[Federal Register Volume 76, Number 244 (Tuesday, December 20, 2011)]
[Proposed Rules]
[Pages 78866-78868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32509]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. RM 2011-7]


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 United States Copyright Office (``Office'') seeks comments 
on proposals to exempt certain classes of works from the prohibition on 
circumvention of technological measures that control access to 
copyrighted works. The Office has initiated a rulemaking proceeding in 
accordance with provisions added by the Digital Millennium Copyright 
Act (``DMCA'') which provide that the Librarian of Congress 
(``Librarian''), upon the recommendation of the Register of Copyrights, 
may exempt certain classes of works from the prohibition against 
circumvention. The purpose of this 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 received by the Office, which were proposed by several 
parties in the comment period that ended on December 1, 2011.

DATES: Comments addressing the Proposed Classes of Works are due by 5 
p.m. E.S.T., February 10, 2012. Reply comments addressing points made 
in the initial comments are due by 5 p.m. E.S.T. on March 2, 2012.

ADDRESSES: All Proposed Classes of Works are available on the Copyright 
Office Web site at: http://www.copyright.gov/1201/2011/initial/ and at 
the U.S. Copyright Office, James Madison Memorial Building, Room LM-
401, 101 Independence Avenue SE., Washington, DC. The Copyright Office 
strongly prefers that comments filed in response to the Proposed 
Classes of Works be submitted electronically. A comment page containing 
a comment form will be posted on the Copyright Office Web site at 
http://www.copyright.gov/1201/comment-forms. The online form contains 
fields for required information including the name and organization of 
the commenter, as applicable, and the ability to upload comments as an 
attachment. To meet accessibility standards, all comments must be 
uploaded in a single file in either the Adobe Portable Document File 
(PDF) format that contains searchable, accessible text (not an image); 
Microsoft Word; WordPerfect; Rich Text Format (RTF); or ASCII text file 
format (not a scanned document). The maximum file size is 6 megabytes 
(MB). The name of the submitter and organization should appear on both 
the form and the face of the comments. All comments will be posted 
publicly on the Copyright Office web site exactly as they are received, 
along with names and organizations. If electronic submission of 
comments is not feasible, please contact the Copyright Office at 202-
707-8380 for special instructions.

FOR FURTHER INFORMATION CONTACT: Ben Golant, Assistant 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 September 29, 2011, the Office published 
a Notice of Inquiry in the Federal Register to initiate the fifth 
triennial rulemaking proceeding required by Sec.  1201(a)(1)(C) of the 
Copyright Act. See 76 FR 60398 (Sept. 29, 2011). That notice requested 
comments from interested parties proposing classes of works that should 
be considered for exemption for the next three-year period. The Office 
received 20 separate filings, proposing 26 classes of works for 
exemption.\1\ On December 5, 2011, the Copyright Office posted all of 
the filings received (the ``Proposed Classes of Works'') on its Web 
site. See http://www.copyright.gov/1201/2011/initial/. In order to 
provide additional notice to interested parties, the Copyright Office 
is hereby publishing the Proposed Classes of Works with identification 
of the person(s) and/or

[[Page 78867]]

