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(iv) Foreign relations or foreign activities of section 1201(a)(1) of title 17, United controls access to a work’’ is one that the United States, including confidential States Code, has determined in this ‘‘in the ordinary course of its operation, sources; sixth triennial rulemaking proceeding requires the application of information, (v) Scientific, technological, or economic that the prohibition against or a process or a treatment, with the matters relating to the national security; circumvention of technological authority of the copyright owner, to gain (vi) U.S. Government programs for 4 safeguarding nuclear materials or facilities; measures that effectively control access access to the work.’’ (vii) Vulnerabilities or capabilities of to copyrighted works shall not apply to Section 1201(a)(1), however, also systems, installations, infrastructures, persons who engage in noninfringing includes what Congress characterized as projects, plans, or protection services relating uses of certain classes of such works. a ‘‘fail-safe’’ mechanism,5 which to the national security; or This determination is based upon the requires the Librarian of Congress, (viii) The development, production, or use Recommendation of the Register of following a rulemaking proceeding, to of weapons of mass destruction. Copyrights, which was transmitted to publish any class of copyrighted works (b) [Reserved] the Librarian on October 8, 2015.1 as to which the Librarian has Dated: October 22, 2015. The below discussion summarizes the determined that noninfringing uses by Aaron Siegel, rulemaking proceeding and Register’s persons who are users of a copyrighted Alternate OSD Federal Register Liaison Recommendation, announces the work are, or are likely to be, adversely Officer, Department of Defense. Librarian’s determination, and affected by the prohibition against [FR Doc. 2015–27393 Filed 10–27–15; 8:45 am] publishes the regulatory text specifying circumvention in the succeeding three- BILLING CODE 5001–06–P the exempted classes of works. A more year period, thereby exempting that complete discussion of the rulemaking class from the prohibition for that process, the evidentiary record, and the period.6 The Librarian’s determination LIBRARY OF CONGRESS Register’s analysis can be found in the to grant an exemption is based upon the Register’s Recommendation, which is recommendation of the Register of Copyright Office posted at www.copyright.gov/1201/. Copyrights, who conducts the rulemaking proceeding.7 Congress I. Background 37 CFR Part 201 directed the Register, in turn, to consult A. Statutory Requirements with the Assistant Secretary for [Docket No. 2014–07] Congress enacted the DMCA in 1998 Communications and Information of the Department of Commerce, who oversees Exemption to Prohibition on to implement certain provisions of the the National Telecommunications and Circumvention of Copyright Protection WIPO Copyright and WIPO Information Administration (‘‘NTIA’’), Systems for Access Control Performances and Phonograms Treaties. Among other things, title I of the DMCA, in the course of formulating her Technologies 8 which added a new chapter 12 to title recommendation. AGENCY: U.S. Copyright Office, Library 17 of the U.S. Code, prohibits The primary responsibility of the of Congress. circumvention of technological Register and the Librarian in the ACTION: Final rule. measures employed by or on behalf of rulemaking proceeding is to assess copyright owners to protect access to whether the implementation of access SUMMARY: In this final rule, the Librarian their works. In enacting this aspect of controls impairs the ability of of Congress adopts exemptions to the the law, Congress observed that individuals to make noninfringing uses provision of the Digital Millennium technological protection measures of copyrighted works within the Copyright Act (‘‘DMCA’’) that prohibits (‘‘TPMs’’) can ‘‘support new ways of meaning of section 1201(a)(1). To do circumvention of technological disseminating copyrighted materials to this, the Register develops a measures that control access to users, and . . . safeguard the comprehensive administrative record copyrighted works, codified in section availability of legitimate uses of those using information submitted by 1201(a)(1) of title 17 of the United States materials by individuals.’’ 2 interested members of the public, and Code. As required under the statute, the Section 1201(a)(1) provides in makes recommendations to the Register of Copyrights, following a pertinent part that ‘‘[n]o person shall Librarian concerning whether public proceeding, submitted a circumvent a technological measure that exemptions are warranted based on that Recommendation concerning proposed effectively controls access to a work record. exemptions to the Librarian of Congress. protected under [title 17].’’ Under the Under the statutory framework, the After careful consideration, the statute, to ‘‘circumvent a technological Librarian, and thus the Register, must Librarian adopts final regulations based measure’’ means ‘‘to descramble a consider ‘‘(i) the availability for use of upon the Register’s Recommendation. scrambled work, to decrypt an copyrighted works; (ii) the availability DATES: Effective October 28, 2015. encrypted work, or otherwise to avoid, for use of works for nonprofit archival, FOR FURTHER INFORMATION CONTACT: bypass, remove, deactivate, or impair a preservation, and educational purposes; Jacqueline C. Charlesworth, General technological measure, without the (iii) the impact that the prohibition on Counsel and Associate Register of authority of the copyright owner.’’ 3 A the circumvention of technological Copyrights, by email at technological measure that ‘‘effectively measures applied to copyrighted works [email protected] or by telephone has on criticism, comment, news at 202–707–8350; Sarang V. Damle, 1 Register of Copyrights, Section 1201 reporting, teaching, scholarship, or Deputy General Counsel, by email at Rulemaking: Sixth Triennial Proceeding to research; (iv) the effect of circumvention [email protected] or by telephone at 202– Determine Exemptions to the Prohibition on of technological measures on the market Circumvention, Recommendation of the Register of for or value of copyrighted works; and 707–8350; or Stephen Ruwe, Assistant Copyrights (Oct. 2015) (‘‘Register’s General Counsel, by email at Recommendation’’). 4 [email protected] or by telephone at 202– 2 Staff of H. Comm. on the Judiciary, 105th Cong., 17 U.S.C. 1201(a)(3)(B). 5 See H.R. Rep. No. 105–551, pt. 2, at 36 (1998). 707–8350. Section-by-Section Analysis of H.R. 2281 as Passed by the United States House of Representatives on 6 See 17 U.S.C. 1201(a)(1). SUPPLEMENTARY INFORMATION: The August 4, 1998, at 6 (Comm. Print 1998). 7 17 U.S.C. 1201(a)(1)(C). Librarian of Congress, pursuant to 3 17 U.S.C. 1201(a)(3)(A). 8 Id.

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(v) such other factors as the Librarian engineering’’ activities to facilitate the Copyright Office solicited and considers appropriate.’’ 9 As noted interoperability; section 1201(g), which evaluated several proposed unlocking above, the Register must also consult exempts certain types of research into exemptions for devices other than with the Assistant Secretary who encryption technologies; section cellphones, as addressed in Proposed oversees NTIA, and report and comment 1201(h), which exempts certain Classes 12 through 15 below. activities to prevent the ‘‘access of on his views, in providing her C. Rulemaking Standards Recommendation. Upon receipt of the minors to material on the Internet’’; Recommendation, the Librarian is section 1201(i), which exempts certain In adopting the DMCA, Congress responsible for promulgating the final activities ‘‘solely for the purpose of imposed legal and evidentiary rule setting forth any exempted classes preventing the collection or requirements for the section 1201 of works. dissemination of personally identifying rulemaking proceeding, as discussed in Significantly, exemptions adopted by information’’; and section 1201(j), greater detail in the Register’s rule under section 1201(a)(1) apply only which exempts certain acts of ‘‘security Recommendation.17 Those who seek an to the conduct of circumventing a testing’’ of computers and computer exemption from the prohibition on technological measure that controls systems. circumvention bear the burden of access to a copyrighted work. Other establishing that the requirements for B. The Unlocking Consumer Choice and granting an exemption have been parts of section 1201, by contrast, Wireless Competition Act address the manufacture and provision satisfied by a preponderance of the of—or ‘‘trafficking’’ in—products and In 2014, Congress enacted the evidence. In addition, the basis for an services designed for purposes of Unlocking Consumer Choice and exemption must be established de novo circumvention. Section 1201(a)(2) bars Wireless Competition Act (‘‘Unlocking in each triennial proceeding. That said, trafficking in products and services that Act’’), effective as of August 1, 2014.13 however, where a proponent is seeking are used to circumvent technological The Unlocking Act did three things. the readoption of an existing exemption, measures that control access to First, it replaced the exemption adopted it may attempt to satisfy its burden by copyrighted works (for example, a in the 2012 triennial proceeding to demonstrating that the conditions that password needed to