II 

114TH CONGRESS 

1ST SESSION S. 990 

To improve the process by which the Librarian of Congress considers requests 

for exemptions to section 1201(a)(1)(A) of title 17, United States Code, 

and to ease restrictions on the use of certain statutory exemptions 

to the Digital Millennium Copyright Act. 

IN THE SENATE OF THE UNITED STATES 

APRIL 16, 2015 

Mr. WYDEN introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

A BILL 

To improve the process by which the Librarian of Congress 

considers requests for exemptions to section 

1201(a)(1)(A) of title 17, United States Code, and to 

ease restrictions on the use of certain statutory exemptions to the Digital Millennium Copyright Act. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Breaking Down Bar5 riers to Innovation Act of 2015’’. 

6 SEC. 2. SENSE OF CONGRESS. 

7 It is the sense of Congress that— 


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1 (1) the Librarian of Congress (referred to in 

2 this section as the ‘‘Librarian’’) should ensure that 

3 noninfringing uses of copyrighted works, as well as 

4 activities unrelated to the copyrighted works, are not 

5 unduly burdened by the application of section 1201 

6 of title 17, United States Code; 

7 (2) the Librarian should apply section 1201 of 

8 title 17, United States Code, in a manner that 

9 strikes a balance between the ability of persons to 

10 make noninfringing use of copyrighted works and 

11 the legitimate protection of intellectual property 

12 rights; 

13 (3) the Librarian, in considering whether to 

14 grant exemptions to the prohibition on the cir15 cumvention of technological protection measures, 

16 should recognize that such measures prevent persons 

17 from undertaking activities unrelated to the use of 

18 copyrighted works; and 

19 (4) the Librarian— 

20 (A) should not impose undue burdens on 

21 proponents of exemptions; and 

22 (B) should ensure that the rulemaking 

23 process for considering exemptions is responsive 

24 to changes in the technological landscape. 


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1 SEC. 3. CIRCUMVENTION OF COPYRIGHT PROTECTION SYS2 TEMS. 

3 (a) VIOLATIONS REGARDING CIRCUMVENTION OF

4 TECHNOLOGICAL MEASURES.— 

5 (1) IN GENERAL.—Section 1201(a)(1) of title 

6 17, United States Code, is amended— 

7 (A) in subparagraph (A), by striking the 

8 second sentence; 

9 (B) in subparagraph (C)— 

10 (i) in the matter preceding clause 

11 (i)— 

12 (I) by striking ‘‘During the 2- 

13 year period described in subparagraph 

14 (A), and during each succeeding 3- 

15 year period,’’ and inserting ‘‘Every 3 

16 years,’’; and 

17 (II) by striking ‘‘the Librarian 

18 shall examine’’ and inserting ‘‘the Li19 brarian shall consider, if applicable’’; 

20 (ii) in clause (i), by striking ‘‘the 

21 availability for use of copyrighted works’’ 

22 and inserting ‘‘any reduction in the avail23 ability for use of copyrighted works as a 

24 result of the prohibition on the circumven25 tion of technological measures’’; 


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1 (iii) in clause (iii), by striking ‘‘or re2 search’’ and inserting the following: ‘‘re3 pair, recycling, research, or other fair uses, 

4 and on access to information not subject to 

5 copyright protection’’; 

6 (iv) by redesignating clauses (iv) and 

7 (v) as clauses (vi) and (vii), respectively; 

8 and 

9 (v) by inserting after clause (iii) the 

10 following: 

11 ‘‘(iv) the impact that the prohibition 

12 on the circumvention of technological 

13 measures has on the accessibility of works 

14 and technologies for persons with disabil15 ities; 

16 ‘‘(v) the impact that the prohibition 

17 on the circumvention of technological 

18 measures has on the furtherance of secu19 rity research;’’; 

20 (C) by redesignating subparagraph (D) as 

21 subparagraph (F); 

22 (D) by striking subparagraph (E); 

23 (E) by inserting after subparagraph (C) 

24 the following: 


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1 ‘‘(D) In making a determination under subparagraph 

2 (C), the Librarian— 

3 ‘‘(i) shall consider the totality of the evidence 

4 available to the Librarian; and 

5 ‘‘(ii) may not assign the burden of proof to a 

6 proponent of an exemption. 

7 ‘‘(E) The Librarian, at the discretion of the Librar8 ian, may conduct a rulemaking proceeding under subpara9 graph (C) outside of the 3-year review process described 

10 in that subparagraph if the Librarian determines that it 

11 is substantially likely that persons who are users of a copy12 righted work which is in a particular class of works are, 

13 or are likely to be in the succeeding 3-year period, ad14 versely affected by virtue of the prohibition under subpara15 graph (A) in their ability to make noninfringing uses of 

16 that particular class of works under this title.’’; 

17 (F) in subparagraph (F), as redesig18 nated— 

19 (i) by striking ‘‘The Librarian’’ and 

20 inserting ‘‘(i) The Librarian’’; 

21 (ii) by striking ‘‘adversely affected, 

22 and the prohibition’’ and inserting the fol23 lowing: ‘‘adversely affected. 

