49550 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Proposed Rules 

language ‘‘On page 1636, ’’ is corrected 

to read ‘‘On page 1646, ’’. 

Martin V. Franks, 

Chief, Publications and Regulations Branch, 

Legal Processing Division, Associate Chief 

Counsel (Procedure and Administration). 

[FR Doc. 2017–22815 Filed 10–25–17; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2016–0723] 

RIN 1625–AA09 

Drawbridge Operation Regulation; 

Atlantic Intracoastal Waterway, St. 

Augustine, FL 

AGENCY: Coast Guard, DHS. 

ACTION: Advance notice of proposed 

rulemaking; withdrawal. 

SUMMARY: The Coast Guard is 

withdrawing its advance notice of 

proposed rulemaking (ANPRM) 

concerning the Bridge of Lions (SR 

A1A) across the Atlantic Intracoastal 

Waterway, mile 777.9, at St. Augustine, 

Florida. The City of St. Augustine 

proposed to modify the bridge operating 

schedule to alleviate vehicle traffic 

congestion. However, the Coast Guard 

has determined it would be 

inappropriate to move forward with a 

notice of proposed rulemaking. The 

Coast Guard believes placing additional 

restrictions to the bridge would add 

additional hazards to mariners and 

effect the safe navigation of vessels 

awaiting bridge openings. 

DATES: The notice of proposed 

rulemaking published on March 15, 

2017 (82 FR 13785), is withdrawn on 

October 26, 2017. 

ADDRESSES: The docket for this 

document, USCG–2016–0723 is 

available at http://www.regulations.gov. 

Type the docket number in the 

‘‘SEARCH’’ box and click ‘‘SEARCH.’’ 

Click on Open Docket Folder on the line 

associated with this document. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this 

document, call or email LT Allan Storm, 

Sector Jacksonville, Waterways 

Management Division, U.S. Coast 

Guard; telephone 904–714–7616, email 

Allan.H.Storm@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

Background Information and 

Regulatory History 

On March 15, 2017, the Coast Guard 

published an ANPRM entitled 

‘‘Drawbridge Operation Regulation; 

Atlantic Intracoastal Waterway, St. 

Augustine, FL’’ in the Federal Register 

(82 FR 13785). The advance notice of 

proposed rulemaking sought comments 

and information concerning a request 

from the City of St. Augustine to change 

the operating schedule for the Bridge of 

Lions across the Atlantic Intracoastal 

Waterway, St. Augustine, Florida 

amending the twice an hour operating 

schedule to a 7 a.m. to 9 p.m. period. 

The City of St. Augustine was 

concerned that vehicle traffic was 

becoming exponentially worse with 

each passing season and that the current 

operating schedule was contributing to 

vehicle traffic backups. 

Withdrawal 

The Coast Guard received 386 

comments, of those, 62 comments were 

duplicate entries, 204 comments were in 

favor for the requested change and 120 

were against the requested change. The 

comments in favor of the change 

generally felt the additional restrictions 

to the bridge would help alleviate 

vehicular traffic on or around the bridge 

and the surrounding area. For the 

comments that opposed the change, by 

and large, the main concern was safety 

of mariners due to strong tidal currents 

and the high level of vessel activities 

occurring in the waters near the bridge. 

Strong currents, the close proximity of 

mooring fields and marinas would 

hamper the ability to ‘‘keep on station’’ 

while waiting for a bridge opening. 

Also, sailing vessels waiting for bridge 

opening would be required to be moving 

constantly all the while avoiding other 

waiting vessel traffic. The requested 

change to the operating schedule would 

extend the twice an hour draw opening 

schedule by an additional three hours 

into the evening. Concern was 

expressed by having to wait for an 

opening in darkness, stating this would 

cause additional hazards due to vessels 

already underway, traffic lights against 

the city and vehicular lights adjacent to 

the waterway. The Coast Guard 

acknowledges all of the above safety 

concerns, and for that reason, we find 

that any benefits of the possible 

additional restrictions to the Bridge of 

Lions do not outweigh the additional 

hazards to vessels and mariners 

transiting the area around the bridge. 

The current regulation as written in 33 

CFR 117.261(d) will remain in effect. 

Dated: October 5, 2017. 

Peter J. Brown, 

Rear Admiral, U.S. Coast Guard, Commander, 

Seventh Coast Guard District. 

[FR Doc. 2017–23321 Filed 10–25–17; 8:45 am] 

BILLING CODE 9110–04–P 

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. 

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 


ethrower on DSK3G9T082PROD with PROPOSALS
Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Proposed Rules 49551 

1 82 FR 29804 (June 30, 2017). 

2The 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. 

3 17 U.S.C. 1201(a)(1)(C). 

4See 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’’). 

5 17 U.S.C. 1201(a)(1)(C). 

6 1201 Study at 114. 

7 Id. at 115; see also id. at 115–27. 

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. 

