[Federal Register Volume 77, Number 208 (Friday, October 26, 2012)]
[Rules and Regulations]
[Pages 65260-65279]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-26308]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. 2011-7]
Exemption to Prohibition on Circumvention of Copyright Protection
Systems for Access Control Technologies
AGENCY: Copyright Office, Library of Congress.
ACTION: Final rule.
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SUMMARY: Having duly considered and accepted the Recommendation of the
Register of Copyrights that the prohibition against circumvention of
technological measures that effectively control access to copyrighted
works shall not apply to persons who engage in noninfringing uses of
certain classes of copyrighted works, the Librarian of Congress is
exercising his authority to publish a new rule designating classes of
copyrighted works that shall be subject to statutory exemption.
DATES: Effective Date: October 28, 2012.
FOR FURTHER INFORMATION CONTACT: Jacqueline C. Charlesworth, Senior
Counsel to the Register of Copyrights, Office of the Register of
Copyrights, by email at jcharlesworth@loc.gov; Christopher S. Reed,
Senior Advisor for Policy & Special Projects, Office of the Register of
Copyrights, by email at creed@loc.gov; or call the U.S. Copyright
Office by phone at 202-707-8350.
SUPPLEMENTARY INFORMATION: The Librarian of Congress, upon the
recommendation of the Register of Copyrights, has determined that the
prohibition against circumvention of technological measures that
effectively control access to copyrighted works shall not apply to
persons who engage in noninfringing uses of certain classes of works.
This rulemaking is the culmination of a proceeding initiated by the
Register on September 29, 2011. A more comprehensive statement of the
background and legal requirements of the rulemaking, a discussion of
the record, and the Register's analysis are set forth in the Register's
Recommendation, which was transmitted to the Librarian on October 12,
2012. A copy of the Recommendation may be found at www.copyright.gov/1201/. This notice summarizes the Register's Recommendation, announces
the Librarian's determination, and publishes the regulatory text
codifying the exempted classes of works.
I. Background
A. Statutory Requirements
The Digital Millennium Copyright Act (``DMCA'') was enacted to
implement certain provisions of the WIPO Copyright Treaty and WIPO
Performances and Phonograms Treaty. It established a wide range of
rules for the digital marketplace that govern not only copyright
owners, but also consumers, manufacturers, distributors, libraries,
educators, and online service providers.
Chapter 12 of Title 17 of the United States Code prohibits the
circumvention of certain technological measures employed by or on
behalf of copyright owners to protect their works (``technological
measures'' or ``access controls''). Specifically, Section 1201(a)(1)(A)
provides, in part, that ``[n]o person shall circumvent a technological
measure that effectively controls access to a work protected'' by the
Copyright Act. In order to ensure that the public will have the
continued ability to engage in noninfringing uses of copyrighted works,
however, subparagraph (B) limits this prohibition. It provides that the
prohibition shall not apply to persons who are users of a copyrighted
work in a particular class of works if such persons are, or in the
[[Page 65261]]
succeeding three-year period are likely to be, adversely affected by
virtue of the prohibition in their ability to make noninfringing uses
of such works, as determined in this rulemaking proceeding.
The proceeding is conducted by the Register of Copyrights, who is
to provide notice of the proceeding, seek comments from the public,
consult with the Assistant Secretary for Communications and Information
of the Department of Commerce, and recommend final regulations to the
Librarian of Congress. According to Section 1201(a)(1)(D), the
resulting regulations, which are issued by the Librarian of Congress,
announce ``any class of copyrighted works for which the Librarian has
determined, pursuant to the rulemaking * * * that noninfringing uses by
persons who are users of a copyrighted work are, or are likely to be,
adversely affected, and the prohibition contained in subparagraph (A)
shall not apply to such users with respect to such class of works for
the ensuing 3-year period.''
The primary responsibility of the Register and the Librarian in
this rulemaking proceeding is to assess whether the implementation of
access control measures is diminishing the ability of individuals to
use copyrighted works in ways that are not infringing and to designate
any classes of works with respect to which users have been adversely
affected in their ability to make such noninfringing uses. Congress
intended that the Register solicit input that would enable
consideration of a broad range of current or likely future adverse
impacts. Section 1201(a)(1)(C) directs that the rulemaking proceeding
examine: (1) The availability for use of copyrighted works; (2) the
availability for use of works for nonprofit archival, preservation, and
educational purposes; (3) 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; (4) the effect of circumvention of technological measures on
the market for or value of copyrighted works; and (5) such other
factors as the Librarian considers appropriate. These statutory factors
require the Register and Librarian to balance carefully the
availability of copyrighted works for use, the effect of the
prohibition on particular uses, and the effect of circumvention on
copyrighted works.
B. The Rulemaking Process
In examining the factors set forth in Section 1201(a)(1)(C), the
focus is on whether the implementation of technological measures has an
adverse impact on the ability of users to make lawful uses of
copyrighted works. The statutory prohibition on circumvention is
presumed to apply to any and all kinds of works unless, and until, the
criteria have been met for a particular class.
In each rulemaking proceeding, the Register and Librarian review
the proposed classes de novo. The fact that a class previously has been
designated creates no presumption that redesignation is appropriate.
While in some cases earlier legal analysis by the Register may be
relevant to analyzing a proposed exemption, the proponent of a class
must still make a persuasive factual showing with respect to the three-
year period currently under consideration. When a class has been
previously designated, however, evidence relating to the costs,
benefits, and marketplace effects ensuing from the earlier designation
may be relevant in assessing whether a similar class should be
designated for the subsequent period.
Proponents of an exemption for a class of works bear the burden of
demonstrating that the exemption is warranted. In order to establish a
prima facie case for designation of a particular class of works, the
proponent must show that: (1) Uses affected by the prohibition on
circumvention are or are likely to be noninfringing; and (2) as a
result of a technological measure controlling access to a copyrighted
work, the prohibition is causing, or in the next three years is likely
to cause, a substantial adverse impact on those uses.
There are several types of noninfringing uses that could be
affected by the prohibition of Section 1201(a)(1), including fair use
and the use of public domain works, among others. A proponent must show
that the proposed use is or is likely noninfringing. It is not
sufficient that the use could be noninfringing, as the Register does
not apply a ``rule of doubt'' when it is unclear whether a proposed use
is likely to be fair or otherwise noninfringing.
A proponent may not rely on speculation to support a proposed
class, but instead must show by a preponderance of evidence that the
alleged harm to noninfringing uses is more likely than not to occur
during the next three years. The harm must be distinct and measurable,
and more than de minimis. The Register and Librarian will, when
appropriate, consider whether alternatives exist to accomplish the
proposed noninfringing uses. The mere fact that a particular medium or
technology may be more convenient for noninfringing uses than other
formats is generally insufficient to support an exemption. If
sufficient alternatives exist, there is no substantial adverse impact
or adequate basis to designate the class.
C. Defining a Class
The starting point in defining a ``particular class'' of works to
be designated as a result of the rulemaking is one of the categories of
works set forth in Section 102 of the Copyright Act, such as literary
works, musical works, or sound recordings. Those categories are only a
starting point, however; a ``class'' will generally constitute some
subset of a Section 102 category. The determination of the appropriate
scope of a class of works recommended for exemption will also depend on
the evidentiary record and take into account the adverse impact on
noninfringing uses, as well as the market for and value of the
copyrighted works.
While beginning with a category of works identified in Section 102,
or a subcategory thereof, the description of the ``particular class''
ordinarily will be refined with reference to other factors so that the
scope of the class is proportionate to the scope of harm to
noninfringing uses. For example, a class might be refined in part by
reference to the medium on which the works are distributed, or to the
access control measures applied to the works. The description of a
class of works may also be refined, in appropriate cases, by reference
to the type of user who may take advantage of the exemption or the type
of use that may be made pursuant to the designation. The class must be
properly tailored to address not only the demonstrated harm, but also
to limit the adverse consequences that may result from the exemption to
the prohibition on circumvention. In every case, the contours of a
class will depend on the factual record established in the rulemaking
proceeding.
II. History of the Proceeding
A. Solicitation of Public Comments and Hearings
This is the fifth triennial rulemaking proceeding pursuant to
Section 1201(a)(1)(C). The Register initiated the rulemaking on
September 29, 2011 (76 FR 60398) with publication of a Notice of
Inquiry (``NOI''). The NOI requested written comments from all
interested parties, including representatives of copyright owners,
educational institutions, libraries and archives, scholars,
researchers, and members of
[[Page 65262]]
the public, concerning whether noninfringing uses of certain classes of
works are, or are likely to be, adversely affected by the prohibition
against circumvention of measures that control access to copyrighted
works.
During the initial comment period that ended on December 1, 2011,
the Copyright Office received 22 comments, all of which were posted on
the Office's Web site. Based on these comments, the Register identified
proposed exemptions for the upcoming period. Because some of the
initial comments contained similar or overlapping proposals, the
Copyright Office organized the proposals into ten proposed classes of
works, and set forth and summarized each class in a Notice of Proposed
Rulemaking (``NPRM'') published on December 20, 2011 (76 FR 78866).
The NPRM did not present the initial classes in the form of a
proposed rule, but merely as ``a starting point for further
consideration.'' The NPRM asked interested parties to submit additional
comments and reply comments providing support, opposition,
clarification, or correction regarding the proposed classes of works,
and to provide factual and/or legal arguments in support of their
positions. The Copyright Office received a total of 674 comments before
the comment period closed on February 10, 2012. The Office also
received 18 reply comments before the reply comment period closed on
March 2, 2012.
On March 15, 2012, the Register published a Notice indicating that
public hearings would be conducted at the University of California,
UCLA School of Law, in California, and at the Library of Congress in
Washington, DC, in May and June 2012 to consider the proposed
exemptions. Requests to testify were due April 2, 2012. Public hearings
were held on five separate days: at the Library of Congress on May 11,
2012; at University of California, Los Angeles, School of Law on May
17, 2012; and at the Library of Congress on May 31, June 4, and June 5,
2012. Witnesses representing proponents and opponents of proposed
classes of works offered testimony and answered questions from
Copyright Office staff.
Following the hearings, the Copyright Office sent follow-up
questions pertaining to certain issues to witnesses who had testified.
The purpose of these written inquiries was to clarify for the record
certain statements made during the hearings and to elicit further
responses to questions raised at the hearings.
B. Consultation With the Assistant Secretary for Communications and
Information
As contemplated by Congress, the Register also sought input from
the Assistant Secretary for Communications and Information of the
Department of Commerce, who oversees the National Telecommunications
and Information Administration (``NTIA''). NTIA staff were briefed on
the rulemaking process and informed of developments through a series of
meetings and telephone conferences. They also were in attendance at
many of the hearings.
NTIA formally communicated its views on the proposed classes in a
letter delivered to the Register on September 21, 2012.
III. The Designated Classes
Upon the recommendation of the Register of Copyrights, the
Librarian has determined that the following classes of works shall be
exempt from the prohibition against circumvention of technological
measures set forth in Section 1201(a)(1)(A):
A. Literary Works Distributed Electronically--Assistive Technologies
Literary works, distributed electronically, that are protected
by technological measures which either prevent the enabling of read-
aloud functionality or interfere with screen readers or other
applications or assistive technologies, (i) when a copy of such a
work is lawfully obtained by a blind or other person with a
disability, as such a person is defined in 17 U.S.C. 121; provided,
however, the rights owner is remunerated, as appropriate, for the
price of the mainstream copy of the work as made available to the
general public through customary channels; or (ii) when such work is
a nondramatic literary work, lawfully obtained and used by an
authorized entity pursuant to 17 U.S.C. 121.
This exemption is a modification of the proponents' proposal. It
permits the circumvention of literary works that are distributed
electronically to allow blind and other persons with disabilities to
obtain books through the open market and use screen readers and other
assistive technologies to read them, regardless of whether an
accessible copy may be available for purchase, but provided the author,
publisher, or other rights owner receives remuneration, as appropriate.
It also permits authorized entities operating under Section 121 to use
such works and ensures that such use conforms to the provisions and
safeguards of that section.
Proponents American Council of the Blind and American Foundation
for the Blind, supported by The Samuelson-Glushko Technology Law &
Policy Clinic at the University of Colorado Law School, sought an
exemption to access literary works that are distributed
electronically--i.e., ebooks--that are legally obtained by individuals
who are blind or print disabled but cannot be used with screen readers
or other assistive technologies. In 2006 and 2010, the Librarian
designated a class consisting of ``[l]iterary 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.'' See 37 CFR 201.40(b)(6). In this proceeding,
proponents sought to eliminate the requirement that all existing ebook
editions contain access controls, but at the same time proposed to
limit the exemption to individuals with print disabilities as defined
by Section 121 of the Copyright Act and to authorized entities under
Section 121 distributing works exclusively to such persons.
Proponents asserted that the exception is necessary because
technological measures to control access to copyrighted works have been
developed and deployed in ways that prevent access to ebooks by people
who are blind or visually impaired. Proponents explained that, despite
the rapid growth of the ebook market, most ebook titles remain
inaccessible due to fragmentation within the industry and differing
technical standards and accessibility capabilities across platforms.
Although precise figures remain elusive, press accounts cited by the
proponents suggest that only a fraction of the publicly available
ebooks are accessible; proponents estimated that there are
approximately 1.8 million inaccessible ebook titles. Proponents cited
an example, The Mill River Recluse by Darcie Chan, ebook editions of
which are available in each of the three major ebook stores. Only the
iBookstore edition is accessible, however. An individual with a print
disability would thus be required to have an iPhone, iPad, or other
Apple device in order to access the book.
