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6 October 2008


[Federal Register: October 6, 2008 (Volume 73, Number 194)]
[Proposed Rules]               
[Page 58073-58079]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06oc08-17]                         

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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. RM 2008-8]

 
Exemption to Prohibition on Circumvention of Copyright Protection 
Systems for Access Control Technologies

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of inquiry.

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SUMMARY: The Copyright Office of the Library of Congress is preparing 
to conduct proceedings in accordance with provisions added by the 
Digital Millennium Copyright Act which provide that the Librarian of 
Congress may exempt certain classes of works from the prohibition 
against circumvention of technological measures that control access to 
copyrighted works. The purpose of this rulemaking proceeding is to 
determine whether there are particular classes of works as to which 
users are, or are likely to be, adversely affected in their ability to 
make noninfringing uses due to the prohibition on circumvention. This 
notice requests written comments from all interested parties, including 
representatives of copyright owners, educational institutions, 
libraries and archives, scholars, researchers and members of the 
public, in order to elicit evidence on whether noninfringing uses of 
certain classes of works are, or are likely to be, adversely affected 
by this prohibition on the circumvention of measures that control 
access to copyrighted works.

DATES: Written comments must be received no later than December 2, 
2008. A notice of proposed rulemaking will be published in December 
2008 that will identify proposed classes of works and solicit comments 
on those proposed classes, which will be due no later than February 2, 
2009.

ADDRESSES: Electronic submissions should be made through the Copyright 
Office website: http://www.copyright.gov/1201/comment-forms; see 
section 3 of the SUPPLEMENTARY INFORMATION section for file formats and 
other information about electronic and non-electronic filing 
requirements. If a non-electronic submission is hand delivered by a 
private party, an original and ten copies of any comment must be 
delivered to Room LM-401 of the James Madison Memorial Building between 
8:30 a.m. and 5 p.m. and the envelope should be addressed as follows: 
Office of the General Counsel, U.S. Copyright Office, James Madison 
Memorial Building, Room LM-401, 101 Independence Avenue, SE., 
Washington, DC 20559-6000. If hand delivered by a commercial courier, 
an original and ten copies of any comment must be delivered to the 
Congressional Courier Acceptance Site located at Second and D Streets, 
NE., Washington, DC, between 8:30 a.m. and 4 p.m. The envelope should 
be addressed as follows: Copyright Office General Counsel, Room LM-403, 
James Madison Memorial Building, 101 Independence Avenue, SE., 
Washington DC. If delivered by means of the United States Postal 
Service (see section 3 of the SUPPLEMENTARY INFORMATION about 
continuing delays), comments should be addressed to Copyright GC/I&R, 
PO Box 70400, Washington, DC 20024-0400. See SUPPLEMENTARY INFORMATION 
section for information about requirements and formats of submissions. 
Comments may not be delivered by means of overnight delivery services 
such as Federal Express, United Parcel Service, etc., due to delays in 
processing receipt of such deliveries.

FOR FURTHER INFORMATION CONTACT: Robert Kasunic, Principal Legal 
Advisor, Office of the General Counsel, Copyright GC/I&R, PO Box 70400, 
Washington, DC 20024-0400. Telephone: (202) 707-8380; telefax: (202) 
707-8366.

SUPPLEMENTARY INFORMATION: 1. Mandate for Rulemaking Proceeding
    The Digital Millennium Copyright Act, Pub. L. 105-304 (1998), 
amended title 17 of the United States Code to add Chapter 12, which 
among other things prohibits circumvention of access control 
technologies employed by or on behalf of copyright owners to protect 
their works.
    Specifically, subsection 1201(a)(1)(A) provides, inter alia, that 
``No person shall circumvent a technological measure that effectively 
controls access to a work protected under this title.''
    Subparagraph (B) limits this prohibition. It provides that 
prohibition against circumvention ``shall not apply to persons who are 
users of a copyrighted work which is in a particular class of works, if 
such persons are, or are likely to be in the succeeding 3-year period, 
adversely affected by virtue of such prohibition in their ability to 
make noninfringing uses of that particular class of works under this 
title'' as determined in this rulemaking.

[[Page 58074]]

