[Federal Register: October 31, 2003 (Volume 68, Number 241)]
[Rules and Regulations]
[Page 62011-62018]
LIBRARY OF CONGRESS
Copyright Office
[Docket No. RM 2002-4E]
Copyright Office; Exemption to Prohibition on Circumvention of
Copyright Protection Systems for Access Control Technologies
AGENCY: Copyright Office, Library of Congress.
ACTION: Final rule.
SUMMARY:
This rule provides that during the period from October 28,
2003, through October 27, 2006, the prohibition against circumvention
of technological measures that effectively control access to
copyrighted works shall not apply to persons who engage in
noninfringing uses of four classes of copyrighted works.
DATES:
Effective Date: October 28, 2003.
FOR FURTHER INFORMATION CONTACT:
Robert Kasunic, Office of the General Counsel, Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, DC 20024-0400. Telephone: (202) 707-8380; telefax: (202) 707-8366.
SUPPLEMENTARY INFORMATION:
In this document, the Librarian of Congress, upon the
recommendation of the Register of Copyrights, announces that during the
period from October 28, 2003, through October 27, 2006, the prohibition
against circumvention of technological measures that effectively
control access to copyrighted works shall not apply to persons who
engage in noninfringing uses of four classes of copyrighted works. This
announcement is the culmination of a year-long rulemaking proceeding
conducted by the Register. A more comprehensive statement of the
background and legal requirements of the rulemaking, a discussion of
the record and the Register's analysis may be found in the Register's
memorandum of October 27, 2003 to the Librarian, which contains the
full explanation of the Register's recommendation. This notice
summarizes the Register's recommendation and publishes the regulatory
text codifying the four exempted classes of works.
A copy of the Register's memorandum can be found here.
I. Background
A. Legislative Requirements for Rulemaking Proceeding
Section 1201 of title 17, United States Code, prohibits
circumvention of technological measures employed by or on behalf of
copyright owners to protect their works (hereinafter ``access
controls''). In order to ensure that the public will have continued
ability to engage in noninfringing uses of copyrighted works, such as
fair use, subparagraph (B) limits this prohibition, exempting
noninfringing uses of any ``particular class of works'' when users are
(or in the next 3 years are likely to be) adversely affected by the
prohibition in their ability to make noninfringing uses of that class
of works. Identification of such classes of works is made in a
rulemaking proceeding conducted by the Register of Copyrights, who is
to provide notice of the rulemaking, seek comments from the public,
consult with the Assistant Secretary for Communications and Information
of the Department of Commerce, and recommend final regulations to the
Librarian of Congress. The regulations, to be issued by the Librarian
of Congress, announce ``any class of copyrighted works for which the
Librarian has determined, pursuant to the rulemaking conducted under
subparagraph (C), that noninfringing uses by persons who are users of a
copyrighted work are, or are likely to be, adversely affected, and the
prohibition contained in subparagraph (A) shall not apply to such users
with respect to such class of works for the ensuing 3-year period (17 U.S.C. 1201(a)(1)(D)).''
The first section 1201 rulemaking took place three years ago, and
on October 27, 2000, the Librarian announced that noninfringing users
of two classes of works would not be subject to the prohibition on
circumvention of access controls. Exemptions to the prohibition on
circumvention remain in force for a three-year period and expire at the
end of that period. The Librarian is required to make a determination
on potential new exemptions every three years (Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 65 FR 64556 (October 27, 2000);. The Federal Register notice contained the recommendation of the Register of Copyrights and the determination of the Librarian.)
B. Responsibilities of Register of Copyrights and Librarian of Congress
The purpose of the rulemaking proceeding conducted by the Register
is to determine whether users of particular classes of copyrighted
works are, or in the next three years are likely to be, adversely
affected by the prohibition in their ability to make noninfringing uses
of copyrighted works. In making her recommendation to the Librarian,
the Register must carefully balance the availability of works for use,
the effect of the prohibition on particular uses and the effect of
circumvention on copyrighted works.
C. The Purpose and Focus of the Rulemaking
1. Purpose of the Rulemaking. As originally drafted, section
1201(a)(1) provided simply that ``No person shall circumvent a
technological measure that effectively controls access to a work
protected under this title.'' However, in response to concerns that
section 1201, in its original form, might undermine Congress'
commitment to fair use if developments in the marketplace relating to
use of access controls result in less access to copyrighted materials
that are important to education, scholarship, and other socially vital
endeavors, it was determined that a triennial rulemaking proceeding
should take place to monitor the use of access controls. If the
rulemaking record revealed that access was being unduly restricted,
e.g., by elimination of print or other hard-copy versions, permanent
encryption of all electronic copies or adoption of business models that
restrict distribution and availability of works, then users of
particular classes of works who are engaging in noninfringing uses of
those works would be allowed to circumvent access controls without
running afoul of the prohibition in section 1201(a)(1). The rulemaking
proceeding, to be conducted by the Register of Copyrights, was
considered a ``fail-safe'' mechanism, monitoring developments in the
marketplace for copyrighted materials, and would allow the
enforceability of the prohibition against the act of circumvention to
be selectively waived, for limited time periods, if necessary to
prevent a diminution in the availability to individual users of a
particular category of copyrighted materials.
