[Federal Register Volume 73, Number 194 (Monday, October 6, 2008)]
[Proposed Rules]
[Pages 58073-58079]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23576]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 2008-8]
Exemption to Prohibition on Circumvention of Copyright Protection
Systems for Access Control Technologies
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of inquiry.
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SUMMARY: The Copyright Office of the Library of Congress is preparing
to conduct proceedings in accordance with provisions added by the
Digital Millennium Copyright Act which provide that the Librarian of
Congress may exempt certain classes of works from the prohibition
against circumvention of technological measures that control access to
copyrighted works. The purpose of this rulemaking proceeding is to
determine whether there are particular classes of works as to which
users are, or are likely to be, adversely affected in their ability to
make noninfringing uses due to the prohibition on circumvention. This
notice requests written comments from all interested parties, including
representatives of copyright owners, educational institutions,
libraries and archives, scholars, researchers and members of the
public, in order to elicit evidence on whether noninfringing uses of
certain classes of works are, or are likely to be, adversely affected
by this prohibition on the circumvention of measures that control
access to copyrighted works.
DATES: Written comments must be received no later than December 2,
2008. A notice of proposed rulemaking will be published in December
2008 that will identify proposed classes of works and solicit comments
on those proposed classes, which will be due no later than February 2,
2009.
ADDRESSES: Electronic submissions should be made through the Copyright
Office website: http://www.copyright.gov/1201/comment-forms; see
section 3 of the SUPPLEMENTARY INFORMATION section for file formats and
other information about electronic and non-electronic filing
requirements. If a non-electronic submission is hand delivered by a
private party, an original and ten copies of any comment must be
delivered to Room LM-401 of the James Madison Memorial Building between
8:30 a.m. and 5 p.m. and the envelope should be addressed as follows:
Office of the General Counsel, U.S. Copyright Office, James Madison
Memorial Building, Room LM-401, 101 Independence Avenue, SE.,
Washington, DC 20559-6000. If hand delivered by a commercial courier,
an original and ten copies of any comment must be delivered to the
Congressional Courier Acceptance Site located at Second and D Streets,
NE., Washington, DC, between 8:30 a.m. and 4 p.m. The envelope should
be addressed as follows: Copyright Office General Counsel, Room LM-403,
James Madison Memorial Building, 101 Independence Avenue, SE.,
Washington DC. If delivered by means of the United States Postal
Service (see section 3 of the SUPPLEMENTARY INFORMATION about
continuing delays), comments should be addressed to Copyright GC/I&R,
PO Box 70400, Washington, DC 20024-0400. See SUPPLEMENTARY INFORMATION
section for information about requirements and formats of submissions.
Comments may not be delivered by means of overnight delivery services
such as Federal Express, United Parcel Service, etc., due to delays in
processing receipt of such deliveries.
FOR FURTHER INFORMATION CONTACT: Robert Kasunic, Principal Legal
Advisor, Office of the General Counsel, Copyright GC/I&R, PO Box 70400,
Washington, DC 20024-0400. Telephone: (202) 707-8380; telefax: (202)
707-8366.
SUPPLEMENTARY INFORMATION: 1. Mandate for Rulemaking Proceeding
The Digital Millennium Copyright Act, Pub. L. 105-304 (1998),
amended title 17 of the United States Code to add Chapter 12, which
among other things prohibits circumvention of access control
technologies employed by or on behalf of copyright owners to protect
their works.
Specifically, subsection 1201(a)(1)(A) provides, inter alia, that
``No person shall circumvent a technological measure that effectively
controls access to a work protected under this title.''
Subparagraph (B) limits this prohibition. It provides that
prohibition against circumvention ``shall not apply to persons who are
users of a copyrighted work which is in a particular class of works, if
such persons are, or are likely to be in the succeeding 3-year period,
adversely affected by virtue of such prohibition in their ability to
make noninfringing uses of that particular class of works under this
title'' as determined in this rulemaking.
[[Page 58074]]
Subparagraph (C) provides that every three years, the Librarian of
Congress, upon the ecommendation of the Register of Copyrights (who is
to consult with the Assistant Secretary for Communications and
Information of the Department of Commerce) must ``make the
determination in a rulemaking proceeding for purposes of subparagraph
(B) of whether persons who are users of a copyrighted work are, or are
likely to be in the succeeding 3-year period, adversely affected by the
prohibition under subparagraph (A) in their ability to make
noninfringing uses under this title of a particular class of
copyrighted works.'' The Librarian, on the recommendation of the
Register, has thus far made three determinations as to classes of works
to be exempted from the prohibition. The exemptions promulgated by the
Librarian in the first rulemaking were in effect for the 3-year period
from October 28, 2000, through October 28, 2003. See Exemption to
Prohibition on Circumvention of Copyright Protection Systems for Access
Control Technologies, 65 FR 64556, 64564 (2000) (hereinafter Final Reg.
