during this period.
    <bullet> Whether the previously granted exemption has had an 
adverse effect on the marketplace for the accessed copyrighted works.
(c) Proposed Class 7: Audiovisual Works--Derivative Uses--Noncommercial 
Remix Videos
    This proposed class would allow circumvention of access controls on 
lawfully made and acquired audiovisual works for the sole purpose of 
extracting clips for inclusion in noncommercial videos that do not 
infringe copyright. This exemption has been requested for audiovisual 
material made available on DVDs protected by CSS, Blu-ray discs 
protected by AACS, and TPM-protected online distribution services.
    Electronic Frontier Foundation (``EFF'') and Organization for 
Transformative Works (``OTW'') jointly seek adoption of a revised 
version of the previously granted exemption to permit circumvention of 
TPMs on DVDs, Blu-ray discs, or videos acquired via online distribution 
services, for purposes of facilitating uses of motion picture excerpts 
in noncommercial remix videos.\28\
---------------------------------------------------------------------------

    \28\ EFF/OTW filed two petitions which relate to this class; one 
for DVD and Blu-ray discs, and one for online content. The 
respective petitions seek exemptions for ``[a]udiovisual works on 
DVDs and Blu-Ray discs that are lawfully made and acquired and that 
are protected by Digital Rights Management schemes, where 
circumvention is undertaken for the sole purpose of extracting clips 
for inclusion in noncommercial videos that do not infringe 
copyright'' and ``[a]udiovisual works that are lawfully made and 
acquired via online distribution services, where circumvention is 
undertaken solely for the purpose of extracting clips for inclusion 
in noncommercial videos that do not infringe copyright.'' See EFF/
OTW Disc Remix Pet. at 1; EFF/OTW Online Remix Pet. at 1. See 37 CFR 
201.40(b)(4)-(7) (2013); 77 FR at 65266-70.
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> The proposed scope of the exemption, including whether the 
exemption can be limited to: (a) ``Motion pictures'' as defined under 
the Copyright Act rather than extending to all ``audiovisual works,'' 
(b) uses of short portions or clips of motion pictures or audiovisual 
works, (c) uses for purposes of criticism, comment, or education, as 
opposed to other ``noninfringing'' or ``fair'' uses, (d) 
``noncommercial videos'' as opposed to ``primarily noncommercial 
videos,'' (e) with respect to works distributed online, those works 
that are not readily available on DVD and/or Blu-ray disc, and (f) with 
respect to Blu-ray discs, those works or content that are not readily 
available on DVD.
    <bullet> Any changed circumstances in the need for an exemption 
over the last three years, including whether any viable alternatives to 
circumvention have emerged or evolved during this period.
    <bullet> Whether the previously granted exemption has had an 
adverse effect on the marketplace for the accessed copyrighted works.
3. Proposed Class 8: Audiovisual Works--Space-Shifting and Format-
Shifting
    This proposed class would allow circumvention of access controls on 
lawfully made and acquired audiovisual works for the purpose of 
noncommercial space-shifting or format-shifting. This exemption has 
been requested for audiovisual material made available on DVDs 
protected by CSS, Blu-ray discs protected by AACS, and TPM-protected 
online distribution services.
    Public Knowledge filed a petition seeking an exemption permitting 
circumvention of TPMs on DVDs, Blu-ray discs, and videos acquired via 
online distribution services for space-shifting or format-shifting for 
personal use.\29\ The Office notes that in the 2006 and 2012 triennial 
rulemakings, the Librarian rejected proposed exemptions for space-
shifting or format-shifting, finding that the proponents had failed to 
establish under applicable law that space-shifting is a noninfringing 
use.\30\
---------------------------------------------------------------------------

    \29\ Public Knowledge proposes ``an exemption for digital rights 
management-encrypted motion pictures and other audiovisual works on 
lawfully made and lawfully acquired DVDs, Blu-ray discs (`BDs'), and 
downloaded files, when circumvention is accomplished for the purpose 
of noncommercial space shifting of the contained audiovisual 
content.'' Public Knowledge Space-Shifting Pet. at 1. Relatedly, in 
addition, in the context of a general objection to digital rights 
management technology, Alpheus Madsen has requested an exemption to 
allow circumvention of CSS for purposes of playing DVDs on the Linux 
Operating System. See Madsen Pet. at 1.
    \30\ See 77 FR at 65276-77; 71 FR 68472, 68478 (Nov. 27, 2006). 
The Librarian also previously declined to adopt an exemption to 
allow motion pictures on DVDs to be played on the Linux operating 
system. See 68 FR 62011, 62017 (Oct. 31, 2003).
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> Legal and factual bases that establish that space-shifting 
and format-shifting are noninfringing fair uses.
    <bullet> The potential adverse effects likely to be suffered over 
the next three years in the absence of the requested exemption.
    <bullet> Evidentiary support for the contention that the DVD is 
becoming obsolete and incompatible with currently produced computing 
devices, and any contention that the same concern also applies to Blu-
ray discs or downloaded video files.

[[Page 73863]]

    <bullet> The specific TPMs sought to be circumvented, including 
whether they are access or copy controls.
    <bullet> Whether the proposed exemption can be limited to ``motion 
pictures'' as defined under the Copyright Act rather than extending to 
all ``audiovisual works.''
    <bullet> Whether viable alternatives to circumvention exist, such 
as screen-capture technology, external drives, alternative playback 
devices, online subscription services, etc.

B. Literary Works Distributed Electronically

1. Proposed Class 9: Literary Works Distributed Electronically--
Assistive Technologies
    This proposed class would allow circumvention of access controls on 
lawfully made and acquired literary works distributed electronically 
for purposes of accessibility for persons who are print disabled. This 
exemption has been requested for literary works distributed 
electronically, including e-books, digital textbooks, and PDF articles.
    The American Foundation for the Blind (``AFB'') and the American 
Council of the Blind (``ACB'') have jointly requested renewal of an 
exemption allowing accessibility for persons who are print 
disabled.\31\ The AFB/ACB petition notes that granting such an 
exemption has historically been relatively uncontroversial and that no 
one appeared at the 2012 triennial rulemaking hearing to oppose this 
exemption.\32\
---------------------------------------------------------------------------

    \31\ AFB/ACB request an exemption to allow ``people who are 
blind, visually impaired, or print disabled, as well as the 
authorized entities that serve them, to circumvent technological 
protection measures . . . that prevent or interfere with the use of 
assistive technologies with electronically distributed literary 
works.'' AFB/ACB Pet. at 2. See 37 CFR 201.40 (2013); 77 FR at 
65262-63.
    \32\ AFB/ACB Pet. at 5.
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> Specific evidence relating to whether and the extent to 
which the prohibition on circumvention has or is likely to have an 
adverse effect on the ability of persons who are blind, visually 
impaired, or print disabled to engage in noninfringing uses, such as by 
providing a significant representative sample of titles across various 
e-book formats that are otherwise inaccessible.
    <bullet> Any changed circumstances in the need for an exemption 
over the last three years, including whether previous similar 
exemptions have improved accessibility for persons who are blind, 
visually impaired, or print disabled.
    <bullet> Whether the previously granted exemption has had an 
adverse effect on the marketplace for the accessed copyrighted works 
and whether the market has evolved to enhance accessibility.
    <bullet> How accessibility software interacts with TPMs and e-book 
technology to improve accessibility for persons who are blind, visually 
impaired, or print disabled.
    <bullet> To what extent the ``anti-copying encryptions'' mentioned 
in the petition can be described as access controls within the meaning 
of 1201(a)(1).
2. Proposed Class 10: Literary Works Distributed Electronically--Space-
Shifting and Format-Shifting
    This proposed class would allow circumvention of access controls on 
lawfully made and acquired literary works distributed electronically 
for the purpose of noncommercial space-shifting or format-shifting. 
This exemption has been requested for literary works distributed 
electronically in e-books.
    Christopher Meadows has requested an exemption to allow space-
shifting and format-shifting of lawfully purchased e-books.\33\ As 
noted above, in previous rulemakings, upon recommendation by the 
Register, the Librarian declined to adopt an exemption for purposes of 
space-shifting and format-shifting due to the lack of legal precedent 
establishing that space-shifting and format-shifting are noninfringing 
uses.\34\
---------------------------------------------------------------------------

    \33\ Meadows proposes that ``[c]onsumers should be legally 
permitted to remove DRM from electronic books that they have 
purchased in order to back them up, read them on other e-book 
platforms, or otherwise make section 107 fair use of the material.'' 
Meadows Pet. at 1.
    \34\ See 77 FR at 65276-77; 68 FR at 62015-17; 71 FR at 68478. 
The Register also declined to recommend, and the Librarian declined 
to adopt, an exemption for creating back-up copies. See 71 FR at 
68479.
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> Legal and factual bases that establish that space-shifting 
and format-shifting are noninfringing fair uses.
    <bullet> Existing alternatives in the market, if any, that may 
ameliorate potential adverse effects, such as the extent to which 
people can purchase material in DRM-free formats.
    <bullet> Evidentiary support for the concern that e-books 
distributed by vendors that have gone out of business will become, or 
have become, unreadable due to TPMs.
    <bullet> Whether allowing an exemption could harm the market for e-
books, including e-book subscription and lending services.