24 ‘‘(ii) The prohibition’’; and 


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1 (iii) by adding at the end the fol2 lowing: 

3 ‘‘(iii) At the end of each 3-year period described in 

4 subparagraph (C), the Librarian shall renew for the ensu5 ing 3-year period each exemption granted under subpara6 graph (C) unless the Librarian determines that, as a re7 sult of changed circumstances, it is unlikely that any per8 sons who are users of a copyrighted work in the class of 

9 copyrighted works to which the exemption relates will be 

10 adversely affected by virtue of the prohibition under sub11 paragraph (A) in their ability to make noninfringing uses 

12 of that particular class of works under this title.’’; and 

13 (G) by inserting after subparagraph (F), 

14 as redesignated, the following: 

15 ‘‘(G) For purposes of this paragraph— 

16 ‘‘(i) persons are ‘adversely affected’ if a techno17 logical measure that effectively controls access to a 

18 work which is in a particular class of copyrighted 

19 works diminishes the ability of the persons to make 

20 noninfringing uses of that particular class of works 

21 under this title; 

22 ‘‘(ii) if a technological measure inhibits non23 infringing uses of a work which is in a particular 

24 class of copyrighted works relating to improving ac25 cessibility of works or technologies for persons with 


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1 disabilities, there shall be a presumption that per2 sons who use that particular class of work are likely 

3 to be adversely affected; and 

4 ‘‘(iii) the Librarian may find that a use of a 

5 work is noninfringing based upon the totality of the 

6 circumstances, including— 

7 ‘‘(I) the presence of supporting judicial 

8 precedent; 

9 ‘‘(II) the absence of contrary judicial 

10 precedent; 

11 ‘‘(III) the intent of Congress; and 

12 ‘‘(IV) any other factors relevant to— 

13 ‘‘(aa) assessing the applicability of 

14 copyright protection; or 

15 ‘‘(bb) exceptions to or limitations on 

16 copyright protection.’’. 

17 (2) REPORT.—Not later than 1 year after the 

18 date of enactment of this Act, the Librarian of Con19 gress, in consultation with the Register of Copy20 rights and the Assistant Secretary for Communica21 tions and Information of the Department of Com22 merce, shall— 

23 (A) conduct a study, including by soliciting 

24 public comment, on— 


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1 (i) ways to ease the burden on persons 

2 requesting an exemption under section 

3 1201(a)(1)(C) of title 17, United States 

4 Code, as amended by paragraph (1); 

5 (ii) how the process for requesting 

6 and granting exemptions described in 

7 clause (i) can be used to foster security re8 search; and 

9 (iii) how the process for requesting 

10 and granting exemptions described in 

11 clause (i) can be expanded to enable the 

12 sale and dissemination of circumvention 

13 tools, as described in subsections (a)(2) 

14 and (b)(1) of section 1201 of title 17, 

15 United States Code, for the sole purposes 

16 of enabling circumventions with respect to 

17 the classes of copyrighted works that the 

18 Librarian has published under subpara19 graph (F) of subsection (a)(1) of such sec20 tion, as redesignated by paragraph (1); 

21 and 

22 (B) shall submit to Congress a report on 

23 the study conducted under subparagraph (A) 

24 that includes— 


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1 (i) proposed legislation to achieve the 

2 goals described in clauses (i) and (ii) of 

3 subparagraph (A); and 

4 (ii) a description of any obstacles to 

5 the expansion described in clause (iii) of 

6 subparagraph (A) and proposed legislation 

7 for achieving such an expansion. 

8 (b) REVERSE ENGINEERING.—Section 1201(f) of 

9 title 17, United States Code, is amended— 

10 (1) in paragraph (1), by striking ‘‘for the sole 

11 purpose’’ and all that follows through ‘‘engaging in 

12 the circumvention’’ and inserting the following: ‘‘for 

13 the sole purpose of undertaking activities aimed at 

14 achieving interoperability of an independently cre15 ated computer program with other programs’’; 

16 (2) in paragraph (2), by striking ‘‘in order to 

17 enable’’ and all that follows through ‘‘achieve such 

18 interoperability’’ and inserting the following: ‘‘for 

19 the activities described under paragraph (1), or for 

20 the purpose of enabling interoperability of an inde21 pendently created computer program with other pro22 grams’’; and 

23 (3) in paragraph (3), by striking ‘‘if the per24 son’’ and all that follows through ‘‘other programs, 

25 and’’. 


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1 (c) ENCRYPTION RESEARCH.—Section 1201(g) of 

2 title 17, United States Code, is amended— 

3 (1) in paragraph (1)(A)— 

4 (A) by striking ‘‘activities necessary to 

5 identify and analyze flaws’’ and inserting ‘‘ac6 tivities relating to the identification and anal7 ysis of flaws’’; and 

8 (B) by striking ‘‘to advance the state of 

9 knowledge in the field of encryption technology’’ 

10 and inserting ‘‘for research purposes’’; 

11 (2) in paragraph (2)— 

12 (A) in subparagraph (B), by striking ‘‘nec13 essary to conduct’’ and inserting ‘‘undertaken 

14 in the course of conducting’’; and 

15 (B) in subparagraph (D), by striking all 

16 that follows ‘‘infringement under this title’’ and 

17 inserting a period; 

18 (3) by striking paragraphs (3) and (5); 

19 (4) by redesignating paragraph (4) as para20 graph (3); and 

21 (5) in paragraph (3)(B), as redesignated, by 

22 striking ‘‘with whom he or she is working collabo23 ratively’’. 


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1 (d) PROTECTION OF PERSONALLY IDENTIFYING IN2 FORMATION.—Section 1201(i)(1)(D) of title 17, United 

3 States Code, is amended— 

4 (1) by striking ‘‘solely’’; and 

5 (2) by striking ‘‘who seeks to gain access to the 

6 work protected, and is not in violation of any other 

7 law’’. 

8 (e) SECURITY TESTING.—Section 1201(j) of title 17, 

9 United States Code, is amended— 

10 (1) in paragraph (2), by striking all that follows 

11 ‘‘infringement under this title’’ and inserting a pe12 riod; 

13 (2) by striking paragraph (3); 

14 (3) by redesignating paragraph (4) as para15 graph (3); and 

16 (4) in paragraph (3), as redesignated, by strik17 ing ‘‘subsection (2)’’ and all that follows and insert18 ing ‘‘paragraph (2)’’. 

Æ 


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