On November 27, 2006, the Librarian of Congress announced six exemptions to the Digital Millennium Copyright Act's (DMCA's) prohibition on circumvention of technological measures controlling access to copyrighted works. These exemptions allow users of copyrighted works to circumvent access control devices, under certain specified conditions, for a period of three years, in order to (1) make compilations of video clips for film and media studies courses; (2) archive obsolete computer programs or games; (3) bypass "dongles," or hardware locks, that are obsolete; (4) use read-aloud functions or screen readers with e-books; (5) connect wireless telephone handsets to communication networks; and (6) test for or correct security flaws in works distributed on compact discs. These exemptions will remain in effect until the Librarian of Congress makes a new determination as to classes of works to be exempted from the DMCA circumvention prohibition, which are expected to be published in fall 2009 following a rulemaking proceeding. This report describes the statutory basis for the exemptions, the triennial rulemaking proceeding that results in them, and the exemptions granted in 2006. Copyright is a protection provided by U.S. law to literary, musical, dramatic, artistic, and other works that are original and fixed in a tangible medium of expression. The authors of copyrighted works, or those to whom they transfer their copyrights, have the exclusive rights to reproduce, distribute, and publicly perform or display the works, and to prepare derivative works based upon them. Congress passed the Digital Millennium Copyright Act ( P.L. 105-304 ) in 1998, in part, to help copyright owners protect their exclusive rights against infringement facilitated by digital technologies, including the Internet. Section 1201 of the DMCA outlaws circumvention of any access control devices, such as password codes, encryption, and scrambling, that copyright owners may use to protect copyrighted works. The DMCA's prohibition on circumvention extends to both the act of circumventing access control devices and trafficking in devices that may be used for this purpose. The DMCA's prohibition on circumvention is not absolute, however. Much like the way in which the Copyright Act limits copyright owners' exclusive rights with the doctrine of fair use, the DMCA allows for circumvention in certain limited circumstances. First, the DMCA includes statutory exceptions, providing that circumvention is not unlawful when— a library, archive, or educational institution accesses a commercial work only to make a decision about purchasing that work; a federal, state, or local law enforcement officer accesses a work in the course of a lawful investigation; a person who has lawfully obtained use of a computer program accesses a particular portion of the program solely to identify and study elements of the program that are necessary for interoperability and that have not been previously available to him or her; a person who made a good faith effort to obtain permission accesses a lawfully obtained published work to conduct encryption research, provided that doing so does not otherwise violate the Copyright Act or the Computer Fraud and Abuse Act ( P.L. 99-474 ); or a person identifies and disables access control devices that also collect or disseminate personally identifying information about his or her activities. Second, the DMCA establishes a rulemaking proceeding, wherein the Librarian of Congress, acting upon the recommendation of the Register of Copyrights, may exempt for three years a "particular class of copyrighted works" from the DMCA's prohibition on circumvention. According to the legislative history of the DMCA, the relatively short duration of these exemptions reflects Congress's intent that the "§ 1201 rulemaking" functions as a "fail safe," monitoring developments in the marketplace for copyrighted works and temporarily waiving enforcement of the prohibition on circumvention in response to those market changes. Although these triennial exemptions apply to the DMCA's anti-circumvention provision, they do not affect the DMCA's prohibition on trafficking in devices that facilitate circumvention. Thus, while the act of circumventing a technological protection measure that controls access to an exempted class of work is not itself a violation of the DMCA during the three-year period, the making and distribution of technology that enables that circumvention is still prohibited and the exemptions cannot be invoked as a defense to an action brought under the DMCA's anti-trafficking ban. Furthermore, the exemptions only apply to persons making noninfringing uses of the exempted classes of works—an individual who circumvents an access control to engage in copyright infringement will still be liable for those infringing acts. Section 1201(a)(1)(C) of the DMCA provides that the Librarian of Congress and the Register of Copyrights determine exemptions through a "rulemaking proceeding." The DMCA's legislative history specifies that this rulemaking proceeding is to be conducted through "notice-and-comment." Accordingly, the Librarian and the Register provided notice of the rulemaking, solicited initial and reply comments from the public, and conducted