entities that proposed each class. In certain instances, such as with 
proposals submitted by some individuals who did not propose specific 
language describing a Proposed Class, the Office has fashioned language 
describing the Proposed Class based upon the substance of the submitted 
comments. The Office is taking this action, in part, to clarify the 
proposal to the best of the Office's ability. The Office encourages all 
persons responding to proposals to read the entire comment, as 
submitted, to make an independent assessment of the class proposed.
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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 
parties proposed similar classes. The Office has chosen to group 
together related classes in this Notice in order to help focus the 
many exemption requests.
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    The comments received by the Copyright Office propose the following 
classes:
    1. Literary works in the public domain that are made available in 
digital copies. Proponent: The Open Book Alliance.
    2. Literary works, distributed electronically, that: (1) Contain 
digital rights management and/or other access controls which either 
prevent the enabling of the book's read-aloud functionality or which 
interfere with screen readers or other applications or assistive 
technologies that render the text in specialized formats; and (2) are 
legally obtained by blind or other persons with print disabilities (as 
such persons are defined in section 121 of Title 17, United States 
Code), or are legally obtained by authorized entities (as defined in 
such section) distributing such work exclusively to such persons. 
Proponent: American Council of the Blind and the American Foundation 
for the Blind.
    3. Computer programs that enable lawfully acquired video game 
consoles to execute lawfully acquired software applications, where 
circumvention is undertaken for the purpose of enabling 
interoperability of such applications with computer programs on the 
gaming console. Proponent: The Electronic Frontier Foundation.
    4. Computer programs that enable the installation and execution of 
lawfully obtained software on a personal computing device, where 
circumvention is performed by or at the request of the device's owner. 
Proponent: Software Freedom Foundation.
    5. Computer programs that enable wireless telephone handsets 
(``smartphones'') and tablets to execute lawfully obtained software 
applications, where circumvention is undertaken for the purpose of 
enabling interoperability of such applications with computer programs 
on the handset or tablet. Proponent: The Electronic Frontier 
Foundation.
    6A. Computer programs, in the form of firmware or software, 
including data used by those programs, that enable mobile devices to 
connect to a wireless communications network, when circumvention is 
initiated by the owner of the device to remove a restriction that 
limits the device's operability to a limited number of networks, or 
circumvention is initiated to connect to a wireless communications 
network. Proponent: Consumers Union.
    6B. Computer programs, in the form of firmware or software, 
including data used by those programs, that enable wireless devices to 
connect to a wireless communications network, when circumvention is 
initiated by the owner of the copy of the computer program principally 
in order to connect to a wireless communications network and access to 
such communications network is authorized by the operator of such 
communications network. Proponent: Youghiogheny Communications, LLC.
    6C. Computer programs, in the form of firmware or software, 
including data used by those programs, that enable wireless devices to 
connect to a wireless communications network, when circumvention is 
initiated by the owner of the copy of the computer program solely in 
order to connect to a wireless communications network and access to 
such communications network is authorized by the operator of such 
communications network. Proponents: MetroPCS Communications, Inc./RCA-
The Competitive Carriers Association (filing separately).
    7A. Motion pictures on DVDs that are lawfully made and acquired and 
that are protected by the Content Scrambling System when circumvention 
is accomplished solely in order to accomplish the incorporation of 
short portions of motion pictures into new works for the purpose of 
criticism or comment, and where the person engaging in circumvention 
believes and has reasonable grounds for believing that circumvention is 
necessary to fulfill the purpose of the use in the following instances:
    (i) Educational uses by college and university professors and by 
college and university film and media studies students;
    (ii) Documentary filmmaking;
    (iii) Noncommercial videos. Proponent: University of Michigan 
Library.
    7B. Audiovisual works on DVDs that are lawfully made and acquired 
and that are protected by the Content Scrambling System, where 
circumvention is undertaken for the purpose of extracting clips for 
inclusion in primarily noncommercial videos that do not infringe 
copyright, and the person engaging in the circumvention believes and 
has reasonable grounds for believing that circumvention is necessary to 
fulfill the purpose of the use. Proponent: The Electronic Frontier 
Foundation.
    7C. Audiovisual works that are lawfully made and acquired via 
online distribution services, where circumvention is undertaken for the 
purpose of extracting clips for inclusion in primarily noncommercial 
videos that do not infringe copyright, and the person engaging in the 
circumvention believes and has reasonable grounds for believing that 
circumvention is necessary to fulfill the purpose of the use, and the 
works in question are not readily available on DVD. Proponent: The 
Electronic Frontier Foundation.
    7D. Motion pictures that are lawfully made and acquired from DVDs 
protected by the Content Scrambling System and Blu-Ray discs protected 
by Advanced Access Content System, or, if the motion picture is not 
reasonably available on DVD or Blu-Ray or not reasonably available in 
sufficient audiovisual quality on DVD or Blu-Ray, then from digitally 
transmitted video protected by an authentication protocol or by 
encryption, when circumvention is accomplished solely in order to 
incorporate short portions of motion pictures into new works for the 
purpose of fair use, and when the person engaging in circumvention 
reasonably believes that circumvention is necessary to obtain the 
motion picture in the following instances: (1) Documentary filmmaking; 
OR (2) fictional filmmaking. Proponent: International Documentary 
Association, Kartemquin Educational Films, Inc., National Alliance for 
Media Arts and Culture, and Independent Filmmaker Project (filing 
jointly).
    7E. Motion pictures that are lawfully made and acquired from DVDs 
protected by the Content Scrambling System or, if the motion picture is 
not reasonably available on or not reasonably available in sufficient 
audiovisual quality on DVD, then from digitally transmitted video 
protected by an authentication protocol or by encryption, when 
circumvention is accomplished solely in order to incorporate short 
portions of motion pictures into new works for the purpose of fair use, 
and when the person engaging in circumvention reasonably believes that 
circumvention is necessary to obtain the motion picture for multimedia 
e-book authorship. Proponent: Mark Berger, Bobette Buster, Barnet 
Kellman, and Gene Rosow (filing jointly) (contained in comment