2. The Necessary Showing. Proponents of an exemption have the
burden of proof. In order to make a prima facie case for an exemption,
proponents must show by a preponderance of the evidence that there has
been or is likely to be a substantial adverse effect on noninfringing
uses by users of copyrighted works. De minimis problems, isolated harm
or mere inconveniences are insufficient to provide the necessary
showing. Similarly, for proof of ``likely'' adverse effects on
noninfringing uses, a proponent must prove by a preponderance of the
evidence that the harm alleged is more likely than not; a proponent may
not rely on speculation alone to sustain a prima facie case of likely
adverse effects on noninfringing uses. It is also necessary to show a
causal nexus between the prohibition on circumvention and the alleged
harm.
Proposed exemptions are reviewed de novo. The existence of a
previous exemption creates no presumption for consideration of a new
exemption, but rather the proponent of such an exemption must make a
prima facie case in each three-year period.
3. Determination of ``Class of Works''. A ``particular class of
works'' to be exempted from the prohibition on circumvention must be
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.
The starting point for any definition of a ``particular class'' of
works in this rulemaking must be one of the categories of works set
forth in section 102 of the Copyright Act, but those categories are
only a starting point and a ``class'' will generally constitute some
subset of a section 102 category. The determination of the appropriate
scope of a ``class of works'' recommended for exemption will also take
into account the likely adverse effects on noninfringing uses and the
adverse effects an exemption may have on the market for or value of
copyrighted works.
While starting with a section 102 category of works, or a
subcategory thereof, the description of a ``particular class'' of works
ordinarily should be further refined by reference to other factors that
assist in ensuring that the scope of the class addresses the scope of
the harm to noninfringing uses. For example, the class might be defined
in part by reference to the medium on which the works are distributed,
or even to the access control measures applied to them. But classifying
a work solely by reference to the medium on which the work appears, or
the access control measures applied to the work, would be beyond the
scope of what ``particular class of work'' is intended to be. And it is
not permissible to classify a work by reference to the type of user or
use (e.g., libraries, or scholarly research).
D. Consultation With the Assistant Secretary for Communications and
Information
As required by section 1201(a)(1)(C), the Register consulted with
the Assistant Secretary for Communications and Information of the
Department of Commerce, meeting with her at the outset of the
rulemaking proceeding and after the record had been compiled, and
keeping her and her staff apprised of developments throughout the
proceeding. The Assistant Secretary shared her views with the Register
orally in July, 2003, and in a letter dated August 11, 2003. Rather
than address any particular proposals for exemptions, the Assistant
Secretary commented on the rulemaking process itself, focusing
exclusively on the Notice of Inquiry (``NOI'') published October 15,
2002.
The Assistant Secretary expressed general agreement with the
discussion in the NOI regarding the definition of a ``class of works,''
but added that the intended use of the work or the attributes of the
user will sometimes be critical to that determination. She also agreed
with the Register that proponents of exemptions have the burden of
proof and that and that the assessment of adverse impacts is to be
determined de novo. However, she expressed some concern that the NOI
may have described the proponents' burden of proof as higher than
required by the statute.
The Assistant Secretary appears to have misread the NOI, which
stated the burden of proof using verbatim quotations from the
legislative history of section 1201. In particular, the Assistant
Secretary appears to have misunderstood the meaning of the requirement
that proponents show that the prohibition on circumvention has had a ``substantial'' adverse
effect on noninfringing uses of a particular class of work. Use of the
term ``substantial'' does not impose a ``heightened'' requirement; it
imposes the requirement found throughout the legislative history, which
is variously stated as ``substantial adverse impact,'' ``distinct,
verifiable, and measurable impacts,'' and more than ``de minimis
impacts.'' As is apparent from the dictionary definition of
``substantial'' and the Supreme Court's treatment of the term (e.g., in
its articulation of the substantial evidence rule), requiring that
one's proof be ``substantial'' simply means that it must have
substance. The Assistant Secretary's fear that the Register has imposed
a heightened burden is misplaced. When all is said and done, the
Register believes that she and the Assistant Secretary view the burden
on proponents in much the same way.
II. Solicitation of Public Comments and Hearings
On October 15, 2002, the Librarian and the Register initiated the
second rulemaking proceeding pursuant to section 1201(a)(1)(C) with
publication of a NOI (67 FR 63578). The Copyright Office received 51 written
comments proposing a class or classes of works for exemption.
Supporters and opponents of these proposals filed 338 reply comments.
Six days of public hearings were conducted in Spring 2003 in
Washington, D.C., and Los Angeles, California. Following the hearings,
the Office sent follow-up questions to some of the hearing witnesses,
and responses were received during the summer. The entire record in
this and the previous section 1201(a)(1)(C) rulemaking are available here.
The Register has now carefully reviewed and analyzed the entire
record in this rulemaking proceeding to determine whether any class of
copyrighted works should be exempt from the prohibition against
circumvention during the next three years. The Register recommends that
noninfringing users of four classes of works be exempt from the
prohibition on circumvention of access controls.
III. Discussion
A. The Four Exempted Classes
Based on the Register's review of the record, the case has been
made for exemptions of the following four classes of copyrighted works.
1. Compilations consisting of lists of Internet locations
blocked by commercially marketed filtering software applications
that are intended to prevent access to domains, websites or portions
of websites, but not including lists of Internet locations blocked
by software applications that operate exclusively to protect against
damage to a computer or computer network or lists of Internet
locations blocked by software applications that operate exclusively
to prevent receipt of e-mail. For purposes of this exemption,
``Internet locations'' are defined to include ``domains, uniform
resource locators (URLs), numeric IP addresses or any combination
thereof.''