2000). On October 28, 2003, the Librarian of Congress published the
second determination as to classes of works to be exempted from the
prohibition. Exemption to Prohibition on Circumvention of Copyright
Protection Systems for Access Control Technologies, 68 FR 62011, 62013
(2003) (hereinafter Final Reg. 2003). The four exemptions created in
the second anticircumvention rulemaking remained in effect for a 3-year
period. On November 27, 2006, the Librarian of Congress published the
third determination. Exemption to Prohibition on Circumvention of
Copyright Protection Systems for Access Control Technologies, 71 FR
68472, 68480 (2006) (hereinafter Final Reg. 2006). The six exemptions
established in the third anticircumvention rulemaking will remain in
effect until October 28, 2009. All three of the previous determinations
by the Librarian of Congress were made upon the recommendation of the
Register of Copyrights following extensive rulemaking proceedings. This
notice announces the initiation of the fourth section 1201 rulemaking
required under 17 U.S.C. 1201(a)(1)(C).
2. Background
Title I of the Digital Millennium Copyright Act was, inter alia,
the congressional fulfillment of obligations of the United States under
the WIPO Copyright Treaty and the WIPO Performances and Phonograms
Treaty. For additional information on the historical background and the
legislative history of Title I, see Exemption to Prohibition on
Circumvention of Copyright Protection Systems for Access Control
Technologies, 64 FR 66139, 66140 (1999) [http://www.loc.gov/copyright/fedreg/1999/64fr66139.html].
Section 1201 of title 17 of the United States Code prohibits two
general types of activity: (1) the conduct of ``circumvention'' of
technological protection measures that control access to copyrighted
works and (2) trafficking in any technology, product, service, device,
component, or part thereof that protects either ``access'' to a
copyrighted work or that protects the ``rights of the copyright
owner,'' if that device or service meets one of three conditions. The
first type of activity, the conduct of circumvention, is prohibited in
section 1201(a)(1). The latter activities, trafficking in devices or
services that circumvent ``access'' or ``the rights of the copyright
owner,'' are contained in sections 1201(a)(2) and 1201(b) respectively.
In addition to these prohibitions, section 1201 also includes a series
of section-specific limitations and exemptions to the prohibitions of
section 1201.
A. The Anticircumvention Provision at Issue
Subsection 1201(a)(1) applies when a person who is not authorized
by the copyright owner to gain access to a work does so by
circumventing a technological measure put in place with the authority
of the copyright owner to control access to the work. See the Report of
the House Committee on Commerce on the Digital Millennium Copyright Act
of 1998, H.R. Rep. No. 105-551, pt. 2, at 36 (1998) (hereinafter
Commerce Comm. Report).
That section provides that ``No person shall circumvent a
technological measure that effectively controls access to a work
protected under this title.'' 17 U.S.C. 1201(a)(1)(A) (1998).
The relevant terms are defined:
(3) As used in this subsection-
(A) to ``circumvent a technological measure'' means to descramble a
scrambled work, to decrypt an encrypted work, or otherwise to avoid,
bypass, remove, deactivate, or impair a technological measure, without
the authority of the copyright owner; and
(B) a technological measure ``effectively controls access to a
work'' if the measure, in the ordinary course of its operation,
requires the application of information, or a process or a treatment,
with the authority of the copyright owner, to gain access to the work.
17 U.S.C. 1201(a)(3).
B. Scope of the Rulemaking
The statutory focus of this rulemaking is limited to one subsection
of section 1201: the prohibition on the conduct of circumvention of
technological measures that control access to copyrighted works. 17
U.S.C. 1201(a)(1)(C) [http://www.copyright.gov/title17/
92chap12.html1201]. The Librarian of Congress has no authority
to limit either of the anti-trafficking provisions contained in
subsections 1201(a)(2) or 1201(b). 17 U.S.C. 1201(a)(1)(E). Moreover,
for a proposed exemption to be considered in this rulemaking, there
must be a causal connection between the prohibition in 1201(a)(1) and
the adverse effect on noninfringing uses.
This rulemaking addresses only the prohibition on the conduct of
circumventing measures that control ``access'' to copyrighted works,
e.g., decryption or hacking of access controls such as passwords or
serial numbers. The structure of section 1201 is such that there exists
no comparable prohibition on the conduct of circumventing technological
measures that protect the ``rights of the copyright owner,'' e.g., the
section 106 rights to reproduce, adapt, distribute, publicly perform,
or publicly display a work. Circumventing a technological measure that
protects these section 106 rights of the copyright owner is governed
not by section 1201, but rather by the traditional copyright rights and
the applicable limitations in the Copyright Act. For example, if a
person having lawful access to a work circumvents a measure that
prohibits printing or saving an electronic copy of an article, there is
no provision in section 1201 that precludes this activity. Instead, it
would be actionable as copyright infringement of the section 106 right
of reproduction unless an applicable limitation applied, e.g., fair
use. The trafficking in, inter alia, any device or service that enabled
others to circumvent such a technological protection measure may,
however, be actionable under section 1201(b).