    Subparagraph (C) provides that every three years, the Librarian of 
Congress, upon the ecommendation of the Register of Copyrights (who is 
to consult with the Assistant Secretary for Communications and 
Information of the Department of Commerce) must ``make the 
determination in a rulemaking proceeding for purposes of subparagraph 
(B) of whether persons who are users of a copyrighted work are, or are 
likely to be in the succeeding 3-year period, adversely affected by the 
prohibition under subparagraph (A) in their ability to make 
noninfringing uses under this title of a particular class of 
copyrighted works.'' The Librarian, on the recommendation of the 
Register, has thus far made three determinations as to classes of works 
to be exempted from the prohibition. The exemptions promulgated by the 
Librarian in the first rulemaking were in effect for the 3-year period 
from October 28, 2000, through October 28, 2003. See Exemption to 
Prohibition on Circumvention of Copyright Protection Systems for Access 
Control Technologies, 65 FR 64556, 64564 (2000) (hereinafter Final Reg. 
2000). On October 28, 2003, the Librarian of Congress published the 
second determination as to classes of works to be exempted from the 
prohibition. Exemption to Prohibition on Circumvention of Copyright 
Protection Systems for Access Control Technologies, 68 FR 62011, 62013 
(2003) (hereinafter Final Reg. 2003). The four exemptions created in 
the second anticircumvention rulemaking remained in effect for a 3-year 
period. On November 27, 2006, the Librarian of Congress published the 
third determination. Exemption to Prohibition on Circumvention of 
Copyright Protection Systems for Access Control Technologies, 71 FR 
68472, 68480 (2006) (hereinafter Final Reg. 2006). The six exemptions 
established in the third anticircumvention rulemaking will remain in 
effect until October 28, 2009. All three of the previous determinations 
by the Librarian of Congress were made upon the recommendation of the 
Register of Copyrights following extensive rulemaking proceedings. This 
notice announces the initiation of the fourth section 1201 rulemaking 
required under 17 U.S.C. 1201(a)(1)(C).
    2. Background
    Title I of the Digital Millennium Copyright Act was, inter alia, 
the congressional fulfillment of obligations of the United States under 
the WIPO Copyright Treaty and the WIPO Performances and Phonograms 
Treaty. For additional information on the historical background and the 
legislative history of Title I, see Exemption to Prohibition on 
Circumvention of Copyright Protection Systems for Access Control 
Technologies, 64 FR 66139, 66140 (1999) [http://www.loc.gov/copyright/
fedreg/1999/64fr66139.html].
    Section 1201 of title 17 of the United States Code prohibits two 
general types of activity: (1) the conduct of ``circumvention'' of 
technological protection measures that control access to copyrighted 
works and (2) trafficking in any technology, product, service, device, 
component, or part thereof that protects either ``access'' to a 
copyrighted work or that protects the ``rights of the copyright 
owner,'' if that device or service meets one of three conditions. The 
first type of activity, the conduct of circumvention, is prohibited in 
section 1201(a)(1). The latter activities, trafficking in devices or 
services that circumvent ``access'' or ``the rights of the copyright 
owner,'' are contained in sections 1201(a)(2) and 1201(b) respectively. 
In addition to these prohibitions, section 1201 also includes a series 
of section-specific limitations and exemptions to the prohibitions of 
section 1201.

A. The Anticircumvention Provision at Issue

    Subsection 1201(a)(1) applies when a person who is not authorized 
by the copyright owner to gain access to a work does so by 
circumventing a technological measure put in place with the authority 
of the copyright owner to control access to the work. See the Report of 
the House Committee on Commerce on the Digital Millennium Copyright Act 
of 1998, H.R. Rep. No. 105-551, pt. 2, at 36 (1998) (hereinafter 
Commerce Comm. Report).
    That section provides that ``No person shall circumvent a 
technological measure that effectively controls access to a work 
protected under this title.'' 17 U.S.C. 1201(a)(1)(A) (1998).
    The relevant terms are defined:
    (3) As used in this subsection-
    (A) to ``circumvent a technological measure'' means to descramble a 
scrambled work, to decrypt an encrypted work, or otherwise to avoid, 
bypass, remove, deactivate, or impair a technological measure, without 
the authority of the copyright owner; and
    (B) a technological measure ``effectively controls access to a 
work'' if the measure, in the ordinary course of its operation, 
requires the application of information, or a process or a treatment, 
with the authority of the copyright owner, to gain access to the work. 
17 U.S.C. 1201(a)(3).

B. Scope of the Rulemaking

    The statutory focus of this rulemaking is limited to one subsection 
of section 1201: the prohibition on the conduct of circumvention of 
technological measures that control access to copyrighted works. 17 
U.S.C. 1201(a)(1)(C) [http://www.copyright.gov/title17/
92chap12.html1201]. The Librarian of Congress has no authority 
to limit either of the anti-trafficking provisions contained in 
subsections 1201(a)(2) or 1201(b). 17 U.S.C. 1201(a)(1)(E). Moreover, 
for a proposed exemption to be considered in this rulemaking, there 
must be a causal connection between the prohibition in 1201(a)(1) and 
the adverse effect on noninfringing uses.
    This rulemaking addresses only the prohibition on the conduct of 
circumventing measures that control ``access'' to copyrighted works, 
e.g., decryption or hacking of access controls such as passwords or 
serial numbers. The structure of section 1201 is such that there exists 
no comparable prohibition on the conduct of circumventing technological 
measures that protect the ``rights of the copyright owner,'' e.g., the 
section 106 rights to reproduce, adapt, distribute, publicly perform, 
or publicly display a work. Circumventing a technological measure that 
protects these section 106 rights of the copyright owner is governed 
not by section 1201, but rather by the traditional copyright rights and 
the applicable limitations in the Copyright Act. For example, if a 
person having lawful access to a work circumvents a measure that 
prohibits printing or saving an electronic copy of an article, there is 
no provision in section 1201 that precludes this activity. Instead, it 
would be actionable as copyright infringement of the section 106 right 
of reproduction unless an applicable limitation applied, e.g., fair 
use. The trafficking in, inter alia, any device or service that enabled 
others to circumvent such a technological protection measure may, 
however, be actionable under section 1201(b).
    On the other hand, because there is a prohibition on the act of 
circumventing a technological measure that controls access to a work, 
and since traditional Copyright Act limitations are not defenses to the 
act of circumventing a technological measure that controls access, 
Congress chose to create the current rulemaking proceeding as a ``fail-
safe mechanism'' to monitor the effect of the anticircumvention 
provision in section 1201(a)(1)(A). Commerce Comm. Report, at 36. This 
anticircumvention rulemaking is