open a media enable certain wireless telephone led to the adoption of the prior file),10 while section 1201(b) bars handsets (i.e., cellphones) to connect to exemption continue to exist today (or trafficking in products and services used wireless communication networks—a that new conditions exist to justify the to circumvent technological measures process commonly known as cellphone exemption). Assuming the proponent succeeds in making such a that protect the exclusive rights of the ‘‘unlocking’’—with a broader version of demonstration, it is incumbent upon copyright owner in their works (for the exemption adopted by the Librarian any opponent of that exemption to rebut example, technology that prevents the in 2010. Second, the legislation such evidence by showing that the work from being reproduced).11 The provided that the circumvention permitted under the reinstated 2010 exemption is no longer justified. Librarian of Congress has no authority To establish a case for an exemption, to adopt exemptions for the anti- exemption, as well as any future exemptions to permit wireless proponents must show at a minimum trafficking prohibitions contained in (1) that uses affected by the prohibition section 1201(a)(2) or (b).12 telephone handsets or other wireless devices to connect to wireless on circumvention are or are likely to be More broadly, activities conducted noninfringing; and (2) that as a result of under the regulatory exemptions must telecommunications networks, may be initiated by the owner of the handset or a technological measure controlling still comply with other applicable laws, access to a copyrighted work, the including non-copyright provisions. device, by another person at the direction of the owner, or by a provider prohibition is causing, or in the next Thus, while an exemption may three years is likely to cause, an adverse specifically reference other laws of of commercial mobile radio or data services to enable such owner or a impact on those uses. In addition, the particular concern, any activities Librarian must also examine the conducted under an exemption must be family member to connect to a wireless network when authorized by the statutory factors listed in section otherwise lawful. 1201(a)(1): (1) The availability for use of network operator.14 This directive is Also significant is the fact that the copyrighted works; (2) the availability permanent, and is now reflected in the statute contains certain permanent for use of works for nonprofit archival, relevant regulations.15 Third, the exemptions to permit specified uses. preservation, and educational purposes; legislation directed the Librarian of These include: Section 1201(d), which (3) the impact that the prohibition on Congress to consider as part of the exempts certain activities of nonprofit the circumvention of technological current triennial proceeding whether to libraries, archives, and educational measures applied to copyrighted works ‘‘extend’’ the cellphone unlocking institutions; section 1201(e), which has on criticism, comment, news exemption ‘‘to include any other exempts ‘‘lawfully authorized reporting, teaching, scholarship, or category of wireless devices’’ based investigative, protective, information research; (4) the effect of circumvention upon the recommendation of the security, or intelligence activity’’ of a of technological measures on the market Register, who in turn is to consult with state or the federal government; section for or value of copyrighted works; and the Assistant Secretary.16 Accordingly, 1201(f), which exempts certain ‘‘reverse (5) such other factors as the Librarian as part of this rulemaking proceeding, considers appropriate. In some cases, 9 Id. weighing these factors requires the 10 13 Public Law 113–144, 128 Stat. 1751 (2014). 17 U.S.C. 1201(a)(2). consideration of the benefits that the 11 17 U.S.C. 1201(b). Subsequently, the Librarian adopted regulatory 12 See 17 U.S.C. 1201(a)(1)(E) (‘‘Neither the amendments to reflect the new legislation. See technological measure brings with exception under subparagraph (B) from the Exemption to Prohibition on Circumvention of respect to the overall creation and applicability of the prohibition contained in Copyright Protection Systems for Wireless dissemination of works in the Telephone Handsets, 79 FR 50552 (Aug. 25, 2014) subparagraph (A), nor any determination made in marketplace, in addition to any negative a rulemaking conducted under subparagraph (C), (codified at 37 CFR 201.40(b)(3), (c)). may be used as a defense in any action to enforce 14 Unlocking Act sec. 2(a), (c). impact. any provision of this title other than this 15 See 79 FR at 50554; see also 37 CFR 201.40(c). paragraph.’’). 16 Unlocking Act sec. 2(b). 17 See Register’s Recommendation at 13–18.

