[Federal Register Volume 73, Number 249 (Monday, December 29, 2008)]
[Proposed Rules]
[Pages 79425-79428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30799]


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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 proposed rulemaking.

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SUMMARY: The Copyright Office of the Library of Congress is conducting 
its triennial rulemaking proceeding in accordance with a provision of 
the Copyright Act which was added by the Digital Millennium Copyright 
Act and which provides 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 publishes the classes of 
works that the Office will consider for exemption, which were proposed 
in the comment period that ended on December 2, 2008. This Notice 
further reiterates the previously published request for responsive 
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 
additional evidence either supporting or opposing the classes of works 
proposed for exemption.

DATES: Comments addressing the proposed classes of works are due by 
5:00 P.M. E.S.T., February 2, 2009.

ADDRESSES: All of the comments proposing classes of works for exemption 
are available on the Copyright Office website at: http://www.copyright.gov/1201/2008/index.html and at the U.S. Copyright 
Office, James Madison Memorial Building, Room LM-401, 101 Independence 
Avenue, SE., Washington, DC. Electronic submissions must be made 
through the Copyright Office website: http://www.copyright.gov/1201/comment_forms; see73 FR 58073, 58078 (October 6, 2008) (available at:

[[Page 79426]]

http://www.copyright.gov/fedreg/2008/73fr58073.pdf) for file formats 
and other information about electronic and non-electronic filing 
requirements. If hand-delivered by a private party, an original and 
five copies of any comment 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 five 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 (see73 FR 58073, 58078 (October 6, 2008), available at: 
http://www.copyright.gov/fedreg/2008/73fr58073.pdf, about continuing 
delays), comments should be addressed to Copyright GC/I&R, P.O. Box 
70400, Washington, DC 20024-0400. 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: Rob Kasunic, Principal Legal Advisor, 
Office of the General Counsel, Copyright GC/I&R, P.O. Box 70400, 
Washington, DC 20024-0400. Telephone (202) 707-8380; telefax (202) 707-
8366.

SUPPLEMENTARY INFORMATION: On October 6, 2008, the Copyright Office 
published a Notice of Inquiry in the Federal Register to initiate the 
fourth triennial rulemaking proceeding required by Sec.  1201(a)(1)(C) 
of the Copyright Act. That notice requested comments from interested 
parties proposing classes of works that should be considered for 
exemption for the next three-year period, from October 28, 2009, until 
October 27, 2012. The Copyright Office received 19 comments, containing 
25 classes of works proposed for exemption.\1\ On December 3, 2008, the 
Copyright Office posted all of the comments received on its website, 
including the description of the proposed classes and summaries of the 
arguments supporting these proposed classes as provided by the 
commenters. Seehttp://www.copyright.gov/1201/2008/index.html. In order 
to provide additional notice to interested parties, the Copyright 
Office is herein listing the proposed classes and the person and/or 
entity that proposed the class. Where the summary of the argument and/
or the argument in the comment suggests additional refinement to an 
otherwise broad designation of a class or category of works, additional 
bracketed information has been added by the Copyright Office. The 
Copyright Office is adding this information, in part, to make it clear 
that the proposal, even if stated in broad terms, is limited generally 
by the context in which it was raised. A responsive comment that seeks 
to leverage an untailored, overly broad designation of a class into a 
wholly new class of works will not have properly raised a new class in 
this proceeding and such a new class will not be considered. After the 
close of the comment period that ended on December 2, 2008, a new class 
can be raised in this proceeding only through the process established 
