The Register ofCopyrights United States Copyright Office· Library of Congress • 101 Independence Avenue SE· Washington., DC 20559-6000 TO: James H.Billington DATE: June 11,2010 The Librarian of congr~ FROM: Marybeth Peters ~ Register ofCopyrIghts SUBJECT: Recommendation ofthe Register of Copyrights in RM 2008-8; Rulemaking on Exemptions from Prohibition on Circumvention ofCopyright Protection Systems for Access Control Technologies I am pleased to present my recommendation relating to the rulemaking on exemptions from the prohibition on circumvention oftechnological measures that control access to copyrighted works. This document constitutes my formal recommendation., as required pursuant to 17 U.S.C. § 1201(a)(I)(C). Outline of the Recommendation I. BACKGROUND A. Legislative Requirements for Rulemaking Proceeding B. Responsibilities ofRegister of Copyrights and Librarian of Congress C. The Purpose and Focus of the Rulemaking 1. Purpose ofthe Rulemaking 2. The Necessary Showing 3. Determination of"Class o.fWorks" D. Consultation with the Assistant Secretary for Communications and Information II. SOLICITATION OF PUBLIC COMMENTS AND HEARINGS III. THE DESIGNATED CLASSES A. Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances: Recommendation of the Register of Copyrights June 11, 2010 Page 2 • Educational uses by college and university professors and by college and university film and media studies students; • Documentary filmmaking; • Noncommercial videos B. Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset. C. Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network. D. Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if: • The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and • The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law. E. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace. IV. OTHER CLASSES CONSIDERED, BUT NOT RECOMMENDED A. Subscription based services that offer DRM-protected streaming video where the provider has only made available players for a limited number of platforms, effectively creating an access control that requires a specific Recommendation of the Register of Copyrights June 11, 2010 Page 3 operating system version and/or set of hardware to view purchased material; and Motion pictures protected by anti-access measures, such that access to the motion picture content requires use of a certain platform. B. Lawfully purchased sound recordings, audiovisual works, and software programs distributed commercially in digital format by online music and media stores and protected by technological measures that depend on the continued availability of authenticating servers, when such authenticating servers cease functioning because the store fails or for other reasons; and Lawfully purchased sound recordings, audiovisual works, and software programs distributed commercially in digital format by online music and media stores and protected by technological measures that depend on the continued availability of authenticating servers, prior to the failure of the servers for technologists and researchers studying and documenting how the authenticating servers that effectuate the technological measures function. C. Software and information recorded, produced, stored, manipulated or delivered by the software, that a forensic investigator seeks to copy, activate, or reverse engineer in order to obtain evidence in a court proceeding. D. Audiovisual works delivered by digital television ("DTV") transmission intended for free, over-the-air reception by anyone, which are marked with a "broadcast flag" indicator that prevents, restricts, or inhibits the ability of recipients to access the work at a time of the recipient's choosing and subsequent to the time of transmission, or using a machine owned by the recipient but which is not the same machine that originally acquired the transmission. E. Audiovisual works embedded in a physical medium (such as Blu-Ray discs) which are marked for "down-conversion" or "down-resolutioning" (such as by the presence of an Image Constraint Token "ICT") when the work is to be conveyed through any of a playback machine's existing audio or visual output connectors, and therefore restricts the literal quantity of the embedded work available to the user (measured by visual resolution, temporal resolution, and color fidelity). F. Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format. Recommendation of the Register of Copyrights June 11, 2010 Page 4 I. BACKGROUND A. Legislative Requirements for Rulemaking Proceeding The Digital Millennium Copyright Act (“DMCA”), Pub. L. No. 105-304 (1998), was enacted to implement certain provisions of the WIPO Copyright Treaty (“WCT”) and WIPO Performances and Phonograms Treaty (“WPPT”). It established “a wide range of rules that will govern not only copyright owners in the marketplace for electronic commerce, but also consumers, manufacturers, distributors, libraries, educators, and on-line service providers”; it “define[d] whether consumers and businesses may engage in certain conduct, or use certain devices, in the course of transacting electronic commerce.”1 Title I of the Act, which added a new Chapter 12 to title 17 of the United States Code, prohibits circumvention of certain technological measures employed by or on behalf of copyright owners to protect their works ( i.e. “access controls”). Specifically, Section 1201(a)(1)(A)2 provides, in part, that “[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title.” In order to ensure that the public will have continued ability to engage in noninfringing uses of copyrighted works, such as fair use,3 subparagraph (B) limits this prohibition. It provides that the 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 three-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 a rulemaking proceeding. The rulemaking proceeding is conducted by the Register of Copyrights, who is to provide notice of the rulemaking, 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.4 The regulations, to be issued by the Librarian of Congress, announce “any class of copyrighted works for which the Librarian has determined, 1 Report of the House Committee on Commerce on the Digital Millennium Copyright Act of 1998, H.R. Rep. No. 105-551, pt. 2, at 22 (1998) (“Commerce Comm. Report”). 2 Unless otherwise stated, all statutory references hereinafter are to sections of title 17, United States Code. 3 See Commerce Comm. Report at 25-26, 35. 4 Report of the Committee of Conference on the Digital Millennium Copyright Act, H.R. Conf. Rep. No. 105-796, at 64 (1998) (“Conf. Report”). In addition, a number of statutory exceptions are codified at Section 1201(d)-(j). Recommendation of the Register of Copyrights June 11, 2010 Page 5 pursuant to the rulemaking conducted under subparagraph (C), 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.”5 This is the fourth Section 1201 rulemaking. The first rulemaking culminated in the Librarian’s issuance of a regulation