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 sdam@loc.gov, Regan A. Smith, 

Deputy General Counsel, by email at 

resm@loc.gov, Anna Chauvet, Assistant 

General Counsel, by email at achau@

loc.gov, or Jason E. Sloan, AttorneyAdvisor, by email at jslo@loc.gov. 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. 

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

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. 

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 recentlyissued 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/. 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: 

• The proposed class includes at least 

some works protected by copyright. 

• The uses at issue are noninfringing 

under title 17. 

• 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. 

• The statutory prohibition on 

circumventing access controls is the 

cause of the adverse effects.7

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 


ethrower on DSK3G9T082PROD with PROPOSALS
49552 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Proposed Rules 

9Commerce Comm. Report at 37; see also Staff of 

H. Comm. on the Judiciary, 105th Cong., Sectionby-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). 

10See 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’’). 

11 1201 Study at 142, 145. 

12 Id. at 143. 

13 Id. at 143–44. 14This 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. 

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. 

17See, 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 

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

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

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

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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(‘‘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. 

19Although 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. 

20American 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. 

21AFB, ACB, Samuelson-Glushko TLPC & LCA 

Renewal Pet. at 3; UMLCO eBooks Renewal Pet. at 

3. 

22AFB, ACB, Samuelson-Glushko TLPC & LCA 

Renewal Pet. at 3. 

23Campos Compilations of Data Renewal Pet. 

24 Id. at 3. 

25Competitive 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. 

27New Media Rights (‘‘NMR’’) Jailbreaking 

Renewal Pet.; EFF Jailbreaking Renewal Pet.; 

Libiquity Jailbreaking Renewal Pet.; Software 

Freedom Conservancy (‘‘SFC’’) Renewal Pet. 

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

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 ebook 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 reestablished 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. 

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. 

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. 

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 


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28NMR Jailbreaking Renewal Pet. at 1; EFF 

Jailbreaking Renewal Pet. at 1; Libiquity 

Jailbreaking Renewal Pet. at 1; SFC Renewal Pet. at 

1. 

29EFF Jailbreaking Renewal Pet. at 3. 

30Libquity Jailbreaking Renewal Pet. at 3. 

31BSA Jailbreaking Renewal Comment at 1–2. 

32 82 FR at 29807. 

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. 

36BSA Jailbreaking Renewal Comment at 2. 

37 2015 Recommendation at 181–82. 

38Auto 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. 

39Auto Care, CTA, iFixit & ORI Repair Renewal 

Pet. at 3. 

40AFBF Renewal Pet. at 3. 

41MEMA Repair Renewal Pet. at 3. 

42Auto Alliance Renewal Comment at 2. 

43Auto Care, CTA, iFixit & ORI Repair Renewal 

Pet. at 3. 

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

In a brief two-page comment, BSA | 

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

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). 

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. 

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 threeyear 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. 

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 


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44The 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 twelvemonth 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. 

45Bellovin, 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. 

46Bellovin, Blaze & Heninger Renewal Pet. at 3. 

47 Id. 

48MEMA Security Research Renewal Pet. at 3. 

49BSA Security Research Renewal Comment at 2. 

50The 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. 

51Weinberg & ORI Renewal Pet. 

52 Id. at 1. 

53EFF Video Game Renewal Pet.; LCA Video 

Game Renewal Pet.; UMLCO Video Game Renewal 

Pet. 

54UMCLO 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 

Continued 

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 thirdparty repair services. The Office 

discusses iFixit’s petition below. 

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

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

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

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

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. 

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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oppose such renewal. Joint Creators Renewal 

Comment at 2, n.2. 

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. 

60Hobbs & NAMLE AV Univ. Renewal Pet. at 1. 

61 DVD CCA & AACS LA AV Univ. Renewal 

Comment at 1–2. 

62 Id. at 4–5. 

63 Joint Educators, AAUP, ICA, DCSUM, SCMS & 

LCA AV Univ. Renewal Pet. at 3 (emphasis added). 

64LCA K–12 Renewal Pet.; Hobbs & NAMLE K– 

12 Renewal Pet. 

65 Joint Educators, ICA, DCSUM, SCMS & LCA 

MOOCs 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. 

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 screencapture software or other noncircumventing alternatives are unable to 

produce the required level of highquality content.’’ 60

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

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. 

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. 

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. 

Based on the information provided in 

the renewal petition and the lack of 

opposition, the Register believes that the 


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66LCA AV Nonprofit Renewal Pet.; Hobbs & 

NAMLE AV Nonprofit Renewal Pet. 

67LCA AV Nonprofit Renewal Pet. at 1. 

68Hobbs & NAMLE AV Nonprofit Renewal Pet. at 

3. 

69Buster, Authors Alliance & AAUP Renewal Pet. 

(represented by Samuelson-Glushko TLPC). 

70 Id. at 3. 

71See id. 

72Film 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. 

75NMR Noncom. Videos Renewal Pet.; 

Organization for Transformative Works (‘‘OTW’’) 

Renewal Pet. 

76OTW Renewal Pet. at 3. 

77 Id. 

78NMR Noncom. Videos Renewal Pet. at 3. 