C. Software/firmware That Enable Devices To Connect to a Wireless 
Network That Offers Telecommunications and/or Information Services 
(``Unlocking'')

    The Office has received several petitions seeking exemptions 
permitting the circumvention of access controls on computer programs 
that enable wireless telephone handsets (i.e., cellphones) and other 
wireless devices to connect to a mobile wireless communications 
network, for purpose of allowing the device to connect to an alternate 
network. This process is commonly known as ``unlocking.'' Consistent 
with the Unlocking Act,\35\ the Office will be considering whether to 
grant an exemption for wireless telephone handsets and whether to 
``extend'' any exemption for wireless telephone handsets to ``any other 
category of wireless devices.'' \36\
---------------------------------------------------------------------------

    \35\ Pub. L. 113-144, sec. 2(b), 128 Stat. at 1751; see also 79 
FR at 55688 (explaining the Unlocking Act).
    \36\ 70 FR at 55689.
---------------------------------------------------------------------------

    A few petitions address multiple types of wireless devices. As the 
Office indicated in its September Notice, however, ``[t]he evaluation 
of whether an exemption would be appropriate under section 
1201(a)(1)(C) is likely to be different for different types of wireless 
devices, requiring distinct legal and evidentiary showings.''\37\ For 
instance, in past rulemakings, determining the existence of a 
noninfringing use has involved asking whether the software is owned or 
licensed by the owner of the wireless device.\38\ The answer to that 
question may vary for different types of devices. In addition, the 
marketplace for cellphones and that for, e.g., tablet computing devices 
may be quite different with respect to carrier subsidies, service 
commitments, availability of unlocked devices, and other factors. These 
differences necessarily will impact the factual and legal analysis. 
Accordingly, the Office has categorized the petitions into the five 
proposed classes below, with Proposed Classes 11 through 13 each 
covering a specific type of device, Proposed Class 14 generally 
covering

[[Page 73864]]

``wearable'' wireless devices, and Proposed Class 15 representing a 
broad exemption for all ``consumer machines.'' While Proposed Classes 
14 and 15 appear challenging because of the wide range of devices they 
purport to cover, the Office hopes to encourage the creation of an 
adequate administrative record for as many types of devices as possible 
within the unlocking category.
---------------------------------------------------------------------------

    \37\ Id.
    \38\ See, e.g., 77 FR at 65265.
---------------------------------------------------------------------------

    The Office has identified some legal and factual issues that appear 
common to all of the proposed classes relating to unlocking. In 
addition to other more specific areas of concern, for each of these 
proposals, the Office encourages commenters, in the course of detailing 
how the proposed exemption meets the requirements of section 
1201(a)(1), to also address--including through the submission of 
relevant evidence--the following:
    <bullet> Whether an owner of a device at issue in the class also 
owns the firmware and/or software that runs the device for purposes of 
17 U.S.C. 117, which gives software owners certain rights to copy and 
adapt such programs. In addition, the Office is interested in the 
relevance, if any, to the section 117 analysis of section 2(c)(2) of 
the Unlocking Act, which provides that the current cellphone unlocking 
exemption and any future unlocking exemptions may be initiated ``by the 
owner of any such handset or other device.'' \39\
---------------------------------------------------------------------------

    \39\ Pub. L. 113-144, sec. 2(c)(2), 128 Stat. at 1752 (emphasis 
added); see also 37 CFR 201.40(c).
---------------------------------------------------------------------------

    <bullet> The technical details of how each type of locking 
mechanism operates--e.g., service provider code locks, system operator 
code locks, band order locks, and subscriber identity module locks--and 
how those locks are circumvented. In particular, the Office is 
interested in determining with precision the instances in which 
unlocking merely involves changing underlying variables relied upon by 
the device firmware, and those in which unlocking requires copying or 
rewriting the firmware itself.
    <bullet> The Office understands that the unlocking exemption is 
aimed at permitting a device to connect to an alternative mobile 
wireless telecommunications or data network, such as CDMA, GSM, HSPA+, 
LTE, or other similar networks.\40\ The petitions use differing 
terminology to refer to these networks, including ``wireless 
communications networks,'' ``wireless telecommunications networks,'' 
``wireless networks that offer telecommunications and/or information 
services.'' The Office invites discussion on what terminology most 
accurately describes the networks to which the proposed unlocking 
exemptions would apply.
---------------------------------------------------------------------------

    \40\ The Office does not understand the concept of ``unlocking'' 
to be relevant to other types of wireless communications, such as 
those using the IEEE 802.11 standard employed in Wi-Fi routers, the 
Bluetooth standard, or the ANT wireless network technology, though 
it invites comment on that issue to the extent the Office may 
misunderstand the proposals.
---------------------------------------------------------------------------

1. Proposed Class 11: Unlocking--Wireless Telephone Handsets
    This proposed class would allow the unlocking of wireless telephone 
handsets. ``Wireless telephone handsets'' includes all mobile 
telephones including feature phones, smart phones, and ``phablets'' 
that are used for two-way voice communications.
    Five parties--Consumers Union,\41\ the Competitive Carriers 
Association (``CCA''),\42\ the Institute of Scrap Recycling Industries 
(``ISRI''),\43\ Pymatuning Communications (``Pymatuning''),\44\ and the 
Rural Wireless Association (``RWA'')\45\--seek, in essence, renewal of 
the unlocking exemption for wireless telephone handsets (as reinstated 
by the Unlocking Act) for another three-year period. Two of the 
petitions vary in their particulars, however. Pymatuning's proposal is 
limited to ``used'' handsets, but does not define that term. ISRI asks 
that the exemption specifically allow both ``individual and bulk 
circumvention.''
---------------------------------------------------------------------------

