[Federal Register Volume 82, Number 206 (Thursday, October 26, 2017)]
[Proposed Rules]
[Pages 49550-49563]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-23038]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. 2017-10]


Exemptions To Permit Circumvention of Access Controls on 
Copyrighted Works

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The United States Copyright Office (``Copyright Office'' or 
``Office'') is conducting the seventh triennial rulemaking proceeding 
under the Digital Millennium Copyright Act (``DMCA''), concerning 
possible temporary exemptions to the DMCA's prohibition against 
circumvention of technological measures that control access to 
copyrighted works. In this proceeding, the Copyright Office has 
established a new, streamlined procedure for the renewal of exemptions 
that were granted during the sixth triennial rulemaking. It is also 
considering petitions for new exemptions to engage in activities not 
currently permitted by existing exemptions. On June 30, 2017, the 
Office published a Notice of Inquiry requesting petitions to renew 
existing exemptions and comments in response to those petitions, as 
well as petitions for new exemptions to engage in activities not 
currently permitted by existing exemptions. The Office has carefully 
considered the comments received in response to that Notice. With this 
Notice of Proposed Rulemaking (``NPRM''), the Office intends to 
recommend each of the existing exemptions for readoption. This NPRM 
also initiates three rounds of public comment on the newly-proposed 
exemptions. Interested parties are invited to make full legal and 
evidentiary submissions in support of or in opposition to the proposed 
exemptions, in accordance with the requirements set forth below.

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

[[Page 49551]]

neither support nor oppose an exemption but seek to share pertinent 
information about a proposal, are due December 18, 2017. Written 
response comments (including documentary evidence) and multimedia 
evidence from those who oppose the adoption of a proposed exemption are 
due February 12, 2018. Written reply comments from supporters of 
particular proposals and parties that neither support nor oppose a 
proposal are due March 14, 2018. Commenting parties should be aware 
that rather than reserving 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.

ADDRESSES: The Copyright Office is using the regulations.gov system for 
the submission and posting of comments in this proceeding. All comments 
are therefore to be submitted electronically through regulations.gov. 
The Office is accepting two types of comments. First, commenters who 
wish briefly to express general support for or opposition to a proposed 
exemption may submit such comments electronically by typing into the 
comment field on regulations.gov. Second, commenters who wish to 
provide a fuller legal and evidentiary basis for their position may 
upload a Word or PDF document, but such longer submissions must be 
completed using the long-comment form provided on the Office's Web site 
at https://www.copyright.gov/1201/2018. Specific instructions for 
submitting comments, including multimedia evidence that cannot be 
uploaded through regulations.gov, are also available on that Web page. 
If a commenter cannot meet a particular submission requirement, please 
contact the Office using the contact information below for special 
instructions.

FOR FURTHER INFORMATION CONTACT: Sarang Vijay Damle, General Counsel 
and Associate Register of Copyrights, by email at <a href="/cdn-cgi/l/email-protection#5f2c3b3e321f33303c71383029"><span class="__cf_email__" data-cfemail="d5a6b1b4b895b9bab6fbb2baa3">[email protected]</span></a>, Regan 
A. Smith, Deputy General Counsel, by email at <a href="/cdn-cgi/l/email-protection#b1c3d4c2dcf1ddded29fd6dec7"><span class="__cf_email__" data-cfemail="572532243a173b383479303821">[email protected]</span></a>, Anna 
Chauvet, Assistant General Counsel, by email at <a href="/cdn-cgi/l/email-protection#3f5e5c575e4a7f53505c11585049"><span class="__cf_email__" data-cfemail="6c0d0f040d192c00030f420b031a">[email protected]</span></a>, or Jason 
E. Sloan, Attorney-Advisor, by email at <a href="/cdn-cgi/l/email-protection#a8c2dbc4c7e8c4c7cb86cfc7de"><span class="__cf_email__" data-cfemail="e58f96898aa5898a86cb828a93">[email protected]</span></a>. Each can be 
contacted by telephone by calling (202) 707-8350.

SUPPLEMENTARY INFORMATION: On June 30, 2017, the Office published a 
Notice of Inquiry requesting petitions to renew current exemptions, 
oppositions to the renewal petitions, and petitions for newly proposed 
exemptions (the ``Notice of Inquiry'') in connection with the seventh 
triennial section 1201 rulemaking.\1\ In response, the Office received 
thirty-nine renewal petitions, five comments regarding the scope of the 
renewal petitions, and one comment in opposition to renewal of a 
current exemption.\2\ These comments are discussed further below. In 
addition, the Office received twenty-three petitions for new 
exemptions, many of which seek to expand upon a current exemption.
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    \1\ 82 FR 29804 (June 30, 2017).
    \2\ The comments received in response to the Notice of Inquiry 
are available online at https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&dct=PS&D=COLC-2017-0007. References to these comments are by party name 
(abbreviated where appropriate) followed by either ``Renewal Pet.,'' 
``Pet.,'' or ``Renewal Comment,'' as appropriate.
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    With this NPRM, the Office sets forth the exemptions the Register 
of Copyrights intends to recommend for readoption without the need for 
further development of the administrative record, and outlines the 
proposed classes for new exemptions for which the Office initiates 
three rounds of public comment.

I. Standard for Evaluating Proposed Exemptions

    As the Notice of Inquiry explained, for a temporary exemption from 
the prohibition on circumvention to be granted through the triennial 
rulemaking, it must be established that ``persons who are users of a 
copyrighted work are, or are likely to be in the succeeding 3-year 
period, adversely affected by the prohibition . . . in their ability to 
make noninfringing uses under [title 17] of a particular class of 
copyrighted works.'' \3\ To devise an appropriate class of copyrighted 
works, the Office begins with the broad categories of works identified 
in 17 U.S.C. 102 and then refines them by other criteria, such as the 
technological protection measures (``TPMs'') used, distribution 
platforms, and/or types of uses or users.\4\
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    \3\ 17 U.S.C. 1201(a)(1)(C).
    \4\ See H.R. Rep. No. 105-551, pt. 2, at 38 (1998) (``Commerce 
Comm. Report''); Register of Copyrights, Section 1201 Rulemaking: 
Sixth Triennial Proceeding to Determine Exemptions to the 
Prohibition on Circumvention, Recommendation of the Register of 
Copyrights 17-18 (2015) (``2015 Recommendation''); U.S. Copyright 
Office, Section 1201 of Title 17, at 26, 108-10 (2017), https://www.copyright.gov/policy/1201/section-1201-full-report.pdf (``1201 
Study'').
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    In evaluating the evidence, the Register must consider the 
following statutory factors: 1. The availability for use of copyrighted 
works; 2. the availability for use of works for nonprofit archival, 
preservation, and educational purposes; 3. the impact that the 
prohibition on the circumvention of technological measures applied to 
copyrighted works has on criticism, comment, news reporting, teaching, 
scholarship, or research; 4. the effect of circumvention of 
technological measures on the market for or value of copyrighted works; 
and 5. such other factors as the Librarian considers appropriate.'' \5\ 
After developing a comprehensive administrative record, the Register 
makes a recommendation to the Librarian of Congress concerning whether 
exemptions are warranted based on that record.
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    \5\ 17 U.S.C. 1201(a)(1)(C).
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    The Office has previously articulated the substantive legal and 
evidentiary standard for the granting of an exemption under section 
1201(a)(1) multiple times, including in its recently-issued video and 
PowerPoint tutorials, the 1201 Study, and in prior recommendations of 
the Register concerning proposed classes of exemptions, each of which 
is accessible from the Office's 1201 rulemaking Web page at https://www.copyright.gov/1201/ 1201/. At bottom, in considering whether to 
recommend an exemption, the Office must inquire: ``Are users of a 
copyrighted work adversely affected by the prohibition on circumvention 
in their ability to make noninfringing uses of a class of copyrighted 
works, or are users likely to be so adversely affected in the next 
three years?'' \6\ This inquiry breaks into the following elements:
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    \6\ 1201 Study at 114.
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    <bullet> The proposed class includes at least some works protected 
by copyright.
    <bullet> The uses at issue are noninfringing under title 17.
    <bullet> Users are adversely affected in their ability to make such 
noninfringing uses or, alternatively, users are likely to be adversely 
affected in their ability to make such noninfringing uses during the 
next three years. This element is analyzed in reference to section 
1201(a)(1)(C)'s five statutory factors.
    <bullet> The statutory prohibition on circumventing access controls 
is the cause of the adverse effects.\7\
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    \7\ Id. at 115; see also id. at 115-27.
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    The Register will consider the Copyright Act and relevant judicial 
precedents when analyzing whether a proposed use is likely to be 
noninfringing.\8\ When considering whether such uses are being 
adversely impacted by the prohibition on circumvention, the rulemaking 
focuses

[[Page 49552]]

on ``distinct, verifiable, and measurable impacts'' compared to ``de 
minimis impacts.'' \9\ Taking the administrative record together, the 
Office will consider whether the preponderance of the evidence in the 
record shows that the conditions for granting an exemption have been 
met.\10\
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    \8\ Id. at 115-17. While controlling precedent directly on point 
is not required to justify an exemption, there is no ``rule of 
doubt'' favoring an exemption when it is unclear that a particular 
use is fair or otherwise noninfringing. See 2015 Recommendation at 
15.
    \9\ Commerce Comm. Report at 37; see also Staff of H. Comm. on 
the Judiciary, 105th Cong., Section-by-Section Analysis of H.R. 2281 
as Passed by the United States House of Representatives on August 
4th, 1998, at 6 (Comm. Print 1998) (using the equivalent phrase 
``substantial adverse impact'') (``House Manager's Report''); see 
also, e.g., 1201 Study at 119-21 (discussing same and citing 
application of this standard in five prior rulemakings).
    \10\ See 17 U.S.C. 1201(a)(1)(C) (asking whether users ``are, or 
are likely to be in the succeeding 3-year period, adversely affected 
by the prohibition [on circumvention] in their ability to make 
noninfringing uses'') (emphasis added); 1201 Study at 111-12; see 
also Sea Island Broad. Corp. v. FCC, 627 F.2d 240, 243 (D.C. Cir. 
1980) (noting that ``[t]he use of the `preponderance of evidence' 
standard is the traditional standard in civil and administrative 
proceedings''); 70 FR 57526, 57528 (Oct. 3, 2005); 2015 
Recommendation at 15; Register of Copyrights, Section 1201 
Rulemaking: Fifth Triennial Proceeding to Determine Exemptions to 
the Prohibition on Circumvention, Recommendation of the Register of 
Copyrights 6 (2012) (``2012 Recommendation''); Register of 
Copyrights, Section 1201 Rulemaking: Second Triennial Proceeding to 
Determine Exemptions to the Prohibition on Circumvention, 
Recommendation of the Register of Copyrights 19-20 (2003) (``2003 
Recommendation'').
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II. Review of Petitions To Renew Existing Exemptions