79 Joint Creators Renewal Comment at 2 n.1. 

80 DVD CCA & AACS LA AV Noncom. Videos 

Renewal Comment at 4. 

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

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 ebooks 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 ebooks that incorporate film for the 

purpose of analysis.71

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

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

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

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 


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81OTW Renewal Pet. at 3–4. 

82 17 U.S.C. 1201(a)(1)(B). 83Commerce 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’’). 

84 82 FR at 29808. 

supporting the continued need for an 

exemption for noncommercial videos.81

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. 

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. 

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 


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85 1201 Study at 147; see also 79 FR 55687, 55690 

(Sept. 17, 2014). 

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

87 Id. 

88 1201 Study at 109–10. 

89 Id. at 151; see, e.g., EFF, NMR & OTW Class 

1 Pet. at 2–3. 

90See 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). 

91Buster, Authors Alliance & OTW Class 1 Pet. 

at 3. 

92 Joint Filmmakers Class 1 Pet. at 3. 

93 2015 Recommendation at 103. 

94BYU & 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’’). 

96 Joint Educators Class 1 Pet. at 2. 

97 Id. 

98 2015 Recommendation at 102. 

99BYU & 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. . . .’’). 

continue to rely on past reasoning to 

dismiss such arguments in the absence 

of new information.’’ 85

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: 

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

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? 

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

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

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

In addition, two petitioners seek 

clarification that ‘‘the use of screencapture 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 

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100 2015 Recommendation at 99. 101Association 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. 

103OmniQ Class 3 Pet. at 2–3; De Pretis Class 3 

Pet. at 2. 

104See 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. 

105Huang Class 4 Pet. 

106 Id. at 2. 

107Complaint 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. 

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). 

111EFF 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 

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. 

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

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. 

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

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

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 ‘‘generalpurpose 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


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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. 

113 2015 Recommendation at 189. 

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). 

116EFF 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. 

117EFF 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). 

118Auto Care & CTA Class 7 Pet. at 4. 

119 2015 Recommendation at 246. 

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 antitrafficking 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). 

122 iFixit Class 7 Pet. at 2. 

123Auto Care & CTA Class 7 Pet. at 3. 

124 1201 Study at 54. 

125 Id. at 53–56. 

126MADE Class 8 Pet. at 2. 

127 2015 Recommendation at 350. 

128 Id. at 351. 

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

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

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

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

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

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 


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49562 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Proposed Rules 

129The Software Preservation Network (‘‘SPN’’) & 

LCA Class 9 Pet. at 2. 

130See, e.g., 17 U.S.C. 108 (c), (h). 

131See, 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). 

132Felten & Halderman Class 10 Pet. at 2–3; 

Green Class 10 Pet. at 2–3; CDT Class 10 Pet. at 2– 

3. 

133Felten & 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. 

135 2015 Recommendation at 317–18. 

136 Id. at 318. 

137AI Class 11 Pet. at 2. 

138 Id. at 2–3. 

‘‘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 softwaredependent materials.’’ 129

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). 

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

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

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

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

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-manufacturerapproved 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 


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Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Proposed Rules 49563 

139Weinberg Class 12 Pet. at 2. Compare 2015 

Recommendation at 376–77. 

140 1201 Study at 150–51. 

141The Office expects to continue to hold 

informal intra-governmental communications, 

which would not be included in such guidelines. 

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

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 nongovernmental 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 preexisting 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. 

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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 62 

[EPA–R03–OAR–2017–0509; FRL–9969–91– 

Region 3] 

Approval and Promulgation of State 

Air Quality Plans for Designated 

Facilities and Pollutants; City of 

Philadelphia; Control of Emissions 

From Existing Sewage Sludge 

Incineration Units 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to notify the 

public that it has received a negative 

declaration for the City of Philadelphia 

Air Management Services (Philadelphia 

AMS) for sewage sludge incineration 

(SSI) units. This negative declaration 

certifies that SSI units subject to the 

requirements of sections 111(d) and 129 

of the Clean Air Act (CAA) do not exist 

within the City of Philadelphia in the 

Commonwealth of Pennsylvania. EPA is 

accepting the negative declaration in 

accordance with the requirements of the 

CAA. In the Final Rules section of this 

issue of the Federal Register, EPA is 

accepting the negative declaration as a 

direct final rule without prior proposal 

because the Agency views this as a 

noncontroversial submittal and 

anticipates no adverse comments. If no 

adverse comments are received in 

response to this action, no further 

activity is contemplated. If EPA receives 

adverse comments, the direct final rule 

will be withdrawn and all public 

comments received will be addressed in 

a subsequent final rule based on this 

proposed rule. EPA will not institute a 

second comment period. Any parties 

interested in commenting on this action 

should do so at this time. 

DATES: Comments must be received in 

writing by November 27, 2017. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R03– 

OAR–2017–0509 at https://

www.regulations.gov, or via email to 

aquino.marcos@epa.gov. For comments 

submitted at Regulations.gov, follow the 


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