    \41\ Consumers Union's proposed regulatory language reads as 
follows: ``Computer programs, in the form of firmware or software, 
that enable a mobile wireless communications device to connect to a 
wireless communications network, when circumvention is initiated 
by--(1) the owner of the device, (2) another person at the direction 
of the owner, (3) a provider of a commercial mobile radio service or 
a commercial mobile data service at the direction of such owner or 
other person, solely in order to enable the device to connect to 
other wireless communications networks, subject to the connection to 
any such other wireless communications network being authorized by 
the operator of such network. The term `mobile wireless 
communications device' means (1) a wireless telephone handset, or 
(2) a hand-held mobile wireless device used for any of the same 
wireless communications functions, and using equivalent technology, 
as a wireless telephone handset.'' Consumers Union Pet. at 3.
    \42\ CCA's proposed regulatory language reads as follows: 
``Computer programs, in the form of firmware, software, or data used 
by firmware or software, that enable wireless handsets to connect to 
a wireless network that offers telecommunications and/or information 
services, when circumvention is initiated by the owner of the 
device, or by another person at the direction of the owner of the 
device, in order to connect to a wireless network that offers 
telecommunications and/or information services, and access to the 
network is authorized by the operator of the network.'' CCA 
Cellphone Unlocking Pet. at 1-2.
    \43\ ISRI's proposed regulatory language reads as follows: 
``Computer programs, in the form of firmware or software, that 
enable wireless telephone handsets to connect to a wireless 
telecommunications network, when circumvention, including individual 
and bulk circumvention for used devices, is initiated by the owner 
of any such handset, by another person at the direction of the 
owner, or by a provider of a commercial mobile radio service or a 
commercial mobile data service at the direction of such owner or 
other person, solely in order to enable such owner, family member of 
such owner, or subsequent owner or purchaser of such handset to 
connect to a wireless telecommunications network when such 
connection is authorized by the operator of such network.'' ISRI 
Cellphone Unlocking Pet. at 1.
    \44\ Pymatuning's proposed regulatory language reads as follows: 
``Computer programs, in the form of firmware or software, that 
enable used wireless telephone handsets and other used wireless 
telecommunications devices to connect to a wireless 
telecommunications network, when circumvention is
    initiated by the owner of the copy of the computer program 
solely in order to connect to a wireless telecommunications network 
and access to the network is authorized by the operator of the 
network.'' Pymatuning Pet. at 2.
    \45\ RWA's proposal would ``allow for the circumvention of the 
technological measures that control access to Wireless Telephone 
Handset software and firmware to allow the owner of a lawfully 
acquired handset, or a person designated by the owner of the 
lawfully acquired handset, to modify the device's software and 
firmware so that the wireless device may be used on a 
technologically compatible wireless network of the customer's 
choosing when the connection to the network is authorized by the 
operator of the network.'' See RWA Cellphone Unlocking Pet. at 1-2.
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> The current cellphone unlocking policies for all 
significant wireless carriers, including (a) whether those carriers are 
adhering to mobile wireless device unlocking guidelines issued by CTIA-
The Wireless Association, (b) whether, under those policies, a 
consumer's completion of the term of a service contract, or payment of 
early termination fees, affects his or her ability to unlock a 
cellphone, and (c) the extent to which those policies obviate the need 
for an exemption.
    <bullet> The extent to which unlocked mobile phones are available 
for purchase, and whether the availability of such phones is a viable 
alternative to circumvention.
    <bullet> Whether the exemption should be limited to ``used'' 
handsets, and what would qualify a handset as ``used.''
    <bullet> The practice and market effects of ``bulk circumvention'' 
(or unlocking), and whether the exemption should address ``bulk 
circumvention.''
    <bullet> Any changed circumstances in the need for an exemption 
over the last three years, including whether any

[[Page 73865]]

viable alternatives to circumvention have emerged or evolved during 
this period.
    <bullet> Whether the previously granted exemption has had an 
adverse effect on the marketplace for the accessed copyrighted works.
2. Proposed Class 12: Unlocking--All-Purpose Tablet Computers
    This proposed class would allow the unlocking of all-purpose tablet 
computers. This class would encompass devices such as the Apple iPad, 
Microsoft Surface, Amazon Kindle Fire, and Samsung Galaxy Tab, but 
would exclude specialized devices such as dedicated e-book readers and 
dedicated handheld gaming devices.
    The Office received several petitions--from CCA,\46\ ISRI,\47\ and 
RWA\48\--that specifically seek an exemption to allow the unlocking of 
all-purpose tablet computers. Two other petitions--from Consumers Union 
\49\ and Pymatuning \50\--seek tablet exemptions as part of their 
cellphone unlocking petitions. Again, Pymatuning's proposal is limited 
to ``used'' tablets, but does not define that term, and ISRI asks that 
the exemption specifically allow both ``individual and bulk 
circumvention.''
---------------------------------------------------------------------------

    \46\ CCA's proposed regulatory language reads as follows: 
``Computer programs, in the form of firmware or software, or data 
used by firmware or software, that enable all-purpose tablet 
computers to connect to a wireless network that offers 
telecommunications and/or information services, when circumvention 
is initiated by the owner of the device, or by another person at the 
direction of the owner of the device, in order to connect to a 
wireless network that offers telecommunications and/or information 
services, and access to the network is authorized by the operator of 
the network.'' CCA Tablet Unlocking Pet. at 1-2.
    \47\ ISRI's proposed regulatory language reads as follows: 
``Computer programs, in the form of firmware or software, that 
enable all-purpose tablet computers to connect to a wireless 
telecommunications network, when circumvention, including individual 
and bulk circumvention for used devices, is initiated by the owner 
of any such tablet, by another person at the direction of the owner, 
or by a provider of a commercial mobile radio service or a 
commercial mobile data service at the direction of such owner or 
other person, solely in order to enable such owner, family member of 
such owner, or subsequent owner or purchaser of such tablet to 
connect to a wireless telecommunications network when such 
connection is authorized by the operator of such network.'' ISRI 
Tablet Unlocking Pet. at 1.
    \48\ RWA's proposal would ``allow for the circumvention of the 
technological measures that control access to all purpose tablet 
computer (`Tablet') software and firmware to allow the owner of a 
lawfully acquired Tablet, or a person designated by the owner of the 
lawfully acquired Tablet, to modify the device's software and 
firmware so that the wireless device may be used on a 
technologically compatible wireless network of the customer's 
choosing, and when the connection to the network is authorized by 
the operator of the network.'' See RWA Tablet Unlocking Pet. at 1-2.
    \49\ Consumers Union Pet. at 2-3 (``Consumers Union's proposed 
exemption accordingly includes all hand-held mobile wireless devices 
that are used for essentially the same functions and in the same 
manner as wireless telephone handsets, including tablets.'').
    \50\ Pymatuning Pet. at 2 (stating that because ``the 
justifications underlying the [Unlocking] Act also apply to all 
portable computers, tablets and other types of devices that 
communicate via wireless telecommunications networks, and that are 
often locked much the same as wireless telephone handsets, 
Pymatuning requests that the scope of `handsets' be clarified to 
include all such wireless telecommunications devices.'').
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> The definition of ``all-purpose tablet computer'' that 
would govern the proposed exemption.
    <bullet> The marketplace for tablets with mobile data connections, 
including (a) any relevant differences between the marketplace for 
cellphones and that for tablets, (b) the extent to which wireless 
carriers subsidize consumer purchases of tablets, and require service 
commitments in return, and (c) the tablet unlocking policies for all 
significant wireless carriers, including the extent to which those 
policies obviate the need for an exemption.
    <bullet> The extent to which unlocked tablets are available for 
purchase, and whether the availability of such tablets is a viable 
alternative to circumvention.
    <bullet> Whether the exemption should be limited to ``used'' 
tablets, and what would qualify a tablet as ``used.''
    <bullet> The practice and market effects of ``bulk circumvention'' 
(or unlocking), and whether the exemption for tablets should address 
``bulk circumvention.''
3. Proposed Class 13: Unlocking--Mobile Connectivity Devices
    This proposed class would allow the unlocking of mobile 
connectivity devices. ``Mobile connectivity devices'' are devices that 
allow users to connect to a mobile data network through either a direct 
connection or the creation of a local Wi-Fi network created by the 
device. The category includes mobile hotspots and removable wireless 
broadband modems.
    Two petitions--from CCA \51\ and RWA\52\--seek an exemption to 
allow the unlocking of mobile connectivity devices such as mobile 
hotspots and aircards.
---------------------------------------------------------------------------

    \51\ CCA's proposed regulatory language reads as follows: 
``Computer programs, in the form of firmware or software, or data 
used by firmware or software, that enable mobile hotspots and MiFi 
devices to connect to a wireless network that offers 
telecommunications and/or information services, when circumvention 
is initiated by the owner of the device, or by another person at the 
direction of the owner of the device, in order to connect to a 
wireless network that offers telecommunications and/or information 
services, and access to the network is authorized by the operator of 
the network.'' CCA Mobile Hotspot and MiFi Device Unlocking Pet., at 
2.
    \52\ RWA filed two petitions, one addressed to mobile broadband 
wireless modems, and the other addressed to mobile hotspots. See RWA 
Mobile Broadband Wireless Unlocking Pet. at 1-2 (seeking exemption 
``to allow for the circumvention of the technological measures that 
control access to the software and firmware of mobile broadband 
wireless modems, which are also known as wireless air cards (`Air 
Card'), to allow the owner of a lawfully acquired Air Card, or a 
person designated by the owner of the lawfully acquired Air Card, to 
modify the Air Card's software and firmware so that the device may 
be used on a technologically compatible wireless network of the 
customer's choosing, and when the connection to the network is 
authorized by the operator of the network''); RWA Mobile Hotspot 
Unlocking Pet. at 1-2 (same, except that it seeks to circumvent 
access controls on ``Mobile Wireless Personal Hotspot (`Mobile 
Hotspot') software and firmware'').
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> The marketplace for mobile connectivity devices, including 
(a) any relevant differences between the marketplace for cellphones and 
that for mobile connectivity devices, (b) the extent to which wireless 
carriers subsidize consumer purchases of such devices, and require 
service commitments in return, and (c) the unlocking policies for all 
significant wireless carriers with respect to mobile connectivity 
devices.
    <bullet> The extent to which unlocked mobile connectivity devices 
are available for purchase, and whether the availability of such mobile 
connectivity devices is a viable alternative to circumvention.
4. Proposed Class 14: Unlocking--Wearable Computing Devices
    This proposed class would allow the unlocking of wearable wireless 
devices. ``Wearable wireless devices'' include all wireless devices 
that are designed to be worn on the body, including smart watches, 
fitness devices, and health monitoring devices.