    During this rulemaking, the Office initiated a new streamlined 
process for recommending readoption of previously-adopted exemptions to 
the Librarian. As the Office explained in its recent 1201 Study, the 
``Register must apply the same evidentiary standards in recommending 
the renewal of exemptions as for first-time exemption requests,'' and 
the statute requires that ``a determination must be made specifically 
for each triennial period.'' \11\ The Office further determined that 
``the statutory language appears to be broad enough to permit 
determinations to be based upon evidence drawn from prior proceedings, 
but only upon a conclusion that this evidence remains reliable to 
support granting an exemption in the current proceeding.'' \12\
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    \11\ 1201 Study at 142, 145.
    \12\ Id. at 143.
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    Based on this understanding of the statutory scheme, the Office 
solicited petitions for the renewal of exemptions as they are currently 
formulated, without modification. Thus, if a proponent sought to engage 
in any activities not currently permitted by an existing exemption, a 
petition for a new exemption had to have been submitted. This is 
because streamlined renewal is based upon a determination that, due to 
a lack of legal, marketplace, or technological changes, the factors 
that led the Register to recommend adoption of the exemption in the 
prior rulemaking will continue into the forthcoming triennial 
period.\13\ That is, the same facts and circumstances underlying the 
previously-adopted regulatory exemption may be relied on to renew the 
exemption. Accordingly, to the extent that any renewal petition 
proposed uses beyond the current exemption, the Office disregarded 
those portions of the petition for purposes of considering the renewal 
of the exemption, and instead focused on whether it provided sufficient 
information to warrant readoption of the exemption in its current 
form.\14\
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    \13\ Id. at 143-44.
    \14\ This suffices to address concerns raised that some renewal 
petitions sought exemptions broader than currently formulated. See 
Entertainment Software Association, the Motion Picture Association 
of America, Inc. & the Recording Industry of America, Inc. 
(collectively, ``Joint Creators'') Renewal Comment at 2; DVD Copy 
Control Association (``DVD CCA'') & The Advanced Access Content 
System Licensing Administrator (``AACS LA'') AV Noncom. Videos 
Renewal Comment at 1-2, 4-5; DVD CCA & AACS LA AV Univ. Renewal 
Comment at 1-2, 5; Alliance of Automobile Manufacturers (``Auto 
Alliance'') Renewal Comment at 1-2.
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    The Office received thirty-nine petitions to renew existing 
exemptions, including at least one petition to renew each currently-
adopted exemption. Each petition to renew an existing exemption 
included an explanation summarizing the basis for claiming a continuing 
need and justification for the exemption. In each case, petitioners 
also signed a declaration stating that, to the best of their personal 
knowledge, there has not been any material change in the facts, law, or 
other circumstances set forth in the prior rulemaking record such that 
renewal of the exemption would not be justified.
    The Office also received six comments in response to the renewal 
petitions; five did not oppose renewal, but offered more general 
comments, and one was styled as an opposition to renewal. One general 
comment filed by the Entertainment Software Association, the Motion 
Picture Association of America, Inc., and the Recording Industry 
Association of America, Inc. (collectively, ``Joint Creators'') raised 
some overarching issues with the renewal petitions. Specifically, Joint 
Creators expressed concern that many of the renewal petitions ``were 
based on what the petitioners attest they have been told by others, 
rather than on their own personal knowledge.'' \15\ But as the Office 
explained in its Notice of Inquiry, it expected that ``a broad range of 
individuals have a sufficient level of knowledge and experience'' 
regarding the continued need for an exemption. For instance, the Notice 
of Inquiry noted that a renewal petition could be filed by a relevant 
employee or volunteer at an organization--like the American Foundation 
for the Blind, which advocates for the blind, visually impaired, and 
print disabled--who is familiar with the needs of the community, and is 
well-versed specifically in the e-book accessibility issue, to make the 
declaration with regard to the current e-book assistive technology 
exemption.\16\ Consistent with that direction, the Office received 
petitions from some individuals who may not themselves have engaged in 
circumvention, but attested to their personal knowledge of others who 
have a continuing need for an exemption. Those petitions were signed by 
individuals at associations that had actively participated in the past 
rulemaking and described specific continued needs for the 
exemption.\17\ Accordingly, the Office finds that these petitions are 
formally and substantively sufficient for the Office to consider in 
evaluating whether renewal of the existing exemptions exemption is 
appropriate.\18\
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    \15\ Joint Creators Renewal Comment at 2 n.4.
    \16\ 82 FR at 29806. The Office did suggest that it would be 
improper for a member of the general public to petition for renewal 
if he or she knew nothing more about matters concerning e-book 
accessibility other than what he or she might have read in a brief 
newspaper article, or simply opposed the use of digital rights 
management tools as a matter of general principle--but none of the 
renewal petitions raise that issue.
    \17\ See, e.g., The Intellectual Property & Technology Law 
Clinic of the University of Southern California Gould School of Law 
(``IPTC U.S.C.'') Renewal Pet. at 3 (``We have personally heard from 
a number of farmers and farm bureaus that farmers need this 
exemption and anticipate needing to use it in the future.''); 
Electronic Frontier Foundation (``EFF'') Repair Renewal Pet. at 3 
(describing groups of users with continued need to engage in 
circumvention of motorized land vehicles and conversation with 
individual who modifies motorized wheelchairs and mobility scooters 
to tailor to the individual needs of users). The Office notes that 
parties demonstrated personal knowledge in multiple ways. One 
particularly helpful example was the petition submitted by 
Professors Bellovin, Blaze, and Heninger, which described how they 
rely on the exemption for their own security research and will 
continue to do so, discussed reliance on the exemption by other 
security researchers, and provided a recent example illustrating 
reliance on the exemption by security researchers. Bellovin, Blaze & 
Heninger Renewal Pet. at 3.
    \18\ Joint Creators also urged that petitions that ``expressly 
base their justification . . . on a need to provide circumvention 
assistance that would likely be prohibited by [the anti-trafficking 
provision of section 1201] should not be considered supportive of 
actual renewal.'' Joint Creators Renewal Comment at 3 (referencing 
Auto Care Association (``Auto Care''), Consumer Technology 
Association (``CTA''), iFixit & Owners' Rights Initiative (``ORI'') 
Repair Renewal Pet.). The Office agrees that exemptions adopted 
through the triennial rulemaking cannot extend to the trafficking 
prohibitions in section 1201, but concludes that the petitions have 
sufficiently articulated a basis for renewal of the current 
exemptions under the statutory standard.

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[[Page 49553]]

    As detailed below, after reviewing the petitions for renewal and 
comments in response, the Office concludes that it has received a 
sufficient petition to renew each existing exemption and it does not 
find any meaningful opposition to renewal. Accordingly, the Register 
intends to recommend readoption of all existing exemptions in their 
current form.\19\
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    \19\ Although the Office's Notice of Inquiry stated that this 
NPRM would set forth proposed regulatory language for any existing 
exemptions the Office intends to recommend for readoption, because 
many of the new petitions seek to expand existing exemptions, the 
Office concludes that proposing regulatory language at this time 
would be premature; the Register may propose altering current 
regulatory language to expand the scope of an existing exemption, 
where the record suggests such a change is appropriate.
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A. Literary Works Distributed Electronically (i.e., e-Books), for Use 
With Assistive Technologies for Persons Who Are Blind, Visually 
Impaired, or Have Print Disabilities

    Multiple organizations petitioned to renew the exemption for 
literary works distributed electronically (i.e., e-books), for use with 
assistive technologies for persons who are blind, visually impaired, or 
have print disabilities (codified at 37 CFR 201.40(b)(2)).\20\ No 
oppositions were filed against readoption of this exemption. The 
petitions demonstrated the continuing need and justification for the 
exemption, stating that individuals who are blind, visually impaired, 
or print disabled are significantly disadvantaged with respect to 
obtaining accessible e-book content because TPMs interfere with the use 
of assistive technologies such as screen readers and refreshable 
Braille displays.\21\ Indeed, AFB, ACB, Samuelson-Glushko TLPC, and LCA 
noted that the record underpinning this exemption ``has stood and been 
re-established in the past five triennial reviews, dating back to 
2003,'' and that the ``accessibility of ebooks is frequently cited as a 
top priority'' by its members and the patrons of LCA's member 
institutions.\22\ In addition, the petitioners demonstrated personal 
knowledge and experience with regard to the assistive technology 
exemption; they are all organizations that advocate for the blind, 
visually impaired, and print disabled.
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    \20\ American Foundation for the Blind (``AFB''), American 
Council of the Blind (``ACB''), Samuelson-Glushko Technology Law & 
Policy Clinic at Colorado Law (``Samuelson-Glushko TLPC'') & Library 
Copyright Alliance (``LCA'') Renewal Pet.; University of Michigan 
Library Copyright Office (``UMLCO'') eBooks Renewal Pet.
    \21\ AFB, ACB, Samuelson-Glushko TLPC & LCA Renewal Pet. at 3; 
UMLCO eBooks Renewal Pet. at 3.
    \22\ AFB, ACB, Samuelson-Glushko TLPC & LCA Renewal Pet. at 3.
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    Based on the information provided in the renewal petitions and the 
lack of opposition, the Register believes that the conditions that led 
to adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Register intends to recommend 
renewal of this exemption.

B. Literary Works Consisting of Compilations of Data Generated by 
Implanted Medical Devices and Corresponding Personal Monitoring 
Systems, To Access Personal Data

    Hugo Campos, member of the Coalition of Medical Device Patients and 
Researchers, and represented by the Harvard Law School Cyberlaw Clinic, 
petitioned to renew the exemption covering access to patient data on 
networked medical devices (codified at 37 CFR 201.40(b)(10)).\23\ No 
oppositions were filed against the petition to renew this exemption. 
Mr. Campos's petition demonstrated the continuing need and 
justification for the exemption, stating that patients continue to need 
access to data output from their medical devices to manage their 
health.\24\ Mr. Campos demonstrated personal knowledge and experience 
with regard to this exemption, as he is a patient needing access to the 
data output from his medical device, and is a member of the Coalition 
of Medical Device Patients and Researchers, a coalition whose members 
research, comment on, and examine the effectiveness of networked 
medical devices.
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    \23\ Campos Compilations of Data Renewal Pet.
    \24\ Id. at 3.
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    Based on the information provided in the renewal petition and the 
lack of opposition, the Register believes that the conditions that led 
to adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Register intends to recommend 
renewal of this exemption.

C. Computer Programs That Operate Cellphones, Tablets, Mobile Hotspots, 
or Wearable Devices (e.g., Smartwatches), To Allow Connection of a Used 
Device to an Alternative Wireless Network (``Unlocking'')

    Multiple organizations petitioned to renew the exemption for 
computer programs that operate cellphones, tablets, mobile hotspots, or 
wearable devices (e.g., smartwatches), to allow connection of a used 
device to an alternative wireless network (``unlocking'') (codified at 
37 CFR 201.40(b)(3)).\25\ No oppositions were filed against the 
petitions seeking to renew this exemption. The petitions demonstrate 
the continuing need and justification for the exemption, stating that 
consumers of the enumerated products continue to need to be able to 
unlock the devices so they can switch network providers. For example, 
ISRI stated that its members continue to purchase or acquire donated 
cell phones and tablets, and try to reuse them, but that wireless 
carriers still lock devices to prevent them from being used on other 
carriers.\26\ In addition, the petitioners demonstrated personal 
knowledge and experience with regard to this exemption. CCA, ORI, and 
ISRI represent companies that rely on the ability to unlock cellphones. 
A number of the petitioners also participated in past 1201 triennial 
rulemakings relating to unlocking lawfully-acquired wireless devices.
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    \25\ Competitive Carriers Association (``CCA'') Renewal Pet.; 
Consumers Union Renewal Pet.; Institute of Scrap Recycling 
Industries, Inc. (``ISRI'') Renewal Pet. (represented by Juelsgaard 
IP and Innovation Clinic, Mills Legal Clinic at Stanford Law 
School); ORI Unlocking Renewal Pet.
    \26\ ISRI Renewal Pet. at 3.
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    Based on the information provided in the renewal petitions and the 
lack of opposition, the Register believes that the conditions that led 
to adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Register intends to recommend 
renewal of this exemption.