Joint Creators and Copyright Owners, consisting of the Association
of American Publishers, the American Society of Media Photographers,
the Business Software Alliance, the Entertainment Software Association,
the Motion Picture Association of America, the Picture Archive Council
of America, and the Recording Industry Association of America (``Joint
Creators''), representing various content owner groups, offered no
objection in principle
[[Page 65263]]
to an exemption such as that promulgated in 2010. They observed that
the market is evolving rapidly and that the market share of the major
electronic book platforms had increased substantially since the last
rulemaking. However, they opposed elimination of the requirement in the
existing exemption that all ebook formats contain access controls
before the exemption could be invoked.
When the Register was first called upon to consider an exemption
for ebooks in 2003, the marketplace was very different. At that time,
ebooks were distributed primarily for use on personal computers
(``PCs''), readable with freely available software, and the public's
reception of ebooks was tentative. Today, ebooks are marketed mainly
for use on mobile devices, ranging from dedicated ebook readers using
proprietary software (e.g., Amazon's Kindle) to multipurpose devices
running free software applications (e.g., an Apple iPad running
Amazon's Kindle app). Nonetheless, there are often substantial costs
associated with owning dedicated reading devices, and there are
inefficiencies associated with having to own more than one such device.
The restrictions recommended by the Register in prior rulemakings are
therefore not reflective of the current market conditions.
The Register determined that the statutory factors of Section
1201(a)(1)(C) strongly favor an exempted class to address the adverse
effects that were established in the record. The designated class is
not merely a matter of convenience, but is instead intended to enable
individuals who are blind or visually impaired to have meaningful
access to the same content that individuals without such impairments
are able to perceive. As proponents explained, their desire is simply
to be able to access lawfully acquired content. In short, the exemption
is designed to permit effective access to a rapidly growing array of
ebook content by a population that would otherwise go without.
NTIA also indicated its support for the adoption of an exemption,
noting that ``[r]equiring visually impaired Americans to invest
hundreds of dollars in an additional device (or even multiple
additional devices), particularly when an already-owned device is
technically capable of rendering literary works accessible, is not a
reasonable alternative to circumvention * * *.''
Explaining that literary works are distributed electronically in a
wide range of formats, not all of which are necessarily widely
understood to constitute ``ebooks,'' NTIA noted that it preferred the
more general term ``literary works, distributed electronically.''
At the hearing, proponents confirmed that it was not their intent
to create a situation where publishers are not getting paid for their
works, and that the author or publisher should be compensated for the
price of the mainstream book available to the general public. Thus, the
first prong of the designated class permits circumvention by blind or
other persons with disabilities, effectively ensuring that they have
access through the open market, while also ensuring that rights owners
receive appropriate remuneration.
The second prong of the proposal (the part that would extend the
exemption to authorized entities) is a new consideration; it has not
been the subject of a prior Section 1201 rulemaking and proponents did
not provide extensive analysis. Nonetheless, the Register found that
the proposal was supported by relevant evidence and thus recommended
that authorized entities should enjoy an exemption to the extent
required to carry out their work under Section 121. The Register
recommended some modifications to the proposal as written to ensure
that it is consistent with, but not an enlargement of, Section 121. In
relevant part, Section 121 permits qualified ``authorized entities'' to
reproduce and distribute nondramatic literary works provided the
resulting copies are in ``specialized formats exclusively for use by
blind or other persons with disabilities.''
In her recommendation, the Register noted that several provisions
in Section 121 appear ill-suited to the digital world and could benefit
from comprehensive review by Congress. Section 121 was enacted in 1996
following careful consideration of the public interest, including the
interests of persons with disabilities and the interest of authors and
other copyright owners. The issues relating to digital uses are complex
and deserving of consideration beyond what can be accomplished in this
proceeding.
B. Wireless Telephone Handsets--Software Interoperability
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.
This exemption is a modification of the proponents' proposal. It
permits the circumvention of computer programs on mobile phones to
enable interoperability of non-vendor-approved software applications
(often referred to as ``jailbreaking''), but does not apply to
tablets--as had been requested by proponents--because the record did
not support it.
Proponent Electronic Frontier Foundation (``EFF''), joined by New
America Foundation's Open Technology Initiative, New Media Rights,
Mozilla Corporation (``Mozilla''), and the Free Software Foundation
(``FSF''), as well as several hundred individual supporters, sought an
exemption to permit the circumvention of access controls on wireless
devices so that the devices can be used with non-vendor-approved
software that is lawfully acquired. In 2010, the Register recommended,
and the Librarian designated, a class that permitted circumvention of
technological measures on certain telephone handsets known as
``smartphones.'' In recommending that class, the Register found that
many such phones are protected by access controls, that proponents'
intended use--to render certain lawfully acquired applications
interoperable with the handset's software--was fair, and that the
access controls adversely affected that use. The Register also found
that the statutory factors prescribed by 17 U.S.C. 1201(a)(1)(C)
weighed in favor of granting the exemption.
In this proceeding, proponents urged an expanded version of the
class designated in 2010, citing dramatic growth in the mobile phone
market, along with continued widespread use of technological measures
to prevent users from installing unauthorized applications on such
phones. They proposed that the exemption be extended to include
``tablets,'' such as Apple's iPad, which, in EFF's words, have
``enjoyed similar radical popularity over the past two years.''
EFF asserted that courts have long found copying and modification
to enable device interoperability noninfringing under the doctrine of
fair use. It further noted that the Register concluded in the 2010
rulemaking that jailbreaking was a fair use, and maintained that
nothing in the factual or legal record since the last proceeding
suggested that a change in this position was warranted.
EFF also asserted that the last three years have seen dramatic
growth in the adoption of smartphones and tablets as consumers
increasingly shift from traditional personal computers to mobile
devices. EFF argued that the technological restrictions on phones and
tablets have an adverse effect on
[[Page 65264]]
consumer choice and competition. Specifically, it noted that Apple,
whose devices ``refuse to run any unapproved third-party software,''
has strict rules about the type of programs approved for sale through
its ``App Store,'' the only authorized source of iPhone and iPad
applications. EFF further asserted that although Android-based devices
are generally less restricted than Apple devices, most still employ
technological measures to block functionality and prevent the
installation of certain types of software. EFF urged the Register to
consider that such technological measures are not intended to protect
the copyrighted firmware, but instead to promote anticompetitive
business practices.
Joint Creators asserted that the proposed exemption is unnecessary
and beyond the scope of the rulemaking because Section 1201(f) of the
Copyright Act already defines ``the contours of acceptable
circumvention related to interoperability.'' Specifically, Joint
Creators argued that the proponents have not established that Section
1201(f) does not already permit the conduct in which proponents seek to
engage and, ``if it were established that Congress chose not to include
the conduct at issue within [Section] 1201(f),'' then proponents have
failed to establish that the Librarian has the authority to upset that
decision through this proceeding. The Register concluded that it was
unclear, at best, whether Section 1201(f) applies in this circumstance,
so she proceeded to analyze the merits of the proposed exemption.
Joint Creators did not directly challenge EFF's fair use analysis
but instead took issue with the Register's previous fair use finding.
In reviewing the fair use question, the Register noted that the factual
record with respect to fair use was substantially the same as it was in
2010 and that there had been no significant developments in pertinent
case law that would cause the Register to reevaluate the analytical
framework applied in 2010. The purpose and character of the use is
noncommercial and personal so that individual owners of smartphones may
use them for the purpose for which they were intended. The nature of
the copyrighted work--firmware--remains the same as it was in 2010, and
it remains true that one engaged in jailbreaking need only modify the
functional aspects of the firmware, which may or may not be subject to
copyright protection. Those engaged in jailbreaking use only that which
is necessary to engage in the activity, which is often de minimis,
rendering the third factor potentially unfavorable, but nevertheless of
minimal consequence. With respect to market harm, notwithstanding the
earlier exemption, the proliferation of smartphones has increased since
the last rulemaking, suggesting that the fourth factor favored a fair
use finding even more than it did in 2010.
The Register found that proponents had established that the
prohibition is adversely affecting, and is likely to continue to have
an adverse impact on, certain uses of mobile devices in which the
firmware, a copyrightable work, is protected by technological measures.
The evidence in the record indicated that smartphones have been widely
adopted and that consumer acceptance of such devices will continue to
increase in the future. Nonetheless, the vast majority of mobile phones
sold today contain technological measures that restrict users' ability
to install unauthorized applications.
The Register determined that the statutory factors weighed in favor
of a renewed exemption for smartphones, as nothing in the record
suggested that the market for mobile phones had been negatively
impacted by the designation of such a class and, in fact, such a class
might make smartphones more attractive to consumers. While Joint
Creators raised concerns about pirated applications that are able to
run on jailbroken devices, the record did not demonstrate any
significant relationship between jailbreaking and piracy.
On the other hand, the Register concluded that the record did not
support an extension of the exemption to ``tablet'' devices. The
Register found significant merit to the opposition's concerns that this
aspect of the proposed class was broad and ill-defined, as a wide range
of devices might be considered ``tablets,'' notwithstanding the
significant distinctions among them in terms of the way they operate,
their intended purposes, and the nature of the applications they can
accommodate. For example, an ebook reading device might be considered a
``tablet,'' as might a handheld video game device or a laptop computer.
NTIA supported the designation of a class for both smartphones and
tablets. Noting the broad support for such an exemption and the
numerous noninfringing uses enabled by jailbreaking, NTIA asserted that
``the mobile application market has thrived, and continues to do so,
despite--and possibly in part because of--the current exemption.'' NTIA
was persuaded that the proposed class should apply to tablets as well
as mobile phones, believing that category to have been sufficiently
defined by EFF. As noted, however, the Register determined that the
record lacked a sufficient basis to develop an appropriate definition
for the ``tablet'' category of devices, a necessary predicate to
extending the exemption beyond smartphones. In future rulemakings, as
mobile computing technology evolves, such a definition might be more
attainable, but on this record, the Register was unable to recommend
the proposed expansion to tablets.
C. Wireless Telephone Handsets--Interoperability With Alternative
Networks
Computer programs, in the form of firmware or software, that
enable a wireless telephone handset originally acquired from the
operator of a wireless telecommunications network or retailer no
later than ninety days after the effective date of this exemption to
connect to a different wireless telecommunications network, if the
operator of the wireless communications network to which the handset
is locked has failed to unlock it within a reasonable period of time
following a request by the owner of the wireless telephone handset,
and when circumvention is initiated by the owner, an individual
consumer, who is also the owner of the copy of the computer program
in such wireless telephone handset, solely in order to connect to a
different wireless telecommunications network, and such access to
the network is authorized by the operator of the network.
This exemption is a modification of the proponents' proposal. It
permits the circumvention of computer programs on mobile phones to
enable such mobile phones to connect to alternative networks (often
referred to as ``unlocking''), but with limited applicability. In order
to align the exemption to current market realities, it applies only to
mobile phones acquired prior to the effective date of the exemption or
within 90 days thereafter.
Proponents Consumers Union, Youghiogheny Communications, LLC,
MetroPCS Communications, Inc., and the Competitive Carriers
Association, supported by other commenting parties, submitted similar
proposals seeking an exemption to permit circumvention to enable
wireless devices to interoperate with networks other than the network
on which the device was originally used. In 2006, and again in 2010,
the Register recommended, and the Librarian designated, a class of
works that permitted the circumvention of technological protection
measures applied to firmware in wireless handsets for the purpose of
switching to an alternative wireless network.
Proponents advanced several theories as to why ``unlocking'' is a
noninfringing use, including that it does
[[Page 65265]]
not implicate any copyright interests or, if it does, the conduct is
permitted under Section 117 of the Copyright Act. In particular,
proponents asserted that the owners of mobile phones are also the
owners of the copies of the computer programs on those phones and that,
as owners, they are entitled to exercise their rights under Section
117, which gives the owner of a copy of a computer program the
privilege to make or authorize the making of another copy or adaptation
of that computer program under certain circumstances, such as to permit
the program to be used on a particular machine.
Proponents noted that ``huge numbers'' of people have already
unlocked their phones under the 2006 and 2010 exemptions and claimed
that ending the exemption will lead to higher device prices for
consumers, increased electronic waste, higher costs associated with
switching service providers, and widespread mobile customer ``lock-
in.'' Although proponents acknowledged that unlocked mobile devices are
widely available for purchase, they contended that an exemption is
still warranted because some devices sold by carriers are permanently
locked and because unlocking policies contain restrictions and may not
apply to all of a carrier's devices. Proponents characterized software
locks as impediments to a competitive marketplace. They claimed that
absent the exemption, consumers would be forced to continue to do
business with the carrier that sold the device to the consumer in the
first instance, or to discard the device.
CTIA--The Wireless Association (``CTIA''), a trade association
comprised of various commercial wireless service providers, objected to
the proposals as drafted. Overall, CTIA maintained that an exemption
for unlocking is not necessary because ``the largest nationwide
carriers * * * have liberal, publicly available unlocking policies,''
and because unlocked phones are ``freely available from third party
providers--many at low prices.'' Nonetheless, CTIA indicated that its
members did not object to a ``narrowly tailored and carefully limited
exception'' to permit individual customers of wireless carriers to
unlock phones for the purpose of switching networks.