[[Page 73866]]

    CCA \53\ and RWA \54\ both propose an exemption to permit unlocking 
of wearable mobile wireless devices, a broad category that would 
include smart watches, fitness devices, health monitoring devices, and 
perhaps devices such as Google Glass.
---------------------------------------------------------------------------

    \53\ CCA addressed what it called ``consumer wearables'' in the 
course of its broad catch-all proposal, the remainder of which is 
addressed in Proposed Class 15. See CCA Connected Wearables and 
Consumer Machines Unlocking Pet. at 1-2.
    \54\ RWA's proposed exemption would ``allow for the 
circumvention of the technological measures that control access to 
wearable mobile wireless device (`Wearable Wireless Device') 
software and firmware to allow the owner of a lawfully acquired 
Wearable Wireless Device, or a person designated by the owner of the 
lawfully acquired Wearable Wireless Device, to modify the device's 
software and firmware so that the Wearable Wireless Device may be 
used on a technologically compatible wireless network of the 
customer's choosing, and when the connection to the network is 
authorized by the operator of the network.'' RWA Wearable Wireless 
Device Unlocking Pet. at 1-2. RWA explains that ``[a] Wearable 
Wireless Device is a wearable Internet-connected, voice and touch 
screen enabled, mobile wireless computing device that is designed to 
be worn on the body, including but not limited to a smart watch.'' 
Id. at 2 n.3.
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> The specific types of devices that would fall under the 
proposed exemption.
    <bullet> The Office's understanding is that most smart watches, and 
most if not all fitness and health monitoring devices, do not employ 
mobile telecommunications or data networks (e.g., HSPA+ or LTE 
networks) for wireless connections, but instead use either Wi-Fi to 
connect to a local wireless network, or Bluetooth or ANT technologies 
to connect to a smartphone or computer. The Office is interested in the 
extent to which there are wearable wireless devices that directly 
connect with mobile telecommunications or data networks--and what those 
devices are--or whether the exemption seeks to permit circumvention of 
access controls on devices that use Wi-Fi, Bluetooth, or ANT 
technologies.
    <bullet> The marketplace for wearable computing devices, including 
(a) the extent to which wireless carriers subsidize consumer purchases 
of such devices, and require service commitments in return, and (b) the 
unlocking policies for all significant wireless carriers with respect 
to wearable computing devices.
    <bullet> The extent to which unlocked devices are available for 
purchase, and whether the availability of such devices is a viable 
alternative to circumvention.
5. Proposed Class 15: Unlocking--consumer machines
    This proposed class would allow the unlocking of all wireless 
``consumer machines,'' including smart meters, appliances, and 
precision-guided commercial equipment.
    CCA has proposed a broad, open-ended exemption for all ``consumer 
machines''--or ``the `Internet of Things' ''--which would encompass a 
diverse range of devices and equipment.\55\ At least as currently 
framed, it appears that it may be difficult to build an adequate 
administrative record for this exemption in light of the fact-bound 
analysis required by section 1201(a)(1). For example, CCA's proposal 
refers to ``precision-guided commercial equipment'' but provides no 
explanation as to the kind of equipment to which it refers. The Office 
invites commenters to provide targeted argument and evidence that would 
allow the Office to narrow this category appropriately.
---------------------------------------------------------------------------

    \55\ In relevant part, CCA proposes the following regulatory 
language: ``Computer programs, in the form of firmware or software, 
or data used by firmware or software, that enable . . . consumer 
machines to connect to a wireless network that offers 
telecommunications and/or information services, when circumvention 
is initiated by the owner of the device, or by another person at the 
direction of the owner of the device, in order to connect to a 
wireless network that offers telecommunications and/or information 
services, and access to the network is authorized by the operator of 
the network.'' CCA Connected Wearables and Consumer Machines 
Unlocking Pet. at 2. CCA states that the ``consumer machines'' 
category encompasses ``smart meters, connected appliances, connected 
precision-guided commercial equipment, among others.'' Id. at 1.
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> The extent to which devices understood to be in this class 
use mobile telecommunications or data networks (e.g., HSPA+ or LTE 
networks) for wireless connections, rather than Wi-Fi or Bluetooth, or 
some other technology, and whether parties are seeking to circumvent 
access controls on devices that use such other technologies.
    <bullet> The extent to which consumers, rather than the device 
manufacturer or some other entity, select and/or pay for the mobile 
wireless connection for a smart meter, an appliance, or a piece of 
precision-guided commercial equipment.
    <bullet> Specific examples demonstrating adverse effects stemming 
from a consumer's inability to choose the mobile wireless 
communications provider used by a smart meter, an appliance, or a piece 
of precision-guided commercial equipment.

D. Software That Restricts the Use of Lawfully Obtained Software 
(``Jailbreaking'')

    The Office received several petitions for exemptions to allow users 
to circumvent TPMs protecting computer programs in devices such as 
cellphones, all-purpose tablets, and smart TVs and that prevent users 
from running certain software on, or removing preinstalled software 
from, these devices. This type of circumvention is commonly referred to 
as the ``jailbreaking'' or ``rooting'' of a device, and has been the 
subject of proposed classes in the last triennial rulemaking and 
earlier proceedings.\56\ The Office has categorized the proposals into 
Proposed Classes 16 through 20, with each class covering a different 
type of device.
---------------------------------------------------------------------------

    \56\ See, e.g., 77 FR at 65263-64 (wireless telephone handsets); 
id. at 65272-76 (video game consoles); id. at 65274-75 (personal 
computing devices).
---------------------------------------------------------------------------

    The Office has identified some legal and factual issues that appear 
common to all of the proposed classes relating to jailbreaking. In 
addition to other more specific areas of concern, for each of these 
proposals, the Office encourages commenters, in the course of detailing 
how the proposed exemption meets the requirements of section 
1201(a)(1), to also address--including through the submission of 
relevant evidence--the following:
    <bullet> The extent to which consumers may legally purchase devices 
that do not contain the complained-of access controls, and whether the 
availability of such devices eliminates the need for an exemption.
    <bullet> Whether jailbreaking the device facilitates infringing 
uses, including access to or consumption of infringing content. The 
Office is particularly interested in specific examples of noninfringing 
versus infringing uses, and any available evidence regarding the 
relative volume of lawful versus pirated content installed on or 
consumed via jailbroken devices, as well as whether there is a 
practical way to segregate lawful from unlawful uses.
1. Proposed Class 16: Jailbreaking--Wireless Telephone Handsets
    This proposed class would permit the jailbreaking of wireless 
telephone handsets to allow the devices to run lawfully acquired 
software that is otherwise prevented from running, or to

[[Page 73867]]

remove unwanted preinstalled software from the device.
    EFF seeks readoption of an existing exemption allowing the 
jailbreaking of wireless telephone handsets to allow those devices to 
interoperate with lawfully obtained software and to allow users to 
remove unwanted preinstalled software from the device.\57\
---------------------------------------------------------------------------