D. Computer Programs That Operate Smartphones, Smart TVs, Tablets, or 
Other All-Purpose Mobile Computing Devices, To Allow the Device To 
Interoperate With or To Remove Software Applications (``Jailbreaking'')

    Multiple organizations petitioned to renew the exemptions for 
computer programs that operate smartphones, smart TVs, tablets, or 
other all-purpose mobile computing devices, to allow the device to 
interoperate with or to remove software applications (``jailbreaking'') 
(codified at 37 CFR 201.40(b)(4)-(5)).\27\ The petitions demonstrate 
the continuing need and justification for the exemption, and that 
petitioners had personal knowledge and experience with regard to this 
exemption. Specifically, the petitions state that, absent an exemption, 
TPMs applied to

[[Page 49554]]

the enumerated products would have an adverse effect on noninfringing 
uses, such as being able to install third-party applications on a 
smartphone or download third-party software on a smart TV to enable 
interoperability.\28\ For example, EFF's petition outlined its 
declarant's experience searching current mobile computing device 
markets and technologies, working as a software engineer, and 
participating in four prior 1201 rulemakings.\29\ Similarly, the 
Libiquity petition was submitted by someone who ``work[s] with the 
operating system and many of the system libraries that lie at the core 
of the firmware systems of a large majority of smartphones, portable 
all-purpose mobile computing devices, and smart televisions.'' \30\
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    \27\ New Media Rights (``NMR'') Jailbreaking Renewal Pet.; EFF 
Jailbreaking Renewal Pet.; Libiquity Jailbreaking Renewal Pet.; 
Software Freedom Conservancy (``SFC'') Renewal Pet.
    \28\ NMR Jailbreaking Renewal Pet. at 1; EFF Jailbreaking 
Renewal Pet. at 1; Libiquity Jailbreaking Renewal Pet. at 1; SFC 
Renewal Pet. at 1.
    \29\ EFF Jailbreaking Renewal Pet. at 3.
    \30\ Libquity Jailbreaking Renewal Pet. at 3.
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    In a brief two-page comment, BSA [bond] The Software Alliance 
(``BSA'') opposed the readoption of this exemption, stating that 
``alternatives to circumvention exist,'' and that ``jailbreaking can 
undermine the integrity and security of a platform's operating system 
in a manner than facilitates copyright infringement and exposes users 
to heightened risks of privacy violations.'' \31\
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    \31\ BSA Jailbreaking Renewal Comment at 1-2.
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    As the Office explained in the Notice of Inquiry, ``[o]pposition to 
a renewal petition must be meaningful, such that, from the evidence 
provided, it would be reasonable for the Register to conclude that the 
prior rulemaking record and any further information provided in the 
renewal petition are insufficient to support recommending renewal of an 
exemption.'' \32\ In such a circumstance, the exemption would be 
considered pursuant to the more comprehensive rulemaking process (i.e., 
three rounds of written comment, followed by public hearings).
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    \32\ 82 FR at 29807.
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    The Office finds that BSA's comment largely re-articulates a 
general opposition to a jailbreaking exemption, and notes that the past 
three rulemakings have adopted some form of an exemption for 
jailbreaking certain types of mobile computing devices.\33\ Indeed, BSA 
specifically raised the issue of circumvention alternatives to 
jailbreaking in the 2015 triennial rulemaking,\34\ and does not now 
identify any specific alternatives that are available now but were not 
available during the previous rulemaking. BSA also cites the same 
article regarding pirated iOS apps considered by the Register during 
sixth triennial rulemaking.\35\ Similarly, BSA references Apple's 
launch of its App Store in 2008 to evidence how ``access controls have 
increased, rather than decreased, the availability of software 
applications designed for use on mobile phones.'' \36\ The sixth 
triennial rulemaking, however, considered the existence of Apple's App 
Store and third-party apps.\37\ Nor does BSA identify changes in case 
law or new technological developments that might be relevant. Each of 
the issues raised by BSA in opposition to readoption had been 
considered and evaluated in granting the exemption previously. BSA 
provides no new evidence that demonstrates a change in circumstances.
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    \33\ 80 FR 65944, 65952-53 (Oct. 28, 2015); 77 FR 65260, 65263-
64 (Oct. 26, 2012); 75 FR 43825, 43828-30 (July 27, 2010).
    \34\ 2015 Recommendation at 185-87.
    \35\ Id. at 187 n.1211.
    \36\ BSA Jailbreaking Renewal Comment at 2.
    \37\ 2015 Recommendation at 181-82.
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    The Office therefore concludes that BSA's opposition is not 
sufficiently meaningful to draw the conclusion that the past rulemaking 
record is no longer reliable, or that the reasoning adopted in the 
Register's 2015 Recommendation cannot be relied upon for the next 
three-year period.
    Based on the information provided in the renewal petitions and the 
lack of meaningful opposition, the Register believes that the 
conditions that led to adoption of this exemption are likely to 
continue during the next triennial period. Accordingly, the Register 
intends to recommend renewal of this exemption.

E. Computer Programs That Control Motorized Land Vehicles, Including 
Farm Equipment, for Purposes of Diagnosis, Repair, and Modification of 
the Vehicle

    Multiple organizations petitioned to renew the exemption for 
computer programs that control motorized land vehicles, including farm 
equipment, for purposes of diagnosis, repair, and modification of the 
vehicle (codified at 37 CFR 201.40(b)(6)).\38\ The petitions 
demonstrated the continuing need and justification for the exemption to 
prevent owners of motorized land vehicles from being adversely impacted 
in their ability to diagnose, repair, and modify their vehicles as a 
result of TPMs that protect the copyrighted computer programs on the 
electronic control units (``ECUs'') that control the functioning of the 
vehicles. For example, Auto Care, CTA, iFixit, and ORI stated that 
``approximately 20 percent of American consumers buy automotive parts 
and products to maintain and repair their own vehicles.'' \39\ AFBF 
similarly remarked that many agricultural vehicles are now ``equipped 
with computers that monitor and control vehicle function,'' and many 
agricultural equipment manufacturers have adopted TPMs that restrict 
access to such computer software.\40\ Indeed, MEMA, which during the 
sixth triennial rulemaking initially opposed any exemption that would 
impact the software and TPMs in vehicles, now supports renewal of this 
exemption because it strikes ``an appropriate balance between 
encouraging marketplace competition and innovation while mitigating the 
impact on safety, regulatory, and environmental compliance.'' \41\ The 
petitioners demonstrated personal knowledge and experience with regard 
to this exemption; each either represents or gathered information from 
individuals conducting repairs or businesses that manufacture, 
distribute, and sell motor vehicle parts, and perform vehicle service 
and repair.
---------------------------------------------------------------------------

    \38\ Auto Care, CTA, iFixit & ORI Repair Renewal Pet.; American 
Farm Bureau Federation (``AFBF'') Renewal Pet.; EFF Repair Renewal 
Pet.; Motor & Equipment Manufacturers Association (``MEMA'') Repair 
Renewal Pet.; IPTC U.S.C. Renewal Pet.
    \39\ Auto Care, CTA, iFixit & ORI Repair Renewal Pet. at 3.
    \40\ AFBF Renewal Pet. at 3.
    \41\ MEMA Repair Renewal Pet. at 3.
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    Although not opposing readoption of this exemption, in response to 
Auto Care, CTA, iFixit, and ORI's renewal petition, the Auto Alliance 
submitted comments to clarify that the Office ``should reject any part 
of the . . . petition that argues for expanding the current temporary 
exemption . . . in section 201.40(b)(6), and should only consider the 
petition to the extent it seeks renewal of the current exemption as it 
is currently formulated, without modification.'' \42\ The Office 
agrees. As noted above, the Office's Notice of Inquiry clearly stated 
that renewal petitions could only seek readoption of current exemptions 
as they are currently formulated, without modification, and the Office 
disregarded sections of renewal petitions to the extent that they 
proposed uses beyond the current exemptions. To the extent Auto Care, 
CTA, iFixit, and ORI propose that repair shops should be able to 
``lawfully assist[ ] customers in the maintenance, repair, and upgrade 
of their vehicles'' under the existing exemption,\43\ the

[[Page 49555]]

Office finds this proposition to be outside the bounds of the procedure 
for exemption renewal. The Office notes, however, that iFixit 
petitioned for a new exemption that would expand the existing exemption 
to permit circumvention of TPMs to allow third-party repair services. 
The Office discusses iFixit's petition below.
---------------------------------------------------------------------------

    \42\ Auto Alliance Renewal Comment at 2.
    \43\ Auto Care, CTA, iFixit & ORI Repair Renewal Pet. at 3.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of opposition to the specific exemption, the Register believes 
that the conditions that led to adoption of this exemption are likely 
to continue during the next triennial period. Accordingly, the Register 
intends to recommend renewal of this exemption.\44\
---------------------------------------------------------------------------

    \44\ The Office's recommendation will include removing language 
relating to a delayed effective date from the existing exemption. As 
noted in the Office's 1201 Study, during the last triennial 
rulemaking the Office ``implemented a twelve-month delay for certain 
exemptions relating to security research and automobile repair to 
allow other agencies to react to the new rule.'' 1201 Study at 124; 
see also 2015 Recommendation at 248, 317-18. But ``now that 
agencies, consumers, and businesses alike have had the opportunity 
to consider these issues and react to [such] exemptions,'' the 
Office ``does not anticipate the Register recommending additional 
delays for implementation of exemptions unless necessitated by a 
grave or unusual situation.'' 1201 Study at 125-26. Because the time 
delay for this exemption was intended to be a one-time delay, which 
has now expired, the Office considers its removal to be a technical 
change.
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F. Computer Programs That Operate Devices and Machines Primarily 
Designed for Use by Individual Consumers (Including Voting Machines), 
Motorized Land Vehicles, or Medical Devices Designed for Implantation 
in Patients and Corresponding Personal Monitoring Systems, for Purposes 
of Good-Faith Security Research.