[[Page 58075]]

authorized to monitor the effect of the prohibition against ``access'' 
circumvention on noninfringing uses of copyrighted works. In this 
triennial rulemaking proceeding, effects on noninfringing uses that are 
unrelated to section 1201(a)(1)(A) may not be considered. 17 U.S.C. 
1201(a)(1)(C).

C. Burden of Proof

    In the first rulemaking, the Register concluded from the language 
of the statute and the legislative history that a determination to 
exempt a class of works from the prohibition on circumvention must be 
based on a showing that the prohibition has or is likely to have a 
substantial adverse effect on noninfringing uses of a particular class 
of works. It was determined that proponents of an exemption bear the 
burden of proof that an exemption is warranted for a particular class 
of works and that the prohibition is presumed to apply to all classes 
of works unless an adverse impact has been shown. See Commerce Comm. 
Report, at 37 and see also, Final Reg. 2000, 65 FR at 64558.
    The ``substantial'' adverse requirement has also been described as 
a requirement that the proponent of an exemption must demonstrate 
``distinct, verifiable, and measurable impacts,'' and more than ``de 
minimis impacts.'' See Final Reg. 2003, 68 FR at 62013. Whatever label 
one uses, proponents of an exemption bear the burden of providing 
sufficient evidence under this standard to support an exemption. How 
much evidence is sufficient will vary with the factual context of the 
alleged harm. Further, proof of harm is never the only consideration in 
the rulemaking process, and therefore the sufficiency of the evidence 
of harm will always be relative to other considerations, such as, the 
availability of the affected works for use, the availability of the 
works for nonprofit archival, preservation, and educational purposes, 
the impact that the prohibition has on criticism, comment, news 
reporting, teaching, scholarship, or research, the effect of 
circumvention on the market for or value of copyrighted works, and any 
other relevant factors.
    In order to meet the burden of proof, proponents of an exemption 
must provide evidence either that actual harm currently exists or that 
it is ``likely'' to occur in the ensuing 3-year period. Actual 
instances of verifiable problems occurring in the marketplace are 
generally necessary in order to prove actual harm. The most compelling 
cases of actual harm will be based on first-hand knowledge of such 
problems. Circumstantial evidence may also support a claim of present 
or likely harm, but such evidence must also reasonably demonstrate that 
a measure protecting access was the cause of the harm and that the 
adversely affected use was, in fact, noninfringing. ``Likely'' adverse 
effects may also support an exemption. This standard of ``likelihood'' 
requires proof that adverse effects are more likely than not to occur. 
Claims based on ``likely'' adverse effects cannot be supported by 
speculation alone. See Staff of House Committee on the Judiciary, 105th 
Cong., Section-By-Section Analysis of H.R. 2281 as Passed by the United 
States House of Representatives on August 4, 1998, (hereinafter House 
Manager's Report), at 6, (an exemption based on ``likely'' future 
adverse impacts during the applicable period should only be made ``in 
extraordinary circumstances in which the evidence of likelihood is 
highly specific, strong and persuasive.''). Conjecture alone is 
insufficient to support a finding of ``likely'' adverse effect. Final 
Reg. 2000, 65 FR at 64559. Although a showing of ``likely'' adverse 
impact will necessarily involve prediction, the burden of proving that 
the expected adverse effect is more likely than other possible outcomes 
rests firmly on the proponent of the exemption.
    The identification of existing or likely problems is not, however, 
the end of the analysis. In order for an exemption of a particular 
class of works to be warranted, a proponent must show that such 
problems justify an exemption in light of all of the relevant facts. 
The identification of isolated or anecdotal problems will be generally 
insufficient to warrant an exemption. Similarly, the mere fact that the 
digital format would be more convenient to use for noninfringing 
purposes is generally insufficient factual support for an exemption. 
Further, purely theoretical critiques of section 1201 cannot satisfy 
the requisite showing. House Manager's Report, at 6. Proponents of 
exemptions must show sufficient harm to warrant an exemption from the 
default rule established by Congress - the prohibition against 
circumvention.
    There is a presumption that the section 1201 prohibition will apply 
to any and all classes of works, including previously exempted classes, 
unless a new showing is made that an exemption is warranted. Final Reg. 
2000, 65 FR at 64558. Exemptions are reviewed de novo and prior 
exemptions will expire unless sufficient new evidence is presented in 
each rulemaking that the prohibition has or is likely to have an 
adverse effect on noninfringing uses. The facts and argument that 
supported an exemption during any given 3-year period may be 
insufficient within the context of the marketplace in a different 3-
year period. Similarly, proposals that were not found to justify an 
exemption in any particular rulemaking could find factual support in 
the context and on the record of another rulemaking.
    Evidence in support or in opposition to an exemption should be 
contained in the initial comments or, after publication of the proposed 
classes in the Federal Register, in the comments on the proposed 
exemptions. The purpose of this rulemaking is to survey interested 
parties in the digital environment to discover whether section 
1201(a)(1) is adversely affecting noninfringing uses of particular 
classes of copyrighted works. The proposals received in the initial 
comments will frame the inquiry throughout the rest of the rulemaking 
process. The comments submitted in response to this Notice of Inquiry 
will be posted on the Copyright Office website shortly after 
submission, and a Notice of Proposed Rulemaking identifying the classes 
of works proposed will be published in the Federal Register shortly 
thereafter.\1\ The Notice of Proposed Rulemaking will invite copyright 
owners and other interested parties to offer their comments in support 
of or opposition to the proposed classes. Comments responsive to the 
proposed classes may also propose modest refinements to the proposed 
classes and supply additional evidence, but may not propose completely 
new classes of works. Since opponents to exemptions have only one 
comment period to provide written responses to the exemptions proposed, 
opponents should have sufficient notice of the exemptions to be 
addressed in the rulemaking. Copyright owners and other interested 
parties, however, should be vigilant in monitoring classes proposed in 
the initial comment period that may implicate their interests as such 
classes may be further refined in the ensuing rulemaking process.
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    \1\ See infra for a discussion of proposals raised after the 
initial comment period has expired.
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    The Office will post all of the comments, hearing transcripts, and 
other relevant material in this rulemaking proceeding, as the Office 
has done since the inception of this rulemaking proceeding, on the 
Copyright Office's website at: www.copyright.gov/1201.\2\
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    \2\ If a comment includes attached material that appears to be 
protected by copyright and there is no indication that the material 
was attached with permission of the copyright owner, the attached 
material will not be placed on the Office's website. If such 
material is available on the Internet, the comment should identify 
where the material may be found.