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Finally, when granting an exemption, the Copyright Office concluded that the pendency of the rulemaking section 1201(a)(1) specifies that the three of the petitions sought exemptions proceeding in case they wished to exemption adopted as part of this that could not be granted as a matter of comment on the proposals. In response rulemaking must be defined based on ‘‘a law, and declined to put those proposals to these letters, the Office received particular class of works.’’ 18 Among forward for public comment.22 The responses from those agencies, and also other things, the determination of the Office grouped the remaining proposed from the California Air Resources Board appropriate scope of a ‘‘class of works’’ exemptions into twenty-seven proposed (‘‘California ARB’’), which are also recommended for exemption may also classes of works. In some cases, included in the record. take into account the adverse effects an overlapping proposals were merged into Throughout this triennial proceeding, exemption may have on the market for a single combined proposed class. In as required under section 1201(a)(1), the or value of copyrighted works. other cases, individual proposals that Register has consulted with NTIA. In Accordingly, ‘‘it can be appropriate to encompassed multiple proposed uses addition to providing procedural and refine a class by reference to the use or were subdivided into multiple classes to substantive input throughout the user in order to remedy the adverse aid in the process of review. The Office rulemaking process, NTIA was effect of the prohibition and to limit the then provided detailed guidance on the represented along with Copyright Office adverse consequences of an submission of comments, including a staff at the public hearings held in Los 19 exemption.’’ number of specific legal and factual Angeles and Washington, DC NTIA areas of interest with respect to each II. History of the Sixth Triennial formally communicated its views on proposed class. Proceeding each of the proposed exemptions in The Office received nearly 40,000 recommendations delivered to the As the Register explains in the comments in response to the NPRM, the Register on September 18, 2015. NTIA’s Recommendation, the administrative vast majority of which consisted of recommendations can be viewed at process employed in the rulemaking relatively short statements of support or copyright.gov/1201/2015/2015_NTIA_ was revised for this triennial opposition without substantial legal Letter.pdf. proceeding. In particular, the Copyright argument or supporting evidence. A Office implemented certain procedural number of the longer submissions III. Summary of Register’s changes to make the process more included multimedia evidence to Recommendation accessible and understandable to the illustrate points made in the written A. Designated Classes public, allow greater opportunity for comments. participants to coordinate their efforts, After receiving and studying the Based upon the record in this encourage participants to submit written comments, the Office held seven proceeding, the Register of Copyrights effective factual and legal support for days of public hearings: In Los Angeles, recommends that the Librarian their positions, and reduce at the UCLA School of Law, from May determine that the classes of works administrative burdens on both the 19 to 21, 2015; and in Washington, DC, described below be exempt from the participants and the Office. Among at the Library of Congress, from May 26 prohibition against circumvention of other things, the procedural changes to 29, 2015. The Office heard testimony technological measures set forth in included providing commenters with from sixty-three witnesses at the section 1201(a)(1): recommended template forms to use hearings, and received additional when submitting comments, and multimedia evidence. After the 1. Proposed Classes 1 to 7: Audiovisual requiring commenters to submit hearings, the Office issued a number of Works—Educational and Derivative separate comments for each proposed follow-up questions to participants, and Uses 23 class. received responses that have been made Proponents of Proposed Classes 1 On September 17, 2014, the Copyright part of the administrative record. through 7 share the desire to circumvent Office published a Notice of Inquiry As observed by various commenting technological protection measures (‘‘NOI’’) in the Federal Register to parties, certain of the proposed employed on DVDs, Blu-ray discs and/ initiate the sixth triennial rulemaking exemptions presented issues