On the other hand, because there is a prohibition on the act of
circumventing a technological measure that controls access to a work,
and since traditional Copyright Act limitations are not defenses to the
act of circumventing a technological measure that controls access,
Congress chose to create the current rulemaking proceeding as a ``fail-
safe mechanism'' to monitor the effect of the anticircumvention
provision in section 1201(a)(1)(A). Commerce Comm. Report, at 36. This
anticircumvention rulemaking is
[[Page 58075]]
authorized to monitor the effect of the prohibition against ``access''
circumvention on noninfringing uses of copyrighted works. In this
triennial rulemaking proceeding, effects on noninfringing uses that are
unrelated to section 1201(a)(1)(A) may not be considered. 17 U.S.C.
1201(a)(1)(C).
C. Burden of Proof
In the first rulemaking, the Register concluded from the language
of the statute and the legislative history that a determination to
exempt a class of works from the prohibition on circumvention must be
based on a showing that the prohibition has or is likely to have a
substantial adverse effect on noninfringing uses of a particular class
of works. It was determined that proponents of an exemption bear the
burden of proof that an exemption is warranted for a particular class
of works and that the prohibition is presumed to apply to all classes
of works unless an adverse impact has been shown. See Commerce Comm.
Report, at 37 and see also, Final Reg. 2000, 65 FR at 64558.
The ``substantial'' adverse requirement has also been described as
a requirement that the proponent of an exemption must demonstrate
``distinct, verifiable, and measurable impacts,'' and more than ``de
minimis impacts.'' See Final Reg. 2003, 68 FR at 62013. Whatever label
one uses, proponents of an exemption bear the burden of providing
sufficient evidence under this standard to support an exemption. How
much evidence is sufficient will vary with the factual context of the
alleged harm. Further, proof of harm is never the only consideration in
the rulemaking process, and therefore the sufficiency of the evidence
of harm will always be relative to other considerations, such as, the
availability of the affected works for use, the availability of the
works for nonprofit archival, preservation, and educational purposes,
the impact that the prohibition has on criticism, comment, news
reporting, teaching, scholarship, or research, the effect of
circumvention on the market for or value of copyrighted works, and any
other relevant factors.
In order to meet the burden of proof, proponents of an exemption
must provide evidence either that actual harm currently exists or that
it is ``likely'' to occur in the ensuing 3-year period. Actual
instances of verifiable problems occurring in the marketplace are
generally necessary in order to prove actual harm. The most compelling
cases of actual harm will be based on first-hand knowledge of such
problems. Circumstantial evidence may also support a claim of present
or likely harm, but such evidence must also reasonably demonstrate that
a measure protecting access was the cause of the harm and that the
adversely affected use was, in fact, noninfringing. ``Likely'' adverse
effects may also support an exemption. This standard of ``likelihood''
requires proof that adverse effects are more likely than not to occur.
Claims based on ``likely'' adverse effects cannot be supported by
speculation alone. See Staff of House Committee on the Judiciary, 105th
Cong., Section-By-Section Analysis of H.R. 2281 as Passed by the United
States House of Representatives on August 4, 1998, (hereinafter House
Manager's Report), at 6, (an exemption based on ``likely'' future
adverse impacts during the applicable period should only be made ``in
extraordinary circumstances in which the evidence of likelihood is
highly specific, strong and persuasive.''). Conjecture alone is
insufficient to support a finding of ``likely'' adverse effect. Final
Reg. 2000, 65 FR at 64559. Although a showing of ``likely'' adverse
impact will necessarily involve prediction, the burden of proving that
the expected adverse effect is more likely than other possible outcomes
rests firmly on the proponent of the exemption.
The identification of existing or likely problems is not, however,
the end of the analysis. In order for an exemption of a particular
class of works to be warranted, a proponent must show that such
problems justify an exemption in light of all of the relevant facts.
The identification of isolated or anecdotal problems will be generally
insufficient to warrant an exemption. Similarly, the mere fact that the
digital format would be more convenient to use for noninfringing
purposes is generally insufficient factual support for an exemption.
Further, purely theoretical critiques of section 1201 cannot satisfy
the requisite showing. House Manager's Report, at 6. Proponents of
exemptions must show sufficient harm to warrant an exemption from the
default rule established by Congress - the prohibition against
circumvention.
There is a presumption that the section 1201 prohibition will apply
to any and all classes of works, including previously exempted classes,
unless a new showing is made that an exemption is warranted. Final Reg.
2000, 65 FR at 64558. Exemptions are reviewed de novo and prior
exemptions will expire unless sufficient new evidence is presented in
each rulemaking that the prohibition has or is likely to have an
adverse effect on noninfringing uses. The facts and argument that
supported an exemption during any given 3-year period may be
insufficient within the context of the marketplace in a different 3-
year period. Similarly, proposals that were not found to justify an
exemption in any particular rulemaking could find factual support in
the context and on the record of another rulemaking.