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[[Page 58076]]

    The Copyright Office will also conduct a series of hearings on the 
proposed exemptions in the Spring in Washington, DC and at a location 
or locations to be determined in California. These hearings will offer 
proponents and opponents of exemptions an opportunity to present 
arguments and answer questions from the Register and her staff. These 
hearings-the time, date and subject matter of which will be announced 
early in 2009-will not provide a forum in which to raise new proposals 
or to submit wholly new evidence. Evidence that demonstrates how a 
technological measure operates and affects noninfringing uses as well 
as evidence that is responsive to earlier disputes raised in the 
comment process is welcomed, and is encouraged, at these hearings. 
However, the hearings may not be used as a vehicle for surprise or to 
present untimely proposals.
    The Register is also likely to pose post-hearing questions to 
specific parties or witnesses that participated in the rulemaking 
proceeding. These questions have historically sought clarification of 
legal and factual questions, including specific requests to explain the 
operation of a technological measure at issue. Such post-hearing 
questions should not be construed as a general public post-hearing 
comment phase-there simply will not be sufficient time to consider 
another round of general public comments by the statutory deadline for 
the announcement of the newly exempted classes-but rather are 
invitations addressed to specific witnesses who have offered testimony 
on an issue to provide further clarification in response to specific 
questions from the Register. The questions and the responses to the 
questions will be posted on the Copyright Office's website after the 
responses have been received.

D. Availability of Works in Unprotected Formats

    Other statutory considerations must also be balanced with evidence 
of adverse effects attributable to the prohibition. In making her 
recommendation to the Librarian, the Register is instructed to consider 
the availability for use of copyrighted works. 17 U.S.C. 
1201(a)(1)(C)(i). This inquiry demands that the Register consider 
whether ``works'' protected by technological measures that control 
access are also available in the marketplace in formats that are 
unprotected. The fact that a ``work'' (in contrast to a particular 
``copy'' of a work) is available in a format without technological 
protection measures may be significant because the unprotected formats 
might allow the public to make noninfringing uses of the work even 
though other formats of the work would not. For example, in the first 
rulemaking, many users claimed that the technological measures on 
motion pictures contained on Digital Versatile Disks (DVDs) restricted 
noninfringing uses of the motion pictures. A balancing consideration 
was that the record revealed at that time that the vast majority of 
these works were also available in analog format on VHS tapes. Final 
Reg. 2000, 65 FR at 64568. Thus, the full range of availability of a 
work for use is necessary to consider in assessing the need for an 
exemption to the prohibition on circumvention.
    Another consideration relating to the availability for use of 
copyrighted works is whether the measure supports a distribution model 
that benefits the public generally. For example, while a measure may 
limit the length of time that a work may be accessed (time-limited) or 
may limit the scope of access (scope-limited), e.g., access to only a 
portion of work, those limitations may benefit the public by providing 
``use-facilitating'' models that allow users to obtain access to works 
at a lower cost than they would otherwise be charged were such 
restrictions not in place. If there is sufficient evidence that 
particular classes of works would not be offered at all without the 
protection afforded by technological protection measures that control 
access, this evidence must be considered. House Manager's Report, at 6. 
Accord, Final Reg. 2000, 65 FR at 64559. Thus, the Register's inquiry 
must assess any benefits to the public resulting from the prohibition 
as well as the adverse effects that may be established.