This is similar to an exemption made in the previous rulemaking,
but with some modifications. The class consists of lists of blocked Web
sites that are used in various filtering software programs sometimes
referred to as ``censorware.'' These programs are intended to prevent
children and other Internet users from viewing objectionable material
while online. It was alleged that although the software is intended to
serve a useful societal purpose, the emphasis of the programs is on
blocking rather than accuracy. Critics contend that the result of this
focus is that filtering software used to prevent access to
objectionable material tends to over-block, thereby preventing access
to legitimate information resources. In order to comment on this
software and expose what they claim is the excessive blocking of Web
sites, critics claim they need to gain access to the lists of blocked
Web sites, which typically are protected by access controls.
Opponents argued that filtering software companies serve a critical
societal purpose and that an exemption would undermine the integrity of
filtering software. They also argued that filtering software companies
provide reasonable means for ascertaining the material or sites that a
particular filtering software blocks. They also stated that even if the
Register found that an exemption was warranted, the particular class
articulated in the previous rulemaking was overly broad and that
repeating an exemption for that class could create adverse consequences
for other types of software, such as antivirus and spam software.
Although a similar class was exempted in the first rulemaking,
proponents are required to make their case anew every three years. The
record in the current rulemaking warrants a new exemption. While
providers of filtering software offer some information about the Web
sites their software blocks, it is too limited to permit comprehensive
or meaningful analysis. Persons wishing to review, comment on and
criticize this software as part of an ongoing debate on a matter of
public interest should be permitted to gain access to the complete
lists of blocked Web sites.
The particular class of works designated in this rulemaking covers
the lists of websites blocked by commercially marketed filtering
software applications that are intended to prevent access to domains,
websites or portions of Web sites. However, the exempted class
specifically excludes lists of Internet locations blocked by software
designed to protect against damage to computers, such as firewalls and
antivirus software, or software designed to prevent receipt of unwanted
e-mail, such as anti-spam software.
2. Computer programs protected by dongles that prevent access
due to malfunction or damage and which are obsolete.
The second exempted class is also similar to a class exempted in
2000, but again the class exempted in this proceeding is somewhat more
limited. Many commenters supported a renewal of the previous exemption
for ``literary works, including computer programs and databases,
protected by access control mechanisms that fail to permit access
because of malfunction, damage or obsoleteness.'' Few commenters,
however, provided any factual support for such an exemption. The facts
that were presented related to a narrower class of works: computer
programs using ``dongles,'' or hardware locks, which control access to
the programs. Accordingly, the exempted class is limited to such
computer programs. When a dongle is damaged or malfunctions in such as
way that the authorized user of the software cannot gain access to the
software, the authorized user should be given a means to make the
software work. The exempted class includes only that software that
actually cannot be accessed due to a damaged or malfunctioning dongle,
and only when the dongle cannot be replaced or repaired. The class is
formulated as including ``computer programs protected by dongles that
prevent access due to malfunction or damage and which are obsolete.''
Copyright law already provides a definition of obsolete, found in
section 108(c) of the Copyright Act, which captures the circumstances
under which an exemption is justified: ``a [dongle] shall be considered
obsolete if [it] is no longer manufactured or is no longer reasonably
available in the commercial marketplace.'' For purposes of this
exemption, a dongle would be considered ``obsolete'' if replacement or repair are not reasonably
available in the marketplace. In addition to encouraging reasonable
support to be made available to users, the exemption will allow users
who are denied access as a result of a damaged or malfunctioning dongle
to circumvent when repair or a replacement are unavailable. This
exemption minimizes the adverse effects on noninfringing uses by users
of software protected by these access control measures while also
minimizing the adverse effects on copyright owners.
3. Computer programs and video games distributed in formats that
have become obsolete and which require the original media or
hardware as a condition of access.
This is a new exemption, in response to a proposal by The Internet
Archive for ``[l]iterary and audiovisual works embodied in software
whose access control systems prohibit access to replicas of the
works.'' The Internet Archive, a non-profit library that maintains a
collection of websites, software and other works in digital formats in
a digital archive, migrates such works to modern storage systems (e.g.,
by transferring a computer program from a floppy diskette to a hard
drive) that are more stable and that will ensure continuing access to
the works.
The Internet Archive stated that works distributed in digital
formats on physical media (such as floppy diskettes, CD-ROMs, etc.)
have sometimes been accompanied by ``original only'' access controls,
technological measures that, while technically permitting copies to be
made, prevent those copies from functioning (so that, for example, a
copy of a computer program made from the original floppy diskette will
not run, or a copy of an audiovisual game made from the original CD-ROM
cannot be played). This prevents the Internet Archive from migrating
those works to its modern storage system.
The problem is particularly compelling when the physical format in
which the copy was originally marketed has become obsolete. If the
Internet Archive is given computer software that was marketed on 5\1/
4\-inch floppy diskettes, it will not even be able to access the work
in its original format on the typical computer sold in the marketplace
today, because computers sold today are not equipped with 5\1/4\-inch
floppy drives. However, Internet Archive also desires an exemption that
addresses the ``original only'' problem even when the medium on which
the original copy was marketed (e.g., CD-ROM) is not yet obsolete,
noting that it is crucial to archive digital works before they become
inaccessible and before the information on the medium has degraded.