    \57\ EFF's petition encompassed wireless telephone handsets and 
other all-purpose mobile computing devices. See EFF Jailbreaking 
Pet. at 1 (suggesting an exemption for ``[c]omputer programs that 
enable mobile computing devices, such as telephone handsets and 
tablets, to execute lawfully obtained software, where circumvention 
is accomplished for the sole purposes of enabling interoperability 
of such software with computer programs of the device, or removing 
software from the device''). Proposed Class 16 encompasses EFF's 
proposal with respect to wireless telephone handsets, and Proposed 
Class 17 encompasses the remainder of EFF's proposal. See 37 CFR 
201.40(b)(2) (2013); see also 77 FR at 65263-64.
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> Whether the previously granted exemption has had an 
adverse effect on the marketplace for wireless telephone handsets or 
the applications that run on them.
    <bullet> Specific examples of the following: (a) The manner in 
which access controls are being used to prevent installation of 
software that competes with software offered by the device 
manufacturer, and (b) ``unwanted software installed by the 
manufacturer'' that ``consumes energy, shortens the device's battery 
life, or sends personal information to advertisers'' that cannot be 
uninstalled.\58\
---------------------------------------------------------------------------

    \58\ EFF Jailbreaking Pet. at 4.
---------------------------------------------------------------------------

2. Proposed Class 17: Jailbreaking--All-Purpose Mobile Computing 
Devices
    This proposed class would permit the jailbreaking of all-purpose 
mobile computing devices to allow the devices to run lawfully acquired 
software that is otherwise prevented from running, or to remove 
unwanted preinstalled software from the device. The category ``all-
purpose mobile computing device'' includes all-purpose non-phone 
devices (such as the Apple iPod touch) and all-purpose tablets (such as 
the Apple iPad or the Google Nexus). The category does not include 
specialized devices such as e-book readers or handheld gaming devices, 
or laptop or desktop computers.
    EFF \59\ and Maneesh Pangasa \60\ seek to extend any exemption 
allowing the jailbreaking of wireless telephone handsets \61\ to other 
all-purpose mobile computing devices, including non-phone handheld 
devices and all-purpose tablets. In the 2012 triennial rulemaking, the 
Librarian rejected a jailbreaking exemption for tablets because ``the 
record lacked a sufficient basis to develop an appropriate definition 
for the `tablet' category of devices, a necessary predicate to 
extending the exemption beyond smartphones.'' \62\ The Librarian 
acknowledged, however, that ``[i]n future rulemakings, as mobile 
computing technology evolves, such a definition may be more 
attainable.'' \63\
---------------------------------------------------------------------------

    \59\ EFF's petition seeks, in relevant part, the following 
proposed class: ``Computer programs that enable mobile computing 
devices, such as . . . tablets, to execute lawfully obtained 
software, where circumvention is accomplished for the sole purposes 
of enabling interoperability of such software with computer programs 
on the device, or removing software from the device.'' EFF 
Jailbreaking Pet. at 1.
    \60\ Mr. Pangasa's tablet jailbreaking petition encompasses two 
distinct proposals. Pangasa Tablet Jailbreaking Pet. at 1-4. The 
Office has consolidated the portion of Mr. Pangasa's petition 
addressing jailbreaking of general purpose tablets with the EFF's 
proposal in Proposed Class 17. See id. at 1 (``I would like to 
request an exemption to the Digital Millennium Copyright Act for 
jail-breaking or rooting tablets like the Apple iPad Air & iPad 
Mini, Amazon's Kindle Fire HD, Microsoft Surface line of tablets 
(particularly the RT version to install hacks that permit running 
desktop applications on RT devices.''). Mr. Pangasa's proposal with 
respect to e-book readers is made part of Proposed Class 18.
    \61\ See 37 CFR 201.40(b)(2) (2013).
    \62\ See 77 FR at 65264.
    \63\ Id.
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> The specific types of devices that would be encompassed by 
the exemption.
    <bullet> Whether there are any relevant differences between 
wireless telephone handsets and other all-purpose computing devices, 
such as non-phone handheld computing devices and tablets, for purposes 
of analyzing the proposed exemption.
    <bullet> Although the EFF's proposed exemption encompasses all-
purpose mobile computing devices, it specifically excludes laptop and 
desktop computers.\64\ The Office is interested in the rationale for 
that exclusion, and how any exemption would distinguish between those 
devices that would fall within the exemption and those that would fall 
outside it.
---------------------------------------------------------------------------

    \64\ See EFF Jailbreaking Pet. at 2.
---------------------------------------------------------------------------

    <bullet> Specific examples of the following: (a) The manner in 
which access controls are being used to prevent installation of 
software that competes with software offered by the device 
manufacturer, and (b) ``unwanted software installed by the 
manufacturer'' that ``consumes energy, shortens the device's battery 
life, or sends personal information to advertisers'' that cannot be 
uninstalled.\65\
---------------------------------------------------------------------------

    \65\ Id. at 4.
---------------------------------------------------------------------------

3. Proposed Class 18: Jailbreaking--Dedicated E-Book Readers
    This proposed class would permit the jailbreaking of dedicated e-
book readers to allow those devices to run lawfully acquired software 
that is otherwise prevented from running.
    Maneesh Pangasa filed a petition that, in relevant part, seeks an 
exemption to allow jailbreaking of dedicated e-book readers such as 
Amazon's Kindle Paperwhite and Barnes and Noble's Nook.\66\ Mr. Pangasa 
provided only a limited explanation of the noninfringing uses that 
would be facilitated by jailbreaking e-book readers, or of the adverse 
effects caused by the relevant access controls. In part, it appears his 
concern may be related to the inability to format-shift or space-shift 
e-books, a topic that is addressed in Proposed Class 10. Mr. Pangasa 
also makes a passing reference to enabling ``universal access 
functionality''; the Office notes that e-book accessibility concerns 
are addressed in Proposed Class 9. Reading the petition generously, Mr. 
Pangasa does appear to raise a concern that dedicated e-readers may not 
be able to run lawfully acquired third-party applications. Accordingly, 
the Office has elected to put forward this proposed class for further 
comment.
---------------------------------------------------------------------------

    \66\ See Pangasa Tablet Jailbreaking Pet. at 2-4 (``I therefore 
request an exemption to the Digital Millennium Copyright Act be 
granted extending the protections for (class #5) mobile phones to 
include . . . dedicated e-readers like the Amazon Kindle.'').
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> The TPMs that are included with dedicated e-book readers, 
and how they prevent access to the e-book reader's firmware or 
software.
    <bullet> Specific examples of noninfringing uses that are 
facilitated by the jailbreaking of a dedicated e-book reader, other 
than enabling accessibility for persons who are print disabled.

[[Page 73868]]

    <bullet> Whether allowing an exemption could harm the market for e-
books, including e-book subscription and lending services.
4. Proposed Class 19: Jailbreaking--Video Game Consoles
    This proposed class would permit the jailbreaking of home video 
game consoles. Asserted noninfringing uses include installing 
alternative operating systems, running lawfully acquired applications, 
preventing the reporting of personal usage information to the 
manufacturer, and removing region locks. The requested exemption would 
apply both to older and currently marketed game consoles.
    Maneesh Pangasa has proposed an exemption to permit circumvention 
of home video game consoles for an assortment of asserted noninfringing 
uses, including installing alternative operating systems and removing 
region locks.\67\ In the 2012 triennial rulemaking, the Librarian 
rejected a proposed class seeking an exemption for jailbreaking of 
video game consoles.\68\ Among other things, the Librarian concluded 
based on the evidentiary record that the jailbreaking of video game 
consoles ``leads to a higher level of infringing activity.'' \69\ At 
the same time, the Librarian determined that there was insufficient 
evidence of adverse impacts on noninfringing uses, because the asserted 
noninfringing uses were not substantial, and there were alternative 
devices that allowed users to engage in those uses.\70\
---------------------------------------------------------------------------

    \67\ Mr. Panagasa seeks an exemption ``for jail-breaking or 
rooting home video game consoles like Nintendo's Wii U, Sony's Play 
Station 4, Microsoft's Xbox One and home media devices like Apple TV 
which may in future gain the ability to natively play video games.'' 
Pangasa Video Game Console Jailbreaking Pet. at 1.
    \68\ 77 FR at 65272-74.
    \69\ Id. at 65274.
    \70\ Id.
---------------------------------------------------------------------------