E. The Scope of the Term ``Class of Works''

    Section 1201 does not define a critical term for the rulemaking 
process: a ``class of works.'' With respect to this issue and others, 
commenters should familiarize themselves with the Register's 
recommendation and the Librarian's determination in the first 
rulemaking and in the subsequent two rulemakings, since many of the 
issues which were unsettled at the start of the first rulemaking have 
been addressed and developed in the three determinations. While the 
approach taken in resolving the issues raised in these rulemakings may 
continue to develop in this and subsequent proceedings, interested 
parties should assume that the standards developed thus far will 
continue to apply in the current proceeding. Of course, commenters may 
argue for adoption of alternative approaches,\3\ but a persuasive case 
will have to be made to warrant reconsideration of previous decisions 
regarding interpretation of section 1201.
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    \3\ Proponents of an exemption may do so in their comments 
proposing exemptions. Opponents of an exemption should do so in 
their comments filed in response to the forthcoming Notice of 
Proposed Rulemaking.
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    In the first rulemaking, the Register elicited views on the scope 
and meaning of the term ``class of works.'' After review of the 
statutory language, the legislative history and the extensive record in 
the proceeding [see Final Reg., 65 FR at 64557 for a description of the 
record in the last rulemaking proceeding], the Register reached certain 
conclusions on the scope of this term. [For a more detailed discussion, 
see Final Reg., 65 FR at 64559.]
    The Register found that the statutory language required that the 
Librarian identify a ``class of works'' primarily based upon attributes 
of the works themselves, and not by reference to some external criteria 
such as the intended use or the users of the works. The phrase ``class 
of works'' connotes that the shared, common attributes of the ``class'' 
relate to the nature of authorship in the ``works.'' Thus a ``class of 
works'' was intended to be a ``narrow and focused subset of the broad 
categories of works of authorship *** identified in section 102.'' 
Commerce Comm. Report, at 38. The starting point for a proposed 
exemption of a particular class of works must be the section 102 
categories of authorship: literary works; musical works; dramatic 
works; pantomimes and choreographic works; pictorial, graphic and 
sculptural works; motion pictures and other audiovisual works; sound 
recordings; and architectural works.
    This determination is supported by the House Manager's Report which 
discussed the importance of appropriately defining the proper scope of 
the exemption. House Manager's Report, at 7. The legislative history 
stated that it would be highly unlikely for all literary works to be 
adversely affected by the prohibition and therefore, determining an 
appropriate subcategory of the works in this category would be the goal 
of the rulemaking. Id.
    Therefore, the Register concluded that the starting point for 
identifying a particular ``class of works'' to be exempted must be one 
of the section 102 categories. Final Reg., 65 FR at

[[Page 58077]]

