[Federal Register Volume 68, Number 211 (Friday, October 31, 2003)]
[Rules and Regulations]
[Pages 62011-62018]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27537]


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LIBRARY OF CONGRESS

37 CFR Part 201

[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.

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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.


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.\1\ This notice 
summarizes the Register's recommendation and publishes the regulatory 
text codifying the four exempted classes of works.
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    \1\ A copy of the Register's memorandum may be found at http://www.copyright.gov/1201.
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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

[[Page 62012]]

class of works for the ensuing 3-year period.'' \2\
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    \2\ 17 U.S.C. 1201(a)(1)(D).
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    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.\3\ 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.
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    \3\ Exemption to Prohibition on Circumvention of Copyright 
Protection Systems for Access Control Technologies, 65 FR 64556 
(October 27, 2000); http://www.copyright.gov/fedreg/2000/65fr64555.pdf. The Federal Register notice contained the 
recommendation of the Register of Copyrights and the determination 
of the Librarian.
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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

[[Page 62013]]

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.\4\ 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 on 
the Office's Web site.\5\
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    \4\ 67 FR 63578; http://www.copyright.gov/fedreg/2002/67fr63578.html.
    \5\ http://www.copyright.gov/1201/index.html.
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    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

[[Page 62014]]

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

[[Page 62015]]

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.


[[Page 62016]]


    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.


[[Page 62017]]


    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.


[[Page 62018]]


    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).
---------------------------------------------------------------------------

    \6\ See, e.g. C43 and C44.
---------------------------------------------------------------------------

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

0
For the reasons set forth in the preamble, 37 CFR part 201 is amended 
as follows:
0
1. The authority citation for part 201 continues to read as follows:

    Authority: 17 U.S.C. 702.


0
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:
    (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.
    (2) Computer programs protected by dongles that prevent access due 
to malfunction or damage and which are obsolete.
    (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. 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.
    (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.
    (c) Definitions. (1) ``Internet locations'' are defined to include 
domains, uniform resource locators (URLs), numeric IP addresses or any 
combination thereof.
    (2) ``Obsolete'' shall mean ``no longer manufactured or reasonably 
available in the commercial marketplace.''
    (3) ``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.
[FR Doc. 03-27537 Filed 10-30-03; 8:45 am]
BILLING CODE 1410-30-P