The Register has concluded that to the extent that libraries and
archives wish to make preservation copies of published software and
video games that were distributed in formats that are (either because
the physical medium on which they were distributed is no longer in use
or because the use of an obsolete operating system is required), such
activity is a noninfringing use covered by section 108(c) of the
Copyright Act. The exempted class is therefore limited to works
distributed in such now-obsolete formats. Again, ``obsolete'' has the
same meaning that is set forth in section 108(c). A format shall be
considered obsolete if the machine or system necessary to render
perceptible a work stored in that format is no longer manufactured or
is no longer reasonably available in the commercial marketplace. The
class is also limited to computer programs and video games because the
evidence in the record of this rulemaking does not support a broader
class of works.
4. Literary works distributed in ebook format when all existing
ebook editions of the work (including digital text editions made
available by authorized entities) contain access controls that
prevent the enabling of the ebook's read-aloud function and that
prevent the enabling of screen readers to render the text into a
``specialized format.'' For purposes of this exemption,
``specialized format,'' ``digital text'' and ``authorized entities''
shall have the same meaning as in 17 U.S.C. 121.
The final exempted class is based upon proposals by the American
Foundation for the Blind and five major library associations. It is in
response to problems experienced by the blind and visually impaired in
gaining meaningful access to literary works distributed as ebooks.
Ebooks can offer accessibility to the blind and the visually impaired
that is otherwise not available from a print version. Ebooks may allow
the user to activate a ``read-aloud'' function offered by certain ebook
readers. Ebooks may also permit accessibility to the work by means of
screen reader software, a separate program for the blind and visually
impaired that interacts with an ebook reader and that is capable of
converting the text into either synthesized speech or braille.
By using digital rights management tools that implicate access
controls, publishers of ebooks can disable the read-aloud function of
an ebook and may prevent access to a work in ebook form by means of
screen reader software. The record indicates that many ebooks are
distributed with these two functions disabled. The disabling of these
functions is alleged to prevent the blind and visually impaired from
engaging in particular noninfringing uses such as private performance,
and to prevent access to these works by blind and visually impaired
users altogether. The uses that such persons make by using the ``read-
aloud'' function and screen readers are noninfringing, and are likely
to be the most reasonable means of meaningful access for such persons
to works that are published in ebook format.
To be included in the exempted class, a literary work must exist in
ebook format. Moreover, the exemption is not available if any existing
edition of the work permits the ``read-aloud'' function or is screen
reader-enabled. Thus, a publisher may avoid subjecting any of its works
to this exemption simply by ensuring that for each of its works
published in ebook form, an edition exists which is accessible to the
blind and visually impaired in at least one of these two ways.
B. Other Exemptions Considered, But Not Recommended
A number of other proposed exemptions were considered, but
rejected. They are briefly discussed below. Similar proposed exemptions
are discussed together.
1. Proposed class: All works should be exempt for noninfringing
uses, e.g., fair use and private uses, and other use-based
proposals.
Many comments declined to specify a ``class of works'' and instead
designated the ``class'' to be exempted as ``all works.'' Because the
proponents of an exemption for ``all works'' have utterly failed to
propose ``a particular class of copyrighted works,'' but have simply
asked, in effect, for a blanket exemption for all works--in effect, an
administrative abrogation of section 1201(a)(1)--these proposals must
be rejected.
2. Proposed classes: Several, including ``Per se Educational
Fair Use Works'' and ``Fair Use Works.''
Another group of proposals defined the class of works primarily by
reference to the type of use of works or the nature of the users, e.g.,
fair use works. A ``use-based'' or ``user-based'' classification is not
permitted. The statutory exemptions in section 1201 contain carefully
crafted, use-based and user-based exemptions. Congress considered and
declined to enact certain use-based exemptions similar to some of the
proposals raised in this rulemaking. The statutory text and the
legislative history provide no evidence that Congress intended this rulemaking to second-
guess congressional determinations. Rather, Congress created this
rulemaking as a ``fail-safe'' mechanism to focus on evidence of adverse
effects in particular sub-categories of works that could be ameliorated
by appropriately crafted, short-term exemptions.
3. Proposed classes: (1) Musical recordings and audiovisual
works protected by access control mechanisms whose circumvention is
reasonably necessary to carry out a legitimate research project
where the granted exemption applies only to acts of circumvention
whose primary purpose is to further a legitimate research project;
and (2) Musical recordings and audiovisual works protected by access
control mechanisms whose circumvention is reasonably necessary to
carry out a legitimate research project.
These two related classes were proposed by one commenter. Each
proposed class consists of ``musical recordings and audiovisual
works,'' apparently occupying virtually the entire field of works in
the category of audiovisual works (section 102(6)) and a substantial
part of the categories of sound recordings (section 102(7)) and musical
works (section 102(2)). The proposed class is further narrowed only by
reference to the necessary or intended use by persons wishing to
circumvent the access controls. Because each of these proposed classes
is defined largely in terms of the purpose of the circumvention, they
cannot be considered. They are simply variants of the type of use-based
class that is beyond the scope of this proceeding.
4. Proposed class: Any work to which the user had lawful initial
access (and variations).