64559-64561. From that starting point, it is likely that the scope or 
boundaries of a particular class would need to be further limited to 
remedy the particular harm to noninfringing uses identified in the 
rulemaking.
    In the first anticircumvention rulemaking, the Register recommended 
and the Librarian agreed that two classes of works should be exempted:
    1) Compilations consisting of lists of websites blocked by 
filtering software applications; and
    2) Literary works, including computer programs and databases, 
protected by access control mechanisms that fail to permit access 
because of malfunction, damage or obsoleteness.
    While the first class exempted fits comfortably within the approach 
to classification discussed above, the second class includes the entire 
category of literary works, but narrows the exemption by reference to 
attributes of the technological measures that controls access to the 
works.
    In the 2006 rulemaking, the Register determined that a further 
refinement of the approach to determining a particular class of works 
was warranted. Even though a class must begin, as its starting point, 
by reference to one of the categories of authorship enumerated in 
section 102 of the Copyright Act (or some subset thereof), that class 
should be further tailored to address the harm (actual or likely) 
alleged. The proper tailoring of a class will depend on the specific 
facts, but in some cases, the most appropriate manner of further 
tailoring the category or sub-category may be to limit the class in 
relation to particular uses or users.
    The impetus for this refinement was a proposed exemption for film 
and media studies professors. The proponents of the exemption 
demonstrated that the reproduction and public performance of short 
portions of motion pictures or other audiovisual works in the course of 
face-to-face teaching activities of a film or media studies course 
would generally constitute a noninfringing use. The proponents further 
demonstrated that the digital version of the motion pictures 
distributed on DVDs was not merely a preferred format, but that the 
digital version of these works was the only version of the work that 
met the pedagogical needs of the film and media studies professors. The 
proponents of the exemption also demonstrated that their otherwise 
noninfringing uses of the digital versions of these motion pictures 
were adversely affected by the prohibition on circumvention of 
technological measures protecting access to these works, because the 
Content Scrambling System (CSS) contained on most commercially released 
DVDs was an access control system that prevented the making of a 
compilation of film clips for classroom use. Although opponents of the 
exemption demonstrated a DVD player that was alleged to meet the 
pedagogical needs of educators, the device presented obstacles for 
classroom use that were found to be more than a mere inconvenience for 
a subset of users - film and media studies professors.
    The proponents met their burden of proving that section 1201(a)(1) 
was adversely affecting film and media studies educators' ability to 
engage in noninfringing uses for the ensuing 3-year period and that no 
reasonable substitute for the pedagogically beneficial digital content 
was available or likely to become available in the next three years. 
The opponents of the proposal expressed concern that if the proposed 
class of works-audiovisual works included in the educational library of 
a college or university's film or media studies department and that are 
protected by technological measures that prevent their educational use-
was based only on attributes of the work itself, the exemption would 
necessarily exempt a much broader range of uses than those in which the 
film professors wished to engage. Moreover, copyright owners were 
concerned that such an exemption would create public confusion about 
the circumstances in which circumvention was appropriate. Given the 
expanse of such a class of works and the adverse effects that could 
occur as a result of confusion about the class, copyright owners argued 
that overall harm of such an exemption would outweigh the marginal 
benefits to this subset of educators.
    The Register concluded that a further refinement of the scope of a 
class of works was the proper balance to the valid concerns of both 
educators and copyright owners. By delineating the class in relation to 
the relevant noninfringing use proven to be, or likely to be, adversely 
affected by the prohibition on circumvention, film and media studies 
educators' needs could be met while leaving the statutory prohibition 
against circumvention intact for that class with respect to other uses.
    In all proposed exemptions, the starting point for a class of works 
must be a section 102 category of authorship, or a subset thereof. That 
category or subset should then be tailored by other criteria as 
appropriate under the particular facts presented. The goal is to 
fashion an exemption that is neither too narrow nor too broad to 
remedially address the evidence of present and likely harm. An 
appropriately fashioned exemption will assist users and copyright 
owners alike, by temporarily suspending the prohibition on 
circumvention for appropriately tailored adversely affected classes, 
while preserving the prohibition in all other classes.
    The exemptions published for each three-year period are temporary 
and expire when the succeeding determination of the Librarian of 
Congress is published. This rulemaking will examine adverse effects 
existing in the marketplace or likely to exist in the next three-year 
period to determine whether any exemptions to the prohibition on 
circumvention of technological protection measures that effectively 
control access to copyrighted works are warranted by the evidence 
raised during this rulemaking.

F. Considerations to Address within a Comment

    This notice requests written comments from all interested parties. 
In addition to the necessary showing discussed above, in order to make 
a prima facie case for a proposed exemption, certain critical points 
should be established. First, a proponent should identify the 
technological measure that is the ultimate source of the alleged 
problem, and the proponent should explain how the technological measure 
effectively controls access to a copyrighted work. Second, a proponent 
must specifically explain what noninfringing activity the prohibition 
on circumvention is preventing. Third, a proponent should establish 
that the prevented activity is, in fact, a noninfringing use under 
current law. A proponent should also demonstrate why the access-
protected copy of a work is needed for the noninfringing use and why 
alternate means of engaging in the noninfringing uses (including use of 
available copies of the work in unprotected formats), if they exist, 
are an insufficient substitute for accomplishing the noninfringing use.
    The nature of the Librarian's inquiry is further delineated by the 
statutory areas to be examined by the Register of Copyrights:
    (i) the availability for use of copyrighted works;
    (ii) the availability for use of works for nonprofit archival, 
preservation, and educational purposes;
    (iii) the impact that the prohibition on the circumvention of 
technological measures applied to copyrighted works has on criticism, 
comment, news reporting, teaching, scholarship, or research;

[[Page 58078]]