[[Page 78868]]

submitted by the International Documentary Association et al.).
    7F. Motion pictures on DVDs that are lawfully made and acquired and 
that are protected by the Content Scrambling System when circumvention 
is accomplished solely in order to accomplish the incorporation of 
short portions of motion pictures into new works for the purpose of 
criticism or comment, and where the person engaging in circumvention 
believes and has reasonable grounds for believing that circumvention is 
necessary to fulfill the purpose of educational uses by college and 
university professors and by college and university film and media 
studies students. Proponent: Library Copyright Alliance.
    7G. Audiovisual works (optical discs, streaming media, and 
downloads) that are lawfully made and acquired when circumvention is 
accomplished by college and university students or faculty (including 
teaching and research assistants) solely in order to incorporate short 
portions of video into new works for the purpose of criticism or 
comment. Proponent: Peter Decherney, Katherine Sender, Michael Delli 
Carpini, International Communication Association, Society for Cinema 
and Media Studies, and American Association of University Professors 
(filing jointly).
    8. Lawfully accessed audiovisual works used for educational 
purposes by kindergarten through twelfth grade educators. Proponent: 
Media Education Lab at the Harrington School of Communication and Media 
at the University of Rhode Island.
    9A. Motion pictures and other audiovisual works delivered via 
Internet protocol (IP) protected by technological measures that control 
access to such works when circumvention is accomplished to facilitate 
the creation, improvement, or rendering of visual representations or 
descriptions of audible portions of such works for the purpose of 
improving the ability of individuals who may lawfully access such works 
to perceive such works. Proponent: Telecommunications for the Deaf and 
Hard of Hearing, Inc., Gallaudet University, and Participatory Culture 
Foundation (filing jointly).
    9B. Motion pictures and other audiovisual works delivered via 
Internet protocol (IP) protected by technological measures that control 
access to such works when circumvention is accomplished to facilitate 
the creation, improvement, or rendering of audible representations or 
descriptions of visual portions of such works for the purpose of 
improving the ability of individuals who may lawfully access such works 
to perceive such works. Proponent: Telecommunications for the Deaf and 
Hard of Hearing, Inc., Gallaudet University, and Participatory Culture 
Foundation (filing jointly).
    9C. Motion pictures and other audiovisual works on fixed disc-based 
media protected by technological measures that control access to such 
works when circumvention is accomplished to facilitate the creation, 
improvement, or rendering of visual representations or descriptions of 
audible portions of such works for the purpose of improving the ability 
of individuals who may lawfully access such works to perceive such 
works. Proponent: Telecommunications for the Deaf and Hard of Hearing, 
Inc., Gallaudet University, and Participatory Culture Foundation 
(filing jointly).
    9D. Motion pictures and other audiovisual works on fixed disc-based 
media protected by technological measures that control access to such 
works when circumvention is accomplished to facilitate the creation, 
improvement, or rendering of audible representations or descriptions of 
visual portions of such works for the purpose of improving the ability 
of individuals who may lawfully access such works to perceive such 
works. Telecommunications for the Deaf and Hard of Hearing, Inc., 
Gallaudet University, and Participatory Culture Foundation (filing 
jointly).
    10A. Motion pictures on lawfully made and lawfully acquired DVDs 
that are protected by the Content Scrambling System when circumvention 
is accomplished solely in order to accomplish the noncommercial space 
shifting of the contained motion picture. Proponent: Public Knowledge.
    10B. Legally acquired digital media (motion pictures, sound 
recordings, and e-books) for personal use and for the purposes of 
making back-up copies, format shifting, access, and transfer. 
Proponents: Cassiopaea Tambolini, Susan Fuhs, Kellie Heistand, Andy 
Kossowsky, and Curt Wiederhoeft (filing separately).
    These Proposed Classes of Works represent a starting point for 
further consideration in this rulemaking proceeding. The Office does 
not represent that any particular class proposed for exemption will 
ultimately be recommended 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.
    This Notice hereby requests responsive written initial 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. The forthcoming initial 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. Comments responsive to the Proposed Classes may also suggest 
modest refinements to the Proposed Classes and supply additional 
evidence, but may not propose completely new classes of works.
    It is important to reiterate that Proponents of the exemptions 
enumerated above should have presented their entire case in their 
initial filings. A proponent of a particular class of works will not be 
permitted to submit an initial comment in support of that class in 
response to this Notice unless, at least 15 days before the deadline 
for comments (i.e., before January 27, 2012), the proponent has 
submitted a written request for permission to submit an initial comment 
demonstrating good cause to permit the submission of the comment, and 
the Office has approved the submission of the comment. The purpose of 
this requirement is to provide for the orderly presentation of evidence 
and arguments, and to permit both proponents and opponents to present 
their best cases. See 76 FR 60398, 60403 (Sept. 29, 2011).
    Persons submitting comments should thoroughly review the Notice of 
Inquiry published in the Federal Register on September 29, 2011 to 
familiarize themselves with the substantive and formal requirements for 
the submission of comments.
    Reply comments may be submitted by any person, including the 
initial proponent of a Proposed Class of Works, but should respond only 
to points made in the initial comments.

    Dated: December 15, 2011.
Maria A. Pallante,
Register of Copyrights.
[FR Doc. 2011-32509 Filed 12-19-11; 8:45 am]
BILLING CODE 1410-30-P