[Federal Register Volume 79, Number 164 (Monday, August 25, 2014)]
[Rules and Regulations]
[Pages 50552-50554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-20077]


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LIBRARY OF CONGRESS

U.S. Copyright Office

37 CFR Part 201

[Docket No. 2014-06]


Exemption to Prohibition on Circumvention of Copyright Protection 
Systems for Wireless Telephone Handsets

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Final rule.

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SUMMARY: Pursuant to an act of Congress, the Librarian of Congress is 
amending applicable regulations to provide that the prohibition against 
circumvention of technological measures that effectively control access 
to copyrighted works set forth in the United States Code shall not 
apply to persons who engage in such circumvention to enable used 
wireless telephone handsets to connect to wireless telecommunications 
networks when the circumvention is initiated either by the owner of the 
handset or certain other persons, and when connection to the network is 
authorized by the operator of the network.

DATES: Effective August 25, 2014.

[[Page 50553]]


FOR FURTHER INFORMATION CONTACT: Jacqueline C. Charlesworth, General 
Counsel and Associate Register of Copyrights, by email at 
jcharlesworth@loc.gov or by telephone at 202-707-8350; or Sarang V. 
Damle, Special Advisor to the General Counsel, by email at sdam@loc.gov 
or by telephone at 202-707-8350.

SUPPLEMENTARY INFORMATION: Pursuant to the Unlocking Consumer Choice 
and Wireless Competition Act, Public Law 113-144, enacted on and 
effective as of August 1, 2014, the Librarian of Congress is publishing 
a rule amending 37 CFR 201.40 to designate a class of copyrighted works 
that shall be exempt 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) and to specify those persons 
who may initiate such circumvention.