This proposal also failed to propose ``a particular class of
copyrighted works.'' Moreover, commenters proposed this class without
providing any factual support whatsoever. Proponents failed to specify
particular access controls that have caused adverse effects on
noninfringing uses, and have failed to describe what noninfringing uses
have been adversely affected.
5. Proposed class: Copies of audiovisual works, including motion
pictures, and phonorecords of musical sound recordings that have
been previously licensed for reproduction but can no longer be
reproduced for private performance after the lawful conditions for
prior reproduction have been met.
This class was proposed by a commenter seeking an exemption to
permit persons who have obtained digital copies of motion pictures or
sound recordings, under agreements that limit the circumstances
(typically, a time limitation) under which they may view or hear them,
to circumvent access controls that enforce those agreements. The
examples cited by the commenter relate primarily to online services
that deliver music or movies to subscribers under an agreement that
permits the subscriber to obtain access to the work only so long as the
subscriber continues to subscribe to the service. The commenter seeks
to exempt such works from the prohibition on circumvention so that
users of such works would be able to continue to play them even when
the agreed-on conditions for their use no longer apply.
A consumer who enters into an agreement to pay a particular sum for
the right to listen to or view a copyrighted work for a limited period
of time can have no reasonable expectation of continued access once
that time has expired. Especially when the works that are the subject
of this proposed exemption--motion pictures and sound recordings--are
widely available for purchase in formats that have no time restrictions
on use, the case for an exemption has not been made. In fact, the DMCA
was intended to encourage such use-facilitating services that give
consumers the option to pay lower prices for more limited uses of
copyrighted works.
6. Proposed class: ``Thin copyright'' works.
The proposed exemption for ``thin copyright works'' suffers from
the same flaws as the proposals to exempt classes such as ``fair use
works.'' Although it was stated that these ``thin copyright'' works
contain ``limited copyrighted subject material,'' there was no showing
of any present or likely harm to users wishing to engage in
noninfringing uses. There was no showing that any such works were
unavailable in an alternative, unprotected format. Without any
demonstration of an adverse effect, any specific allegation of any
particular technological measure protecting access to works, or any
discussion of the unavailability of the material cited in unprotected
formats, there is little basis for consideration.
7. Proposed class: Public domain works or works distributed
without restriction.
Several comments sought an exemption for works that are either
public domain, open source or ``open access,'' but to which access
controls are applied. The commenters addressing open source and open
access works provided absolutely no information in support of their
requests. Aside from a proposal relating to public domain material on
DVDs, there was a paucity of information relating to other public
domain works. These commenters have overlooked that if a work that is
entirely in the public domain is protected by an access control
measure, the prohibition on circumvention will not be applicable.
Therefore, no exemption is needed.
In the DVD context, a proponent provided a series of lists of
audiovisual works that it contended are in the public domain, some of
which it alleged are distributed bundled with copyrighted material.
However, opponents of the proposed exception indicated that many if not
all the works named by the proponent are available in unencrypted (VHS)
format, are not bundled with copyrighted material, are themselves still
subject to copyright protection, or are not encrypted by the Content
Scrambling System (``CSS'') or otherwise subject to an access control,
effectively rebutting the proponent's showing.
8. Proposed class: Musical works, sound recordings, and
audiovisual works embodied in media that are or may become
inaccessible by possessors of lawfully-made copies due to
malfunction, damage, or obsoleteness.
Supporters of this proposed class wanted to be able to transfer
sound recordings and musical works from one medium to another. Some
commenters also believe that they should be able to convert these works
to new or different formats or to back up the works for archival
purposes, e.g., to ``refresh'' the media from time to time to ensure
that the works are available both for their use and for future
generations. However, these proponents have not clearly stated or
demonstrated that access controls are preventing these activities.
In the case of audiovisual works on DVDs, the proponents desire to
make backup copies of their DVDs for a variety of purposes: They claim
that DVDs are inherently fragile and subject to damage; they are
concerned about loss or theft of the original during travel; they wish
to duplicate collections to avoid the burdens and risks of transporting
DVDs; they assert that some titles are out of print and cannot be
replaced in case of damage; and they claim that the duration of a DVD's
lifespan is limited. The Register concludes that the proponents have
not made the case with respect to fragility of DVDs, nor have they
shown that the making of backup copies of DVDs is a noninfringing use.
9. Proposed class: Audiovisual works released on DVD that
contain access control measures that interfere with the ability to
defeat technology that prevents users from skipping promotional
materials.
As the proponent of this proposed class states the problem,
``[m]ovie studios are able to make certain DVD content ``unskippable''
during playback. Some studios have abused this feature by preventing
the skipping of advertising shown prior to the start of the feature
presentation.'' The technology which deactivates the fast-forward
function of DVD players (UOP blocking) does not appear to be an access
control. Nor does the record show that the ``CSS, an access control
used on motion pictures on DVDs, prevents the deactivation of UOP
blocking. Therefore, an exemption does not appear warranted since it
does not appear that access controls are preventing users from fast-
forwarding on DVDs. Moreover, although the objections to DVDs which
have the fast forwarding feature disabled with respect to advertising
are understandable, the problem appears to be no more than de minimis
and a mere inconvenience experienced with an unknown--but apparently
small--quantity of available DVD titles.
10. Proposed class: Ancillary audiovisual works distributed on
DVDs encrypted by CSS.