by the Office for untimely submissions of proposed classes based on 
exceptional or unforeseen circumstances, see73 FR 58073, 58079 (October 
6, 2008) (available at: http://www.copyright.gov/fedreg/2008/73fr58073.pdf. The forthcoming comment period allows the introduction 
of additional factual information that would assist the Office in 
assessing whether a proposed class is warranted for exemption and, if 
it is, how such a class already proposed should be properly tailored.
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    \1\ This is an approximation based on the manner in which the 
proposed classes were articulated. In some cases, the proposed class 
involved multiple categories of works within the class that could 
have been articulated as multiple classes. In other cases, there 
were multiple proposals that were variations on the same theme that 
could have been expressed as one class. In addition, a number of the 
proposals by different commenters proposed similar classes. The 
Office has chosen to group related classes in this Notice in order 
to help focus the issues raised by the commenters.
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    The comments received by the Copyright Office propose the following 
classes:
    1. ``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 either of the book's read-aloud function or of 
screen readers that render the text into a specialized format]. 
Proponent: The American Foundation for the Blind.
    2.``Subscription based services that offer DRM-protected streaming 
video where the provider has only made available players for a limited 
number of platforms, effectively creating an access control that 
requires a specific operating system version and/or set of hardware to 
view purchased material.'' Proponent: Megan Carney.
    3.``Motion pictures protected by anti-access measures, such that 
access to the motion picture content requires use of a certain 
platform.'' Proponent: Mark Rizik.
    4A.``Commercially produced DVDs used in face-to-face classroom 
teaching by college and university faculty, regardless of discipline or 
subject taught, as well as by teachers in K-12 classrooms.'' Proponent: 
Gary Handman, Media Resources Center, UC Berkeley.
    4B. ``Audiovisual works used by instructors at accredited colleges 
or universities to create compilations of short portions of motion 
pictures for use in the course of face-to-face teaching activities.'' 
Proponent: Kevin L. Smith, Duke University.
    4C. ``Audiovisual works that illustrate and/or relate to 
contemporary social issues used for the purpose of teaching the process 
of accessing, analyzing, evaluating, and communicating messages in 
different forms of media.'' Proponent: Renee Hobbs.
    4D. ``Audiovisual works that illustrate and/or relate to 
contemporary social issues used for the purpose of studying the process 
of accessing, analyzing, evaluating and communicating messages in 
different forms of media, and that are of particular relevance to a 
specific educational assignment, when such uses are made with the prior 
approval of the instructor.'' Proponent: Renee Hobbs.
    4E. ``Audiovisual works contained in a college or university 
library, when circumvention is accomplished for the purpose of making 
compilations of portions of those works for educational use in the 
classroom by media studies or film professors.'' Proponent: Peter 
DeCherney, University of Pennsylvania.
    4F. ``Audiovisual works contained in a college or university 
library, when circumvention is accomplished for the purpose of making 
compilations of portions of those works for coursework by media studies 
or film students.'' Proponent: Peter DeCherney, University of 
Pennsylvania.
    4G. ``Audiovisual works included in a library of a college or 
university, when circumvention is accomplished for the purpose of 
making compilations of portions of those works for educational use in 
the classroom by professors.'' Proponents: Library Copyright Alliance 
and the Music Library Association.
    4H. ``All audiovisual works and sound recordings `used in face-to-
face classroom teaching by college and university faculty, regardless 
of