CTIA explained that the practice of locking cell phones is an
essential part of the wireless industry's predominant business model,
which involves subsidizing the cost of wireless handsets in exchange
for a commitment from the customer that the phone will be used on that
carrier's service so that the subsidy can eventually be recouped by the
carrier. CTIA alleged that the industry has been plagued by ``large
scale phone trafficking operations'' that buy large quantities of pre-
paid phones, unlock them, and resell them in foreign markets where
carriers do not subsidize handsets. On the question of noninfringing
use, CTIA asserted that the Section 117 privileges do not apply because
owners of wireless devices do not necessarily own the software on those
devices.
The Register confronted similar arguments about Section 117 in the
2010 proceeding. There, the parties relied primarily upon Krause v.
Titleserv, Inc., 402 F.3d 119 (2d Cir. 2005), as the leading authority
regarding ownership of computer programs. After reviewing mobile phone
agreements introduced in the 2010 proceeding, based on the state of the
law at that time, the Register concluded that ``[t]he record * * *
leads to the conclusion that a substantial portion of mobile phone
owners also own the copies of the software on their phones.''
Since the Register rendered her 2010 Recommendation, the case law
has evolved. In 2010, the Ninth Circuit issued its decision in Vernor
v. Autodesk, Inc., 621 F.3d 1102 (9th Cir. 2010), holding that ``a
software user is a licensee rather than an owner of a copy where the
copyright owner (1) Specifies that the user is granted a license; (2)
significantly restricts the user's ability to transfer the software;
and (3) imposes notable use restrictions.''
Proponents made only a cursory attempt to respond to Vernor and
failed to offer relevant agreements to support their view of software
ownership. CTIA, by contrast, cited agreements from several major
carriers in an effort to demonstrate that the software on the mobile
handsets is licensed, rather than sold, to a phone's owner.
Nonetheless, the Register was forced to conclude that the state of the
law--and its applicability to mobile phone software--remains
indeterminate. Although Vernor and Krause are useful guideposts in
considering the status of software ownership, they are controlling
precedent in only two circuits and are inconsistent in their approach;
whether and how those standards would be applied in other circuits is
unknown. Moreover, while CTIA contended that the agreements it offered
unequivocally supported a finding that users do not own the software,
in reviewing those agreements, the Register believed the question to be
a closer call. The Register therefore determined that some subset of
wireless customers--i.e., anyone considered to own the software on
their phones under applicable precedent--would be entitled to exercise
the Section 117 privilege.
The Register further concluded that the record before her supported
a finding that, with respect to new wireless handsets, there are ample
alternatives to circumvention. That is, the marketplace has evolved
such that there is now a wide array of unlocked phone options available
to consumers. While it is true that not every wireless device is
available unlocked, and wireless carriers' unlocking polices are not
free from all restrictions, the record clearly demonstrates that there
is a wide range of alternatives from which consumers may choose in
order to obtain an unlocked wireless phone. Thus, the Register
determined that with respect to newly purchased phones, proponents had
not satisfied their burden of showing adverse effects related to a
technological protection measure.
However, with respect to ``legacy'' phones--i.e., used (or perhaps
unused) phones previously purchased or otherwise acquired by a
consumer--the record pointed to a different conclusion. The record
demonstrated that there is significant consumer interest in and demand
for using legacy phones on carriers other than the one that originally
sold the phone to the consumer. It also supported a finding that owners
of legacy phones--especially phones that have not been used on any
wireless network for some period of time--may have difficulty obtaining
unlocking codes from wireless carriers, in part because an older or
expired contract might not require the carrier to cooperate.
Despite the increasing availability of unlocked phones in the
marketplace and the trend toward wireless carriers' unlocking phones in
certain circumstances, NTIA favored a broader exemption. It asserted
that the unlocking policies of most wireless carriers are not
reasonable alternatives to circumvention because many such policies
apply only to current customers or subscribers, because some carriers
will refuse to unlock devices, and because unlocking policies are often
contingent upon the carrier's ability to obtain the necessary code.
Further, ``NTIA does not support the notion that it is an appropriate
alternative for a current device owner to be required to purchase
another device to switch carriers.''
The Register concluded after a review of the statutory factors that
an exemption to the prohibition on circumvention of mobile phone
[[Page 65266]]
computer programs to permit users to unlock ``legacy'' phones is both
warranted and unlikely to harm the market for such programs. At the
same time, in light of carriers' current unlocking policies and the
ready availability of new unlocked phones in the marketplace, the
record did not support an exemption for newly purchased phones. Looking
to precedents in copyright law, the Register recommended that the class
designated by the Librarian include a 90-day transitional period to
allow unlocking by those who may acquire phones shortly after the new
exemption goes into effect.
D. Motion Picture Excerpts--Commentary, Criticism, and Educational Uses
Motion pictures, as defined in 17 U.S.C. 101, on DVDs
that are lawfully made and acquired and that are protected by the
Content Scrambling System, where the person engaging in
circumvention believes and has reasonable grounds for believing that
circumvention is necessary because reasonably available
alternatives, such as noncircumventing methods or using screen
capture software as provided for in alternative exemptions, are not
able to produce the level of high-quality content required to
achieve the desired criticism or comment on such motion pictures,
and where circumvention is undertaken solely in order to make use of
short portions of the motion pictures for the purpose of criticism
or comment in the following instances: (i) In noncommercial videos;
(ii) in documentary films; (iii) in nonfiction multimedia ebooks
offering film analysis; and (iv) for educational purposes in film
studies or other courses requiring close analysis of film and media
excerpts, by college and university faculty, college and university
students, and kindergarten through twelfth grade educators. For
purposes of this exemption, ``noncommercial videos'' includes videos
created pursuant to a paid commission, provided that the
commissioning entity's use is noncommercial.
Motion pictures, as defined in 17 U.S.C. 101, that are
lawfully made and acquired via online distribution services and that
are protected by various technological protection measures, where
the person engaging in circumvention believes and has reasonable
grounds for believing that circumvention is necessary because
reasonably available alternatives, such as noncircumventing methods
or using screen capture software as provided for in alternative
exemptions, are not able to produce the level of high-quality
content required to achieve the desired criticism or comment on such
motion pictures, and where circumvention is undertaken solely in
order to make use of short portions of the motion pictures for the
purpose of criticism or comment in the following instances: (i) In
noncommercial videos; (ii) in documentary films; (iii) in nonfiction
multimedia ebooks offering film analysis; and (iv) for educational
purposes in film studies or other courses requiring close analysis
of film and media excerpts, by college and university faculty,
college and university students, and kindergarten through twelfth
grade educators. For purposes of this exemption, ``noncommercial
videos'' includes videos created pursuant to a paid commission,
provided that the commissioning entity's use is noncommercial.
Motion pictures, as defined in 17 U.S.C. 101, on DVDs
that are lawfully made and acquired and that are protected by the
Content Scrambling System, where the circumvention, if any, is
undertaken using screen capture technology that is reasonably
represented and offered to the public as enabling the reproduction
of motion picture content after such content has been lawfully
decrypted, when such representations have been reasonably relied
upon by the user of such technology, when the person engaging in the
circumvention believes and has reasonable grounds for believing that
the circumvention is necessary to achieve the desired criticism or
comment, and where the circumvention is undertaken solely in order
to make use of short portions of the motion pictures for the purpose
of criticism or comment in the following instances: (i) in
noncommercial videos; (ii) in documentary films; (iii) in nonfiction
multimedia ebooks offering film analysis; and (iv) for educational
purposes by college and university faculty, college and university
students, and kindergarten through twelfth grade educators. For
purposes of this exemption, ``noncommercial videos'' includes videos
created pursuant to a paid commission, provided that the
commissioning entity's use is noncommercial.
Motion pictures, as defined in 17 U.S.C. 101, that are
lawfully made and acquired via online distribution services and that
are protected by various technological protection measures, where
the circumvention, if any, is undertaken using screen capture
technology that is reasonably represented and offered to the public
as enabling the reproduction of motion picture content after such
content has been lawfully decrypted, when such representations have
been reasonably relied upon by the user of such technology, when the
person engaging in the circumvention believes and has reasonable
grounds for believing that the circumvention is necessary to achieve
the desired criticism or comment, and where the circumvention is
undertaken solely in order to make use of short portions of the
motion pictures for the purpose of criticism or comment in the
following instances: (i) In noncommercial videos; (ii) in
documentary films; (iii) in nonfiction multimedia ebooks offering
film analysis; and (iv) for educational purposes by college and
university faculty, college and university students, and
kindergarten through twelfth grade educators. For purposes of this
exemption, ``noncommercial videos'' includes videos created pursuant
to a paid commission, provided that the commissioning entity's use
is noncommercial.
These related exemptions are modifications of the proponents'
proposals. They permit the circumvention of motion pictures contained
on DVDs and delivered through online services to permit the use of
short portions for purposes of criticism and comment in noncommercial
videos, documentary films, nonfiction multimedia ebooks offering film
analysis, and for certain educational uses by college and university
faculty and students and kindergarten through twelfth grade educators.
They also permit the use of screen capture technology to the extent an
exemption is necessary under the law. However, the exemptions do not
apply to the use of motion picture excerpts in fictional films, as the
Register was unable to conclude on the record presented that such use
is noninfringing.
Proponents submitted eight proposals requesting the designation of
classes to allow the circumvention of lawfully made and acquired motion
pictures and audiovisual works protected by various access controls
where the user seeks to engage in a noninfringing use. The proposals
were comprised of three subgroups:
First, proponents of exemptions for noncommercial videos sought to
use clips from motion pictures to create new noncommercial videos, such
as remix or mash-up videos, for criticism, comment, and other
noninfringing uses. Proponents for these uses included EFF and
University of Michigan Library (``UML''), supported by the Organization
for Transformative Works. UML's proposal requested an exemption very
similar to the Register's 2010 recommended exemption for motion
pictures contained on DVDs protected by Content Scrambling System
(``CSS''), which encompassed educational uses and documentary
filmmaking, in addition to noncommercial videos. However, UML indicated
that the exemption should apply not only to motion pictures but to
audiovisual works generally. EFF sought to broaden the 2010 exemption
by expanding it to include audiovisual works and to include
circumvention of motion pictures acquired via online distribution
services. It also sought to enlarge the exemption to include not just
criticism or comment but any noninfringing use, and to cover
``primarily noncommercial videos,'' a category that would include
videos generating some amount of revenue.
Second, proponents of exemptions for commercial uses by documentary
filmmakers, fictional filmmakers, and multimedia ebook authors sought
an
[[Page 65267]]
exemption to use clips from motion pictures to engage in criticism,
comment, or other fair uses. Proponents for these uses included
International Documentary Association, Kartemquin Educational Films,
Inc., National Alliance for Media Arts and Culture, and Independent
Filmmaker Project (collectively ``Joint Filmmakers''); UML; and Mark
Berger, Bobette Buster, Barnet Kellman, and Gene Rosow (collectively
``Joint Ebook Authors''). Each of these proposals requested an
exemption to circumvent motion pictures or other audiovisual works for
use by creators of noninfringing commercial works, namely, documentary
films, fictional films, and multimedia ebooks offering film analysis.
As noted, UML's proposal largely tracked the exemption recommended by
the Register in 2010. Joint Filmmakers' proposal sought to expand the
2010 exemption by adding fictional filmmakers, as well as by extending
the exemption to cover any noninfringing use. Joint Filmmakers also
sought to include circumvention of Blu-ray discs protected by the
Advanced Access Content System (``AACS'') and motion pictures digitally
transmitted through protected online services. Joint Ebook Authors'
proposal sought the use of short portions of motion pictures for the
purpose of multimedia ebook authorship. Like Joint Filmmakers, Joint
Ebook Authors indicated that the proposed exemption should not depend
on uses that involve criticism or comment but should instead merely
require that the use be noninfringing. Joint Ebook Authors also
proposed that the exemption include digitally transmitted video in
addition to CSS-protected DVDs.
Finally, proponents of exemptions for educational uses sought to
use clips from motion pictures for criticism, comment, or other
educational purposes by college and university professors and faculty,
college and university students, and kindergarten through twelfth grade
educators. Proponents for these uses included UML; Library Copyright
Alliance (``LCA''); Peter Decherney, Katherine Sender, Michael X. Delli
Carpini, International Communication Association, Society for Cinema
and Media Studies, and American Association of University Professors
(``Joint Educators''); and Media Education Lab at the Harrington School
of Communication and Media at the University of Rhode Island (``MEL'').
The proposals by UML and LCA requested an exemption similar to the 2010
exemption recommended by the Register for circumvention of CSS-
protected DVDs, except that UML sought to broaden it to apply to
audiovisual works, as well as to students across all disciplines of
study. Joint Educators' proposed exemption sought to enable college and
university students, as well as faculty, to use short portions of
video, as well as to circumvent AACS-protected Blu-ray discs and
digitally transmitted works. Finally, MEL requested an exemption for
the circumvention of audiovisual works used for educational purposes by
kindergarten through twelfth grade educators.