It is virtually uncontested that there are ancillary works on DVDs
that are not available in another, unprotected format. Such ancillary
material includes matter that is available along with the motion
picture in DVD format but not available in videotape format, such as
outtakes, interviews with actors and directors, additional language
features, etc. The proponent of an ``ancillary works'' exemption
asserts that the use of CSS on DVDs prevents ``quotation [i.e.,
reproduction], for purposes of commentary and criticism, of ancillary
audiovisual works.''
While there is little doubt that the desired use for comment and
criticism by weblog critics can be within the fair use exception, such
critics have a number of options available for such ``quotation.''
Because users have means of making analog copies of the material on
DVDs without circumventing access controls (and of redigitizing those
analog copies), there is no need to permit them to circumvent. The
desire to make a digital-to-digital copy, while understandable, does
not support an exemption in this case. Existing case law is clear that
fair use does not guarantee copying by the optimum method or in the
identical format of the original. On balance, an exemption, which would
permit circumvention of CSS, could have an adverse effect on the
availability of such works on DVDs to the public, since the motion
picture industry's willingness to make audiovisual works available in
digital form on DVDs is based in part on the confidence it has that CSS
will protect it against massive infringement.
11. Proposed class: Audiovisual works stored on DVDs that are
not available in Region 1 DVD format and access to which is
prevented by technological measures.
Many motion pictures distributed on DVDs are ``region coded.'' A
region coded DVD may only be played on a DVD player that is set to play
DVDs bearing the code for a particular region of the world. Proponents
of an exemption included individuals who had acquired DVDs from a
region outside the U.S. and then encountered difficulty in playing
those DVDs on devices purchased in the U.S. Because such consumers have
a number of options that will permit them to view such region coded
DVDs, the need for an exemption that would permit circumvention of
region coding has not been demonstrated.
12. Proposed class: Video games stored on DVDs that are not
available in Region 1 DVD format and access to which is prevented by
technological measures.
A similar issue was raised with respect to region coding on video
games. However, supporters came forward with virtually no evidence
relating to problems with region coding of video games. In the previous
rulemaking, the Register noted that there was not enough evidence to
support an exemption. Thus, the proponents were on notice that they
needed to supply more and better evidence in order to sustain the
proposed exemption. Such evidence has not been produced in this
rulemaking.
13. Proposed class: Audiovisual works embodied in DVDs encrypted
by CSS.
The comments in support of this exemption sought to engage in a
variety of sometimes unspecified claimed fair uses with respect to
audiovisual works on DVDs that do not necessarily appear to fall within
the scope of the proposed exemptions discussed above. However, they
failed to provide evidence of actual or likely harm and, therefore, the
Register cannot recommend such an exemption. While some commenters
mentioned uses that may theoretically qualify as a fair use, specific
facts were not provided and it was not shown that the works were
unavailable in an unprotected format.
14. Proposed class: Software designed for use on dedicated video
game players.
This proponent of this exemption provided almost no evidence in
support of his proposal, failing to identify a technological measure
that controls access to copyrighted works and failing sufficiently to
identify what noninfringing activity is adversely affected.
15. Proposed class: Literary works (including ebooks), sound
recordings, and audiovisual works protected by access controls that
prevent post-sale uses of works; ``tethered'' works.
A number of commenters proposed exemptions for works that are
tethered to particular devices, i.e., works that cannot be copied to
and used on other devices. The purpose of limiting access to particular
devices or hardware is to enable varying degrees of control over
certain uses. Many of these commenters focused on ebooks. An exemption
for tethered ebooks cannot be sustained. The consumer often has choices
between various ebook formats as well as between ebook formats and
alternative formats for books, e.g., hard copies or audio versions.
Commenters who believe that users should be able to ``space-shift'' any
work they purchase in order to access this work on any device of their
choosing did not make a persuasive case that such ``space-shifting,''
involving reproduction of the work, is a noninfringing use. The purpose
of tethering is to limit subsequent reproduction and distribution of
the reproductions. While this may limit a user's options, such user
limitations would appear to represent only an inconvenience as long as
alternative formats of the work are available for noninfringing uses.
Similar arguments were made with respect to tethering of motion
pictures and of sound recordings of musical works. As with the space-
shifting of ebooks, commenters seek to ``platform-shift'' their sound
recordings or motion pictures. However, tethering and DRM policies
serve a legitimate purpose for limiting access to certain devices in
order to protect the copyright owners from digital redistribution of
their works. Moreover, consumers have choices of formats and may decide
whether their intended use is best served by a digital online version
or by another available version of a work. While availability for use
has been restricted in certain digital formats, the overall
availability for use of these works has not been adversely affected.
The effect of circumvention of the protection measures employed on
these works would likely decrease the digital offerings for these
classes of works, reduce the options for users, and decrease the value
of these works for copyright owners.
16. Proposed class: Audiovisual works, including motion
pictures, the DVD copies of which are tethered to operating systems
that prevent rendering on alternative operating systems.
A number of commenters sought exemption of a class of works
consisting of motion pictures on DVDs playable on computers only when
the computers have particular operating systems, e.g., Windows or
Macintosh, and that cannot be played on alternative systems, such as
Linux.
Because there are a variety of devices that will play DVDs, the
inability to play a DVD on a particular device or with a particular
operating system is simply a matter of preference and inconvenience.