    (iv) the effect of circumvention of technological measures on the 
market for or value of copyrighted works; and
    (v) such other factors as the Librarian considers appropriate.
    17 U.S.C. 1201(a)(1)(C).
    These statutory considerations require examination and careful 
balancing. The harm identified by a proponent of an exemption must be 
balanced with the harm that would result from an exemption. In some 
circumstances, the adverse effect of a proposed exemption in light of 
these considerations may be greater than the harm posed by the 
prohibition on circumvention of works in the proposed class. Perhaps 
the proper balance can be resolved by carefully tailoring the scope of 
the class, but ultimately, the determination of the Librarian must take 
all of these factors into account.
    3. Written Comments
    In the first rulemaking, the Register determined that the burden of 
proof is on the proponent of an exemption to come forward with evidence 
supporting an exemption for a particular class of works. In this fourth 
triennial rulemaking, the Register shall continue with the procedure 
adopted in the second and third rulemakings: Comments submitted in the 
initial comment period should be confined to proposals for exempted 
classes. They should specifically identify particular classes of works 
adversely affected by the prohibition and provide evidentiary support 
for the need for the proposed exemptions (see section F above).
    For each particular class of works that a commenter proposes for 
exemption, the commenter should first identify that class, followed by 
a summary of the argument in favor of exempting that proposed class. 
The commenter should then specify the facts and evidence providing a 
basis for this exemption. This factual information should ideally 
include the technological measure that controls access and the manner 
in which this technological measure operates to control access to a 
copyrighted work. Finally, the commenter should state any legal 
arguments in support of the exemption, including the activity that is 
claimed to be noninfringing, the legal basis for this claim, and why 
this noninfringing activity cannot be accomplished in other ways. This 
format of class/summary/ facts/argument should be sequentially followed 
for each class of work proposed as necessary.
    As discussed above, the best evidence in support of an exemption 
would consist of concrete examples or specific instances in which the 
prohibition on circumvention of technological measures protecting 
access has had or is likely to have an adverse effect on noninfringing 
uses. It would also be useful for the commenter to quantify the adverse 
effects in order to explain the scope of the present or likely problem.
    Comments subsequently submitted in response to exemptions proposed 
in the first round of comments should provide factual information and 
legal argument addressing whether or not a proposed exemption should be 
adopted. Since the comments in this second round are intended to be 
responsive to the initial comments, commenters must identify which 
proposal(s) they are responding to, whether in opposition, support, 
amplification or correction. As with initial comments, these responsive 
comments should first identify the proposed class or classes to which 
the comment is responsive, provide a summary of the argument, and then 
provide the factual and/or legal support for their argument. This 
format of class/summary/facts and/or legal argument should be repeated 
for each comment responsive to a particular class of work proposed.
    Regardless of the mode of submission (see section 4 below), all 
comments must, at a minimum, contain the legal name of the submitter 
and the entity, if any, on whose behalf the comment was submitted. If 
persons do not wish to have their address, telephone number, or email 
address publicly displayed on the Office's website, comments should not 
include such information on the document itself but should only include 
the legal name of the commenter. The Office prefers that all comments 
be submitted in electronic form and the electronic form will provide a 
place to provide the required information separately from the attached 
comment submission. However, the Office recognizes that persons may be 
unable to submit their comments through the Office's website or to 
deliver their comments in person. Therefore, comments may also be 
delivered through the United States Postal Service, addressed to the 
Office of the General Counsel, Copyright GC/I&R, PO Box 70400, 
Washington, DC 20024-0400. A comment submitted by mail or hand-delivery 
should include a cover sheet that includes the required information 
about the submitter (e.g., address, telephone, and email) and should 
not include this information in the comment itself if such information 
is not desired to be placed on the Copyright Office's website. Due to 
mail screening on Capitol Hill and possible delays in delivery, 
submission by means of the United States Postal Service is discouraged 
and there is a risk that the comment will not be received at the 
Copyright Office in time to be considered. Electronic filing or hand-
delivery will help ensure timely receipt of comments by the Office. 
Electronic comments successfully submitted through the Office's website 
will generate a confirmation receipt to the submitter.
    4. Submission of Comments
    Comments may be submitted in the following ways:
    If submitted through the Copyright Office's website: The Copyright 
Office's website will contain a submission page at: http://
www.copyright.gov/1201/comment-forms. Approximately thirty days prior 
to each applicable deadline (see DATES), the form page will be 
activated on the Copyright Office website allowing information to be 
entered into the required fields, including the name of the person 
making the submission, mailing address, telephone number, and email 
address. There will also be non-required fields for, e.g., the 
commenter's title, the organization that the commenter is representing, 
whether the commenter is likely to request to testify at public 
hearings and if so, whether the commenter is likely to prefer to 
testify in Washington, DC, or a location in California. In addition, 
commenters proposing classes of works in the first round of comments 
will be required to fill in two additional fields: (1) the proposed 
class or classes of copyrighted work(s) to be exempted, and (2) a brief 
summary of the argument(s). Commenters submitting comments in response 
to the initial proposals will similarly be required to fill in two 
additional required fields: (1) the class or classes to which the 
comment is responsive, including the initial comment numbers, and (2) a 
brief summary of the argument.
    All comments submitted electronically must be sent as an 
attachment, and must be in a single file in either Adobe Portable 
Document File (PDF) format (preferred), Microsoft Word Version 2003 or 
earlier, WordPerfect 12.0 or earlier, Rich Text Format (RTF), or ASCII 
text file format. There will be a browse button on the form that will 
allow submitters to attach the comment file to the form and then to 
submit the completed form to the Office.
    The personal information entered into the required fields on the 
form page will not be publicly posted on the Copyright Office website, 
but the Office intends to post on its website the name of the 
proponent, the proposed class and the summary of the argument, as well 
as the entire, attached comment document.

[[Page 58079]]