Because each of the proposals involved the use of clips from motion
pictures or audiovisual works, the eight possible exemptions were
addressed as a group in the Register's Recommendation. The proposals
for exemptions to allow the circumvention of lawfully obtained motion
pictures protected by access controls for various commercial,
noncommercial, and ``primarily noncommercial'' purposes shared a
unifying feature in that in each case, proponents were seeking an
exemption to allow circumvention for the purpose of reproducing short
clips to facilitate alleged noninfringing uses. Creators of
noncommercial videos sought to use portions of motion pictures to
create noninfringing works involving criticism or comment that they
asserted were transformative. Documentary filmmakers and multimedia
ebook authors sought to reproduce portions of motion pictures in new
works offering criticism or commentary. Fictional filmmakers wished to
incorporate motion pictures into new films to convey certain messages.
Film and media studies professors sought to assemble motion picture
excerpts to demonstrate concepts, qualities, and techniques. Other
educators sought to reproduce clips of motion pictures to illustrate
points for classroom discussion.
Joint Creators and DVD Copy Control Association (``DVD CCA'')
opposed the proposals pertaining to noncommercial videos and, more
generally, the use of motion pictures contained on CSS-protected DVDs.
Joint Creators also opposed the use of motion pictures acquired via
online distribution services. Joint Creators questioned whether
proponents had met the required statutory burden for an exemption. They
urged the Register precisely to analyze the alleged noninfringing uses
to determine whether they were, in fact, noninfringing. In addition,
they argued that the proposed exemption for circumvention of AACS-
protected Blu-ray discs should not be approved.
DVD CCA maintained that none of the examples offered in support of
the proposed exemptions for documentary filmmakers, fictional
filmmakers, or multimedia ebook authors sufficiently established that
CSS is preventing the proposed uses. DVD CCA asserted that there are
several alternatives to circumvention, including clip licensing, screen
capture software, and video recording via smartphone that would enable
proponents affordably and effectively to copy short portions of motion
pictures without the requested exemption.
As for educational uses, Joint Creators and DVD CCA did not oppose
the granting of an exemption covering circumvention of CSS for a
variety of college and university uses involving copying of short
portions of motion pictures, but asserted that the exemption should be
limited to conduct that is clearly noninfringing and requires high-
quality content.
Advanced Access Content System License Administrator (``AACS LA'')
generally opposed the requested exemptions as they would apply to AACS-
protected Blu-ray discs. It asserted that proponents have failed to
make the case that they face substantial adverse effects with respect
to content available only on Blu-ray discs.
In reviewing the proposed classes, the Register noted that certain
of the proposed exemptions referred to ``audiovisual works'' as opposed
to ``motion pictures.'' The Register observed that Section 101 defines
``motion pictures'' as ``audiovisual works consisting of a series of
related images which, when shown in succession, impart an impression of
motion, together with accompanying sounds, if any.'' Section 101
defines ``audiovisual works'' somewhat more broadly, as ``works that
consist of a series of related images which are intrinsically intended
to be shown by the use of machines or devices such as projectors,
viewers, or electronic equipment, together with accompanying sounds, if
any, regardless of the nature of the material objects, such as films or
tapes, in which the works are embodied.'' Under the Copyright Act,
``motion pictures'' are thus a subset (albeit a very large one) of
``audiovisual works.'' The record for the proposed classes was directed
to uses of motion pictures such as movies, television shows,
commercials, news, DVD extras, etc., and did not focus on uses of
audiovisual works that would fall outside of the Copyright Act's
definition of ``motion pictures.'' Based on the record, the Register
found no basis for considering exemptions beyond motion
[[Page 65268]]
pictures and treated the requested exemptions for ``audiovisual works''
as requests relating to motion pictures.
The Register determined that proponents of exemptions for
noncommercial videos, commercial uses by documentary filmmakers and
multimedia ebook authors, and uses in educational contexts had
established that a significant number of the proposed uses were for
purposes of criticism and commentary. She noted that such uses fall
within the favored purposes referenced in the preamble of Section 107
and, especially in light of the brevity of the excerpts used, are
likely to be fair uses. More specifically, the Register determined that
the proposed uses tended to be transformative in nature, employing
short clips for purposes of criticism, comment, teaching, and/or
scholarship, rather than for the works' originally intended purpose.
Despite the commercial aspect of uses by documentary filmmakers and
multimedia ebook authors, the Register noted that when a short excerpt
of a motion picture is used for purposes of criticism and comment, even
in a commercial context, it may well be a productive use that serves
the essential function of fair use as a free speech safeguard. While
the Register did not conclude that a court would find each and every
one of proponents' examples to be transformative, she did find that the
record amply supported the conclusion that a substantial number of the
proffered examples likely would be considered transformative fair uses.
The Register also concluded, however, that the same fair use
analysis did not apply to fictional filmmakers, at least on the record
presented. She noted that fictional films differ from the other
categories of use because their purpose is typically for entertainment,
rather than for criticism or comment. As the Register explained in her
Recommendation, under appropriate circumstances, a use by a fictional
filmmaker might well be a fair use. But fictional film proponents
merely described their desired uses and did not present concrete
examples--such as existing films that made use of preexisting material
in a clearly transformative manner--that permitted the Register to make
a finding of fair use in this context. The record did not allow a
satisfying determination as to the nature of the fictional filmmakers'
proposed uses, the amount of the underlying works fictional filmmakers
generally sought to use, or whether or how such uses might affect the
market for the original works.
In addition, the Register observed that, to the extent discernible
from proponents' descriptions, a number of the examples cited did not
appear readily to lend themselves to a conclusion that the described
use would likely be considered fair. More specifically, the use of an
earlier work to flesh out characters or motivations in a new work, or
to develop a storyline, as suggested by some of proponents' descriptive
examples, does not inherently serve the purpose of criticism or comment
on the existing work. The Register therefore concluded, on the record
before her, that fictional filmmakers had failed to establish that the
uses in which they sought to engage were likely to be noninfringing.
Having determined otherwise with respect to the other proposed
categories of use involving criticism and comment, however, the
Register proceeded to consider whether there were adequate alternatives
to circumvention to accommodate these noninfringing uses.
Opponents pointed to clip licensing, smartphone video recording,
and screen capture software as alternatives to achieve the desired
uses. The Register found that clip licensing was not a reasonable
alternative, as the scope of content offered through reasonably
available licensing sources was far from complete. Moreover, requiring
a creator who is making fair use of a work to obtain a license is in
tension with the Supreme Court's holding in Campbell v. Acuff-Rose
Music, Inc., 510 U.S. 569 (1994), that rightsholders do not have an
exclusive right to markets for commentary on or criticism of their
copyrighted works.
Nor did smartphone recording appear to be an adequate option, as
the evidence indicated that smartphone recordings yielded inferior
video and audio quality, and failed to capture the complete image as it
was meant to appear on the screen.
In the 2010 proceeding, the Register determined that screen capture
technology offered a cost-effective alternative technique to allow
reproduction of motion pictures for certain uses. Unlike the last
proceeding, where the Register raised screen capture technology as a
possible alternative, in the current proceeding it was opponents who
pointed to screen capture as a reasonable solution. However, based on
the video evidence and commentary from proponents and opponents
concerning screen capture technology, the Register determined that the
screen capture images, while improved in quality since the last
rulemaking, were still of lower quality than those available by
circumvention of access controls on motion pictures; they were somewhat
diminished in clarity and depth, and could exhibit pixilation.
Concerning screen capture, documentary filmmakers suggested that
the lower-quality images generated by this technology were not suitable
for the dissemination of their films. The Register found a similar
argument persuasive in the previous rulemaking based on certain
distribution standards generally requiring that films adhere to
specific quality standards that cannot be met by screen capture. Unlike
in the last proceeding, however, the Register was not convinced on the
present record that the distribution requirements would give rise to
significant adverse effects. In this proceeding, the parties explained
the standards in greater detail, including the fact that certain
accommodations are made by distributors with respect to pre-existing
materials.
Nonetheless, the record did support the conclusion that, in some
cases, for other reasons, the inability to circumvent to make use of
higher-quality material available on DVDs and in protected online
formats is likely to impose significant adverse effects on documentary
filmmakers, noncommercial video makers, multimedia ebook authors, and
certain educational users. Creators of noncommercial videos provided
the most extensive record to support the need for higher-quality source
material. Based on the video evidence presented, the Register concluded
that diminished quality likely would impair the criticism and comment
contained in noncommercial videos. For example, the Register was able
to perceive that certain noncommercial videos would suffer
significantly because of blurring and the loss of detail in characters'
expression and sense of depth.
Although the record was not as robust in the case of documentary
filmmakers and multimedia ebook authors, it was sufficient to support a
similar finding that for certain uses--i.e., when trying to convey a
point that depends upon the ability to perceive details or subtleties
in a motion picture excerpt--documentary filmmakers and ebook authors
would likely suffer adverse effects if they were unable to incorporate
higher-quality images. Similarly, educational uses that depend upon
close analysis of film or media images might be adversely impacted if
students are unable to apprehend the subtle detail or emotional impact
of the images they are analyzing. But where precise detail is not
required for the particular use in question--for example, where a clip
is presented simply to illustrate a historical event--the Register
[[Page 65269]]
concluded that lower-quality screen capture images appeared adequate to
fulfill the noninfringing use.
As an additional concern relating to screen capture technology,
proponents maintained that even if the Register acknowledged now, as
she did in 2010, that certain types of video capture software are
noncircumventing, there is still no assurance that all copyright owners
share this view. Proponents observed, for example, that litigation had
been instituted over the use of similar methods of acquiring content
protected by access controls. In light of the unsettled legal
landscape, the Register determined that there is a need for limited
exemptions to address the possible circumvention of protected motion
pictures when using screen capture technology.
The record also indicated that there is some amount of motion
picture material available only on Blu-ray discs, such as bonus
material or, more rarely, entire films released exclusively on Blu-ray.
However, the cited uses of Blu-ray-exclusive content in the record were
insignificant in number. Moreover, with respect to documentary
filmmakers in particular, for the reasons discussed above, the Register
was not persuaded that Blu-ray content is necessary to meet applicable
distribution standards. The Register therefore concluded that the
record did not reflect a substantial adverse impact due to the
inability to use motion picture materials contained on Blu-ray discs.
Overall, based on the record presented, the Register determined
that, when a higher-quality excerpt is essential to a particular use,
an exemption to permit circumvention of CSS-protected DVDs and
protected online formats is appropriate. For uses where high-quality
material is not critical, screen capture technology provides an
adequate alternative to circumvention, and an exemption to permit the
use of such technology is appropriate.
Looking to the statutory factors, the Register noted in her
previous determination that ``while CSS-protected DVDs may very well
have fostered the digital distribution of motion pictures to the
public, there is no credible support for the proposition that the
digital distribution of motion pictures continues to depend on the
integrity of the general `principle' that the circumvention of CSS is
always unlawful.'' She found that the record in the current proceeding
similarly failed to support a finding that there could be no exemption
to the prohibition on circumvention of CSS-protected DVDs. In light of
the negative impact the prohibition on circumvention has on favored
uses, such as criticism, comment, news reporting, teaching,
scholarship, and research, as established in the proceeding, the
Register concluded that the statutory factors support appropriately
tailored exemptions to facilitate those uses.
NTIA agreed that an appropriate exemption to permit proposed
noninfringing uses is necessary because users lack sufficient
alternatives to circumvention. It asserted that ``generally, the
technological alternatives [to circumvention] produce low-quality
videos, and associated license agreements often impose significant
content limitations on the final work product.'' It further noted that
clip services are limited in scope and may not meet the needs of all
users, and that licensing negotiations are ``expensive and burdensome,
especially when the licensee seeks to critique the copyrighted work.''
NTIA proposed that the Register recommend a class that encompasses
``[m]otion pictures and other similar audiovisual works on DVDs or
delivered via Internet Protocol,'' asserting that the class should
encompass ``audiovisual works,'' which is broader than ``motion
pictures.'' NTIA also proposed to replace ``for the purpose of
criticism or comment'' with ``for the purpose of fair use,'' and to
expand the applicable circumstances beyond documentary filmmaking to
include educational uses by college and university professors and
college students, educational uses by kindergarten through twelfth
grade educators, primarily noncommercial videos, and nonfictional or
educational multimedia ebooks. Citing an inadequate definition of the
proposed class of users, and a lack of demonstrated harm, the NTIA did
not support an exemption for fictional filmmakers.
While the NTIA's views largely tracked those of the Register's
concerning the need to designate appropriate classes, for the reasons
discussed above, the Register did not believe that certain of NTIA's
proposed expansions were supported by the record.
In explaining her recommended exemptions, the Register emphasized
that the use of only short portions or clips was critical to her
determination that the proposed uses were noninfringing. She rejected
the proposed expansion of the exemption to cover unspecified
``noninfringing'' or ``fair'' uses where circumvention is not
undertaken for the purpose of criticism or comment as, based on the
record, criticism or comment were central to the uses supporting the
exemption.
The Register also noted that while there might be additional
noninfringing uses by multimedia ebook authors that could support a
more broadly conceived exemption, the record in the proceeding
supported only an exemption for ebooks offering film analysis.
Further, to the extent proponents for noncommercial videos sought
an expanded exemption to cover ``primarily noncommercial videos''--as
opposed to ``noncommercial videos''--they failed to demonstrate that a
meaningful number of such uses would qualify as noninfringing;
proponents identified only a single video that allegedly fell within
this category, because it generated advertising revenue. It was not
clear from the record, however, as to why such an example should be
considered ``primarily noncommercial'' as opposed to ``primarily
commercial.'' On the other hand, proponents established a sufficient
basis to clarify that the exemption for noncommercial works should
include videos created pursuant to a paid commission, provided that the
commissioning entity uses the work solely in a noncommercial manner.