    Particularly in light of those earlier conclusions, the Office 
encourages commenters, in the course of detailing how the proposed 
exemption meets the requirements of section 1201(a)(1), to address--
including through the submission of relevant evidence--the following:
    <bullet> The nature of the specific TPMs at issue and how they 
operate, and the particular acts of circumvention required for the 
jailbreaking of video game consoles as sought in the proposal 
(including any significant differences among platforms).
    <bullet> The relationship between the ability to jailbreak consoles 
and the dissemination and consumption of pirated content, including any 
practical means to limit the exemption to facilitate noninfringing 
rather than infringing conduct.
    <bullet> Specific evidence regarding the adverse impact of access 
controls in video game consoles on noninfringing uses, including an 
explanation of why it is necessary to employ the console for particular 
uses rather than an alternative device such as a general-purpose 
computer.
    <bullet> Whether allowing an exemption could harm the market for 
video game consoles or video games.
    <bullet> Whether the Librarian's analysis should distinguish 
between current-generation game consoles and older game consoles and, 
if so, how.
5. Proposed Class 20: Jailbreaking--Smart TVs
    This proposed class would permit the jailbreaking of computer-
embedded televisions (``smart TVs''). Asserted noninfringing uses 
include accessing lawfully acquired media on external devices, 
installing user-supplied licensed applications, enabling the operating 
system to interoperate with local networks and external peripherals, 
and enabling interoperability with external devices, and improving the 
TV's accessibility features (e.g., for hearing-impaired viewers). The 
TPMs at issue include firmware encryption and administrative access 
controls that prevent access to the TV's operating system.
    The Software Freedom Conservancy (``SFC'') has proposed an 
exemption to permit circumvention of TPMs that protect access to 
firmware and software on ``smart TVs.'' \71\ It asserts that although 
modern smart TVs are ``full-featured computers,'' manufacturers limit 
their capabilities in a number of ways. For instance, SFC asserts that 
while smart TVs are internet enabled, they are ``limited to accessing 
only services chosen by the manufacturer.'' \72\ In addition, SFC 
asserts that many TVs have USB ports that ``can only be used to install 
manufacturer-supplied updates and connect to manufacturer-sanctioned 
devices.'' \73\
---------------------------------------------------------------------------

    \71\ SFC's proposal would ``permit owners of computer-embedded 
televisions (`Smart TVs') to circumvent firmware encryption and 
administrative access controls that control access to the TVs' 
operating systems, for the purpose of accessing lawfully-acquired 
media, installing licensed applications, and enabling 
interoperability with external devices.'' SFC Pet. at 1.
    \72\ Id. at 3.
    \73\ Id.
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> The specific TPMs on smart TVs, how they operate, and 
methods of circumventing such access controls.
    <bullet> Specific examples of noninfringing uses that would be 
facilitated by circumvention.
    <bullet> What users seek to do with jailbroken smart TVs, including 
specific examples of the following: (a) User-supplied software that 
users wish to install, (b) external hardware users are prevented from 
connecting absent circumvention, (c) improvements to accessibility for 
hearing-impaired users that would be facilitated by jailbreaking, and 
(d) external storage devices through which users seek to access media.
    <bullet> The reasons smart TV manufacturers limit end users' 
ability to install third-party applications and/or restrict 
interoperability with external devices.
    <bullet> The role of any licensing arrangements between smart TV 
manufacturers and content or application providers and the extent to 
which the TPMs at issue protect open-source software.

E. Vehicle Software

    Several petitions seek exemptions to permit circumvention of TPMs 
on software that is embedded in vehicles. The Office has initially 
consolidated these proposals into the two classes below based on the 
asserted noninfringing uses and may further refine the two proposed 
classes based on the record as it develops.
    The Office has identified certain areas of inquiry that appear to 
be common to both of these proposed classes. In addition to other more 
specific areas of concern, for each of these proposals, the Office 
encourages commenters, in the course of detailing how the proposed 
exemption meets the requirements of section 1201(a)(1), to also 
address--including through the submission of relevant evidence--the 
following:
    <bullet> The computers and TPMs used in connection with different 
types of vehicles, including personal automobiles, commercial motor 
vehicles, and agricultural machinery, and how they operate.
    <bullet> Whether the proposed exemption is warranted for all types 
of motorized land vehicles--including personal automobiles, commercial 
motor vehicles, and agricultural machinery--and whether and how the 
analysis may differ for each type of vehicle.

[[Page 73869]]

1. Proposed Class 21: Vehicle Software--Diagnosis, Repair, or 
Modification
    This proposed class would allow circumvention of TPMs protecting 
computer programs that control the functioning of a motorized land 
vehicle, including personal automobiles, commercial motor vehicles, and 
agricultural machinery, for purposes of lawful diagnosis and repair, or 
aftermarket personalization, modification, or other improvement. Under 
the exemption as proposed, circumvention would be allowed when 
undertaken by or on behalf of the lawful owner of the vehicle.
    EFF has proposed an exemption to allow the circumvention of TPMs on 
computer programs that are embedded in vehicles for purposes of 
personalization, modification, or other improvement and would apply to 
all motorized land vehicles.\74\ The Intellectual Property & Technology 
Law Clinic of the University of Southern California Gould School of Law 
(``U.S.C. Law'') has proposed a similar exemption for agricultural 
machinery specifically.\75\ EFF explains that ``[v]ehicle owners expect 
to be able to repair and tinker with their vehicles[,]'' but TPMs on 
vehicle software ``block such legitimate activities, forcing vehicle 
owners to choose between breaking the law or tinkering and repairing 
their vehicles.'' \76\ U.S.C. Law similarly observes that farmers 
specifically require unfettered access to this vehicle software ``to 
make any significant modifications to the efficiency and/or 
functionality of . . . their increasingly sophisticated agricultural 
machinery'' \77\ and to ``obtain vital diagnostic information.'' \78\
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    \74\ EFF's proposed regulatory language reads as follows: 
``Lawfully-obtained computer programs that control or are intended 
to control the functioning of a motorized land vehicle, including 
firmware and firmware updates, where circumvention is undertaken by 
or on behalf of the lawful owner of such a vehicle for the purpose 
of lawful aftermarket personalization, improvement, or repair.'' EFF 
Vehicle Software Repair Pet. at 1.
    \75\ U.S.C. Law filed two petitions relating agricultural 
machinery software. The first seeks an exemption to ``allow[ ] 
farmers to circumvent . . . TPMs for the purpose of modifying their 
own agricultural machinery to improve efficiency and/or 
functionality.'' U.S.C. Law Vehicle Software Modification Pet. at 1. 
The second seeks an exemption to ``allow[ ] farmers to circumvent . 
. . TPMs for the purpose of diagnosing and/or repairing their own 
agricultural machinery.'' U.S.C. Law Vehicle Software Repair Pet. at 
1. At least at this stage of the rulemaking, the Office believes 
that the two petitions are similar enough that they may be addressed 
as part of the same proposed class.
    \76\ EFF Vehicle Software Repair Pet. at 5.
    \77\ U.S.C. Law Vehicle Software Modification Pet. at 2.
    \78\ U.S.C. Law Vehicle Software Repair Pet. at 1.
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> Specific examples of the adverse effects of the TPMs, 
including how they prevent vehicle owners or others from engaging in 
lawful diagnosis, repair, or modification activities.
    <bullet> With respect to each of the proposed uses--diagnosis, 
repair, and modification--(a) the extent to which any of the asserted 
noninfringing activities merely requires examination or changing of 
variables or codes relied upon by the vehicle software, or instead 
requires copying or rewriting of the vehicle software, and (b) whether 
vehicle owners can properly be considered ``owners'' of the vehicle 
software.
    <bullet> The applicability (or not) of the statutory exemption for 
reverse engineering in 17 U.S.C. 1201(f) to the proposed uses.
    <bullet> Whether a third party--rather than the owner of the 
vehicle--may lawfully offer or engage in the proposed circumvention 
activities with respect to that vehicle pursuant to an exemption 
granted under 17 U.S.C. 1201(a)(1).
2. Proposed Class 22: Vehicle Software--Security and Safety Research
    This proposed class would allow circumvention of TPMs protecting 
computer programs that control the functioning of a motorized land 
vehicle for the purpose of researching the security or safety of such 
vehicles. Under the exemption as proposed, circumvention would be 
allowed when undertaken by or on behalf of the lawful owner of the 
vehicle.
    EFF seeks an exemption that would permit circumvention of TPMs on 
computer programs that are embedded in vehicles for purposes of 
researching the security or safety of that vehicle.\79\ According to 
EFF, TPMs on vehicle software prevent researchers from ``discover[ing] 
programming errors that endanger passengers'' or ``errors that would 
allow a remote attacker to take control of a vehicle's functions.'' 
\80\ Thus, separate and apart from Proposed Class 21, EFF seeks a 
specific exemption to permit vehicle safety and security research.
---------------------------------------------------------------------------