    Multiple organizations and security researchers petitioned to renew 
the exemption for purposes of good-faith security research (codified at 
37 CFR 201.40(b)(7)).\45\ The petitioners demonstrated the continuing 
need and justification for the exemption, and personal knowledge and 
experience with regard to this exemption. For example, Professors 
Bellovin, Blaze, and Heninger stated that they have conducted their own 
security research in reliance on the existing exemption, and that they 
``regularly engage'' with other security researchers who have similarly 
relied on the exemption.\46\ They provided an example of a recent 
computer security conference in which thousands of participants relied 
on the existing exemption to examine and test electronic voting 
devices, during which they identified ways the security of the voting 
devices could be manipulated to affect election outcomes--the results 
of which were reported to election officials to improve the security of 
their voting systems.\47\
---------------------------------------------------------------------------

    \45\ Bellovin, Blaze & Heninger Renewal Pet. (represented by 
Professor Andrea Matwyshyn); Campos Security Research Renewal Pet.; 
Center for Democracy & Technology (``CDT'') Renewal Pet.; Felten, 
Halderman & ORI Renewal Pet. (represented by Samuelson-Glushko TLPC 
and Jonathan Band of policbandwidth); Libiquity Security Research 
Renewal Pet.
    \46\ Bellovin, Blaze & Heninger Renewal Pet. at 3.
    \47\ Id.
---------------------------------------------------------------------------

    No oppositions were filed against readoption of this exemption. To 
the contrary, MEMA, which during the sixth triennial rulemaking 
initially opposed any exemption that would impact the software and TPMs 
in vehicles, now supports renewal of this exemption because it strikes 
``an appropriate balance between encouraging marketplace competition 
and innovation while mitigating the impact on safety, regulatory, and 
environmental compliance.'' \48\ In addition, BSA submitted comments in 
support of renewal of this exemption, noting that because the 
circumvention must be ``carried out in a controlled environment'' and 
conducted primarily to ``promote safety and security,'' the exemption 
``provides important clarity to good-faith security researchers while 
maintaining important safeguards that protect the safety, privacy and 
property interests of rights holders and the public.'' \49\
---------------------------------------------------------------------------

    \48\ MEMA Security Research Renewal Pet. at 3.
    \49\ BSA Security Research Renewal Comment at 2.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of opposition, the Register believes that the conditions that led 
to adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Register intends to recommend 
renewal of this exemption.\50\
---------------------------------------------------------------------------

    \50\ The Office's recommendation will include removing language 
relating to a delayed effective date from the existing exemption. As 
noted above regarding the existing exemption for repair, because the 
time delay for this exemption was intended to be a one-time delay, 
which has now expired, the Office considers its removal to be a 
technical change.
---------------------------------------------------------------------------

G. Computer Programs That Operate 3D Printers, To Allow Use of 
Alternative Feedstock

    Michael Weinberg and ORI jointly petitioned to renew the exemption 
for computer programs that operate 3D printers to allow use of 
alternative feedstock (codified at 37 CFR 201.40(b)(9)).\51\ No 
oppositions were filed against readoption of this exemption. The 
petition demonstrated the continuing need and justification for the 
exemption, and the petitioner demonstrated personal knowledge and 
experience. Specifically, Mr. Weinberg petitioned for the existing 
exemption, and ``continued to participate in the review of that 
exemption . . . in his personal capacity.'' \52\ In addition, the 
petition states that printers continue to restrict the use of third-
party feedstock, thereby requiring renewal of the exemption.
---------------------------------------------------------------------------

    \51\ Weinberg & ORI Renewal Pet.
    \52\ Id. at 1.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petition and the 
lack of opposition, the Register believes that the conditions that led 
to adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Register intends to recommend 
renewal of this exemption.

H. Video Games for Which Outside Server Support Has Been Discontinued, 
To Allow Individual Play by Gamers and Preservation of Games by 
Libraries, Archives, and Museums (as Well as Necessary Jailbreaking of 
Console Computer Code for Preservation Uses Only)

    Multiple organizations petitioned to renew the exemption for video 
games for which outside server support has been discontinued (codified 
at 37 CFR 201.40(b)(8)).\53\ The petitions state that libraries and 
museums continue to need the exemption to preserve and curate video 
games in playable form. For example, UMCLO stated that ``[m]any games 
still depend on connection to an external server for gameplay,'' 
suggesting that without a renewal of this exemption the ability of 
gamers to play them would be diminished.\54\ In addition, the 
petitioners demonstrated personal knowledge and experience with regard 
to this exemption through past participation in the 1201 triennial 
rulemaking relating to access controls on video games and consoles, 
and/or representing major library associations with members that have 
relied on this exemption. Readoption of this exemption was 
unopposed.\55\
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    \53\ EFF Video Game Renewal Pet.; LCA Video Game Renewal Pet.; 
UMLCO Video Game Renewal Pet.
    \54\ UMCLO Video Game Renewal Pet. at 3.
    \55\ Joint Creators questioned whether the petitions 
sufficiently requested renewal of the portion of the exemption 
applicable to personal gameplay. Joint Creators Renewal Comment at 
2, n.2. The Office notes that the declarations signed by the 
petitioners support readoption of the exemption in full. EFF Video 
Game Renewal Pet.; LCA Video Game Renewal Pet.; UMLCO Video Game 
Renewal Pet. Joint Creators themselves acknowledged that ``the 
petitions appear to implicitly request renewal of the current 
exemption in its entirety'' and did not oppose such renewal. Joint 
Creators Renewal Comment at 2, n.2.

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[[Page 49556]]

    Based on the information provided in the renewal petitions and the 
lack of opposition, the Register believes that the conditions that led 
to adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Register intends to recommend 
renewal of this exemption.

I. Motion Pictures (Including Television Programs and Videos): For 
Educational Uses by College and University Instructors and Students

    Multiple individuals and organizations petitioned to renew the 
exemption for motion pictures for educational uses by college and 
university instructors and students (codified at 37 CFR 
201.40(b)(1)(iv)).\56\ No oppositions were filed against readoption of 
this exemption. The petitions demonstrated the continuing need and 
justification for the exemption, and personal knowledge and experience 
with regard to this exemption. For example, Joint Educators, AAUP, 
DCSUM, and LCA stated that courses on video essays (or multimedia or 
videographer criticism), now taught at many universities, would not be 
able to exist without relying on this exemption.\57\ Without this 
exemption, Joint Educators, AAUP, DCSUM, and LCA assert that educators 
would be ``unable to provide an enriching and accurate description and 
analysis of cinematic or other audiovisual works when prevented from 
accessing such works due to TPM[s]'' \58\--and their declarant, 
Professor Decherney, has personally relied upon this exemption to teach 
a course on multimedia criticism.\59\ Similarly, Professor Hobbs, who 
represents more than 17,000 digital and media literacy educators, and 
NAMLE, an organization devoted to media literacy with more than 3,500 
members, stated that ``sometimes teachers must circumvent a DVD 
protected by the Content Scramble System when screen-capture software 
or other non-circumventing alternatives are unable to produce the 
required level of high-quality content.'' \60\
---------------------------------------------------------------------------

    \56\ Decherney, Sender & Carpini (collectively, ``Joint 
Educators''), American Association of University Professors 
(``AAUP''), the International Communication Association (``ICA''), 
Department of Communication Studies at the University of Michigan 
(``DCSUM''), the Society for Cinema and Media Studies (``SCMS'') & 
LCA AV Univ. Renewal Pet.; Hobbs & National Association for Media 
Literary Education (``NAMLE'') AV Univ. Renewal Pet.; UMLCO AV Univ. 
Renewal Pet.
    \57\ Joint Educators, AAUP, ICA, DCSUM, SCMS & LCA AV Univ. 
Renewal Pet. at 1.
    \58\ Id.
    \59\ Id.
    \60\ Hobbs & NAMLE AV Univ. Renewal Pet. at 1.
---------------------------------------------------------------------------

    The DVD Copy Control Association (``DVD CCA'') and The Advanced 
Access Content System Licensing Administrator (``AACS LA'') submitted 
comments regarding readoption of this exemption. Although DVD CCA and 
AACS LA did not oppose readoption, they stated that the exemption is 
``predicated on the need for close analysis of the film in uses that 
constitute criticism or comment,'' and suggested that Joint Educators, 
AAUP, ICA, DCSUM, SCMS, and LCA did ``not focus on the need for close 
analysis of the film'' in their renewal petition.\61\ DVD CCA and AACS 
LA asked for clarification that ``renewal of this exemption is limited 
to those uses where close analysis is necessary in the particular 
circumstance.'' \62\
---------------------------------------------------------------------------

    \61\ DVD CCA & AACS LA AV Univ. Renewal Comment at 1-2.
    \62\ Id. at 4-5.
---------------------------------------------------------------------------

    As noted above, the Office's Notice of Inquiry stated that renewal 
petitions are to seek readoption of current exemptions as they are 
currently formulated, without modification. Therefore, the Office 
focused on whether the renewal petition provided sufficient information 
to warrant readoption of the exemption in its current form. In this 
case, Joint Educators, AAUP, ICA, DCSUM, SCMS, and LCA did state that 
``close analysis of digital media is being increasingly recognized 
across many disciplines as a fundamental tool for pedagogy,'' followed 
by examples of such uses.\63\ Accordingly, the Office concludes that 
Joint Educators, AAUP, ICA, DCSUM, SCMS, and LCA provided sufficient 
information to support renewal of the existing exemption.
---------------------------------------------------------------------------

    \63\ Joint Educators, AAUP, ICA, DCSUM, SCMS & LCA AV Univ. 
Renewal Pet. at 3 (emphasis added).
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of opposition, the Register believes that the conditions that led 
to adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Register intends to recommend 
renewal of this exemption.
    To the extent petitioners seek a broader exemption, the Office 
notes that petitions for new exemptions were filed seeking modification 
of the existing exemptions for educational uses of motion pictures. 
This NPRM initiates public comment on such modification through 
Proposed Class 1 described below, which combines multiple petitions for 
modified exemptions, including one by Joint Educators.

J. Motion Pictures (Including Television Programs and Videos): For 
Educational Uses by K-12 Instructors and Students

    Multiple organizations petitioned to renew the exemption for motion 
pictures for educational uses by K-12 instructors and students 
(codified at 37 CFR 201.40(b)(1)(vi)).\64\ No oppositions were filed 
against readoption of this exemption. The petitions demonstrated the 
continuing need and justification for the exemption, stating that K-12 
instructors and students continue to rely on excerpts from digital 
media for class presentations and coursework, and must sometimes use 
screen-capture technology. In addition, the petitioners demonstrated 
personal knowledge and experience with regard to this exemption through 
representation of thousands of digital and literacy educators and/or 
members supporting K-12 instructors and students, combined with past 
participation in the 1201 triennial rulemaking.
---------------------------------------------------------------------------

    \64\ LCA K-12 Renewal Pet.; Hobbs & NAMLE K-12 Renewal Pet.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of opposition, the Register believes that the conditions that led 
to adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Register intends to recommend 
renewal of this exemption.

K. Motion Pictures (Including Television Programs and Videos): For 
Educational Uses in Massive Open Online Courses (``MOOCs'')

    Joint Educators, ICA, DCSUM, SCMS, and LCA petitioned to renew the 
exemption for motion pictures for educational uses in massive open 
online courses (``MOOCs'') (codified at 37 CFR 201.40(b)(1)(v)).\65\ No 
oppositions were filed against readoption of this exemption. The 
petition demonstrated the continuing need and justification for the 
exemption, stating that instructors continue to rely on the exemption 
to develop, provide, and improve MOOCs, as well as increase the number 
of (and therefore access to) MOOCs in the field of film and media 
studies. In addition, the declarant, Professor Decherney, demonstrated 
personal knowledge by describing his reliance on the exemption to teach 
MOOCs on film and media studies, as well as his past participation in 
the 1201 triennial rulemaking, along with Professor Carpini, ICA, SCMS, 
and LCA.
---------------------------------------------------------------------------

    \65\ Joint Educators, ICA, DCSUM, SCMS & LCA MOOCs Renewal Pet.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petition and the 
lack of opposition, the Register believes that the

[[Page 49557]]

conditions that led to adoption of this exemption are likely to 
continue during the next triennial period. Accordingly, the Register 
intends to recommend renewal of this exemption.