With respect to educational uses, the Register found that the
record supported a determination that college and university professors
and other faculty, as well as students, in film studies and other
courses focused on close analysis of media excerpts may sometimes need
to reproduce content from CSS-protected DVDs and protected online
formats to enable such analysis. Because the recommended exemption is
limited to educational activities involving close analysis, there was
no basis to limit the exemption only to professors. The Register
further determined that non-professor faculty at colleges and
universities also should be permitted to take advantage of the
exemption when there is a pedagogical need for high-quality source
material. In addition, the record supported a finding that instructors
of pre-college-level students sometimes engage in close analysis of
motion picture excerpts in media-oriented courses and might have a need
for high-quality source material.
The Register stressed that prospective users of the recommended
exemptions for the use of motion picture excerpts should take care to
ensure that they satisfy each requirement of the narrowly tailored
exemptions before seeking to operate under their benefits, and consider
whether there is an adequate alternative before engaging in
circumvention under a recommended exemption. The Register noted that
[[Page 65270]]
screen capture technology should only be employed when it is reasonably
represented, and offered to the public, as enabling the reproduction of
motion picture content after such content has been lawfully decrypted--
that is, when it is offered as a noncircumventing technology. And,
finally, users of the limited exemptions should be prepared to defend
their activities in light of the alternatives as they exist at the time
of their use of the exemption, including any further innovations in
screen capture or other technologies that may produce higher-quality
results than were obtainable as of the Register's Recommendation.
E. Motion Pictures and Other Audiovisual Works--Captioning and
Descriptive Audio
Motion pictures and other audiovisual works on DVDs that are
protected by the Content Scrambling System, or that are distributed
by an online service and protected by technological measures that
control access to such works, when circumvention is accomplished
solely to access the playhead and/or related time code information
embedded in copies of such works and solely for the purpose of
conducting research and development for the purpose of creating
players capable of rendering visual representations of the audible
portions of such works and/or audible representations or
descriptions of the visual portions of such works to enable an
individual who is blind, visually impaired, deaf, or hard of
hearing, and who has lawfully obtained a copy of such a work, to
perceive the work; provided however, that the resulting player does
not require circumvention of technological measures to operate.
This exemption is a modification of the proponents' proposal. It
permits the circumvention of motion pictures and other audiovisual
works contained on DVDs or delivered through online services to
facilitate research and development of players capable of rendering
captions and descriptive audio for persons who are blind, visually
impaired, deaf, or hard of hearing. The exemption responds to the
primary need articulated by proponents in their submissions and at the
hearings and one compelled by public policy, namely research and
development. With respect to other uses proposed by proponents, the
Register was unable to conduct a fair use analysis due to insufficient
facts on the record, and, in particular, a lack of clear information
regarding how captions and descriptive audio would be created,
disseminated, or otherwise made available in connection with the
underlying audiovisual work.
Proponents Telecommunications for the Deaf and Hard of Hearing,
Inc., Gallaudet University, and the Participatory Culture Foundation
proposed that the Register recommend four related classes of works to
allow circumvention of technological measures applied to content
distributed via the internet and ``fixed-disc media'' for the purpose
of creating, improving, and rendering captions and descriptive audio
tracks to enable individuals with disabilities to perceive such works,
and for the purpose of conducting research and development on
technologies to enable such accessibility. They urged that the
prohibition on circumvention has had a ``decidedly negative'' impact on
teaching, scholarship, research, and criticism. They stated that not
only does the prohibition stifle the research and development
associated with the development of accessible technologies, it also
restricts the amount of content that is perceptible by individuals with
disabilities.
Although not particularly clear from the proponents' written
filings, at the hearing it became apparent that the primary interest
was in the development of players capable of merging commercially
accessible content with captions and descriptive audio that are created
separately, generally by parties other than the copyright owner of the
original copyrightable work. Proponents alleged that circumvention was
necessary to achieve their objectives because they required access to
the ``playhead,'' that is, the technical timing information embedded in
internet-delivered and fixed-disc-based content that would allow proper
synchronization of captions and descriptive audio with the underlying
video content to which it applied.
Proponents explained that although some of the content in question
is already captioned or provides descriptive audio, most does not. They
acknowledged that the recently passed Twenty-First Century
Communications and Video Accessibility Act (``CVAA''), Public Law 111-
260 (codified in scattered sections of 47 U.S.C.), likely will require
a substantial amount of digitally distributed programming to be
captioned. However, they asserted that the CVAA does not extend to a
wide range of content, including that which is distributed exclusively
online (e.g., content that does not appear first on broadcast or cable
television). Indeed, in recent rulemaking proceedings under the CVAA,
many content producers and distributors asserted that the creation or
improvement of captions and descriptive audio is burdensome and would
require permission from the copyright owners.
Proponents noted that the motion picture industry separately had
asserted that voluntary captioning of a limited amount of programming
would require ``eight years to phase in.'' They further noted that
Netflix provides captions or subtitles on fewer than 5,000 of its
nearly 12,000 titles. In addition, proponents explained that when such
captions do exist, they may be ``riddled with errors'' or
inconsistently formatted, hampering accessibility. With respect to
descriptive audio, proponents observed that such tracks may play back
at an inappropriate volume.
As for opposition, AACS LA and DVD CCA filed separate but
substantially similar comments, taking issue with the proposed
exemptions. They argued that the marketplace has evolved and will
continue to evolve in such a way that satisfies accessibility needs.
AACS LA further asserted that the proposed exemption potentially could
harm future growth of the marketplace solutions for accessibility
concerns. At the hearings, AACS LA offered a free license to its
technology to enable developers to develop compatible implementations
to enable accessibility, and it was suggested that DVD CCA would do so
as well.
Joint Creators also opposed, similarly asserting that voluntary
efforts and regulatory compliance are sufficient marketplace drivers
for accessible materials. In addition, they maintained that proponents
had failed to meet their burden. In their view, proponents had
presented only scattered examples of errors in captions and that such
errors are little more than a ``mere inconvenience''; they also
suggested that the proposed underlying uses might infringe the
reproduction, distribution, and adaptation rights of the copyright
owners.
Assessing the record in light of the statutory factors, the
Register concluded that a limited exemption was appropriate to
facilitate the proposed research and development. The Register found
that the substantial quantity of inaccessible content, and the likely
increase in the amount of content distributed free from any requirement
that it be rendered accessible, essentially limits the universe of
materials with respect to which individuals with certain disabilities
may engage in commentary, criticism, scholarship, and the like. As
observed by the Register, the proposal was aimed at allowing the wide
range of motion pictures and other audiovisual works that are available
to the general population to be accessed and enjoyed
[[Page 65271]]
by those with disabilities. For such individuals, the exemption
represents the difference between having and not having access to works
available to everyone else.
The Register determined that the record with respect to research
and development was sufficiently clear to support an exemption for
those activities. Dr. Christian Vogler of Gallaudet University
demonstrated a software development effort aimed at creating a player
to combine captions or descriptive audio with commercially available
motion picture and audiovisual content. With respect to this project,
the Register was able to conclude that the purported use did not
implicate the copyrighted content itself, but only certain non-
protectable information about the work--i.e., the timecode information
accessible through the protected ``playhead.'' Moreover, the Register
found that there did not appear to be any reasonable alternatives to
circumvention in order to obtain this information. Although, as noted,
AACS LA and DVDCCA had indicated a willingness to offer a free license
to those interested in developing accessibility tools for playback
devices, the record indicated that no such license was currently in
place, and it was unclear whether such a license would come to fruition
during the next three years.
The Register found that proponents had demonstrated that there is a
wide range of content contained on CSS-protected DVDs and delivered in
protected online formats that is inaccessible to individuals with
certain disabilities and as to which there is no alternative,
accessible version. She further determined that the record did not
support the proposition that circumvention was necessary with respect
to Blu-ray content, as the same content is generally available on DVDs
or online.
Beyond research and development, the Register found that the scope
of proponents' intended uses was difficult to discern from proponents'
written submissions, as the papers were fraught with broad
generalizations. During the hearing, proponents were able to articulate
three broad categories of conduct: (1) Conducting research and
development on accessible technologies to develop a player capable of
presenting or manipulating captions or descriptive audio (as discussed
above); (2) creating such captions or descriptive audio or corrections
thereto; and (3) presenting such captions or descriptive audio along
with the underlying lawfully acquired work. Still, the precise contours
of certain aspects of the proponents' intended exploitation of the
proposed exemption remained elusive.
Pointing to a footnote in Sony Corporation of America v. Universal
Studios, Inc., 464 U.S. 417 (1984), which provides in dicta that
``making a copy of a copyrighted work for the convenience of a blind
person is * * * an example of fair use,'' proponents asserted that each
of the broadly defined intended uses was fair. However, fair use
analyses are, by statute, necessarily fact specific. Most of the
proposed uses relating to the creation of captions and descriptive
audio proposed by the proponents were so generally described that the
Register found it impossible to evaluate whether they would be
noninfringing. For example, proponents discussed both creating captions
for content that is uncaptioned, including through crowdsourcing
techniques, and fixing incorrect or poorly implemented captions. Each
of these activities could have different implications under a
traditional fair use analysis. Absent specific facts pertaining to the
particularized uses, however, such an analysis was not possible.
NTIA supported proponents' proposals but suggested that the
Register should recraft the exemptions into three categories that it
believes were supported by the record. Specifically, NTIA would have
fashioned a class specifically aimed at those developing the tools to
facilitate the creation, improvement, or rendering of captions and
descriptive audio; another class specifically for those engaged in the
creation of captions and descriptive audio; and a third class for those
using the captions and descriptive audio. NTIA further noted that it
did not support the inclusion of Blu-ray because DVD remains the
dominant format, online video distribution is outpacing Blu-ray
adoption, and the effect of the proposals on the Blu-ray market was
uncertain.
The Register and NTIA were in agreement on the need to ``open the
doors for innovation and empower the millions of Americans with visual
and hearing disabilities to participate to the fullest possible extent
in our society's multimedia culture.'' However, for the reasons
described above, the Register determined that, based on the current
record, a more narrowly tailored class to permit research and
development of assistive technologies was appropriate. The Register
nonetheless made a point of encouraging the continued development of
accessibility technologies and future proposals for exemptions to
advance such efforts.
IV. Classes Considered But Not Recommended
Upon the recommendation of the Register of Copyrights, the
Librarian has determined that the following classes of works shall not
be exempt from the prohibition against circumvention of technological
measures set forth in Section 1201(a)(1)(A):
A. Literary Works in the Public Domain--Digital Access
The Register concluded that the requested exemption to access
public domain works was beyond the scope of the rulemaking proceeding
and declined to recommend its adoption. As further explained in the
2010 rulemaking, ``Section 1201 does not prohibit circumvention of a
technological protection measure when it simply controls access to a
public domain work; in such a case, it is lawful to circumvent the
technological protection measure and there is no need for an
exemption.''
Proponent Open Book Alliance (``OBA'') proposed an exemption to
permit the circumvention of literary works in the public domain to
enable access to works that are digitally distributed. Proponent sought
a ``clarification'' that circumvention of technological measures for
the purpose of accessing such literary works does not violate Section
1201(a)(1).
As explained above, Section 1201(a)(1) provides that ``[n]o person
shall circumvent a technological measure that effectively controls
access to a work protected under this title.'' The prohibition on
circumvention of technological protection measures thus does not apply
to public domain materials because such materials are not protected
under Title 17.
Joint Creators filed comments in response to OBA's proposal. Joint
Creators did not object to the conclusion that Section 1201(a)(1) is
inapplicable to literary works that are in the public domain but
cautioned that many distributions of such literary works contain
ancillary copyrightable elements, such as cover art, inserts,
photographs, prefaces, and the like.
NTIA shared the proponent's concern that ``the implementation of
[technological measures] restricts universal access'' to public domain
material, and that such restrictions ``may have a negative impact on
educational institutions and research organizations,'' as well as other
adverse impacts on the public. NTIA also recognized, however, that
works in the public domain are not affected by the prohibition on
circumvention.
[[Page 65272]]
Accordingly, NTIA agreed that an exemption is not required for this
class of works.
As Joint Creators observed, questions may arise when a
technological measure controls access not only to a work in the public
domain, but at the same time controls access to other works that are
protected by copyright. There was no need for the Register to address
this issue on the record presented, however, because proponents neither
raised it nor presented any evidence relating to it.
B. Video Game Consoles--Software Interoperability
Because the Register determined that the evidentiary record failed
to support a finding that the inability to circumvent access controls
on video game consoles has, or over the course of the next three years
likely would have, a substantial adverse impact on the ability to make
noninfringing uses, the Register declined to recommend the proposed
class.
EFF, joined by Andrew ``bunnie'' Huang (``Huang''), FSF, SaurikIT,
LLC (SaurikIT), and numerous individual supporters, sought an exemption
to permit the circumvention of access controls on video game console
computer code so that the consoles could be used with non-vendor-
approved software that is lawfully acquired.
EFF observed that modern video game consoles are increasingly
sophisticated computing devices that are capable of running not only
games but ``entire computer operating systems.'' All three major video
game manufacturers, however--Sony, Microsoft, and Nintendo--have
deployed technological restrictions that force console purchasers to
limit their operating systems and software exclusively to vendor-
approved offerings. These restrictions require a console owner who
would like to install a computer operating system or run a ``homebrew''
(i.e., independently developed) application to defeat a number of
technical measures before they can do so--a process that proponents
refer to as ``jailbreaking.'' Proponents sought an exemption from
Section 1201(a)(1) to permit such jailbreaking of video game consoles.