Evidence in support or in opposition to an exemption should be
contained in the initial comments or, after publication of the proposed
classes in the Federal Register, in the comments on the proposed
exemptions. The purpose of this rulemaking is to survey interested
parties in the digital environment to discover whether section
1201(a)(1) is adversely affecting noninfringing uses of particular
classes of copyrighted works. The proposals received in the initial
comments will frame the inquiry throughout the rest of the rulemaking
process. The comments submitted in response to this Notice of Inquiry
will be posted on the Copyright Office website shortly after
submission, and a Notice of Proposed Rulemaking identifying the classes
of works proposed will be published in the Federal Register shortly
thereafter.\1\ The Notice of Proposed Rulemaking will invite copyright
owners and other interested parties to offer their comments in support
of or opposition to the proposed classes. Comments responsive to the
proposed classes may also propose modest refinements to the proposed
classes and supply additional evidence, but may not propose completely
new classes of works. Since opponents to exemptions have only one
comment period to provide written responses to the exemptions proposed,
opponents should have sufficient notice of the exemptions to be
addressed in the rulemaking. Copyright owners and other interested
parties, however, should be vigilant in monitoring classes proposed in
the initial comment period that may implicate their interests as such
classes may be further refined in the ensuing rulemaking process.
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\1\ See infra for a discussion of proposals raised after the
initial comment period has expired.
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The Office will post all of the comments, hearing transcripts, and
other relevant material in this rulemaking proceeding, as the Office
has done since the inception of this rulemaking proceeding, on the
Copyright Office's website at: www.copyright.gov/1201.\2\
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\2\ If a comment includes attached material that appears to be
protected by copyright and there is no indication that the material
was attached with permission of the copyright owner, the attached
material will not be placed on the Office's website. If such
material is available on the Internet, the comment should identify
where the material may be found.
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[[Page 58076]]
The Copyright Office will also conduct a series of hearings on the
proposed exemptions in the Spring in Washington, DC and at a location
or locations to be determined in California. These hearings will offer
proponents and opponents of exemptions an opportunity to present
arguments and answer questions from the Register and her staff. These
hearings-the time, date and subject matter of which will be announced
early in 2009-will not provide a forum in which to raise new proposals
or to submit wholly new evidence. Evidence that demonstrates how a
technological measure operates and affects noninfringing uses as well
as evidence that is responsive to earlier disputes raised in the
comment process is welcomed, and is encouraged, at these hearings.
However, the hearings may not be used as a vehicle for surprise or to
present untimely proposals.
The Register is also likely to pose post-hearing questions to
specific parties or witnesses that participated in the rulemaking
proceeding. These questions have historically sought clarification of
legal and factual questions, including specific requests to explain the
operation of a technological measure at issue. Such post-hearing
questions should not be construed as a general public post-hearing
comment phase-there simply will not be sufficient time to consider
another round of general public comments by the statutory deadline for
the announcement of the newly exempted classes-but rather are
invitations addressed to specific witnesses who have offered testimony
on an issue to provide further clarification in response to specific
questions from the Register. The questions and the responses to the
questions will be posted on the Copyright Office's website after the
responses have been received.
D. Availability of Works in Unprotected Formats
Other statutory considerations must also be balanced with evidence
of adverse effects attributable to the prohibition. In making her
recommendation to the Librarian, the Register is instructed to consider
the availability for use of copyrighted works. 17 U.S.C.
1201(a)(1)(C)(i). This inquiry demands that the Register consider
whether ``works'' protected by technological measures that control
access are also available in the marketplace in formats that are
unprotected. The fact that a ``work'' (in contrast to a particular
``copy'' of a work) is available in a format without technological
protection measures may be significant because the unprotected formats
might allow the public to make noninfringing uses of the work even
though other formats of the work would not. For example, in the first
rulemaking, many users claimed that the technological measures on
motion pictures contained on Digital Versatile Disks (DVDs) restricted
noninfringing uses of the motion pictures. A balancing consideration
was that the record revealed at that time that the vast majority of
these works were also available in analog format on VHS tapes. Final
Reg. 2000, 65 FR at 64568. Thus, the full range of availability of a
work for use is necessary to consider in assessing the need for an
exemption to the prohibition on circumvention.
Another consideration relating to the availability for use of
copyrighted works is whether the measure supports a distribution model
that benefits the public generally. For example, while a measure may
limit the length of time that a work may be accessed (time-limited) or
may limit the scope of access (scope-limited), e.g., access to only a
portion of work, those limitations may benefit the public by providing
``use-facilitating'' models that allow users to obtain access to works
at a lower cost than they would otherwise be charged were such
restrictions not in place. If there is sufficient evidence that
particular classes of works would not be offered at all without the
protection afforded by technological protection measures that control
access, this evidence must be considered. House Manager's Report, at 6.