hearings in granting the 2000, 2003, and 2006 exemptions. On October 6, 2008, the Copyright Office initiated a fourth § 1201 rulemaking, in order to determine the 2009 exemptions. Content users who are presently affected, or likely to be affected within the next three years, may propose exemptions to the DMCA's prohibition on circumvention. Once the proposals for exempted classes of works are received, the Copyright Office will publish a notice of proposed rulemaking and then hold a series of hearings in the spring of 2009 in which proponents and opponents of the proposed exemptions may present their views. The new exemptions are expected to be published by the fall of 2009. Proponents of exemptions bear the burden of proof. Based upon its reading of the DMCA statute and legislative history, the Copyright Office has determined that to meet this burden of proof, proponents must (1) identify the specific technological measures causing the alleged problems and show that these measures effectively control access to copyrighted works; (2) explain the non-infringing activities that the prohibition adversely affects; and (3) establish that the prevented activities are, in fact, non-infringing under current law. Only technological measures that restrict access are considered; non-technological measures that restrict access (e.g., contracts or usage agreements) are not considered, nor are technological measures that control things other than access (e.g., reproduction or distribution). The technological measure must directly lead to the problems of which the exemption's proponent complains: "[a]dverse impacts that flow from other sources ... are outside the scope of the rulemaking." The problems complained of must be more than "isolated harm or mere inconveniences," and the adverse effects must be substantial. Claims of present problems and adverse effects should be supported by first-hand knowledge of "verifiable problems occurring in the marketplace" and, preferably, documented by factual and quantitative data. Claims of future problems and adverse effects should be especially well documented, because the legislative history of the DMCA provides that future harm should only be recognized "in extraordinary circumstances in which the evidence of likelihood is highly specific, strong and persuasive." Non-infringing activities must be recognized under the current law and must not be possible by alternative means. Proponents arguing for the renewal of existing exemptions must make their case de novo. The existence of an exemption that was granted in previous rulemaking proceedings does not create a presumption in its favor; rather, it must be justified as if it were a new exemption. Even when proponents demonstrate that access control devices adversely affect their abilities to make non-infringing uses of copyrighted works, their exemptions are not automatically granted. Rather, the Librarian of Congress and the Register of Copyrights weigh the proven harm against other factors prescribed by statute in determining whether to grant an exemption. These factors include the availability of copyrighted works generally; the availability of copyrighted works for nonprofit archival, preservation, and educational purposes; the impact of access control devices on criticism, comment, news reporting, teaching, scholarship, and research; the effect that circumvention of access control devices would have on the market for or value of copyrighted works; and any other factors the Librarian deems appropriate. These factors are intended to ensure that the Librarian and the Register balance the adverse and positive effects of access control devices, which not only limit access but also promote copyright owners' willingness to disseminate their works in new ways. The Register also must consult with the Assistant Secretary for Communications and Information of the Department of Commerce, who heads the National Telecommunications and Information Administration, before recommending exemptions to the Librarian in order to ensure that the market benefits of both access control devices and potential exemptions are fully considered. In granting exemptions, the Librarian of Congress and the Register of Copyrights must consider to what "class of works" the exemption will apply. The DMCA states that an exemption may be granted only for "a particular class of copyrighted works" upon a sufficient showing of adverse effects. The statute does not define what constitutes a "class of works." The Register sought comments on this issue in the 1999-2000 rulemaking and concluded that a "class of works" was to be defined in relation to the categories of copyrighted works in § 102 of the Copyright Act of 1976, namely, literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. However, the Register cited legislative history that expressed the view that the § 102 categories were too broad to serve as the basis for a "class of works." After consulting this legislative history and reviewing the statutory language, the Register determined that a "class of works" was to be a subcategory of the § 102 categories that was "based upon attributes of the works themselves, and not by reference to some external criteria such as the intended use or users of the works."