L. Motion Pictures (Including Television Programs and Videos): For 
Educational Uses in Digital and Literacy Programs Offered by Libraries, 
Museums, and Other Nonprofits

    Multiple organizations petitioned to renew the exemption for motion 
pictures for educational uses in digital and literacy programs offered 
by libraries, museums, and other nonprofits (codified at 37 CFR 
201.40(b)(1)(viii)).\66\ No oppositions were filed against readoption 
of this exemption. The petitions demonstrated the continuing need and 
justification for the exemption, and demonstrated personal knowledge 
and experience with regard to this exemption. For example, LCA stated 
that librarians across the country have relied on the current exemption 
and will continue to do so for their digital and literacy programs.\67\ 
In addition, Professor Hobbs and NAMLE stated that librarians will 
continue to rely on this exemption for their digital and literacy 
programs, and to advance the digital media knowledge of their 
patrons.\68\
---------------------------------------------------------------------------

    \66\ LCA AV Nonprofit Renewal Pet.; Hobbs & NAMLE AV Nonprofit 
Renewal Pet.
    \67\ LCA AV Nonprofit Renewal Pet. at 1.
    \68\ Hobbs & NAMLE AV Nonprofit Renewal Pet. at 3.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of opposition, the Register believes that the conditions that led 
to adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Register intends to recommend 
renewal of this exemption.

M. Motion Pictures (Including Television Programs and Videos): For 
Multimedia e-Books Offering Film Analysis

    A professor and two organizations collectively petitioned to renew 
the exemption for motion pictures for multimedia e-books offering film 
analysis (codified at 37 CFR 201.40(b)(1)(iii)).\69\ No oppositions 
were filed against readoption of this exemption. The petition 
demonstrated the continuing need and justification for the exemption, 
stating that the availability of video necessary for authors to 
undertake film analysis in e-books continues to be ``limited to formats 
encumbered by technological protection measures. . . .'' \70\ In 
addition, the petitioners demonstrated personal knowledge through 
Professor Buster's continued work on an e-book series based on her 
lecture series, ``Deconstructing Master Filmmakers: The Uses of 
Cinematic Enchantment,'' and Authors Alliance's feedback that its 
members continue to desire authoring e-books that incorporate film for 
the purpose of analysis.\71\
---------------------------------------------------------------------------

    \69\ Buster, Authors Alliance & AAUP Renewal Pet. (represented 
by Samuelson-Glushko TLPC).
    \70\ Id. at 3.
    \71\ See id.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petition and the 
lack of opposition, the Register believes that the conditions that led 
to adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Register intends to recommend 
renewal of this exemption.

N. Motion Pictures (Including Television Programs and Videos): For Uses 
in Documentary Films

    Multiple organizations petitioned to renew the exemption for motion 
pictures for uses in documentary films (codified at 37 CFR 
201.40(b)(1)(i)).\72\ No oppositions were filed against readoption of 
this exemption. The petitions summarized the continuing need and 
justification for the exemption, and the petitioners demonstrated 
personal knowledge and experience with regard to this exemption. For 
example, Joint Filmmakers, CID, and WIFV--which represent thousands of 
independent filmmakers across the nation--stated that TPMs such as 
encryption continue to prevent filmmakers from accessing needed 
material, and that this is ``especially true for the kind of high 
definition motion picture material filmmakers need to satisfy both 
distributors and viewers.'' \73\ In addition, Joint Filmmakers have 
participated in multiple triennial rulemakings. Petitioners state that 
they personally know many filmmakers who have found it necessary to 
rely on this exemption, and will continue to do so.\74\
---------------------------------------------------------------------------

    \72\ Film Independent, International Documentary Association, 
Kartemquin Educational Films, Inc. (collectively, ``Joint 
Filmmakers''), Center For Independent Documentary (``CID'') & Women 
in Film and Video (``WIFV'') Renewal Pet. (represented by Donaldson 
+ Callif, LLP and UCI Intellectual Property Arts and Technology 
Clinic at University of California, Irvine (``UCI'')); NMR AV 
Documentary Renewal Pet.
    \73\ Joint Filmmakers, CID & WIFV Renewal Pet. at 3.
    \74\ Id.; NMR AV Documentary Renewal Pet. at 3.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of opposition, the Register believes that the conditions that led 
to adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Register intends to recommend 
renewal of this exemption.

O. Motion Pictures (Including Television Programs and Videos): For Uses 
in Noncommercial Videos

    Two organizations petitioned to renew the exemption for motion 
pictures for uses in noncommercial videos (codified at 37 CFR 
201.40(b)(1)(ii)).\75\ No oppositions were filed against readoption of 
this exemption. The petitions demonstrated the continuing need and 
justification for the exemption, and the petitioners demonstrated 
personal knowledge and experience with regard to this exemption. For 
example, OTW has advocated for the noncommercial video exemption in 
past triennial rulemakings, and has heard from ``a number of 
noncommercial remix artists'' who have used the exemption and 
anticipate needing to use it in the future.\76\ These discussions 
included a report from an academic that video quality was important in 
facilitating classroom understanding and discussion.\77\ Similarly, NMR 
stated that it has spoken to a number of noncommercial video creators 
who have relied on this exemption, and intend to do so in the 
future.\78\
---------------------------------------------------------------------------

    \75\ NMR Noncom. Videos Renewal Pet.; Organization for 
Transformative Works (``OTW'') Renewal Pet.
    \76\ OTW Renewal Pet. at 3.
    \77\ Id.
    \78\ NMR Noncom. Videos Renewal Pet. at 3.
---------------------------------------------------------------------------

    Although no oppositions were filed against readoption of the 
exemption as it currently exists, Joint Creators submitted comments 
expressing concern that OTW's renewal petition proposed using language 
from the triennial rulemaking initiated in 2008 instead of readopting 
the exemption without modification.\79\ DVD CCA and AACS LA made a 
similar observation.\80\
---------------------------------------------------------------------------

    \79\ Joint Creators Renewal Comment at 2 n.1.
    \80\ DVD CCA & AACS LA AV Noncom. Videos Renewal Comment at 4.
---------------------------------------------------------------------------

    As noted above, the Office's Notice of Inquiry stated that renewal 
petitions are to seek readoption of current exemptions as they are 
currently formulated, without modification. As a result, the Office did 
not consider, as part of the renewal process, sections of renewal 
petitions to the extent that they proposed uses beyond the current 
exemptions. The Office concludes, however, that OTW's submission, 
fairly read, did sufficiently petition for renewal of the exemption as 
it currently exists, providing detailed information

[[Page 49558]]

supporting the continued need for an exemption for noncommercial 
videos.\81\
---------------------------------------------------------------------------

    \81\ OTW Renewal Pet. at 3-4.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of opposition, the Register believes that the conditions that led 
to adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Register intends to recommend 
renewal of this exemption.
    To the extent OTW seeks modification of the existing noncommercial 
video exemption, the Office notes that a petition for a new exemption 
was filed seeking such modification. This NPRM initiates public comment 
on that modification through the proposed class described below.

III. Analysis and Classification of Proposed New Exemptions

    Having addressed the petitions to renew existing exemptions, the 
Office now turns to the petitions for new or expanded exemptions. The 
Office received twenty-three petitions, which it has organized into 
twelve classes, as described below. Before turning to a description of 
those classes, the Office first explains the process and standards for 
submission of written comments.

A. Submission of Written Comments

    Persons wishing to address proposed exemptions in written comments 
should familiarize themselves with the substantive legal and 
evidentiary standards for the granting of an exemption under section 
1201(a)(1), which are also described in more detail on the Office's 
form for submissions of longer comments, available on its Web site. In 
addressing factual matters, commenters (both proponents and opponents) 
should be aware that the Office favors specific, ``real-world'' 
examples supported by evidence over speculative, hypothetical 
observations. In cases where the technology at issue is not apparent 
from the requested exemption, it can be helpful for commenters to 
describe the TPM(s) that control access to the work and method of 
circumvention.
    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 
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''), or 17 U.S.C. 117). Legal assertions should be supported by 
statutory citations, relevant case law, and other pertinent authority. 
In cases where a class proposes to expand an existing exemption, 
commenters should focus their comments on the legal and evidentiary 
bases for modifying the exemption, rather than the underlying 
exemption; as discussed above, the Register intends to recommend each 
current temporary exemption for renewal.
    To ensure a clear and definite record for each of the proposals, 
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. 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 
of creating a self-contained, separate record for each proposal will be 
worth the modest amount of added effort.
    The first round of public comment is limited to submissions from 
proponents (i.e., those parties who proposed new 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.
    Proponents of exemptions 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. 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 
supporters of particular proposals and those who neither support nor 
oppose a proposal, who, in either case, seek to reply to points made in 
the earlier rounds of comments. Reply comments should not raise new 
issues, but should instead be limited to addressing arguments and 
evidence presented by others.

B. The Proposed Classes

    As noted above, the Office has reviewed and classified the proposed 
exemptions set forth in the twenty-three petitions received in response 
to its Notice of Inquiry. Any exemptions adopted as part of this 
rulemaking must be based on ``a particular class of works'' \82\; and 
the legislative history explains that each class is intended to ``be a 
narrow and focused subset of the broad categories of works . . . 
identified in Section 102 of the Copyright Act. . . .'' \83\ As 
explained in the Notice of Inquiry, the Office consolidates or groups 
related and/or overlapping proposed exemptions where possible to 
simplify the rulemaking process and encourage joint participation among 
parties with common interests (though collaboration is not required). 
Accordingly, the Office has categorized the petitions into twelve 
proposed classes of works.
---------------------------------------------------------------------------

    \82\ 17 U.S.C. 1201(a)(1)(B).
    \83\ Commerce Comm. Report at 38; see also 1201 Study at 109-10 
(noting that while ``in some cases, [the Office] can make a greater 
effort to group similar classes together, and will do so going 
forward,'' ``in other cases, the Office's ability to narrowly define 
the class is what enabled it to recommend the exemption at all, and 
so the Office will continue to refine classes when merited by the 
record'').
---------------------------------------------------------------------------

    Each proposed class is briefly described below; additional 
information can be found in the underlying petitions posted on 
regulations.gov. As explained in the Notice of Inquiry, the proposed 
classes ``represent only a starting point for further consideration in 
the rulemaking proceeding, and will be subject to further refinement 
based on the record.'' \84\ 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 depend on the full record 
developed during this rulemaking. Indeed, in the case of proposed 
modifications to existing exemptions, as stated above, the Register may 
propose altering current regulatory language to expand the scope of an 
exemption, where the record suggests such a change is appropriate.
---------------------------------------------------------------------------

    \84\ 82 FR at 29808.
---------------------------------------------------------------------------