Because the class they proposed would enable interoperability only with
``lawfully obtained software programs,'' proponents asserted that the
exemption would not authorize or foster infringing activities.
In its comments, EFF explained the circumvention process with
reference to Sony's PlayStation 3 (``PS3''). Sony's PS3 employs a
series of technological protections so that the console can only
install and run authenticated, encrypted code. One such measure is the
encryption of the console's firmware, which restricts access to the
console. The firmware must be authenticated by the console's
``bootloader'' software and decrypted before it can be used. Once the
firmware has been authenticated and decrypted, it, in turn,
authenticates applications before they can be installed or run on the
PS3. EFF added that Microsoft's Xbox 360 and Nintendo's Wii employ
similar authentication procedures as technological protection measures.
In further support of its requested exemption, EFF recounted that
when Sony launched the PS3 in 2006, it included a software application
called ``OtherOS'' that permitted users to install Linux and UNIX
operating systems on their consoles. EFF provided examples of
researchers who were able to use these earlier PS3 consoles in lieu of
other computer systems to conduct various forms of scientific research,
citing an Air Force project that made use of 1700 PS3s, as well as two
academic projects employing clusters of PS3s to create high-performance
computers. Some of these researchers chose to use clustered PS3s
because they were less expensive than the available alternatives. In
2010, however, Sony issued a firmware update for the PS3 that removed
the OtherOS functionality. PS3 users were not forced to upgrade, but
the failure to adopt the upgrade precluded access to certain gameplay
features and might make repair or replacement of the gaming system more
difficult.
EFF further asserted that none of the three major console
manufacturers currently allows the installation of independently
developed applications on their consoles unless the developer has
obtained approval of the software from the manufacturer through a
``stringent'' process that may require the developer to license costly
development tools. As a result, hobbyists and homebrew developers
engage in circumvention to defeat technical restrictions in order to
create and run games and other applications on the PS3, Wii, and Xbox
consoles.
EFF noted over 450 independently created games and applications for
Nintendo's Wii available on the homebrew site WiiBrew.org, as well as
some 18 homebrew games and several nongaming applications developed for
the PS3--including a file backup program called ``Multiman'' and an
application that transforms the PS3 into an FTP server--and a handful
of other homebrew applications for other platforms and handheld gaming
devices. EFF pointed out that there is no strong homebrew community for
the Xbox360, attributing this phenomenon to a Microsoft development
program that allows developers to publish games ``with relative ease.''
Proponents argued that manufacturers' technological restrictions on
video game consoles not only constrain consumer choice but also inhibit
scientific research and homebrew development activities. Pointing to
the Register's determination in the last Section 1201 rulemaking that
circumvention of technological measures on smartphones to enable
interoperability with lawfully obtained applications was a permissible
fair use, proponents urged that the same logic should apply here.
According to proponents, the restrictions on video game consoles do not
protect the value or integrity of copyrighted works but instead reflect
a business decision to restrict the applications that users can run on
their devices.
EFF explained that a ``large community'' of console jailbreakers
currently exists for all three major video game consoles but noted that
such jailbreakers face potential liability under Section 1201(a)(1). As
evidence of this, EFF cited recent litigation pursued by Sony against
an individual and others who developed a method for jailbreaking the
PS3. EFF explained that in January 2010, George Hotz (also known by his
online name ``GeoHot'') published a method for jailbreaking the PS3. In
response, Sony initiated a lawsuit against Hotz and others alleging,
among other things, that the defendants had conspired to violate the
DMCA.
Finally, a few supporters of EFF's proposal suggested potential
scenarios in which a console might need to be jailbroken to effectuate
a repair but did not provide any specific evidence of actual repair
issues.
The proposal to permit circumvention of video game consoles was
vigorously opposed by the Entertainment Software Association (``ESA''),
Sony Computer Entertainment America LLC (``SCEA'' or ``Sony''), and
Joint Creators. Opponents filed extensive comments in response to EFF's
request.
ESA characterized video game consoles as ``the center of an
intellectual property ecosystem'' which makes copyrighted content
readily and legally accessible, stating that the entire system depends
upon effective and secure access controls. ESA explained that there are
at least two potential access controls at issue. To play an
unauthorized application, the user must circumvent not only the
encryption on the console's firmware, but also modify
[[Page 65273]]
the firmware to defeat the authentication check access control. It
added that once modified, the firmware will operate, but the access
controls will be circumvented, effectively allowing the console to run
unauthorized content.
SCEA's comments focused on its PS3 console (the dominant example
addressed in EFF's proposal). SCEA confirmed that the technological
restrictions controlling access to the PS3 protect both its firmware
and the copyrighted video games that are developed for that system. As
explained by SCEA, allowing circumvention of the PS3 access controls
would mean that the basic security checks could be skipped and the
firmware freely modified to bypass or eliminate the process by which
the video games are authenticated for use on the console, thus making
it ``virtually certain that successful hackers, under the guise of the
exemption, will create the tools that enable even novice users to make,
distribute, download, and play back illegal copies of games.''
Throughout their comments, opponents stressed piracy as an
overriding concern, noting that once a user circumvents a console's
security measures--even for an ostensibly benign purpose--it becomes a
vehicle for unauthorized content. In their view, EFF's attempt to limit
the exemption to interoperability with lawful applications would make
no difference in practice, because ``all known methods for
circumventing game console [technological protection measures]
necessarily eliminate the measures' ability to preclude the play,
reproduction and distribution of infringing content.''
In support of their contentions regarding the link between
circumvention and piracy, opponents provided documentation of console
``hacking packages'' that come bundled with applications to play
pirated content. They further noted, again with supporting materials,
that the homebrew channel installed with a popular Wii hacking package
automatically includes applications that enable the console to play
pirated content. They pointed out, with still further support in the
record, that the ``Multiman'' backup system referenced by EFF as an
example of a useful application enabled by jailbroken PS3s is used to
decrypt and copy protected PS3 games so they can be illegally
distributed. Other documentary evidence submitted by opponents showed
that the PS3 FTP file server application described by EFF is used as a
means to transfer illegal files. Opponents also furnished multiple
examples of advertisements for console jailbreaking services that
included (for an all-in price) a library of pirated games.
Opponents pointed to online forums and other sources that
specifically referenced George Hotz's hack of the PS3--described
sympathetically by EFF in its proposal--as permitting users to play
pirated games and content, and provided representative postings. The
documentation evidenced a broadly shared perception in the gaming
community that jailbreaking leads to piracy. Notably, some of those
providing commentary made the further observation that such piracy
would negatively impact the development of new games.
Possibly referring to Hotz, SCEA elaborated on the hacking issue by
commenting specifically on the events surrounding a 2010 breach of its
PS3 system. In that case, hackers announced that they had successfully
circumvented the technological measures on PS3 firmware, which was
accomplished by exploiting vulnerabilities in Linux operating in the
OtherOS environment. Although the hackers stated that they did not
endorse or condone piracy, one hacker subsequently published PS3's
encryption keys on the Internet, which were quickly used to create
jailbreak software to permit the use of illegally made games. Sony saw
an immediate rise in the number of illegal copies but no increase in
homebrew development, while sales of legitimate software ``declined
dramatically.'' As a result of the hack, Sony decided it had no choice
but to discontinue OtherOS and issued a system upgrade that disabled
OtherOS functionality for those who wished to maintain access to Sony's
PlayStation network.
Mindful of the exemption established by the Librarian in the prior
proceeding to permit jailbreaking of smartphones, opponents urged that
video game consoles are not the equivalent of iPhones, asserting that
the technological measures on game consoles legitimately protect the
creation and dissemination of copyrighted works by discouraging pirated
content and protecting creators' investment in new games. Opponents
distinguished the development of a video game--a long and intensive
process ``akin to * * * motion picture production'' involving a team of
developers that can cost tens of millions of dollars--from the relative
ease and inexpensiveness of creating a smartphone application.
According to opponents, the development of new video games would be
significantly impaired without reliable technological protections to
protect developers' investments.
With respect to the need to jailbreak consoles to permit the
operation of Linux-based homebrew programs, opponents observed that
while EFF's request focused on the PS3, the homebrew community for that
device is small, as evidenced by the fact that less than one-tenth of
one percent of PS3 users (fewer than 2,000 in all) had made use of the
PS3's OtherOS feature. In any event, they noted, there are over 4,000
devices on which Linux can be run without the need for circumvention,
and homebrew games and applications can be played on a wide array of
open platform devices. Opponents further observed that each of the
three major video game console manufacturers has a program to support
independent developers in creating and publishing compatible games.
Finally, opponents disputed proponents' suggestion that
circumvention is necessary to repair broken game consoles, explaining
that each console maker offers authorized repair services free of
charge for consoles still under warranty for a nominal fee thereafter.
Although EFF sought to rely upon the Register's 2010 determination
that modification of smartphone software to permit interoperability
with non-vendor-approved applications was a fair use, the Register
concluded that the fair use analysis for video consoles diverged from
that in the smartphone context. Unlike in the case of smartphones, the
record demonstrated that access controls on gaming consoles protect not
only the console firmware, but the video games and applications that
run on the console as well. The evidence showed that video games are
far more difficult and complex to produce than smartphone applications,
requiring teams of developers and potential investments in the millions
of dollars. While the access controls at issue might serve to further
manufacturers' business interests, they also protect highly valuable
expressive works--many of which are created and owned by the
manufacturers--in addition to console firmware itself.
The Register noted that research activities and functional
applications that proponents claimed would be enabled by circumvention
might well constitute transformative uses. On the other hand,
circumventing console code to play games and other entertainment
content (even if lawfully acquired) is not a transformative use, as the
circumvented code is serving the same fundamental purpose as the
unbroken code. While the second and third fair
[[Page 65274]]
use factors did not greatly affect the analysis, on the significant
question of market harm, the Register concluded that opponents had
provided compelling evidence that circumvention of access controls to
permit interoperability of video game consoles--regardless of purpose--
had the effect of diminishing the value of, and impairing the market
for, the affected code, because the compromised code could no longer
serve as a secure platform for the development and distribution of
legitimate content. The Register noted that instead of countering this
evidence with a factual showing to prove opponents wrong, EFF merely
asserted that its proposal would not permit infringing uses. The
Register did not believe that this response satisfied proponents'
obligation to address the ``real-world impact'' of their proposed
exemption. Overall, the Register found that proponents had failed to
fulfill their obligation to establish persuasively that fair use could
serve as a basis for the exemption they sought.
The Register further found that even if proponents had satisfied
their burden of establishing noninfringing uses, they nonetheless
failed to demonstrate that video game console access controls have or
are likely to have a substantial adverse impact on such uses.
Proponents identified two broad categories of activities that were
allegedly threatened by the prohibition on circumvention, scientific
research and homebrew software development. With respect to scientific
research, a small number of research projects involving only one type
of gaming console, the PS3, suggested a de minimis impact, if any. This
conclusion was reinforced by record evidence indicating that Sony had
in fact cooperated with and been a supporter of research efforts and
that alternative computing resources for such projects were available
in the marketplace.
Nor, according to the Register's analysis, did the record support a
finding that Section 1201(a)(1) is having a substantial adverse impact
on lawful homebrew activities. The most significant level of homebrew
activity identified by EFF appears to have occurred in relation to the
Wii, but the record was relatively sparse in relation to other gaming
platforms. Concerning the use of video game consoles to operate Linux
software generally, the record showed that only a very small percentage
of PS3 users availed themselves of the (now discontinued) OtherOS
option that permitted users to run Linux on their PS3s. At the same
time, there are thousands of alternative devices that can be used to
develop and run Linux-based video games and other applications. In
addition, the record indicated that developers can and do take
advantage of various manufacturer programs to pursue independent
development activities.
Finally, as noted above, the Register determined that proponents
offered no factual basis in support of their suggestion that users are
having difficulty repairing their consoles as a result of Section
1201(a)(1). This appeared to be only a hypothetical concern, as
proponents failed to document any actual instances of users seeking to
make repairs.
The Register therefore concluded that proponents had failed to
establish that the prohibition on circumvention, as applied to video
game console code, is causing substantial adverse effects.
Turning to the statutory factors, the Register took issue with
proponents' view that piracy was an irrelevant consideration because
the exemption they sought was only to allow interoperability with
``lawfully obtained applications.'' The Register explained that she
could not ignore the record before her. Even if piracy were not the
initial or intended purpose for circumvention, the record substantiated
opponents' assessment that in the case of video games, console
jailbreaking leads to a higher level of infringing activity, thus
sharply distinguishing the case of video consoles from smartphones,
where the record did not support the same finding. The evidence also
suggested that the restriction limiting the proposed class to
``lawfully obtained'' applications--which the Register has found
effective in other contexts--did not provide adequate assurance in this
case. The Register noted that simply to suggest, as proponents had,
that unlawful uses were outside the scope of the exemption and
therefore of no concern was not a persuasive answer.
Finally, the Register agreed with proponents' assessment that the
access controls protecting video game console code facilitate a
business model, as many technological restrictions do. But the Register
concluded that in the case of gaming platforms, that was not the sole
purpose. Console access controls protect not only the integrity of the
console code, but the copyrighted works that run on the consoles. In so
doing, they provide important incentives to create video games and
other content for consoles, and thus play a critical role in the
development and dissemination of highly innovative copyrighted works.