Persons wishing to play CSS-protected DVDs on computers with the Linux
operating system have the same options that other consumers have. As a
general proposition, the DVD medium has increased the availability of
motion pictures for sale and rental by the general public, and the
motion picture studios' willingness to distribute their works in this
medium is due in part to the faith they have in the protection offered
by CSS. The balancing of the incremental benefit of allowing
circumvention for the purposes of watching a movie on a Linux-based
computer is outweighed by the threat of increased piracy that underlies
Congress' motivation for enacting section 1201.
17. Proposed class: Sound recordings, audiovisual works and
literary works (including computer programs) protected by access
control mechanisms that require assent to End-User License
Agreements as a condition of gaining access.
One commenter proposed an exemption for sound recordings,
audiovisual works and literary works (including computer programs)
protected by access control mechanisms employed by or at the request of
the copyright holder which require, as a condition of gaining access,
that the prospective user agree to contractual terms which restrict or
limit any of the limitations on the exclusive rights of the copyright
holder. Little evidence was offered in support of this proposed class.
The proponent's complaint appears to be with the practice of requiring
users of certain works to enter into End User License Agreements
(EULAs) rather than with access controls as such. While technological
measures may prevent access unless a user signals assent to the terms
of a contract, the prohibition on circumvention does not appear to
enforce the terms of a contract.
18. Proposed class: published sound recordings of musical works
on compact discs that use technological measures that prevent access
on certain playback devices.
One commenter proposed a class of ``Sound recordings released on
compact disc (``CDs'') that are protected by technological protection
measures that malfunction so as to prevent access on certain playback
devices.'' In part, this proposal relates to copy controls that
malfunction and inadvertently restrict access to sound recordings on
CDs. The proponent itself expressed doubt whether these are actually
access controls subject to the prohibition in section 1201(a)(1);
opponents said they are not and the Register agrees. However, in some
cases the technologies in question are intended to deny access to
particular copies of sound recordings under certain circumstances,
e.g., CDs distributed with two sessions: a ``first session'' that is
not accessible on certain devices and a compressed digital file of a
``second session'' that is accessible on those devices but which is
protected from certain uses. The purpose of the second session is to
permit playability on devices such as computers, but to hinder the
ability of computer users to reproduce and disseminate the copies,
e.g., in a peer-to-peer network. In those cases, users have access to
the work. The comments provided insufficient information to conclude
that access controls have caused users to be denied access to a sound
recording. Moreover, thus far the deployment of CDs protected by any
technological measures in the United States has been minimal. The
record does not support a conclusion that at present, access controls
on CDs have had a substantial adverse effect on noninfringing uses of
sound recordings on CDs.
19. Proposed class: Sound recordings on copy-protected Red Book
Audio format compact discs.
The Digital Media Association (``DiMA''), on behalf of webcasters
operating under a statutory license to transmit performances of sound
recordings, sought an exemption that would permit circumvention of
access controls in order to make ephemeral copies (as permitted in
section 112 of the Copyright Act) of sound recordings on CDs protected
by access controls. In particular, they wish to make server copies of
the higher quality ``first session'' on CDs using the ``second
session'' technology. Because section 112(e)(8) already provides
licensed webcasters with a mechanism for circumventing access controls
that prevent webcasters from making ephemeral copies, there is no need
for an exemption here, especially when webcasters thus far do not
appear to have experienced actual problems.
20. Proposed exemption: Broadcast news monitoring.
A group of broadcast monitors, businesses that tape television news
programs off the air for their customers, sought an exemption that
would ``exempt news and public affairs programming from the scope of
the broadcast flag.'' This was a reference to a proposal pending before
the Federal Communications Commission that would require certain
consumer electronic devices to respond to a ``broadcast flag'' in
television programming which would place certain limits on how digital
broadcasts can be redistributed after receipt by a consumer. The
broadcast monitors seek an exemption that would allow them to bypass
the broadcast flag for the purpose of making copies of news segments
for their customers.
The Register cannot recommend such an exemption. The ``limited
purpose'' for which the broadcast monitors seek an exemption does not
appear to constitute a noninfringing use. Moreover, the broadcast
monitors' fears relating to the broadcast flag, which at this point is
simply a proposal before another federal agency, are speculative. Even
if the speculative adverse effects were to become a reality, such
adverse effects would only cause an inconvenience with respect to the
intended use, since broadcast monitors have other means to go about
their business.
21. Proposed exemption: Reverse engineering for interoperability
and the Static Control proposals.
Static Control Components, Inc. proposed exemptions to permit
circumvention of access controls on computer programs embedded in
computer printers and toner cartridges and that control the
interoperation and functions of the printer and toner cartridge. Static
Control is in litigation with computer printer manufacturer Lexmark,
which sells laser printer toner cartridges that cannot be refilled by
third-party remanufacturers because a technological measure contained
on a microchip in those cartridges renders those cartridges useless
when they are refilled by third-party remanufacturers. The Register
concludes that an existing exemption in section 1201(f) addresses the
concerns of remanufacturers, making an exemption under section
1201(a)(1)(D) unnecessary.
22. Proposed exemption: Computer issues: encryption research,
data file formats, recovery of passwords, personally identifying
material.