Accord, Final Reg. 2000, 65 FR at 64559. Thus, the Register's inquiry
must assess any benefits to the public resulting from the prohibition
as well as the adverse effects that may be established.
E. The Scope of the Term ``Class of Works''
Section 1201 does not define a critical term for the rulemaking
process: a ``class of works.'' With respect to this issue and others,
commenters should familiarize themselves with the Register's
recommendation and the Librarian's determination in the first
rulemaking and in the subsequent two rulemakings, since many of the
issues which were unsettled at the start of the first rulemaking have
been addressed and developed in the three determinations. While the
approach taken in resolving the issues raised in these rulemakings may
continue to develop in this and subsequent proceedings, interested
parties should assume that the standards developed thus far will
continue to apply in the current proceeding. Of course, commenters may
argue for adoption of alternative approaches,\3\ but a persuasive case
will have to be made to warrant reconsideration of previous decisions
regarding interpretation of section 1201.
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\3\ Proponents of an exemption may do so in their comments
proposing exemptions. Opponents of an exemption should do so in
their comments filed in response to the forthcoming Notice of
Proposed Rulemaking.
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In the first rulemaking, the Register elicited views on the scope
and meaning of the term ``class of works.'' After review of the
statutory language, the legislative history and the extensive record in
the proceeding [see Final Reg., 65 FR at 64557 for a description of the
record in the last rulemaking proceeding], the Register reached certain
conclusions on the scope of this term. [For a more detailed discussion,
see Final Reg., 65 FR at 64559.]
The Register found that the statutory language required that the
Librarian identify a ``class of works'' primarily based upon attributes
of the works themselves, and not by reference to some external criteria
such as the intended use or the users of the works. The phrase ``class
of works'' connotes that the shared, common attributes of the ``class''
relate to the nature of authorship in the ``works.'' Thus a ``class of
works'' was intended to be a ``narrow and focused subset of the broad
categories of works of authorship *** identified in section 102.''
Commerce Comm. Report, at 38. The starting point for a proposed
exemption of a particular class of works must be the section 102
categories of authorship: literary works; musical works; dramatic
works; pantomimes and choreographic works; pictorial, graphic and
sculptural works; motion pictures and other audiovisual works; sound
recordings; and architectural works.
This determination is supported by the House Manager's Report which
discussed the importance of appropriately defining the proper scope of
the exemption. House Manager's Report, at 7. The legislative history
stated that it would be highly unlikely for all literary works to be
adversely affected by the prohibition and therefore, determining an
appropriate subcategory of the works in this category would be the goal
of the rulemaking. Id.
Therefore, the Register concluded that the starting point for
identifying a particular ``class of works'' to be exempted must be one
of the section 102 categories. Final Reg., 65 FR at
[[Page 58077]]
64559-64561. From that starting point, it is likely that the scope or
boundaries of a particular class would need to be further limited to
remedy the particular harm to noninfringing uses identified in the
rulemaking.
In the first anticircumvention rulemaking, the Register recommended
and the Librarian agreed that two classes of works should be exempted:
1) Compilations consisting of lists of websites blocked by
filtering software applications; and
2) Literary works, including computer programs and databases,
protected by access control mechanisms that fail to permit access
because of malfunction, damage or obsoleteness.
While the first class exempted fits comfortably within the approach
to classification discussed above, the second class includes the entire
category of literary works, but narrows the exemption by reference to
attributes of the technological measures that controls access to the
works.
In the 2006 rulemaking, the Register determined that a further
refinement of the approach to determining a particular class of works
was warranted. Even though a class must begin, as its starting point,
by reference to one of the categories of authorship enumerated in
section 102 of the Copyright Act (or some subset thereof), that class
should be further tailored to address the harm (actual or likely)
alleged. The proper tailoring of a class will depend on the specific
facts, but in some cases, the most appropriate manner of further
tailoring the category or sub-category may be to limit the class in
relation to particular uses or users.
The impetus for this refinement was a proposed exemption for film
and media studies professors. The proponents of the exemption
demonstrated that the reproduction and public performance of short
portions of motion pictures or other audiovisual works in the course of
face-to-face teaching activities of a film or media studies course
would generally constitute a noninfringing use. The proponents further
demonstrated that the digital version of the motion pictures
distributed on DVDs was not merely a preferred format, but that the
digital version of these works was the only version of the work that
met the pedagogical needs of the film and media studies professors. The
proponents of the exemption also demonstrated that their otherwise
noninfringing uses of the digital versions of these motion pictures
were adversely affected by the prohibition on circumvention of
technological measures protecting access to these works, because the
Content Scrambling System (CSS) contained on most commercially released
DVDs was an access control system that prevented the making of a
compilation of film clips for classroom use. Although opponents of the
exemption demonstrated a DVD player that was alleged to meet the
pedagogical needs of educators, the device presented obstacles for
classroom use that were found to be more than a mere inconvenience for
a subset of users - film and media studies professors.