NTIA supported the ``innovative spirit epitomized by independent
developers and researchers whose needs proponents contemplate in this
class,'' but noted that the evidence in the record was insufficient to
support the considerable breadth of the proposed class. NTIA asserted
that the record was unclear with respect to the need for an exemption
to enable software interoperability, and that there was compelling
evidence of reasonable alternatives available for research purposes.
NTIA was also ``cognizant of the proposal's likely negative impact on
the underlying business model that has enabled significant growth and
innovation in the video game industry.''
Although NTIA did not support the exemption as requested by
proponents, it did support a limited exemption to allow videogame
console owners to repair or replace hardware components, or to ``obtain
unlicensed repairs when the console is out of warranty or when the
console and authorized replacement parts are no longer on the market.''
As explained above, however, the Register found that the record lacked
any factual basis upon which to recommend the designation of even such
a limited class.
C. Personal Computing Devices--Software Interoperability
While the Register recognized that the concern expressed by
proponents--that a broad implementation of restrictive access controls
could preclude users from installing operating systems and applications
of their choice--is a significant one, she found that proponents had
relied heavily on speculation and failed to present specific and
compelling evidence in support of a focused exemption. The Register
therefore declined to recommend the adoption of the proposed class.
Software Freedom Law Center (``SFLC''), supported by FSF, Mozilla,
SaurikIT, New Yorkers for Fair Use, Huang, and others, sought an
exemption to permit the circumvention of computer programs on personal
computing devices to enable the installation of other software,
including alternative operating systems, when such software is lawfully
obtained. The proposed exemption would have allowed circumvention by
the device owner or by someone acting at the device owner's request.
In requesting this exemption, SFLC explained that there are two
broad categories of access controls on personal computing devices:
``application locks,'' which effectively prevent users from installing
certain software applications, and ``OS locks,'' which effectively
prevent users from installing replacement operating systems. Citing the
Librarian's 2010 determination
[[Page 65275]]
permitting jailbreaking of smartphones to enable interoperability, SFLC
asserted that the restrictions addressed by the smartphone exemption
have become commonplace on other mobile computing devices and have
begun to appear on personal computers. Accordingly, SFLC contended that
the smartphone exemption should be ``expanded'' to include ``all
personal computing devices'' so as to permit circumvention for the
purpose of installing any software the user chooses, including a new
operating system.
SFLC explained that the mobile device market, which includes not
only smartphones but also tablet computers, is dominated by Google's
Android operating system and Apple's iOS, which together account for 94
percent of the market. The two most popular ebook readers, Amazon's
Kindle and Barnes & Noble's Nook, are Android-based devices. According
to SFLC, ``[a]ll of the restrictions addressed by the [smartphone]
exemption are reproduced on the new formats.'' Thus, the iOS on the
iPhone and iPad limits applications to those obtained from Apple's
store. In the case of Android, users are allowed to install
applications obtained from channels other than Google's Android
Marketplace, but Android withholds ``many vital privileges'' (i.e.,
important device functionalities) from alternatively sourced
applications. In addition, even though the Kindle and Nook are Android-
based, Amazon and Barnes & Noble have substituted their own exclusive
distribution channels, which cannot be avoided without jailbreaking.
SFLC further observed that Microsoft has announced that it will
require hardware manufacturers for the forthcoming Windows 8 operating
system to enable a secure boot system--which can function as a type of
OS lock--``by default.'' It asserted that because Microsoft controls
nearly 90 percent of the operating system market, secure boot will be a
``nearly ubiquitous'' feature on personal computers in the next year.
According to SFLC, this will ``decimate'' what is now a thriving market
for alternative PC operating systems. In a further submission to the
Copyright Office, however, SFLC conceded that Microsoft had established
a program to enable developers to ``have their operating systems signed
by Microsoft''--i.e., to acquire a secure boot key--for a fee of 99
dollars.
SFLC acknowledged that the stated justification for OS locks is to
protect device owners from malicious software by making it impossible
for viruses to gain access to, or replace, a device's operating system.
But in SFLC's words, ``[t]his `security feature' is undiscerning: it
will reject the device owner's intentional installation of an operating
system just as it will reject a virus's payload.'' SFLC observed that
``[t]o the extent the firmware lock being circumvented merely prevents
unauthorized operating systems from running, it does not protect access
to a copyrighted work of the device producer, but rather prevents
access to a competing copyrighted work to which the device owner has a
license.''
On the question of noninfringing use, SFLC asserted that it is not
infringing for the owner of a device to install applications that have
not been approved by the device's manufacturer. According to SFLC, this
conclusion--drawn from the Register's analysis and findings in the 2010
rulemaking proceeding--applies with equal force to application locks on
devices other than smartphones, as well as to OS locks. SFLC noted that
in 2010, the Register determined that circumvention for the purpose of
achieving interoperability was either ``noninfringing or fair.'' SFLC
further opined that, while modification of a preinstalled operating
system is sometimes necessary to circumvent an application lock, the
same is not true of OS locks, as removal of a device's default
operating system does not implicate any of the exclusive rights of the
owner of the operating system.
The proposed class was opposed by Joint Creators, who argued that
the requested exemption ``targets every device and every platform, and
creates an open-ended standard for circumvention.'' In their view, if
granted, the exemption ``would strip any copyright owner, distributor,
or licensee from exercising any choices with respect to how to
construct a distribution system related to personal computing, and
would thus expose copyright owners and their business partners to
unnecessary risk, piracy, and unpredictability.'' Joint Creators
characterized proponents' request as, ``at best, premature,'' and
maintained that proponents had failed to meet the substantial burden
required for an exemption.
Joint Creators also contended that the ``primary effects'' of such
an exemption would be to enable distribution of pirated applications,
and to remove technical limitations that would otherwise protect trial
versions of applications. According to Joint Creators, circumvention of
technical measures on computer programs is accomplished primarily to
unlock trial versions of software or enable access to pirated copies or
unauthorized modified versions.
Joint Creators stressed that proponents' arguments in favor of the
proposed class were based on speculation rather than facts. They
asserted that proponents' comments presented ``theories'' about what
might occur but failed to demonstrate that the scenarios they portrayed
were more likely than not. In particular, with respect to the secure
boot issue, Joint Creators pointed out that proponents had not
identified a single platform that precluded the installation of an
alternative operating system.
Finally, Joint Creators asserted that the proposed class--in
purporting to immunize circumvention, ``performed * * * at the request
of the device's owner''--amounted to a request to exempt the provision
of circumvention services, which is prohibited under Section
1201(a)(1)(E).
The Register found that proponents had offered very little support
for their claim that the uses for which they sought an exemption are
noninfringing, even though it is a threshold requirement before an
exemption can be considered. Instead, proponents chose to rest their
case upon the Register's conclusion in the 2010 rulemaking--in the
context of smartphones--that it was not an infringement to install
applications that have not been approved by a device's manufacturer.
The Register opined that proponents' conclusory declaration that the
expansive set of uses upon which they premised their request was
noninfringing was inadequate in the context of the rulemaking.
The Register noted that the record was murky on the especially
critical issue of whether the removal of an operating system from a
device in its entirety--an activity proponents sought to facilitate
through the rulemaking process--required the circumvention of technical
measures before erasing the operating system, or whether it was
possible to remove an operating system without prior circumvention
(even if such removal also simultaneously removed the access controls
for that operating system). At the hearings, the Copyright Office
sought clarification on this point from the parties, but the results
were inconclusive. Another question that was not answered by the record
was whether an OS lock preventing the operation of an alternative
operating system is in fact a technological measure protecting a
copyrighted work within the meaning of Section 1201(a).
The Register explained that to the extent an operating system can
be removed without having first to gain
[[Page 65276]]
access to the work through an act of circumvention, even if such work
is protected for other purposes by technological measures, such removal
would not constitute a violation of Section 1201(a)(1). This is because
upon deletion of the work, any such technological measure is no longer
``effectively control[ling] access'' to the work. In such a case, of
course, an exemption is unnecessary.
The Register also observed that much of proponents' concern
appeared to be centered on Microsoft's to be launched Windows 8
operating system and its ``secure boot'' functionality. But proponents'
own statements indicated that this concern was speculative. It appeared
undisputed in the record that, at least as of today, purchasers of PCs
are able to install alternative operating systems without resorting to
circumvention. Indeed, proponents conceded that the specification
allegedly adopted by Microsoft ``does not prevent manufacturers from
allowing users to disable the lock or add non-Microsoft keys,'' and
also acknowledged that Microsoft permitted developers to acquire keys
for 99 dollars.
The Register determined that proponents' suppositions concerning
the features of forthcoming software fell short of making a case that
the harmful effects they posited were more likely to occur than not.
The Register reiterated that mere speculation cannot support an
exception to Section 1201(a)(1); rather, predicted adverse effects are
only cognizable ``in extraordinary circumstances in which the evidence
of likelihood of future adverse impact is highly specific, strong and
persuasive.'' The Register concluded that proponents had failed to
offer any such evidence here.
The Register additionally observed that granting an exemption for
such a sweeping class would be without precedent in the history of
Section 1201 rulemakings. In the past, faced with a proposed class with
respect to which the proponents have offered substantial and persuasive
evidence, but for which the definition proposed is not fully congruent
with the proponents' showing, the Register has--to the extent a
sufficient basis exists in the record--refined the class definition to
ensure that it is appropriately tailored to her findings. But such
refinement is only possible where the proponent of the proposed class
has otherwise succeeded in demonstrating that some version of its
exemption is warranted. The Register cannot delineate the appropriate
contours of a class ``in a factual vacuum.''
As a final consideration, the Register noted that to the extent the
proposed class would effectively permit the provision of circumvention
services to others--as it appeared to do--it must be rejected, as the
provision of such services to others is forbidden under Section
1201(a)(2) of the DMCA.
NTIA was ``not convinced that Secure Boot constitutes `a
technological measure that effectively controls access to a work'
protected by U.S. copyright law.''' It further noted that proponents
had failed to present evidence that the secure boot functionality
restricted access to Windows 8 or any other work for purposes of
protecting copyright. NTIA thus did not support the designation of the
proposed class.
D. Motion Pictures and Other Works on DVDs and Other Media--Space
Shifting
The Register concluded that proponents had failed to establish that
the prohibition on circumvention is imposing an adverse impact on
noninfringing uses and declined to recommend the requested exemptions
for space shifting.
Proponent Public Knowledge, as well as proponents Cassiopaea,
Tambolini, Susan Fuhs, Kellie Heistand, Andy Kossowsky, and Curt
Wiederhoeft, sought similar exemptions to permit the circumvention of
motion pictures and other works on DVDs and other media to enable
``space shifting,'' i.e., the copying of complete works to permit
personal use on alternative devices.
Proponent Public Knowledge stated a desire to move lawfully
acquired motion pictures on DVDs to consumer electronic devices, such
as tablet computers and laptop computers, that lack DVD drives. It
asserted that consumers' inability to play lawfully acquired DVDs on
the newest devices adversely affected noninfringing uses of the works
contained on DVDs, and that a reasonable solution was for these
consumers to copy the motion pictures into a format that could be
viewed on the new devices. Public Knowledge urged that such an
exemption ``would merely allow a user to make use of a motion picture
she has already acquired.'' The space shifting proposals by the
additional proponents--most of which were one page or less--sought
similar exemptions, but offered few factual details and little or no
legal analysis.
The current proposals were not unlike the proposal sought in the
2006 rulemaking. In that rulemaking, the Register declined to recommend
a space shifting exemption in part because the proponents failed to
offer persuasive legal arguments that space shifting was a
noninfringing use. The Register also addressed space shifting in the
2003 rulemaking in her consideration of a requested exemption regarding
``tethering.'' In her 2003 recommendation, the Register observed that
``no court has held that `space-shifting' is a fair use.''
Public Knowledge cited RIAA v. Diamond Multimedia Systems Inc., 180
F.3d 1072 (1999), and Sony Corporation of America v. Universal City
Studios, Inc., 464 U.S. 417 (1984), in support of its contention that
space shifting is a noncommercial personal use, and therefore a fair
use. It applied the four-factor fair use test of Section 107 in support
of its assertion that the sort of space shifting for which it sought an
exemption is a noninfringing use. Public Knowledge further argued that
the space shifting would not negatively impact the availability of, or
harm the market for, copyrighted works, or contribute to piracy.
Finally, Public Knowledge claimed that there were no reasonable
alternatives to such space shifting.
Public Knowledge asked the Register to evaluate the legitimacy of
personal space shifting through ``independent examination.'' According
to Public Knowledge, the Section 1201(a) rulemaking process of
``recommending, consulting, determining, and speculating necessarily
requires the Register to draw conclusions beyond parroting the statute
and existing case law.''
Proponents of the additional proposals sought to exempt other
digital works, including sound recordings and ebooks, in addition to
motion pictures, for purposes of space shifting. They offered
insufficient factual or legal analysis in support of their proposed
exemptions, however.
DVD CCA opposed the requested exemptions by first observing that,
although many new electronic devices are made without DVD drives,
consumers can still play DVDs on such devices through the use of
peripheral tools, i.e., external drives that connect to the devices and
are capable of playing DVDs. DVD CCA argued that just because a
consumer prefers a portable device for certain purposes, it does not
mean that the consumer is foreclosed from using a different device to
play DVDs or that an exemption for space shifting is warranted.