A number of commenters raised issues relating to encryption and
security research and to access controls that permit the privacy of
users of works to be compromised. These proposals, in effect, sought
broadening of statutory exemptions enacted as part of the DMCA such as
section 1201(d)-(g) and (i)-(j). In some cases, the commenters failed
to explain why the existing exemptions are insufficient. Most
commenters also failed to provide specific examples of problems leading
to the alleged need for an exemption and, therefore, the Register
cannot recommend exemptions in these cases.
23. Proposed exemption: Conversion of data file formats and
source code.
A few commenters submitted comments relating to source code or data
file formats, but insufficient information was provided to understand
the nature of the problem, or even whether the prohibition against
circumvention contained in section 1201(a)(1) is implicated.
24. Proposed exemption: Privacy and personally identifying
information.
Two comments addressed issues relating to privacy and the
protection of personally identifying information. However, insufficient
information was provided to ascertain the nature and extent of the
problem, or the degree to which access controls were involved. To the
extent that the concern relates to disclosure of personally identifying
information, the commenters did not explain why the existing statutory
exemption in section 1201(i) does not adequately address the problem.
25. Other comments beyond the scope of the rulemaking:
Webcasting, Limitations of Liability for Online Service Providers
and the Antitrafficking provisions of the DMCA.
A number of comments discussed issues unrelated to the
anticircumvention provision that are beyond the scope of this
rulemaking. Some of these comments consisted of criticisms of the DMCA
generally, without citing any particular facts to support such
criticism.\6\ Other comments attacked particular aspects of the DMCA,
e.g., criticism of the rate established for the statutory license for
the webcasting of sound recordings, alleged adverse effects of section
512 relating to limitations on liability for online service providers,
and the antitrafficking provisions of section 1201(a)(2) and 1201(b).
IV. Conclusion
Having considered the evidence in the record, the contentions of
the parties, and the statutory objectives, the Register of Copyrights
recommends that the Librarian of Congress publish the four classes of
copyrighted works designated above, so that the prohibition against
circumvention of technological measures that effectively control access
to copyrighted works shall not apply to persons who engage in
noninfringing uses of those particular classes of works.
Dated: October 27, 2003.
Marybeth Peters, Register of Copyrights.
Determination of the Librarian of Congress
Having duly considered and accepted the recommendation of the
Register of Copyrights that the prohibition against circumvention of
technological measures that effectively control access to copyrighted
works shall not apply to persons who engage in noninfringing uses of
the four classes of copyrighted works designated above, the Librarian
of Congress is exercising his authority under 17 U.S.C. 1201(a)(1)(C)
and (D) and is publishing as a new rule the four classes of copyrighted
works that shall be subject to the exemption found in 17 U.S.C.
1201(a)(1)(B) from the prohibition against circumvention of
technological measures that effectively control access to copyrighted
works set forth in 17 U.S.C. 1201(a)(1)(A) for the period from October
28, 2003 through October 27, 2006, as follows:
List of Subjects in 37 CFR Part 201
Cable television, Copyright, Exemptions to prohibition against
circumvention, Literary works, Recordings, Satellites.
Final Regulations
For the reasons set forth in the preamble, 37 CFR part 201 is amended
as follows:
1. The authority citation for part 201 continues to read as follows:
Authority: 17 U.S.C. 702.
2. Section 201.40 is amended by revising paragraph (b) and by adding
new paragraph (c).
The revisions and additions to Sec. 201.40 read as follows:
Sec. 201.40 Exemption to prohibition against circumvention.
* * * * *
(b) Classes of copyrighted works. Pursuant to the authority set
forth in 17 U.S.C. 1201(a)(1)(C) and (D), and upon the recommendation
of the Register of Copyrights, the Librarian has determined that during
the period from October 28, 2003, through October 27, 2006, the
prohibition against circumvention of technological measures that
effectively control access to copyrighted works set forth in 17 U.S.C.
1201(a)(1)(A) shall not apply to persons who engage in noninfringing
uses of the following four classes of copyrighted works:
- Compilations consisting of lists of Internet locations blocked
by commercially marketed filtering software applications that are
intended to prevent access to domains, websites or portions of
websites, but not including lists of Internet locations blocked by
software applications that operate exclusively to protect against
damage to a computer or computer network or lists of Internet locations
blocked by software applications that operate exclusively to prevent
receipt of e-mail.
- Computer programs protected by dongles that prevent access due
to malfunction or damage and which are obsolete.
- Computer programs and video games distributed in formats that
have become obsolete and which require the original media or hardware
as a condition of access. A format shall be considered obsolete if the
machine or system necessary to render perceptible a work stored in that
format is no longer manufactured or is no longer reasonably available
in the commercial marketplace.
- Literary works distributed in ebook format when all existing
ebook editions of the work (including digital text editions made
available by authorized entities) contain access controls that prevent
the enabling of the ebook's read-aloud function and that prevent the
enabling of screen readers to render the text into a specialized
format.
(c) Definitions.
- (1) ``Internet locations'' are defined to include
domains, uniform resource locators (URLs), numeric IP addresses or any
combination thereof.
- ``Obsolete'' shall mean ``no longer manufactured or reasonably
available in the commercial marketplace.''
- ``Specialized format,'' ``digital text'' and ``authorized
entities'' shall have the same meaning as in 17 U.S.C. 121.
Dated: October 28, 2003.
James H. Billington, The Librarian of Congress.