[[Page 79427]]

discipline or subject taught' and regardless of the source of the 
legally acquired item.'' Proponent: Gail Fedak.
    5A. ``Computer programs that enable wireless telephone handsets to 
execute lawfully obtained software applications, where circumvention is 
accomplished for the sole purpose of enabling interoperability of such 
applications with computer programs on the telephone handset.'' 
Proponents: Fred von Lohmann and Jennifer S. Granick, Electronic 
Frontier Foundation.
    5B. ``Computer programs that operate wireless telecommunications 
handsets when circumvention is accomplished for the sole purpose of 
enabling wireless telephones to connect to a wireless telephone 
communication network.'' Proponent: MetroPCS Communications, Inc.
    5C. ``Computer programs in the form of firmware or software that 
enable mobile communication handsets to connect to a wireless 
communication network, when circumvention is accomplished for the sole 
purpose of lawfully connecting to a wireless communication network.'' 
Proponent: Paul Posner, Youghiogheny Communications, Inc. D B A Pocket 
Communications, Inc.
    5D. ``Computer programs in the form of firmware that enable 
wireless telephone handsets to connect to a wireless telephone 
communication network, when circumvention is accomplished for the sole 
purpose of lawfully connecting to a wireless telephone communication 
network, regardless of commercial motive.'' Proponent: Jonathan Newman, 
Wireless Alliance, LLC.
    6.``Computer programs protected by dongles that prevent access due 
to malfunction or damage or hardware or software incompatibilities or 
require obsolete systems or obsolete hardware as a condition of 
access.'' Proponent: Joseph V. Montoro, Jr.
    7. ``Computer programs'' [for forensic analysis]. Proponent: Gary 
Handman, Media Resources Center, UC Berkeley.
    8A. ``Literary works, sound recordings, and audiovisual works 
accessible on personal computers and protected by technological 
protection measures that control access to lawfully obtained works and 
create or exploit security flaws or vulnerabilities that compromise the 
security of personal computers, when circumvention is accomplished 
solely for the purpose of good faith testing, investigating, or 
correcting such security flaws or vulnerabilities.'' Proponent: Alex 
Halderman, University of Michigan.
    8B.``Video games accessible on personal computers and protected by 
technological protection measures that control access to lawfully 
obtained works and create or exploit security flaws or vulnerabilities 
that compromise the security of personal computers, when circumvention 
is accomplished solely for the purpose of good faith testing, 
investigating, or correcting such security flaws or vulnerabilities.'' 
Proponent: Alex Halderman, University of Michigan.
    9A. ``Audiovisual works delivered by digital television (``DTV'') 
transmission intended for free, over-the-air reception by anyone, which 
are marked with a ``broadcast flag'' indicator that prevents, 
restricts, or inhibits the ability of recipients to access the work at 
a time of the recipient's choosing and subsequent to the time of 
transmission, or using a machine owned by the recipient but which is 
not the same machine that originally acquired the transmission.'' 
Proponent: Matt Perkins.
    9B.``Audiovisual works embedded in a physical medium (such as Blu-
Ray discs) which are marked for `down-conversion' or `down-
resolutioning' (such as by the presence of an Image Constraint Token 
``ICT'') when the work is to be conveyed through any of a playback 
machine's existing audio or visual output connectors, and therefore 
restricts the literal quantity of the embedded work available to the 
user (measured by visual resolution, temporal resolution, and color 
fidelity).'' Proponent: Matt Perkins.
    10A. ``Lawfully purchased sound recordings, audiovisual works, and 
software programs distributed commercially in digital format by online 
music and media stores and protected by technological measures that 
depend on the continued availability of authenticating servers, when 
such authenticating servers cease functioning because the store fails 
or for other reasons.'' Proponent: Christopher Soghoian, Berkman Center 
for Internet & Society.
    10B. ``Lawfully purchased sound recordings, audiovisual works, and 
software programs distributed commercially in digital format by online 
music and media stores and protected by technological measures that 
depend on the continued availability of authenticating servers prior to 
the failure of [authenticating] servers for technologists and 
researchers studying and documenting how the authenticating servers 
that effectuate the technological measures function.'' Proponent: 
Christopher Soghoian, Berkman Center for Internet & Society.
    11A. ``Audiovisual works released on DVD, where circumvention is 
undertaken solely for the purpose of extracting clips for inclusion in 
noncommercial videos that do not infringe copyright.'' Proponents: Fred 
von Lohmann and Jennifer S. Granick, Electronic Frontier Foundation.
    11B. ``Motion pictures and other audiovisual works in the form of 
Digital Versatile Discs (DVDs) that are not generally available 
commercially to the public in a DVD form not protected by Content 
Scramble System technology when a documentary filmmaker, who is a 
member of an organization of filmmakers, or is enrolled in a film 
program or film production course at a post-secondary educational 
institution, is accessing material for use in a specific documentary 
film for which substantial production has commenced, where the material 
is in the public domain or will be used in compliance with the doctrine 
of fair use as defined by federal case law and 17 U.S.C. Sec.  107.'' 
Proponents: Kartemquin Educational Films, Inc. and the International 
Documentary Association.
    These proposed classes represent a starting point for further 
consideration in this rulemaking proceeding. This Notice does not 
represent that any particular class proposed for exemption will 
ultimately be recommended for exemption by the Register of Copyrights 
to the Librarian of Congress. Moreover, the delineation of any class as 
proposed by a commenter will be considered in relation to the facts 
presented in the entire rulemaking process. To the extent that an 
exemption is deemed warranted by the evidence, a proposed class listed 
herein may be developed and/or refined by the Register in her final 
recommendation to the Librarian.
    As stated in the Copyright Office's Notice of Inquiry published in 
the Federal Register on October 6, 2008, comments in support or in 
opposition to the classes proposed may be submitted during the 30-day 
period proceeding February 2, 2009. A comment form will be posted on 
the Copyright Office's website on January 2, 2009, to facilitate the 
submission of electronic comments responsive to class or classes of 
works proposed for exemption.See 73 FR 58073, 58078 (October 6, 2008) 
(available at: http://www.copyright.gov/fedreg/2008/73fr58073.pdf) for 
additional information about electronic and non-electronic filing 
requirements.
    Persons submitting comments should thoroughly review the October 6 
Notice of Inquiry to familiarize themselves with the substantive and 
formal requirements for comments. To be persuasive, a comment should 
comply

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with the guidelines set forth in Section 3 of the Notice of Inquiry.

Tanya Sandros,
General Counsel.
[FR Doc. E8-30799 Filed 12-24-04; 8:45 am]
BILLING CODE 1410-30-S