DVDCCA further noted that, contrary to the statements made by
Public Knowledge, consumers have not purchased the motion picture
itself, but a DVD copy of the motion picture, which affords only the
right to access the work according to the DVD format specifications,
i.e., through the use of a
[[Page 65277]]
DVD player. DVDCCA explained that consumers are able to purchase the
copy at its retail price--typically less than 20 dollars--because it is
distributed on a specific medium that will only play back on a licensed
player. It stated that the Register has previously recognized that
there is no unqualified right to access a work on a particular device.
DVDCCA alleged that the proposed exemption would harm the market
for works distributed in the DVD medium as well as that for works
offered in other digital media, explaining that the proposed exemption
would displace sales for existing and forthcoming digital offerings
that the DMCA was meant to encourage. It further alleged that the
proposed exemption would create ``public confusion'' as to what is
permitted activity.
Joint Creators similarly disputed Public Knowledge's assertion that
consumers are adversely affected by an inability to play DVDs on
electronic devices that are not designed to play DVDs, pointing to
services that provide access to numerous titles for low subscription
prices. They argued that it was not the purpose of the rulemaking to
provide consumers with the most cost-effective manner to obtain
commercial video content.
AACS LA opposed an exemption for space shifting that would apply to
AACS technology protecting Blu-ray discs. It noted that proponents had
failed to satisfy their burden to demonstrate that an exemption is
warranted or that space shifting is a noninfringing act.
The Register recognized that there is significant consumer interest
in the proposed exemption. Proponents, however, had the burden of
demonstrating that the requested use was noninfringing. Neither of the
two key cases relied upon by proponents, however, addresses or informs
the space shifting activities at issue.
The Register noted that she had previously explained that Diamond
Multimedia--a case in which the court was called upon to interpret the
Audio Home Recording Act (``AHRA'')--``did not hold that `space-
shifting' is fair use. It did state, in dicta, that `space-shifting' of
digital and analog musical recordings is a noncommercial personal use
consistent with the Audio Home Recording Act.'' Notably, neither
Diamond Multimedia, nor the statute it interpreted, addressed motion
pictures, the focus of Public Knowledge's proposal.
Turning to Sony, the Register clarified that that case involved
``time-shifting,'' defined by the Supreme Court as ``the practice of
recording a program to view it once at a later time, and thereafter
erasing it.'' It did not address the legality of ``librarying,'' i.e.,
the maintenance of copies of copyrighted works. Here, by contrast,
librarying was among the activities contemplated by the proposed
exemptions.
The Register further observed that the law does not guarantee
access to copyrighted material in a user's preferred format or
technique. Indeed, copyright owners typically have the legal authority
to decide whether and how to exploit new formats. The Register noted
that while the law may someday evolve to accommodate some of
proponents' proposed uses, more recent cases touching upon space
shifting confirm that the fair use implications of various forms of
space shifting are far from settled. The Register reiterated her view
that the Section 1201 rulemaking process was ``not the forum in which
to break new ground on the scope of fair use.'' She then proceeded to
assess the proposed exemptions under the traditional fair use factors.
In urging that space shifting is a fair use, Public Knowledge
characterized the copying of motion pictures for use on personal
devices as a ``paradigmatic noncommercial personal use'' that could
facilitate a transformative use. It further asserted that integrating
reproductions of motion pictures from DVDs into a consumer's media
management software was analogous to the integration of thumbnail
images into Internet search engines found to be a transformative use in
Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007).
The Register did not agree with this analysis. In her view, the
incorporation of reproductions of motion pictures from DVDs into a
consumer's media management software is not equivalent to the provision
of public search engine functionality. Rather, it is simply a means for
an individual consumer to access content for the same entertainment
purpose as the original work. Put another way, it does not ``add[]
something new, with a further purpose or different character, altering
the first with new expression, meaning,'' or advance criticism,
comment, or any other interest enumerated in the preamble of Section
107. The Register therefore concluded that the first fair use factor
did not favor a finding of fair use. The Register additionally
determined that where creative works were being copied in their
entirety, factors two and three also weighed against fair use, and that
there was an inadequate basis in the record to conclude that the
developing market for the online distribution of motion pictures would
not be harmed by the proposed uses.
Finally, the Register concluded that proponents had failed to
demonstrate that the use of a reasonably priced peripheral, a different
device, or an online subscription service to access and play desired
content did not offer a reasonable alternative to circumvention.
Accordingly, the Register was not persuaded that the inability to
engage in the space shifting activities described by proponents is
having a substantial adverse impact on consumers' ability to make
noninfringing uses of copyrighted works.
NTIA suggested what it described as a ``more narrowly-constructed''
version of Public Knowledge's proposed exemption. Specifically, it
supported an exemption to allow circumvention of lawfully acquired DVDs
``when the DVD neither contains nor is accompanied by an additional
copy of the work in an alternative digital format, and when
circumvention is undertaken solely in order to accomplish the
noncommercial space shifting of the contained motion picture.'' NTIA
voiced support for the motion picture industry's efforts to make
content available on the wide range of new devices, and encouraged the
industry to continue developing new offerings. It contended that by
limiting the exemption to circumstances in which the market had not
supplied alternatives to DVDs, ``the potential adverse effect on the
market is minimal.''
The Register likewise expressed support for the motion picture
industry's innovation and the development of market approaches to
satisfy the demand for electronically distributed content. But while
the Register was sympathetic to the desire to consume content on a
variety of different devices, she noted that there is no basis under
current law to assume that the space shifting activities that would be
permitted under NTIA's proposal would be noninfringing. Moreover, in
light of the record before her, the Register did not find that such
activities would not adversely affect the legitimate future markets of
copyright owners.
V. Conclusion
Having considered the evidence in the record, the contentions of
the commenting parties, and the statutory objectives, the Register of
Copyrights has recommended that the Librarian of Congress publish
certain classes of works, as designated above, so that the prohibition
against circumvention of
[[Page 65278]]
technological measures that effectively control access to copyrighted
works shall not apply to persons who engage in noninfringing uses of
those particular classes of works.
Dated: October 22, 2012.
Maria A. Pallante,
Register of Copyrights.
Determination of the Librarian of Congress
Having duly considered and accepted the Recommendation of the
Register of Copyrights, which Recommendation is hereby incorporated by
reference, the Librarian of Congress is exercising his authority under
17 U.S.C. 1201(a)(1)(C) and (D) and is publishing as a new rule the
classes of copyrighted works that shall be subject to the exemption
found in 17 U.S.C. 1201(a)(1)(B) from the prohibition against
circumvention of technological measures that effectively control access
to copyrighted works set forth in 17 U.S.C. 1201(a)(1)(A).
List of Subjects in 37 CFR Part 201
Copyright, Exemptions to prohibition against circumvention.
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 by revising paragraph (b) to read as
follows:
Sec. 201.40 Exemption to prohibition against circumvention.
* * * * *
(b) Classes of copyrighted works. Pursuant to the authority set
forth in 17 U.S.C. 1201(a)(1)(C) and (D), and upon the recommendation
of the Register of Copyrights, the Librarian has determined that the
prohibition against circumvention of technological measures that
effectively control access to copyrighted works set forth in 17 U.S.C.
1201(a)(1)(A) shall not apply to persons who engage in noninfringing
uses of the following classes of copyrighted works:
(1) Literary works, distributed electronically, that are protected
by technological measures which either prevent the enabling of read-
aloud functionality or interfere with screen readers or other
applications or assistive technologies in the following instances:
(i) When a copy of such a work is lawfully obtained by a blind or
other person with a disability, as such a person is defined in 17
U.S.C. 121; provided, however, the rights owner is remunerated, as
appropriate, for the price of the mainstream copy of the work as made
available to the general public through customary channels; or
(ii) When such work is a nondramatic literary work, lawfully
obtained and used by an authorized entity pursuant to 17 U.S.C. 121.
(2) 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.
(3) Computer programs, in the form of firmware or software, that
enable a wireless telephone handset originally acquired from the
operator of a wireless telecommunications network or retailer no later
than ninety days after the effective date of this exemption to connect
to a different wireless telecommunications network, if the operator of
the wireless communications network to which the handset is locked has
failed to unlock it within a reasonable period of time following a
request by the owner of the wireless telephone handset, and when
circumvention is initiated by the owner, an individual consumer, who is
also the owner of the copy of the computer program in such wireless
telephone handset, solely in order to connect to a different wireless
telecommunications network, and such access to the network is
authorized by the operator of the network.
(4) Motion pictures, as defined in 17 U.S.C. 101, on DVDs that are
lawfully made and acquired and that are protected by the Content
Scrambling System, where the person engaging in circumvention believes
and has reasonable grounds for believing that circumvention is
necessary because reasonably available alternatives, such as
noncircumventing methods or using screen capture software as provided
for in alternative exemptions, are not able to produce the level of
high-quality content required to achieve the desired criticism or
comment on such motion pictures, and where circumvention is undertaken
solely in order to make use of short portions of the motion pictures
for the purpose of criticism or comment in the following instances:
(i) In noncommercial videos;
(ii) In documentary films;
(iii) In nonfiction multimedia ebooks offering film analysis; and
(iv) For educational purposes in film studies or other courses
requiring close analysis of film and media excerpts, by college and
university faculty, college and university students, and kindergarten
through twelfth grade educators. For purposes of this exemption,
``noncommercial videos'' includes videos created pursuant to a paid
commission, provided that the commissioning entity's use is
noncommercial.
(5) Motion pictures, as defined in 17 U.S.C. 101, that are lawfully
made and acquired via online distribution services and that are
protected by various technological protection measures, where the
person engaging in circumvention believes and has reasonable grounds
for believing that circumvention is necessary because reasonably
available alternatives, such as noncircumventing methods or using
screen capture software as provided for in alternative exemptions, are
not able to produce the level of high-quality content required to
achieve the desired criticism or comment on such motion pictures, and
where circumvention is undertaken solely in order to make use of short
portions of the motion pictures for the purpose of criticism or comment
in the following instances:
(i) In noncommercial videos;
(ii) In documentary films;
(iii) In nonfiction multimedia ebooks offering film analysis; and
(iv) For educational purposes in film studies or other courses
requiring close analysis of film and media excerpts, by college and
university faculty, college and university students, and kindergarten
through twelfth grade educators. For purposes of this exemption,
``noncommercial videos'' includes videos created pursuant to a paid
commission, provided that the commissioning entity's use is
noncommercial.
(6)(i) Motion pictures, as defined in 17 U.S.C. 101, on DVDs that
are lawfully made and acquired and that are protected by the Content
Scrambling System, where the circumvention, if any, is undertaken using
screen capture technology that is reasonably represented and offered to
the public as enabling the reproduction of motion picture content after
such content has been lawfully decrypted, when such representations
have been reasonably relied upon by the user of such technology, when
the person engaging in the circumvention believes and has reasonable
grounds for believing that the circumvention is necessary to achieve
the desired criticism or comment, and where the circumvention is
undertaken solely in order to make use of short portions of the motion
[[Page 65279]]
pictures for the purpose of criticism or comment in the following
instances:
(A) In noncommercial videos;
(B) In documentary films;
(C) In nonfiction multimedia ebooks offering film analysis; and
(D) For educational purposes by college and university faculty,
college and university students, and kindergarten through twelfth grade
educators.
(ii) For purposes of this exemption, ``noncommercial videos''
includes videos created pursuant to a paid commission, provided that
the commissioning entity's use is noncommercial.
(7)(i) Motion pictures, as defined in 17 U.S.C. 101, that are
lawfully made and acquired via online distribution services and that
are protected by various technological protection measures, where the
circumvention, if any, is undertaken using screen capture technology
that is reasonably represented and offered to the public as enabling
the reproduction of motion picture content after such content has been
lawfully decrypted, when such representations have been reasonably
relied upon by the user of such technology, when the person engaging in
the circumvention believes and has reasonable grounds for believing
that the circumvention is necessary to achieve the desired criticism or
comment, and where the circumvention is undertaken solely in order to
make use of short portions of the motion pictures for the purpose of
criticism or comment in the following instances:
(A) In noncommercial videos;
(B) In documentary films;
(C) In nonfiction multimedia ebooks offering film analysis; and
(D) For educational purposes by college and university faculty,
college and university students, and kindergarten through twelfth grade
educators.
(ii) For purposes of this exemption, ``noncommercial videos''
includes videos created pursuant to a paid commission, provided that
the commissioning entity's use is noncommercial.
(8) Motion pictures and other audiovisual works on DVDs that are
protected by the Content Scrambling System, or that are distributed by
an online service and protected by technological measures that control
access to such works, when circumvention is accomplished solely to
access the playhead and/or related time code information embedded in
copies of such works and solely for the purpose of conducting research
and development for the purpose of creating players capable of
rendering visual representations of the audible portions of such works
and/or audible representations or descriptions of the visual portions
of such works to enable an individual who is blind, visually impaired,
deaf, or hard of hearing, and who has lawfully obtained a copy of such
a work, to perceive the work; provided however, that the resulting
player does not require circumvention of technological measures to
operate.
* * * * *
Dated: October 22, 2012.
James H. Billington,
The Librarian of Congress.
[FR Doc. 2012-26308 Filed 10-25-12; 8:45 am]
BILLING CODE 1410-30-P