The proponents met their burden of proving that section 1201(a)(1)
was adversely affecting film and media studies educators' ability to
engage in noninfringing uses for the ensuing 3-year period and that no
reasonable substitute for the pedagogically beneficial digital content
was available or likely to become available in the next three years.
The opponents of the proposal expressed concern that if the proposed
class of works-audiovisual works included in the educational library of
a college or university's film or media studies department and that are
protected by technological measures that prevent their educational use-
was based only on attributes of the work itself, the exemption would
necessarily exempt a much broader range of uses than those in which the
film professors wished to engage. Moreover, copyright owners were
concerned that such an exemption would create public confusion about
the circumstances in which circumvention was appropriate. Given the
expanse of such a class of works and the adverse effects that could
occur as a result of confusion about the class, copyright owners argued
that overall harm of such an exemption would outweigh the marginal
benefits to this subset of educators.
The Register concluded that a further refinement of the scope of a
class of works was the proper balance to the valid concerns of both
educators and copyright owners. By delineating the class in relation to
the relevant noninfringing use proven to be, or likely to be, adversely
affected by the prohibition on circumvention, film and media studies
educators' needs could be met while leaving the statutory prohibition
against circumvention intact for that class with respect to other uses.
In all proposed exemptions, the starting point for a class of works
must be a section 102 category of authorship, or a subset thereof. That
category or subset should then be tailored by other criteria as
appropriate under the particular facts presented. The goal is to
fashion an exemption that is neither too narrow nor too broad to
remedially address the evidence of present and likely harm. An
appropriately fashioned exemption will assist users and copyright
owners alike, by temporarily suspending the prohibition on
circumvention for appropriately tailored adversely affected classes,
while preserving the prohibition in all other classes.
The exemptions published for each three-year period are temporary
and expire when the succeeding determination of the Librarian of
Congress is published. This rulemaking will examine adverse effects
existing in the marketplace or likely to exist in the next three-year
period to determine whether any exemptions to the prohibition on
circumvention of technological protection measures that effectively
control access to copyrighted works are warranted by the evidence
raised during this rulemaking.
F. Considerations to Address within a Comment
This notice requests written comments from all interested parties.
In addition to the necessary showing discussed above, in order to make
a prima facie case for a proposed exemption, certain critical points
should be established. First, a proponent should identify the
technological measure that is the ultimate source of the alleged
problem, and the proponent should explain how the technological measure
effectively controls access to a copyrighted work. Second, a proponent
must specifically explain what noninfringing activity the prohibition
on circumvention is preventing. Third, a proponent should establish
that the prevented activity is, in fact, a noninfringing use under
current law. A proponent should also demonstrate why the access-
protected copy of a work is needed for the noninfringing use and why
alternate means of engaging in the noninfringing uses (including use of
available copies of the work in unprotected formats), if they exist,
are an insufficient substitute for accomplishing the noninfringing use.
The nature of the Librarian's inquiry is further delineated by the
statutory areas to be examined by the Register of Copyrights:
(i) the availability for use of copyrighted works;
(ii) the availability for use of works for nonprofit archival,
preservation, and educational purposes;
(iii) the impact that the prohibition on the circumvention of
technological measures applied to copyrighted works has on criticism,
comment, news reporting, teaching, scholarship, or research;
[[Page 58078]]
(iv) the effect of circumvention of technological measures on the
market for or value of copyrighted works; and
(v) such other factors as the Librarian considers appropriate.
17 U.S.C. 1201(a)(1)(C).
These statutory considerations require examination and careful
balancing. The harm identified by a proponent of an exemption must be
balanced with the harm that would result from an exemption. In some
circumstances, the adverse effect of a proposed exemption in light of
these considerations may be greater than the harm posed by the
prohibition on circumvention of works in the proposed class. Perhaps
the proper balance can be resolved by carefully tailoring the scope of
the class, but ultimately, the determination of the Librarian must take
all of these factors into account.
3. Written Comments
In the first rulemaking, the Register determined that the burden of
proof is on the proponent of an exemption to come forward with evidence
supporting an exemption for a particular class of works. In this fourth
triennial rulemaking, the Register shall continue with the procedure
adopted in the second and third rulemakings: Comments submitted in the
initial comment period should be confined to proposals for exempted
classes. They should specifically identify particular classes of works
adversely affected by the prohibition and provide evidentiary support
for the need for the proposed exemptions (see section F above).
For each particular class of works that a commenter proposes for
exemption, the commenter should first identify that class, followed by
a summary of the argument in favor of exempting that proposed class.