    \79\ EFF's proposed regulatory language reads as follows: 
``Lawfully-obtained computer programs that control or are intended 
to control the functioning of a motorized land vehicle, including 
firmware and firmware updates, where circumvention is undertaken by 
or on behalf of the lawful owner of such a vehicle for the purpose 
of researching the security or safety of such vehicles.'' EFF 
Vehicle Software Security Pet. at 1.
    \80\ EFF Vehicle Software Security Pet. at 2.
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> Specific examples of the adverse effects of the TPMs, 
including how they prevent vehicle owners or others from engaging in 
lawful safety and security research activities.
    <bullet> With respect to the proposed uses, (a) the extent to which 
any of the asserted noninfringing activities merely requires 
examination or changing of variables or codes relied upon by the 
vehicle software, or instead requires copying or rewriting of the 
vehicle software, and (b) whether vehicle owners can properly be 
considered ``owners'' of the vehicle software.
    <bullet> Whether granting the exemption could have negative 
repercussions with respect to the safety or security of vehicles, for 
example, by making it easier for wrongdoers to access a vehicle's 
software.
    <bullet> The applicability (or not) of the statutory exemptions for 
reverse engineering in 17 U.S.C. 1201(f) and encryption research in 17 
U.S.C. 1201(g) to the proposed uses.
    <bullet> Whether a third party--rather than the owner of the 
vehicle--may lawfully offer or engage in the proposed circumvention 
activities with respect to that vehicle pursuant to an exemption 
granted under 17 U.S.C. 1201(a)(1).

F. Abandoned Software

1. Proposed Class 23: Abandoned Software--Video Games Requiring Server 
Communication
    This proposed class would allow circumvention of TPMs on lawfully 
acquired video games consisting of communication with a developer-
operated server for the purpose of either authentication or to enable 
multiplayer matchmaking, where developer support for those server 
communications has ended. This exception would not apply to video games 
whose audiovisual content is primarily stored on the developer's 
server, such as massive multiplayer online role-playing games.
    EFF has proposed an exemption to permit circumvention of TPMs on 
video games that require communication with a server to ``enable core 
functionality''--that is, either ``single-player or multiplayer 
play''--where the developer no longer supports the requisite server

[[Page 73870]]

or services.\81\ EFF claims that an exemption allowing video game 
owners to circumvent relevant authentication and multiplayer TPMs is 
necessary to ``serve player communities that wish to continue playing 
their purchased games, as well as archivists, historians, and other 
academic researchers who preserve and study videogames.'' \82\
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    \81\ EFF's proposed regulatory language reads as follows: 
``Literary works in the form of computer programs, where 
circumvention is undertaken for the purpose of restoring access to 
single-player or multiplayer video gaming on consoles, personal 
computers or personal handheld gaming devices when the developer and 
its agents have ceased to support such gaming.'' EFF Abandoned Video 
Games Pet. at 1.
    \82\ Id. at 1-2.
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> Specific descriptions of the TPMs and methods of 
circumvention involved.
    <bullet> Specific examples of video games that would be covered by 
this proposed class, including games that can no longer be played at 
all and games for which single-player play remains possible but cannot 
be played in multiplayer mode.
    <bullet> Whether the exemption would threaten the current market 
for video games (a) by allowing users of unlawfully acquired video 
games to similarly bypass server checks, (b) by contributing to the 
circumvention of client-server protocols for non-abandoned video games, 
or (c) by threatening the market for older video games or discouraging 
the market for backward compatibility of video games.
    <bullet> The standard for determining when developer support has 
ended, including whether that standard should have a notice or grace 
period for developers before the exemption can be used.
    <bullet> The proposed scope of an exemption, including (a) whether 
the exemption should differ with respect to games that cannot be played 
at all because developer support has ended, and those for which only 
multiplayer support has ended, (b) whether it should exclude video 
games that are hosted on or played through a remote server, and (c) 
whether it should be limited to libraries, archivists, historians, or 
other academic researchers who preserve or study video games.
    <bullet> Whether the exemption should differ with respect to video 
games that are made for personal computers, those made for consoles, 
and those made for handheld devices.
2. Proposed Class 24: Abandoned Software--Music Recording Software
    This proposed class would allow circumvention of access controls 
consisting of the PACE content protection system, which restricts 
access to the full functionality of lawfully acquired Ensoniq PARIS 
music recording software.
    In three similar petitions, Richard Kelley, James McCloskey, and 
Michael Yanoska have proposed an exemption to permit circumvention of a 
TPM called PACE that protects access to a specific hardware and 
software system used for music production called Ensoniq PARIS.\83\ The 
petitions explain that, when PARIS is installed on a new computer or 
the hosting computer is modified in some way, the PACE access control 
requires the user to enter a response code, but these codes soon will 
no longer be available. Petitioners assert that an exemption will allow 
for both continued use of the PARIS system and access to existing sound 
recording files saved using that system, which would otherwise be 
unrecoverable.
---------------------------------------------------------------------------

    \83\ Mr. Kelley alone proposed specific regulatory language as 
follows: ``(1) Obsolete software/hardware combinations protected by 
a software based copy protection mechanism (software dongle) when 
the manufacturer is unable (because of no longer being in business) 
or unwilling to provide access via this system to those who are 
otherwise entitled access; (2) Obsolete software/hardware 
combinations protected by a software based copy protection mechanism 
(software dongle) that prevents the hardware and software from 
running on current operating systems or current hardware by those 
otherwise entitled to access to the software and hardware.'' Kelley 
Pet. at 1; see also McCloskey Pet. at 1 (seeking ``a minor 
broadening of a previous exemption, namely `Computer programs 
protected by dongles that prevent access due to malfunction or 
damage and which are obsolete''); Yanoska Pet. at 1 (seeking 
exemption to allow ``[e]limination of the PACE control on recording 
software that was created and sold over 15 years ago (which is no 
longer sold or supported by the creating company)'').
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> Specific evidence that response codes will no longer be 
provided to Ensoniq PARIS owners.
    <bullet> The applicability (or not) of 17 U.S.C. 117 to the 
maintenance or repair of the hardware and software comprising Ensoniq 
PARIS or the PACE protection system.
    <bullet> Whether any portions of the Ensoniq PARIS hardware or 
software will remain functional without the ability to circumvent the 
PACE access control.
    <bullet> Whether the proposed circumvention could impact others, if 
any, who use the PACE protection system, including federal agencies and 
state and local law enforcement personnel who apparently rely upon 
services from Intelligent Devices, the current proprietor of the PACE 
access control system.