    In addition, after examining the petitions, the Office has 
preliminarily identified some initial legal and factual areas of 
interest with respect to certain proposed classes. The Office stresses, 
however, that these areas are not exhaustive, and commenters should 
consider and offer all legal argument and evidence they believe 
necessary to create a complete record. These early observations are 
offered without prejudice to the Office's ability to raise other 
questions or concerns at later stages of the proceeding. Finally, 
``where an exemption request resurrects legal or factual arguments that 
have been previously rejected, the Office will

[[Page 49559]]

continue to rely on past reasoning to dismiss such arguments in the 
absence of new information.'' \85\
---------------------------------------------------------------------------

    \85\ 1201 Study at 147; see also 79 FR 55687, 55690 (Sept. 17, 
2014).
---------------------------------------------------------------------------

Proposed Class 1: Audiovisual Works--Criticism and Comment
    Several petitions seek expansion of existing exemptions for 
circumvention of access controls protecting excerpts of motion pictures 
on DVDs, Blu-Ray discs, and digitally transmitted video for purposes of 
criticism and comment by various users, including creators of 
noncommercial videos, college and university faculty and students, 
faculty of massive open online courses (``MOOCs''), documentary 
filmmakers, and for multimedia e-books offering film analysis.
    Because the new proposals raise some shared concerns, including the 
impact of TPMs on the alleged noninfringing uses of motion pictures and 
whether alternative methods of accessing the content could alleviate 
potential adverse impacts, the Office has grouped these petitions into 
one class. This grouping is without prejudice to further refinement of 
this class, including whether it should be parsed back into subclasses 
based on specific uses, following the approach of past rulemakings. 
This approach also accounts for a joint petition by EFF, NMR, and OTW, 
which seeks to collapse (essentially) the existing exemptions for 
excerpts of motion pictures to eliminate limitations on the types of 
user or use, instead allowing circumvention so long as the purpose is 
for criticism and comment.\86\ Specifically, EFF, NMR, and OTW seek to 
retain the vast majority of existing introductory text of section 
201.40(b)(1), but then eliminate the various categories of specific 
users such that the exemption becomes:
---------------------------------------------------------------------------

    \86\ EFF, NMR & OTW Class 1 Pet. at 2.

    Motion Pictures (including television shows and videos), as 
defined in 17 U.S.C. 101, where circumvention is undertaken solely 
in order to make use of short portions of the works for the purpose 
of criticism or comment, where the motion picture is lawfully made 
and acquired on a DVD protected by the Content Scrambling System, on 
a BluRay disc protected by the Advanced Access Control System, via a 
digital transmission protected by a technological measure, or a 
similar technological protection measure intended to control access 
to a work, where the person engaging in circumvention reasonably 
believes that non-circumventing alternatives are unable to produce 
the required level of high-quality source material.\87\
---------------------------------------------------------------------------

    \87\ Id.

The Office notes that in the past, the Register has at times found it 
necessary to define a class by a use or user in order to recommend an 
exemption,\88\ but also recognizes that for these audiovisual 
exemptions in particular, participants expressed concern that the 
current exemptions are overly complicated and confusing.\89\ The Office 
invites comment on each aspect of these proposals, including whether 
this grouping is preferable, or whether the existing exemptions should 
be consolidated in some other manner, such as grouping just the 
permitted educational uses together.\90\ For commenters who may be 
concerned that a single exemption is too broad, could an exemption be 
refined by specifically excluding types of uses or users, as opposed to 
enumerating permitted users in multiple exemptions?
---------------------------------------------------------------------------

    \88\ 1201 Study at 109-10.
    \89\ Id. at 151; see, e.g., EFF, NMR & OTW Class 1 Pet. at 2-3.
    \90\ See 1201 Study at 109 (``[I]n the upcoming seventh 
rulemaking, the Office will consider consolidating some of the 
separate classes related to motion pictures into broader categories, 
such as one related to educational uses.''); see also OTW Renewal 
Pet. at 4 (requesting adoption of an exemption for noncommercial 
videos based on regulatory language adopted in the 2008 rulemaking).
---------------------------------------------------------------------------

    Beyond EFF, NMR, and OTW's proposal, the other petitions seek to 
expand upon existing exemptions for purposes of criticism and comment, 
but in a more limited way. Specifically, Professor Buster, Authors 
Alliance, and OTW propose expanding the exemption for multimedia e-
books offering film analysis (codified at 37 CFR 201.40(b)(1)(iii)) by 
removing the ``nonfiction'' and ``offering film analysis'' limitations, 
and removing references to screen-capture technology.\91\ Similarly, 
Joint Filmmakers seek removal of the ``documentary'' limitation in the 
current exemption for uses in documentary films (codified at 37 CFR 
201.40(b)(1)(i)).\92\ The Office notes that many of these issues were 
previously considered by the Register during the 2015 triennial 
rulemaking, and encourages proponents to provide new factual or legal 
support for these proposed modifications.\93\
---------------------------------------------------------------------------

    \91\ Buster, Authors Alliance & OTW Class 1 Pet. at 3.
    \92\ Joint Filmmakers Class 1 Pet. at 3.
    \93\ 2015 Recommendation at 103.
---------------------------------------------------------------------------

    The two remaining petitions seek to expand the current exemptions 
for educational uses. Brigham Young University (``BYU'') and BYU--
Idaho, Intellectual Property Office (``BYU IPO'') seek expansion of the 
exemption for educational uses by college and university students and 
instructors to more broadly cover ``uses where circumvention is 
undertaken to facilitate performance of motion pictures in the course 
of face-to-face teaching activities, as set forth in 17 U.S.C. 
110(1)''; ``use of more than short portions of motion picture 
excerpts''; and ``uses beyond film studies or other courses requiring 
close analysis of film and media excerpts.'' \94\ The Office notes that 
in the 2012 and 2015 triennial rulemakings, the Register found the 
``short portions'' limitation was ``critical'' in deciding to recommend 
exemptions for the use of motion picture excerpts.\95\
---------------------------------------------------------------------------

    \94\ BYU & BYU IPO Class 1 Pet. at 2.
    \95\ 2015 Recommendation at 99; 2012 Recommendation at 138-39 
(also declining to recommend that the exemption apply to ``students 
across all disciplines of study'').
---------------------------------------------------------------------------

    Joint Educators seek to expand the exemption for motion pictures 
for educational uses in MOOCs; specifically, they propose removing the 
``accredited non-profit educational institutions'' and ``massive open 
online courses'' limitations, and extending the exemption to ``all 
online educational institutions'' and ``for use by instructors of all 
online educational courses. . . .'' \96\ The petition also proposes to 
have the exempted use ``no longer be limited'' by the TEACH Act 
(codified at 17 U.S.C. 110).\97\ The Office notes that some of these 
considerations were previously addressed during the 2015 triennial 
rulemaking, and invites comment on changing legal or factual 
circumstances with respect to these provisions.\98\
---------------------------------------------------------------------------

    \96\ Joint Educators Class 1 Pet. at 2.
    \97\ Id.
    \98\ 2015 Recommendation at 102.
---------------------------------------------------------------------------

    In addition, two petitioners seek clarification that ``the use of 
screen-capture technology does not constitute circumvention,'' which 
presumably might result in the removal of current regulatory exemptions 
for screen capture technology, as they would be unnecessary.\99\ Again 
the Office notes that in 2015, the Register noted that the then-
existing record did not ``include any examples of screen-capture 
technology that holds itself out as non-

[[Page 49560]]

circumventing.'' \100\ The Office invites comment on whether users are 
relying upon the various screen capture exemptions for uses of motion 
picture excerpts and whether there is common understanding that screen-
capture technology is non-circumventing.
---------------------------------------------------------------------------

    \99\ BYU & BYU IPO Class 1 Pet. at 2; Joint Filmmakers Class 1 
Pet. at 3; see 37 CFR 201.40(b)(1)(i) (``For use in documentary 
filmmaking . . . [w]here the circumvention is undertaken using 
screen-capture technology that appears to be offered to the public 
as enabling the reproduction of motion pictures after content has 
been lawfully acquired and decrypted . . .''); 37 CFR 
201.40(b)(1)(iv) (``By college and university faculty and students, 
for educational purposes . . . [w]here the circumvention is 
undertaken using screen-capture technology that appears to be 
offered to the public as enabling the reproduction of motion 
pictures after content has been lawfully acquired and decrypted. . . 
.'').
    \100\ 2015 Recommendation at 99.
---------------------------------------------------------------------------

Proposed Class 2: Audiovisual Works--Accessibility
    This proposed class would permit circumvention of TPMs for motion 
pictures by ``disability services offices, organizations that support 
people with disabilities, libraries, and other units at educational 
institutions that are responsible for fulfilling those institutions' 
legal and ethical obligations to make works accessible to people with 
disabilities,'' ``where circumvention is undertaken for the purpose of 
making a motion picture accessible to people with disabilities, 
including through the provision of closed and open captions and audio 
description.'' \101\ Specifically, the petition seeks to circumvent 
works stored on ``optical media, video cassettes with access control 
measures, and streaming services. . . .'' \102\
---------------------------------------------------------------------------

    \101\ Association of Transcribers and Speech-to-text Providers 
(``ATSP''), Association of Research Libraries (``ARL''), American 
Library Association (``ALA'') & Association of College and Research 
Libraries (``ACRL'') Class 2 Pet. at 3.
    \102\ Id. at 3.
---------------------------------------------------------------------------

    The Office seeks comment on whether this proposed exemption should 
be adopted, including any proposed regulatory language.
Proposed Class 3: Audiovisual Works--Space-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. The Office received 
two petitions seeking an exemption permitting circumvention of TPMs on 
DVDs and Blu-ray discs for space-shifting or format-shifting for 
personal use.\103\ The Office notes that in the 2006, 2012, and 2015 
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.\104\ The Office seeks comment on all aspects of this 
proposed exemption, including whether, in the past three years, there 
has been a change in the legal or factual landscapes regarding whether 
space-shifting and format-shifting are noninfringing fair uses.
---------------------------------------------------------------------------

    \103\ OmniQ Class 3 Pet. at 2-3; De Pretis Class 3 Pet. at 2.
    \104\ See 80 FR at 65960; 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). For 
previous discussion of OmniQ's technology, see 2015 Recommendation 
at 113.
---------------------------------------------------------------------------

Proposed Class 4: Audiovisual Works--HDCP/HDMI
    This proposed class would allow circumvention of TPMs ``to make 
noninfringing uses of audiovisual works that are subject to High-
bandwidth Digital Content Protection (``HDCP''),'' which restricts 
access to audiovisual works passing over High-Definition Multimedia 
Interface (``HDMI'') connections, such as through an HDMI cable.\105\ 
Andrew ``bunnie'' Huang has proposed an exemption to circumvent 
``devices that play video discs and video game software'' using HDCP 
encoding to ``captur[e] the output for subsequent noninfringing uses, 
such as fair use or automated analysis of noncopyrightable elements of 
the content.'' \106\ The Office notes that in an ongoing judicial 
proceeding, Huang alleged that he seeks to market a device called 
``NeTVCR,'' which would circumvent HDCP technology to, among other 
things, allow people ``to save content for later viewing, move content 
to a viewing device of the user's choice, or convert content to a more 
useful format.'' \107\ He further alleged that NeTVCR ``would allow 
customers to engage in new forms of protected and noninfringing 
expression using HDMI signals.'' \108\
---------------------------------------------------------------------------