The commenter should then specify the facts and evidence providing a
basis for this exemption. This factual information should ideally
include the technological measure that controls access and the manner
in which this technological measure operates to control access to a
copyrighted work. Finally, the commenter should state any legal
arguments in support of the exemption, including the activity that is
claimed to be noninfringing, the legal basis for this claim, and why
this noninfringing activity cannot be accomplished in other ways. This
format of class/summary/ facts/argument should be sequentially followed
for each class of work proposed as necessary.
As discussed above, the best evidence in support of an exemption
would consist of concrete examples or specific instances in which the
prohibition on circumvention of technological measures protecting
access has had or is likely to have an adverse effect on noninfringing
uses. It would also be useful for the commenter to quantify the adverse
effects in order to explain the scope of the present or likely problem.
Comments subsequently submitted in response to exemptions proposed
in the first round of comments should provide factual information and
legal argument addressing whether or not a proposed exemption should be
adopted. Since the comments in this second round are intended to be
responsive to the initial comments, commenters must identify which
proposal(s) they are responding to, whether in opposition, support,
amplification or correction. As with initial comments, these responsive
comments should first identify the proposed class or classes to which
the comment is responsive, provide a summary of the argument, and then
provide the factual and/or legal support for their argument. This
format of class/summary/facts and/or legal argument should be repeated
for each comment responsive to a particular class of work proposed.
Regardless of the mode of submission (see section 4 below), all
comments must, at a minimum, contain the legal name of the submitter
and the entity, if any, on whose behalf the comment was submitted. If
persons do not wish to have their address, telephone number, or email
address publicly displayed on the Office's website, comments should not
include such information on the document itself but should only include
the legal name of the commenter. The Office prefers that all comments
be submitted in electronic form and the electronic form will provide a
place to provide the required information separately from the attached
comment submission. However, the Office recognizes that persons may be
unable to submit their comments through the Office's website or to
deliver their comments in person. Therefore, comments may also be
delivered through the United States Postal Service, addressed to the
Office of the General Counsel, Copyright GC/I&R, PO Box 70400,
Washington, DC 20024-0400. A comment submitted by mail or hand-delivery
should include a cover sheet that includes the required information
about the submitter (e.g., address, telephone, and email) and should
not include this information in the comment itself if such information
is not desired to be placed on the Copyright Office's website. Due to
mail screening on Capitol Hill and possible delays in delivery,
submission by means of the United States Postal Service is discouraged
and there is a risk that the comment will not be received at the
Copyright Office in time to be considered. Electronic filing or hand-
delivery will help ensure timely receipt of comments by the Office.
Electronic comments successfully submitted through the Office's website
will generate a confirmation receipt to the submitter.
4. Submission of Comments
Comments may be submitted in the following ways:
If submitted through the Copyright Office's website: The Copyright
Office's website will contain a submission page at: http://www.copyright.gov/1201/comment-forms. Approximately thirty days prior
to each applicable deadline (see DATES), the form page will be
activated on the Copyright Office website allowing information to be
entered into the required fields, including the name of the person
making the submission, mailing address, telephone number, and email
address. There will also be non-required fields for, e.g., the
commenter's title, the organization that the commenter is representing,
whether the commenter is likely to request to testify at public
hearings and if so, whether the commenter is likely to prefer to
testify in Washington, DC, or a location in California. In addition,
commenters proposing classes of works in the first round of comments
will be required to fill in two additional fields: (1) the proposed
class or classes of copyrighted work(s) to be exempted, and (2) a brief
summary of the argument(s). Commenters submitting comments in response
to the initial proposals will similarly be required to fill in two
additional required fields: (1) the class or classes to which the
comment is responsive, including the initial comment numbers, and (2) a
brief summary of the argument.
All comments submitted electronically must be sent as an
attachment, and must be in a single file in either Adobe Portable
Document File (PDF) format (preferred), Microsoft Word Version 2003 or
earlier, WordPerfect 12.0 or earlier, Rich Text Format (RTF), or ASCII
text file format. There will be a browse button on the form that will
allow submitters to attach the comment file to the form and then to
submit the completed form to the Office.
The personal information entered into the required fields on the
form page will not be publicly posted on the Copyright Office website,
but the Office intends to post on its website the name of the
proponent, the proposed class and the summary of the argument, as well
as the entire, attached comment document.
[[Page 58079]]
Only the commenter's name is required on the comment document itself
and a commenter who does not want other personal information posted on
the Office's website should avoid including other personal information
on the comment itself. Except in exceptional circumstances, changes to
the submitted comment will not be allowed and it will become a part of
the permanent public record of this rulemaking.