G. Miscellaneous

1. Proposed Class 25: Software--Security Research
    This proposed class would allow researchers to circumvent access 
controls in relation to computer programs, databases, and devices for 
purposes of good-faith testing, identifying, disclosing, and fixing of 
malfunctions, security flaws, or vulnerabilities.
    Two submissions--by Professor Matthew D. Green,\84\ and by a group 
of academic security researchers comprising Professors Steven M. 
Bellovin, Matt Blaze, Edward W. Felten, J. Alex Halderman, and Nadia 
Heninger (``Security Researchers'') \85\--seek exemptions for 
researchers performing good-faith security research. According to the 
submissions, an exemption is needed to identify, disclose, and fix 
malfunctions, security flaws, and/or vulnerabilities across a wide 
range of systems and devices. Petitioners seek to circumvent TPMs in 
medical devices; car components; supervisory control and data 
acquisition (``SCADA'')

[[Page 73871]]

systems; and other critical infrastructure, such as the computer code 
that controls nuclear power plants, smartgrids, and industrial control 
systems; smartphones that operate critical applications, such as 
pacemaker applications; internet-enabled consumer goods in the home; 
and transit systems.\86\ According to petitioners, the exemptions 
codified in subsection (f) of 17 U.S.C. 1201 for reverse engineering, 
subsection (g) for encryption research, subsection (i) for protection 
of personally identifying information, and subsection (j) for security 
testing do not sufficiently capture the breadth of the research they 
seek to facilitate, and suffer from ``ambiguities . . . and burdensome 
requirements to qualify for those exemptions.'' \87\ As a result, the 
petitioners say that they have ``chosen not to perform specific acts of 
security research that they believe would have prevented harms to and 
benefited [the] safety of human persons.'' \88\
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    \84\ Professor Green's proposed regulatory language reads as 
follows: ``Computer programs and software, a subcategory of literary 
works, accessible on personal computers and personal devices and 
protected by technological protection measures (`TPMs') that control 
access to lawfully obtained works when circumvention is accomplished 
for the purposes of good faith testing, investigating, or correcting 
security flaws and vulnerabilities, commentary, criticism, 
scholarship, or teaching.'' Green Pet. at 1.
    \85\ Security Researchers' proposed regulatory language reads as 
follows: ``Literary works, including computer programs and 
databases, protected by access control mechanisms that potentially 
expose the public to risk of harm due to malfunction, security flaws 
or vulnerabilities when (a) circumvention is accomplished for the 
purposes of good faith testing for, investigating, or correcting 
such malfunction, security flaws or vulnerabilities in a 
technological protection measures or the underlying work it 
protects; OR (b) circumvention was part of the testing or 
investigation into a malfunction, security flaw or vulnerability 
that resulted in the public dissemination of security research when 
(1) a copyright holder fails to comply with the standards set forth 
in ISO 29147 and 30111; or (2) the finder of the malfunction, 
security flaw or vulnerability reports the malfunction, security 
flaw or vulnerability to the copyright holder by providing the 
information set forth in Form A* in advance of or concurrently with 
public dissemination of the security research.'' Security 
Researchers Pet. at 1.
    \86\ See Security Researchers Pet. at 2.
    \87\ Green Pet. at 4; see also Security Researchers Pet. at 2.
    \88\ Security Researchers Pet. at 3. The Office notes that prior 
exemptions granted in 2006 and 2010 addressed circumvention for 
investigation or security purposes for the more limited categories 
of compact discs or video games accessible on personal computers. 
See 37 CFR 201.40(b)(6) (2007) (compact discs); 37 CFR 201.40(b)(4) 
(2011) (video games); 71 FR at 68477; 75 FR 43825, 43832 (July 27, 
2010).
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> Specific examples of the types of noninfringing uses that 
are, or in the next three years, are likely to be adversely affected by 
a prohibition on circumvention, including the security risks sought to 
be avoided.
    <bullet> The specific TPMs sought to be circumvented in connection 
with particular classes of works and the methods for circumventing 
those access controls, including the environment (academic or 
otherwise) in which the circumvention would be accomplished.
    <bullet> Specific examples of acts of security research that have 
been foregone or delayed due to the current lack of the proposed 
exemption.
    <bullet> Whether granting the exemption could have negative 
repercussions with respect to the safety or security of the works that 
are subject to research, for example, by making it easier for 
wrongdoers to access sensitive applications or databases.
    <bullet> Any industry standards that the Office should consider in 
evaluating this request, such as the ISO 29147 and ISO 30111 security 
guidelines, including an explanation of how these standards may relate 
to the proposed exemption.
2. Proposed Class 26: Software--3D Printers
    This proposed class would allow circumvention of TPMs on firmware 
or software in 3D printers to allow use of non-manufacturer-approved 
feedstock in the printer.
    Public Knowledge seeks an exemption to circumvent TPMs on computer 
programs used in 3D printers to allow use of non-manufacturer-approved 
feedstock in such printers.\89\
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    \89\ Public Knowledge ``seeks an exemption for users of 3D 
printers that are protected by control technologies when 
circumvention is accomplishe[d] solely for the purpose of using non-
manufacturer approved feedstock in the printer.'' Public Knowledge 
3D Printer Pet. at 2.
---------------------------------------------------------------------------

    The Office encourages commenters, in the course of detailing how 
the proposed exemption meets the requirements of section 1201(a)(1), to 
address--including through the submission of relevant evidence--the 
following:
    <bullet> Specific examples of 3D printers that include the 
complained-of access controls, including a description of the 
applicable TPMs, how they operate, and methods of circumvention.
    <bullet> The extent to which there are available for purchase 3D 
printers that do not include such access controls, and whether the 
existence of such printers obviates the need for an exemption.
3. Proposed Class 27: Software--Networked Medical Devices
    The proposed class would allow circumvention of TPMs protecting 
computer programs in medical devices designed for attachment to or 
implantation in patients and in their corresponding monitoring devices, 
as well as the outputs generated through those programs. As proposed, 
the exemption would be limited to cases where circumvention is at the 
direction of a patient seeking access to information generated by his 
or her own device, or at the direction of those conducting research 
into the safety, security, and effectiveness of such devices. The 
proposal would cover devices such as pacemakers, implantable 
cardioverter defibrillators, insulin pumps, and continuous glucose 
monitors.
    This proposal, filed by a coalition of medical device patients and 
researchers (``Medical Device Research Coalition''), seeks an exemption 
to allow circumvention of TPMs in the firmware or software of medical 
devices and their corresponding monitoring systems at patient direction 
or for purposes of safety, security, or effectiveness research.\90\ 
According to the petition, ``[m]any medical device manufacturers use 
measures to control access'' to medical device software, including 
password systems and encryption of outputs.\91\ The Office encourages 
commenters, in the course of detailing how the proposed exemption meets 
the requirements of section 1201(a)(1), to address--including through 
the submission of relevant evidence--the following:
---------------------------------------------------------------------------

    \90\ The Medical Device Research Coalition's proposed regulatory 
language reads as follows: ``Computer programs, in the form of 
firmware or software, including the outputs generated by those 
programs, that are contained within or generated by medical devices 
and their corresponding monitoring systems, when such devices are 
designed for attachment to or implantation in patients, and where 
such circumvention is at the direction of a patient seeking access 
to information generated by his or her own device or at the 
direction of those conducting research into the safety, security, 
and effectiveness of such devices.'' Medical Device Research 
Coalition Pet. at 1-2.
    \91\ Id. at 2.
---------------------------------------------------------------------------

    <bullet> Specific examples demonstrating the noninfringing uses and 
adverse effects of the TPMs, including how patients seeking access to 
information generated by their own devices, and/or those seeking to 
conduct research into the safety, security, and effectiveness of such 
devices, are prevented from engaging in lawful activities because of 
the TPMs.
    <bullet> Whether the exemption should distinguish among different 
users (researchers, patients, healthcare providers at the direction of 
the device-user patient, etc.) and/or the proposed use (examining 
output of devices, research into safety, security, and effectiveness of 
devices, etc.).
    <bullet> Whether the outputs generated by the medical device 
programs constitute copyright-protected materials.
    <bullet> Whether granting the exemption could have negative 
repercussions with respect to the safety or security of the relevant 
medical devices, for example, by making it easier for wrongdoers to 
access such medical devices' software or outputs.
    <bullet> The relevance of the statutory exemptions for reverse 
engineering in 17 U.S.C. 1201(f) and for encryption research in 17 
U.S.C. 1201(g) to the proposed uses.
    <bullet> Whether a third party--rather than the owner of the 
device--may lawfully offer or engage in the proposed circumvention 
activities with respect to that device pursuant to an exemption granted 
under 17 U.S.C. 1201(a)(1).


[[Page 73872]]


     Dated: December 9, 2014.
Jacqueline C. Charlesworth,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2014-29237 Filed 12-11-14; 8:45 am]
BILLING CODE 1410-30-P


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