Only the commenter's name is required on the comment document itself 
and a commenter who does not want other personal information posted on 
the Office's website should avoid including other personal information 
on the comment itself. Except in exceptional circumstances, changes to 
the submitted comment will not be allowed and it will become a part of 
the permanent public record of this rulemaking.
    If submitted by means of the United States Postal Service or hand 
delivery:
    a. Electronic copies: Send, to the appropriate address listed 
above, two copies, each on a 3.5-inch write-protected diskette or CD-
ROM, labeled with the legal name of the person making the submission 
and the entity on whose behalf the comment was submitted, if any. The 
document itself must be in a single file in either Adobe Portable 
Document File (.pdf) format (preferred), Microsoft Word Version 2007 or 
earlier (.doc or .docx), WordPerfect Version 12.0 or earlier (.wpd) , 
Rich Text Format (.rtf), or ASCII text file (.txt) document. If the 
comment is hand delivered or mailed to the Office and the submitter 
does not wish to have the address, telephone number, or email address 
publicly displayed on the Office's website, the comment should not 
include such information on the document itself, but only the name and 
affiliation, if any, of the commenter. In that case, a cover letter 
should be included with the comment that contains the commenter's 
address, phone number, email address, and for initial comments, the 
proposed class of copyrighted work to be exempted and a brief summary 
of the argument.
    b. Paper copies: Anyone who is unable to submit a comment in 
electronic form (on the website as an attachment or by means of the 
United States Postal Service or hand delivery on disk or CD-ROM) should 
submit an original and ten paper copies by hand or by means of the 
United States Postal Service to the appropriate address listed above. 
It may not be feasible for the Office to place these comments on its 
website.
    General Requirements for all submissions: All submissions (in 
either electronic or non-electronic form delivered through the website, 
by means of the United States Postal Service by hand-delivery or by 
courier) must contain on the comment itself, the name of the person 
making the submission and his or her title and affiliation, if the 
comment is being submitted on behalf of that organization. The mailing 
address, telephone number, fax number, if any, and email address need 
not be included on the comment itself, but must be included in some 
form, e.g., on the website form or in a cover letter with the 
submission. All submissions must also include the class/summary/factual 
and/or legal argument format in the comment itself for each class of 
work proposed or for each comment responsive to a proposed exemption.
    Comments will be accepted for a 30-day period, and a form will be 
placed on the Copyright Office website at least 30 days prior to the 
deadline for submission. Initial comments will be accepted from 
November 3, 2008, until December 2, 2008, at 5:00 P.M. Eastern Standard 
Time, at which time the submission form will be removed from the 
website. The deadline for the second round of comments will be 
announced in the Notice of Proposed Rulemaking to be published in 
December, and will probably be on or about February 2, 2008.
    5. Hearings
    As mentioned above, after the conclusion of the comment periods, 
the Register intends to hold public hearings in the Spring in 
Washington, DC and in California. The Washington, DC hearings will most 
likely take place in the James Madison Memorial Building of the Library 
of Congress. The dates and confirmed location of hearings in 
Washington, DC and California, have not yet been determined. A separate 
notice for details on all hearings in this rulemaking proceeding will 
be published at a later time in the Federal Register and on the 
Copyright Office's website. In order to assist the Copyright Office in 
identifying the number of days for hearings, the comment form page will 
contain non-required fields asking whether the commenter is likely to 
request to testify and if so, in which location. Formal requests to 
testify will be solicited early in 2009.
    As noted above, following the hearings, the Copyright Office may 
request additional information from parties who have been involved in 
the rulemaking process. Such requests for responses to questions will 
take the form of a letter from the Copyright Office and will be 
addressed to particular parties involved in an issue in which more 
information is sought. These inquiries will include deadlines based on 
when the requests for information are sent. After the receipt of all 
responses to all inquiries from the Copyright Office, the Office will 
post the questions, the parties to whom the questions were sent, and 
the responses on the Copyright Office's website.
    6. Process for Untimely Submissions based on Exceptional or 
Unforeseen Circumstances
    To provide sufficient flexibility in this proceeding, in the event 
that unforeseen developments occur after the deadlines for the filing 
of initial comments, a person wishing to propose an exemption for a 
particular class of works after the specified deadline for initial 
comments may petition the Register to consider an additional exemption. 
A petition, including proposed new classes of works to be exempted, 
must be in writing and must set forth the reasons why the information 
could not have been made available earlier and why it should be 
considered by the Register after the deadline. A petition must also be 
accompanied by ten copies of a comment that meets the requirements for 
initial comments set forth in section 3 above, any new proposed 
exemption that includes the proposed class of works to be exempted, a 
summary of the argument, the factual basis for such an exemption and 
the legal argument supporting such an exemption. These materials must 
be delivered to the Copyright Office at the address listed above. A 
person wishing to file any other untimely submission may also petition 
the Register to consider such submission, but such untimely submissions 
will be disfavored. Exceptional or unforeseen circumstances generally 
entail information that did not exist at the time of the comment 
periods. The Register will make a determination whether to accept a 
petition based on the stage of the rulemaking process at which the 
request is made and the merits of the petition. A substantively 
meritorious petition may be denied if the petition comes so late in the 
process that adequate notice and comment cannot be accommodated within 
the statutory time frame of the rulemaking process. The mere fact that 
an interested party was unaware of this proceeding or of any particular 
exemptions proposed in this proceeding is not a valid justification for 
a late submission. If a petition is accepted, the Register will publish 
the proposal in the Federal Register and announce deadlines for 
comments. If a petition is denied, the Register will set forth the 
reasons for the denial in a letter to the petitioner. All petitions and 
responses will become part of the public record in this rulemaking 
process.

    October 1, 2008
Marybeth Peters,
Register of Copyrights.
[FR Doc. E8-23576 Filed 10-3-08; 8:45 am]

BILLING CODE 1410-33-S