If submitted by means of the United States Postal Service or hand
delivery:
a. Electronic copies: Send, to the appropriate address listed
above, two copies, each on a 3.5-inch write-protected diskette or CD-
ROM, labeled with the legal name of the person making the submission
and the entity on whose behalf the comment was submitted, if any. The
document itself must be in a single file in either Adobe Portable
Document File (.pdf) format (preferred), Microsoft Word Version 2007 or
earlier (.doc or .docx), WordPerfect Version 12.0 or earlier (.wpd) ,
Rich Text Format (.rtf), or ASCII text file (.txt) document. If the
comment is hand delivered or mailed to the Office and the submitter
does not wish to have the address, telephone number, or email address
publicly displayed on the Office's website, the comment should not
include such information on the document itself, but only the name and
affiliation, if any, of the commenter. In that case, a cover letter
should be included with the comment that contains the commenter's
address, phone number, email address, and for initial comments, the
proposed class of copyrighted work to be exempted and a brief summary
of the argument.
b. Paper copies: Anyone who is unable to submit a comment in
electronic form (on the website as an attachment or by means of the
United States Postal Service or hand delivery on disk or CD-ROM) should
submit an original and ten paper copies by hand or by means of the
United States Postal Service to the appropriate address listed above.
It may not be feasible for the Office to place these comments on its
website.
General Requirements for all submissions: All submissions (in
either electronic or non-electronic form delivered through the website,
by means of the United States Postal Service by hand-delivery or by
courier) must contain on the comment itself, the name of the person
making the submission and his or her title and affiliation, if the
comment is being submitted on behalf of that organization. The mailing
address, telephone number, fax number, if any, and email address need
not be included on the comment itself, but must be included in some
form, e.g., on the website form or in a cover letter with the
submission. All submissions must also include the class/summary/factual
and/or legal argument format in the comment itself for each class of
work proposed or for each comment responsive to a proposed exemption.
Comments will be accepted for a 30-day period, and a form will be
placed on the Copyright Office website at least 30 days prior to the
deadline for submission. Initial comments will be accepted from
November 3, 2008, until December 2, 2008, at 5:00 P.M. Eastern Standard
Time, at which time the submission form will be removed from the
website. The deadline for the second round of comments will be
announced in the Notice of Proposed Rulemaking to be published in
December, and will probably be on or about February 2, 2008.
5. Hearings
As mentioned above, after the conclusion of the comment periods,
the Register intends to hold public hearings in the Spring in
Washington, DC and in California. The Washington, DC hearings will most
likely take place in the James Madison Memorial Building of the Library
of Congress. The dates and confirmed location of hearings in
Washington, DC and California, have not yet been determined. A separate
notice for details on all hearings in this rulemaking proceeding will
be published at a later time in the Federal Register and on the
Copyright Office's website. In order to assist the Copyright Office in
identifying the number of days for hearings, the comment form page will
contain non-required fields asking whether the commenter is likely to
request to testify and if so, in which location. Formal requests to
testify will be solicited early in 2009.
As noted above, following the hearings, the Copyright Office may
request additional information from parties who have been involved in
the rulemaking process. Such requests for responses to questions will
take the form of a letter from the Copyright Office and will be
addressed to particular parties involved in an issue in which more
information is sought. These inquiries will include deadlines based on
when the requests for information are sent. After the receipt of all
responses to all inquiries from the Copyright Office, the Office will
post the questions, the parties to whom the questions were sent, and
the responses on the Copyright Office's website.
6. Process for Untimely Submissions based on Exceptional or
Unforeseen Circumstances
To provide sufficient flexibility in this proceeding, in the event
that unforeseen developments occur after the deadlines for the filing
of initial comments, a person wishing to propose an exemption for a
particular class of works after the specified deadline for initial
comments may petition the Register to consider an additional exemption.
A petition, including proposed new classes of works to be exempted,
must be in writing and must set forth the reasons why the information
could not have been made available earlier and why it should be
considered by the Register after the deadline. A petition must also be
accompanied by ten copies of a comment that meets the requirements for
initial comments set forth in section 3 above, any new proposed
exemption that includes the proposed class of works to be exempted, a
summary of the argument, the factual basis for such an exemption and
the legal argument supporting such an exemption. These materials must
be delivered to the Copyright Office at the address listed above. A
person wishing to file any other untimely submission may also petition
the Register to consider such submission, but such untimely submissions
will be disfavored. Exceptional or unforeseen circumstances generally
entail information that did not exist at the time of the comment
periods. The Register will make a determination whether to accept a
petition based on the stage of the rulemaking process at which the
request is made and the merits of the petition. A substantively
meritorious petition may be denied if the petition comes so late in the
process that adequate notice and comment cannot be accommodated within
the statutory time frame of the rulemaking process. The mere fact that
an interested party was unaware of this proceeding or of any particular
exemptions proposed in this proceeding is not a valid justification for
a late submission. If a petition is accepted, the Register will publish
the proposal in the Federal Register and announce deadlines for
comments. If a petition is denied, the Register will set forth the
reasons for the denial in a letter to the petitioner. All petitions and
responses will become part of the public record in this rulemaking
process.
October 1, 2008
Marybeth Peters,
Register of Copyrights.
[FR Doc. E8-23576 Filed 10-3-08; 8:45 am]
BILLING CODE 1410-33-S