    \105\ Huang Class 4 Pet.
    \106\ Id. at 2.
    \107\ Complaint for Declaratory & Injunctive Relief ]] 90-93, 
Green v. U.S. Dep't of Justice, No. 16-cv-1492 (D.D.C. July 21, 
2016).
    \108\ Id. ]] 100, 101.
---------------------------------------------------------------------------

    The Office seeks comment on whether this proposed exemption should 
be adopted, including any proposed regulatory language. The Office 
encourages commenters, in the course of detailing whether the proposed 
exemption meets the requirements of section 1201(a)(1), to address the 
specific types of audiovisual works that would be accessed by this 
exemption, to provide examples of the types of noninfringing uses 
implicated, to address whether viable alternatives to circumvention 
exist, and to detail the effect circumvention might have on the market 
for or value of copyrighted works.
Proposed Class 5: Computer Programs--Unlocking
    The proposed class would permit the circumvention of TPMs for 
computer programs that operate new and used ``wireless devices'' to 
allow connection to an alternative wireless network (a process commonly 
known as ``unlocking'').\109\ Specifically, ISRI proposes expanding the 
exemption codified at 37 CFR 201.40(b)(3) by eliminating the current 
enumerated categories of devices on which circumvention may occur 
(i.e., to allow the unlocking of any wireless device that connects to a 
wireless telecommunications network), as well as extending the 
exemption to new devices (i.e., removing the requirement that the 
devices must be ``used''). The Office notes that these issues were to 
some extent considered in the last rulemaking.\110\
---------------------------------------------------------------------------

    \109\ ISRI Class 5 Pet. #1 at 2; ISRI Class 5 Pet. #2 at 2.
    \110\ 79 FR at 55689 (``The 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. Thus, a petition proposing 
a general exemption for `all wireless devices' * * * could be quite 
difficult to support, in contrast to a petition that focuses on 
specific categories of devices * * *''); 80 FR at 65952 (limiting 
final rule to ``used'' devices).
---------------------------------------------------------------------------

    The Office seeks comment on whether this proposed exemption should 
be adopted, including specific examples demonstrating adverse effects 
stemming from a consumer's inability to choose the mobile wireless 
communications provider for a new wireless device.
Proposed Class 6: Computer Programs--Jailbreaking
    The proposed class would allow circumvention of TPMs protecting 
``general-purpose portable computing devices'' to allow the devices to 
interoperate with or to remove software applications 
(``jailbreaking'').\111\ Specifically, EFF proposes to replace the 
``portable all-purpose mobile computing devices'' limitation in the 
existing jailbreaking exemption (37 CFR 201.40(b)(4)) with the term 
``general-purpose portable computing devices,'' and extend the 
exemption to such devices ``carried'' or ``used in a home,'' as well as 
the enabling and disabling of hardware features on such devices.\112\
---------------------------------------------------------------------------

    \111\ EFF Class 6 Pet. at 2-3.
    \112\ Id. EFF's Class 6 petition proposes the following language 
for the exemption:
    Computer programs that enable smartphones and general-purpose 
portable computing devices to execute lawfully obtained software 
applications, where circumvention is accomplished solely for one or 
more of the following purposes: to enable interoperability of such 
applications with computer programs on the smartphone or device, to 
enable or disable hardware features of the smartphone or device, or 
to permit removal of software from the smartphone or device. For 
purposes of this exemption, a ``general-purpose portable computing 
device'' is a portable device that is primarily designed or 
primarily used to run a wide variety of programs rather than for 
consumption of a particular type of media content, is equipped with 
an operating system primarily designed for use in a general purpose 
computing device, and is primarily designed to be carried or worn by 
an individual or used in a home.
    Id. at 2.

---------------------------------------------------------------------------

[[Page 49561]]

    The Office notes that during the 2015 rulemaking, the Register 
recommended the adoption of the current exemption for ``portable all-
purpose mobile computing devices,'' in part, because the record 
``meaningfully defined'' such devices.\113\
---------------------------------------------------------------------------

    \113\ 2015 Recommendation at 189.
---------------------------------------------------------------------------

    The Office seeks comment on whether this proposed exemption should 
be adopted, including on the definitions of ``portable,'' ``carried,'' 
and ``used in the home'' that would govern the proposed exemption. The 
Office welcomes examples of specific types of devices that would be 
encompassed by the exemption other than those enumerated in the 
existing exemption codified at 37 CFR 201.40(b)(4).
Proposed Class 7: Computer Programs--Repair
    Multiple organizations petitioned for exemptions relating to 
diagnosis, repair, and modification.\114\ As noted above, the current 
exemption (codified at 37 CFR 201.40(b)(6)) is limited to the 
diagnosis, repair or lawful modification of motorized land vehicles, 
except for computer programs primarily designed for the control of 
telematics or entertainment systems.\115\ Multiple petitions seek to 
expand upon this language. Specifically, EFF proposes to eliminate the 
limitation to motorized land vehicles, that is, to allow circumvention 
of TPMs applied to a broader range of devices including the ``Internet 
of Things,'' appliances, computer peripherals, computers, storage 
devices, and playback devices, toys, vehicles, and environment 
automation systems.\116\ EFF asserts that its proposed exemption 
``overlaps significantly'' with the Office's recommendation concerning 
a permanent exemption for repair in its recently concluded 1201 
Study.\117\ The Auto Care and CTA petition proposes keeping the 
limitation for motorized land vehicles, but removing the ``telematics 
or entertainment systems'' limitation, asserting that ``telematics 
systems increasingly are being designed by vehicle manufacturers as the 
means to access the embedded software that controls the parts and 
operation of the vehicle.'' \118\ The Office notes that during the 2015 
triennial rulemaking, the Register concluded that the record did not 
support extending the exemption to ECUs primarily designed for the 
control of telematics or entertainment systems.\119\
---------------------------------------------------------------------------

    \114\ iFixit Class 7 Pet. at 2; EFF Class 7 Pet. at 2-3; IPTC 
U.S.C., AFBF, National Corn Growers Association (``NCGA'') & 
National Farmers Union (``NFU'') Class 7 Pet. at 2; Auto Care & CTA 
Class 7 Pet. at 2-4.
    \115\ 37 CFR 201.40(b)(6).
    \116\ EFF Class 7 Pet. at 2-3 (proposing the exemption ``enable 
circumvention of access controls applied to software and 
compilations of data, where circumvention is for the purpose of 
noninfringing repair, diagnosis, or modification of a software-
enabled device.''). The Office notes that during its study of 
software-enabled products, the consensus of stakeholders revealed 
that drawing a legislative distinction for ``software-enabled 
devices'' would be unworkable in practice. U.S. Copyright Office, 
Software-Enabled Consumer Products at 10 (2016), https://www.copyright.gov/policy/software/software-full-report.pdf.
    \117\ EFF Class 7 Pet. at 2; see also 1201 Study at 88-97 
(discussing issues relating to obsolescence, repair and modification 
and recommending legislative consideration of a ``properly-tailored 
exemption for repair activities,'' but concluding that modification 
is appropriately addressed through the rulemaking process).
    \118\ Auto Care & CTA Class 7 Pet. at 4.
    \119\ 2015 Recommendation at 246.
---------------------------------------------------------------------------

    Three petitions seek to expand the existing exemption to allow 
third parties to provide services on behalf of owners of motorized land 
vehicles, an issue that also raises potential issues with respect to 
the anti-trafficking prohibitions under section 1201(a)(2) and 
(b).\120\ As noted above, the statute only empowers the triennial 
rulemaking to adopt temporary exemptions to section 1201(a)(1)'s 
prohibition on circumvention of access controls. The Office has 
addressed the interplay of these provisions as part of the Register's 
recommendation during the 2015 triennial rulemaking, as well as its 
recent policy study on section 1201.\121\
---------------------------------------------------------------------------

    \120\ iFixit Class 7 Pet. at 2; IPTC U.S.C., AFBF, NCGA & NFU 
Class 7 Pet. at 2; Auto Care & CTA Class 7 Pet. at 3.
    \121\ 80 FR at 65954; 2015 Recommendation at 246-48 (excluded 
circumvention ``on behalf of'' vehicle owners, noting this phrase 
``may implicate the anti-trafficking provisions set forth in section 
1201(a)(2) and (b)''); 1201 Study at 61-62 (discussing third party 
assistance generally, stating although ``it cannot affirmatively 
recommend exemption language that is likely to be read to authorize 
unlawful trafficking activity,'' where appropriate, the Office will 
avoid recommending ``unduly narrow definitions of exemption 
beneficiaries'' in the context of 1201 rulemaking).
---------------------------------------------------------------------------

    Similarly, two petitions raise the question of potential 
interaction with anti-trafficking rules under section 1201(a)(2) and 
(b) by proposing to expand the exemption to allow the ``development and 
sale of repair tools,'' \122\ and to ``permit companies with expertise 
in software development to develop and make circumvention and repair 
solutions available to servicers and customers.'' \123\ As the Office 
noted in its recent 1201 Study, ``there are strong reasons to conclude 
that Congress did not intend to apply the manufacturing bar to 
exemption beneficiaries from producing their own circumvention tools 
for personal use,'' as ``such a reading would render the rulemaking 
process effectively meaningless for many users.'' \124\ The Office did 
not recommend, however, that Congress ``take the additional step of 
allowing the distribution of necessary tools to exemption 
beneficiaries,'' noting that permitting the distribution of tools 
``could significantly erode'' the ability of the anti-trafficking 
provisions to prevent the development of mainstream business models 
based around the production and sale of circumvention tools.\125\
---------------------------------------------------------------------------

    \122\ iFixit Class 7 Pet. at 2.
    \123\ Auto Care & CTA Class 7 Pet. at 3.
    \124\ 1201 Study at 54.
    \125\ Id. at 53-56.
---------------------------------------------------------------------------

    The Office seeks comment on whether an expanded exemption to cover 
additional repair and related activities should be adopted, including 
any proposed regulatory language.
Proposed Class 8: Computer Programs--Video Game Preservation
    The proposed class would expand upon the current exemption 
(codified at 37 CFR 201.40(b)(8)) permitting circumvention ``by an 
eligible library, archives, or museum,'' of TPMs protecting video 
games, for which outside server support has been discontinued. 
Specifically, The Museum of Art and Digital Entertainment (``MADE'') 
proposes expanding the existing exemption ``to further include 
multiplayer online games, video games with online multiplayer features, 
and massively multiplayer online games (MMOs), whether stored 
physically or in downloadable formats, and [to] add preservationists 
affiliated with archival institutions as users.'' \126\ The Office 
notes that during the 2015 triennial rulemaking, the Register found 
that excluding uses that require access to or copying of copyrightable 
content stored or previously stored on developer game servers ``to be 
an important limitation.'' \127\ In addition, the Register concluded 
that the then-existing record did not support extension of the 
exemption to online multiplayer play.\128\
---------------------------------------------------------------------------

    \126\ MADE Class 8 Pet. at 2.
    \127\ 2015 Recommendation at 350.
    \128\ Id. at 351.
---------------------------------------------------------------------------

    The Office seeks comment on whether this proposed expanded 
exemption for abandoned video games should be adopted, including any 
proposed regulatory language. Specifically, the Office welcomes 
discussion of how the existing exemption excludes