Background

    The Digital Millennium Copyright Act (``DMCA'') was enacted to 
implement certain provisions of the WIPO Copyright Treaty and WIPO 
Performances and Phonograms Treaty. The DMCA created chapter 12 of 
title 17 of the United States Code, which prohibits circumvention of 
technological measures employed by copyright owners to protect their 
works. Specifically, section 1201(a)(1)(A) provides that no person 
shall circumvent a technological measure that effectively controls 
access to a work protected under title 17. In order to ensure that the 
public will have continued ability to engage in noninfringing uses of 
copyrighted works that may be adversely affected by the prohibition, 
however, subparagraph (B) of section 1201(a)(1) creates a regulatory 
exemption process.
    Subparagraph (B) of section 1201(a)(1), as implemented through 
subparagraph (C), allows the Librarian of Congress, upon the 
recommendation of the Register of Copyrights, to adopt exemptions to 
the prohibition on circumvention when it is established that persons 
are, or are likely in the succeeding three-year period to be, adversely 
affected in their ability to make noninfringing uses of particular 
classes of works as a result of the prohibition. The Register's 
recommendation is made based on an evidentiary record developed through 
a multi-stage proceeding that includes written comments, oral testimony 
and other evidence submitted by the public, and after consultation with 
the Assistant Secretary for Communications and Information of the 
Department of Commerce (``Assistant Secretary''). In accordance with 
the statutory framework, a new rulemaking is commenced every three 
years.
    In 2006, as part of the third triennial section 1201 rulemaking, 
the Librarian of Congress, upon the recommendation of the Register of 
Copyrights, for the first time announced an exemption from the 
prohibition against circumvention of technological measures that 
control access to computer programs that enable wireless telephone 
handsets to connect to wireless telephone communication networks when 
the circumvention is accomplished for the sole purpose of lawfully 
connecting to such a network--a process commonly referred to as 
``cellphone unlocking.'' 71 FR 68472, 68480 (Nov. 27, 2006).
    In 2010, as a result of the fourth triennial rulemaking, the 
Librarian of Congress, again acting upon the recommendation of the 
Register of Copyrights, adopted a slightly different version of the 
cellphone unlocking exemption to enable used wireless telephone 
handsets to connect to wireless telecommunications networks where the 
circumvention is initiated by the owner of the copy of the handset 
computer program solely in order to connect to such a network in an 
authorized manner. 75 FR 43825, 43839 (July 27, 2010).
    In 2012, in the fifth triennial rulemaking, the Librarian adopted, 
upon the Register's recommendation, a more limited unlocking exemption. 
The evidentiary record in the 2012 proceeding established that wireless 
carriers were more willing to unlock cellphones upon the expiration of 
customers' contracts and that unlocked cellphones were widely available 
for purchase in the marketplace. 77 FR 65260, 65264-66 (Oct. 26, 2012). 
As a result, while still permitting the unlocking of older, or 
``legacy,'' phones, the 2012 rule ended the exemption with respect to 
new phones acquired after January 26, 2013, 90 days after the rule went 
into effect. As before, unlocking was limited to owners of the handset 
computer program undertaken solely for the purpose of connecting to a 
wireless network in an authorized manner. Id. at 65278.
    In response to public calls for a broader exemption,\1\ Congress 
passed the Unlocking Consumer Choice and Wireless Competition Act 
(``Act''), effective as of August 1, 2014. In place of the 2012 
exemption, the Act substitutes the version of the Librarian's cellphone 
unlocking exemption that was adopted pursuant to the 2010 rulemaking. 
In addition, the legislation provides that the circumvention permitted 
under the reinstated 2010 exemption, as well as any future exemptions 
applicable to wireless handsets or other wireless devices, may be 
initiated by the owner of the handset or device, by another person at 
the direction of the owner, or by a provider of commercial mobile radio 
or data services, to enable such owner or a family member to connect to 
a wireless network when authorized by the network operator. Pub. L. No. 
113-144 sec. 2(a), (c). Finally, the legislation directs the Librarian 
of Congress to consider in the next triennial rulemaking proceeding 
whether to extend the unlocking exemption to other types of wireless 
devices based upon the recommendation of the Register of Copyrights, 
who in turn is to consult with the Assistant Secretary. Id. at sec. 
2(b).
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    \1\ See We the People, https://petitions.whitehouse.gov/petition/make-unlocking-cell-phones-legal/1g9KhZG7 (last updated 
July 25, 2014).
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    In accordance with the Act, the Librarian of Congress adopts the 
following amendments to the exemptions set forth in 37 CFR 201.40.

List of Subjects in 37 CFR Part 201

    Copyright, General provisions.

Final Regulations

    For the reasons set forth in the preamble, 37 CFR part 201 is 
amended as follows:

PART 201--GENERAL PROVISIONS

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 as follows:
0
a. By revising the section heading;
0
b. By revising paragraph (b)(3);
0
c. By redesignating paragraph (c) as paragraph (d); and
0
d. By adding a new paragraph (c).


Sec.  201.40  Exemptions to prohibition against circumvention.

* * * * *
    (b) * * *
    (3) Computer programs, in the form of firmware or software, that 
enable used wireless telephone handsets to connect to a wireless 
telecommunications network, when circumvention is initiated by the 
owner of the copy of the computer program solely in order to connect to 
a wireless telecommunications network and access

[[Page 50554]]

to the network is authorized by the operator of the network.
* * * * *
    (c) Persons who may initiate circumvention. To the extent 
authorized under paragraph (b) of this section, the circumvention of a 
technological measure that restricts wireless telephone handsets or 
other wireless devices from connecting to a wireless telecommunications 
network may be initiated by the owner of any such handset or other 
device, by another person at the direction of the owner, or by a 
provider of a commercial mobile radio service or a commercial mobile 
data service at the direction of such owner or other person, solely in 
order to enable such owner or a family member of such owner to connect 
to a wireless telecommunications network, when such connection is 
authorized by the operator of such network.

    Dated: August 18, 2014.
James H. Billington,
Librarian of Congress.
[FR Doc. 2014-20077 Filed 8-22-14; 8:45 am]
BILLING CODE 1410-30-P