[[Page 49562]]

``preservationists affiliated with archival institutions,'' and 
evidence concerning whether an expanded exemption would impact the 
market for video games 1. by allowing users of unlawfully acquired 
video games to similarly bypass server checks, 2. by contributing to 
the circumvention of client-server protocols for nonabandoned video 
games, or 3. by impairing the market for older video games or for 
licensed services or products facilitating the backward compatibility 
of video games.
Proposed Class 9: Computer Programs--Software Preservation
    The proposed class would allow circumvention of TPMs ``on lawfully 
acquired software'' by ``libraries, archives, museums, and other 
cultural heritage institutions'' ``for the purposes of preserving 
software and software-dependent materials.'' \129\
---------------------------------------------------------------------------

    \129\ The Software Preservation Network (``SPN'') & LCA Class 9 
Pet. at 2.
---------------------------------------------------------------------------

    Unlike many of the other classes, this proposal represents an 
entirely new exemption. The Office seeks comment on whether this 
proposed exemption should be adopted, including specific examples of 
the types of noninfringing uses that are, or in the next three years, 
likely to be adversely affected by the prohibition on circumvention, 
whether viable alternatives to circumvention exist, discussion of the 
types of works sought to be accessed, and the specific TPMs implicated 
by the proposed exemption. The Office specifically seeks comment as to 
whether or how the exception in section 108 for libraries and archives 
is relevant to this exemption.\130\ The Office further welcomes any 
suggested regulatory language, including eligibility requirements,\131\ 
a definition of the proposed term ``software-dependent materials,'' and 
whether the exemption should be limited to preserving works that are 
intended for an institution's public collections (e.g., compared to 
back-office licensed software).
---------------------------------------------------------------------------

    \130\ See, e.g., 17 U.S.C. 108 (c), (h).
    \131\ See, e.g., U.S. Copyright Office, Section 108 of Title 17 
at 17-22 (2016), https://www.copyright.gov/policy/section108/discussion-document.pdf; 37 CFR 201.40(b)(8)(iii)(D).
---------------------------------------------------------------------------

Proposed Class 10: Computer Programs--Security Research
    The Office received three petitions to expand the exemption for 
good-faith security research of computer programs that operate devices 
and machines primarily designed for use by individual consumers 
(including voting machines), motorized land vehicles, or medical 
devices designed for implantation in patients and corresponding 
personal monitoring systems (codified at 37 CFR 201.40(b)(7)).\132\
---------------------------------------------------------------------------

    \132\ Felten & Halderman Class 10 Pet. at 2-3; Green Class 10 
Pet. at 2-3; CDT Class 10 Pet. at 2-3.
---------------------------------------------------------------------------

    Two petitions propose removing the specific security research 
categories listed under section 201.40(b)(7)(i)(A)-(C), as well as the 
following limitations: 1. The ``lawfully acquired device or machine'' 
limitation; 2. the ``solely'' limitation (i.e., ``solely for the 
purpose of good-faith security research''); 3. the ``not violate any 
applicable law, including without limitation the Computer Fraud and 
Abuse Act of 1986'' limitation; 4. the ``carried out in a controlled 
environment designed to avoid any harm to individuals or the public'' 
limitation; and 5. the requirement that ``information derived from the 
activity . . . is not used or maintained in a manner that facilitates 
copyright infringement.'' \133\ Another petition by Professor Matthew 
Green proposes adoption of the regulatory language recommended by NTIA 
in the last rulemaking, with the further clarification that the 
existence of an ``End User License Agreement'' or similar terms does 
not defeat person's status as owner of copy of computer program.\134\
---------------------------------------------------------------------------

    \133\ Felten & Halderman Class 10 Pet.; CDT Class 10 Pet. The 
same petitioners also recommend removing the delay in the effective 
date of the exemption adopted in 2015; however, as addressed above, 
the Office notes that it has already concluded that removal of a 
delayed effective date would be appropriate as part of the request 
to renew this petition.
    \134\ Green Class 10 Pet. at 2. Specifically, NTIA recommended 
the following language: ``Computer programs, in the form of firmware 
or software, regardless of the device on which they are run, when 
circumvention is initiated by the owner of the copy of the computer 
program or with the permission of the owner of the copy of the 
computer program, in order to conduct good faith security research. 
This exemption does not obviate the need to comply with other 
applicable laws and regulations.'' Letter from Lawrence E. 
Strickling, Assistant Sec'y for Commc'ns & Info., Nat'l Telecomms. & 
Info. Admin., U.S. Dep't of Commerce, to Maria A. Pallante, Register 
of Copyrights and Dir., U.S. Copyright Office, at 89 (Sept. 18, 
2015), http://www.copyright.gov/1201/2015/2015_NTIA_Letter.pdf.
---------------------------------------------------------------------------

    The Office notes that during the 2015 triennial rulemaking, the 
Register determined that the then-existing record did not support 
adopting an exemption that encompassed all computer programs on all 
systems and devices, and her recommendation discusses the rationale for 
the other current limitations.\135\ For example, the Register noted 
that there appeared to be ``universal agreement'' among proponents that 
testing in ``live'' conditions was ``wholly inappropriate,'' and so 
recommended that the exemption require that the security research be 
conducted in a controlled setting to avoid harm to the public.\136\
---------------------------------------------------------------------------

    \135\ 2015 Recommendation at 317-18.
    \136\ Id. at 318.
---------------------------------------------------------------------------

    The Office seeks comment on whether an expanded exemption for 
security research should be adopted, including discussion of the 
proposed regulatory language, contrasted with the current temporary and 
permanent exemptions for this activity.
Proposed Class 11: Computer Programs--Avionics
    This proposed class would allow circumvention of TPMs to access 
data output by electronic systems used on aircraft, artificial 
satellites, and spacecraft; such systems are referred to as 
``avionics.'' Specifically, Air Informatics LLC (``AI'') proposed an 
exemption to circumvent computer programs protecting ``access to 
aircraft flight, operations, maintenance and security data captured by 
computer programs or firmware.'' \137\ AI asserts that access to such 
data currently protected by TPMs would facilitate safety, security, and 
compliance with Federal Aviation Administration regulations.\138\
---------------------------------------------------------------------------

    \137\ AI Class 11 Pet. at 2.
    \138\ Id. at 2-3.
---------------------------------------------------------------------------

    The Office seeks comment on whether this exemption should be 
adopted, including 1. specific examples of the types of noninfringing 
uses that are, or in the next three years, likely to be adversely 
affected by a prohibition on circumvention; 2. a description of the 
specific TPMs sought to be circumvented; 3. the methods for 
circumvention; 4. the environment in which the circumvention would be 
accomplished; and 5. whether the proposed exemption could have negative 
repercussions with respect to safety or security with respect to the 
works at issue, or otherwise in a manner relevant to section 
1201(a)(1)'s statutory factors (for example, by making it easier for 
wrongdoers to access sensitive data or databases).
Proposed Class 12: Computer Programs--3D Printing
    This proposed class would expand the current exemption for computer 
programs that operate 3D printers (codified at 37 CFR 201.40(b)(9)) to 
allow use of non-manufacturer-approved feedstock in the printers, 
regardless of whether the 3D printers produce goods or materials for 
use in commerce the physical production of which is subject to legal or 
regulatory oversight, or where the circumvention is otherwise unlawful. 
Specifically, the

[[Page 49563]]

petition proposes eliminating the following limitation in the current 
exemption: ``that the exemption shall not extend to any computer 
program on a 3D printer that produces goods or materials for use in 
commerce the physical production of which is subject to legal or 
regulatory oversight or a related certification process, or where the 
circumvention is otherwise unlawful.'' \139\
---------------------------------------------------------------------------

    \139\ Weinberg Class 12 Pet. at 2. Compare 2015 Recommendation 
at 376-77.
---------------------------------------------------------------------------

    The Office seeks comment on whether this expanded exemption for 3D 
printing should be adopted.

IV. Future Phases of the Seventh Triennial Rulemaking

    As in prior rulemakings, after receipt of written comments, the 
Office will continue to solicit public engagement to create a 
comprehensive record. Described below are the future phases of the 
administrative process that will be employed for this rulemaking, so 
that parties may use this information in their planning.

A. Public Hearings

    The Copyright Office intends to hold public hearings following the 
last round of written comments. The hearings will be conducted in 
Washington DC during the week of April 9, 2018 and in California with a 
date and location to be determined. A separate notice providing details 
about the hearings and how to participate will be published in the 
Federal Register at a later date. The Office will identify specific 
items of inquiry to be addressed during the hearings. The hearings in 
Washington will be live streamed online, and the Office hopes to be 
able to offer the same for the California hearings.

B. Post-Hearing Questions

    As with previous rulemakings, following the hearings, the Copyright 
Office may request additional information with respect to particular 
classes from rulemaking participants. The Office may rely on this 
process in cases where it would be useful for participants to supply 
missing information for the record or otherwise resolve issues that the 
Office believes are material to particular exemptions. Such requests 
for information will take the form of a letter from the Copyright 
Office and will be addressed to individual parties involved in the 
proposal as to which more information is sought. While responding to 
such a request will be voluntary, any response will need to be supplied 
by a specified deadline. After the receipt of all responses, the Office 
will post the questions and responses on the Office's Web site as part 
of the public record.

C. Ex-Parte Communication

    In its 1201 Study, the Office noted that, in response to 
stakeholder requests, it would consider in this rulemaking whether to 
utilize informal meetings to discuss proposed regulatory language or 
address discrete issues prior to issuing a recommendation, including by 
establishing guidelines for ex parte communications.\140\ In the past, 
the Office's communications with participants about the ongoing 
triennial rulemakings have not included discussions about the substance 
of the proceeding apart from the noticed phases of written comments and 
public hearings (although the Office has provided procedural guidance 
to participants, and has held discussions with other federal agencies, 
such as NTIA, to discuss matters within their subject matter 
expertise). The Office has determined that further informal 
communications with non-governmental participants might be beneficial 
in limited circumstances where the Office seeks specific information or 
follow-up regarding the public record, such as to discuss nuances of 
proposed regulatory language. However, any such communication will be 
limited to the post-hearing phase of the rulemaking. The primary means 
to communicate views in the course of the rulemaking will continue to 
be through the submission of written comments or participation in the 
public roundtables. In other words, this communication will supplement, 
not substitute for, the pre-existing record. While exact guidelines 
governing ex parte communications with the Office regarding the 
triennial rulemaking will be issued at a later date, they will be 
similar to those followed by other agencies such as the Consumer 
Financial Protection Bureau or Federal Communications Commission.\141\ 
For example, the participating party or parties will be responsible for 
submitting a list of attendees and written summary of any oral 
communication to the Office, which will be made publicly available on 
the Office's Web site or regulations.gov. In sum, while the Office is 
establishing the option of informal meetings in response to stakeholder 
demand, it will require that all such communications be on the record 
to ensure the greatest possible transparency.
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    \140\ 1201 Study at 150-51.
    \141\ The Office expects to continue to hold informal intra-
governmental communications, which would not be included in such 
guidelines.

    Dated: October 19, 2017.
Sarang V. Damle,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2017-23038 Filed 10-25-17; 8:45 am]
 BILLING CODE 1410-30-P


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