potentially 20 or by various online streaming services proceeding. The NOI invited of concern to the Department of to access motion pictures—a category interested parties to submit petitions for Transportation (‘‘DOT’’), the under the Copyright Act that includes proposed exemptions that set forth the Environmental Protection Agency television programs and videos—in essential elements of the exemption. (‘‘EPA’’), and the Food and Drug order to engage in noninfringing uses. The Office received forty-four petitions Administration (‘‘FDA’’), and perhaps Past rulemakings have granted for proposed exemptions in response to other regulatory agencies as well. The exemptions relating to uses of motion the NOI. Copyright Office therefore sent letters to picture excerpts for commentary or Next, on December 12, 2014, the DOT, EPA and FDA informing them of criticism by college and university Office issued a Notice of Proposed faculty and staff and by kindergarten Rulemaking (‘‘NPRM’’) that reviewed Technologies, 79 FR 73856, 73859 (Dec. 12, 2014) through twelfth-grade educators, as well and grouped the proposed exemptions (‘‘NPRM’’). 22 as in noncommercial videos, set forth in the petitions.21 In the NPRM, NPRM, 79 FR at 73859. Each of these petitions sought to permit circumvention of any and all documentary films, and nonfiction TPMs that constituted ‘‘digital rights management’’ 18 multimedia e-books offering film 17 U.S.C. 1201(a)(1)(B). with respect to unspecified types of copyrighted 19 analysis. Past exemptions have been Recommendation of the Register of Copyrights works for the purpose of engaging in unidentified in RM 2005–11, Rulemaking on Exemptions from personal and/or consumer uses. Id. The Office limited to circumvention of DVDs, Prohibition on Circumvention of Copyright explained that these proposed exemptions ran afoul online distribution services, and as a Protection Systems for Access Control Technologies of the statutory requirement that ‘‘any exemptions result of using screen-capture 19 (Nov. 17, 2006). adopted as part of this rulemaking must be defined technology. 20 Exemption to Prohibition on Circumvention of based on ‘a particular class of works.’ ’’ Id. (quoting Copyright Protection Systems for Access Control 17 U.S.C. 1201(a)(1)(B) (emphasis added)). The Technologies, 79 FR 55687 (Sept. 17, 2014) Office thus concluded that ‘‘the sweeping type of 23 The Register’s analysis and conclusions for (‘‘NOI’’). exemption proposed by these three petitions’’ could these classes, including citations to the record and 21 Exemption to Prohibition on Circumvention of not be granted consistent with the standards of relevant legal authority, can be found in the Copyright Protection Systems for Access Control section 1201(a)(1). Id. Recommendation at 24–106.

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The petitions filed in this rulemaking circumvention of Blu-ray discs, to allow, for example, a sound editor and sought to readopt and to some extent remove the limitation to ‘‘short e-book author to circumvent DVDs or expand the previously granted portions’’ of works, and to broaden the Blu-ray discs to incorporate brief film exemptions, including to encompass class to cover all ‘‘audiovisual works’’ excerpts in an e-book entitled Listening Blu-ray discs (on the ground that a high- for all ‘‘educational purposes.’’ to Movies. Proponents requested definition format is required for certain Proposed Class 3: This proposed class renewal of the previously granted uses), to access audiovisual works that would allow students and faculty exemption, and expansion of that may not be motion pictures (such as participating in massive online open courses exemption to encompass any genre of video games), to permit the use of more (‘‘MOOCs’’) to circumvent access controls on multimedia e-book (as opposed to uses than ‘‘short portions’’ of motion picture lawfully made and acquired motion pictures only in nonfiction multimedia e-books excerpts, and to extend to all ‘‘fair uses’’ and other audiovisual works for purposes of offering film analysis), to allow rather than limiting the uses to criticism criticism and comment. circumvention of Blu-ray discs, to or comment. Some proponents sought to Joint Educators proposed Class 3, remove the limitation to ‘‘short expand filmmaking uses to include essentially seeking to expand the portions’’ of motion picture excerpts, narrative (or fictional) film, in addition exemption for college and university and to broaden the class to cover all to documentaries. Some proposals were faculty and students in Class 1 to ‘‘audiovisual works.’’ In general, focused on expanding the category of include MOOCs, or online distance proponents argued that the prohibition potential users of an exemption, such as education courses offered on a broad on circumvention hinders e-book to uses by museums, libraries and scale. The exemption would, for authors’ ability to criticize and comment nonprofits, or by students and faculty example, allow a professor preparing an on audiovisual works, some of which participating in massive online open online lecture about the evolution of may only be accessible through DVD, courses (‘‘MOOCs’’). The Copyright Chinese society to circumvent access Blu-ray or digitally transmitted sources. Office grouped these proposals into controls in order to incorporate video Proposed Class 6: This proposed class seven classes. clips documenting Chinese history and would allow circumvention of access Proposed Class 1: This proposed class geography. Joint Educators’ proposal controls on lawfully made and acquired would allow college and university faculty included the ability to circumvent Blu- motion pictures for filmmaking purposes. and students to circumvent access controls ray discs, to permit use of more than Class 6 was proposed by the on lawfully made and acquired motion ‘‘short portions’’ of motion picture International Documentary Association, pictures and other audiovisual works for excerpts, and to allow use of all Film Independent, Kartemquin purposes of criticism and comment. ‘‘audiovisual works’’ for all Educational Films, Inc., and National Class 1 was proposed by Professor ‘‘educational purposes.’’ Joint Educators Alliance for Media Arts and Culture Peter Decherney, the College Art contended that the prohibition on (collectively, ‘‘Joint Filmmakers’’) to Association, the International circumvention of TPMs is inhibiting the allow, for example, filmmakers to Communication Association, and the introduction of certain types of courses, circumvent access controls on material Society for Cinema and Media Studies such as film studies, on MOOC streamed online in order to incorporate (collectively, ‘‘Joint Educators’’) to platforms. excerpts of news footage into allow, for example, film studies Proposed Class 4: This proposed class documentaries. The proposal sought professors to circumvent DVDs in order would allow educators and learners in readoption of the existing exemption for to use motion picture clips in class libraries, museums and nonprofit documentary filmmaking uses, and its lectures. A class covering such uses was organizations to circumvent access controls expansion to include narrative (or adopted in the 2010 and 2012 on lawfully made and acquired motion fictional) films, to permit circumvention rulemakings. Joint Educators asked that pictures and other audiovisual works for educational purposes. of Blu-ray discs, and to remove the the exemption be expanded to include limitation to short portions of works. the ability to circumvent Blu-ray discs, Professor Hobbs proposed Class 4 to Joint Filmmakers stressed that much to remove the limitation to ‘‘short allow, for example, educators in a material is only available on DVD, Blu- portions’’ of motion picture excerpts, community center adult education ray and digitally transmitted video, and and to broaden the class to cover all program to circumvent access controls that circumvention of Blu-ray discs is ‘‘audiovisual works’’ for all in order to create video clips for necessary because, among other things, ‘‘educational purposes.’’ purposes of discussing the portrayal of distribution standards require films to Proposed Class 2: This proposed class African-American women in a popular incorporate clips of high-definition would allow kindergarten through twelfth- television show. The proposal quality. grade educators and students to circumvent encompassed ‘‘audiovisual works’’ for all ‘‘educational uses,’’ as well as the Proposed Class 7: This proposed class access controls on lawfully made and would allow circumvention of access acquired motion pictures and other ability to circumvent Blu-ray discs. controls on lawfully made and acquired audiovisual works for educational purposes. Hobbs expressed concern that the audiovisual works for the sole purpose of Petitions for Proposed Class 2 were prohibition on circumvention prevents extracting clips for inclusion in submitted by Professor Renee Hobbs participants in digital and media noncommercial videos that do not infringe and the Library Copyright Alliance literacy programs in informal learning copyright. (‘‘LCA’’), to allow, for example, a high settings from engaging in projects Class 7 was proposed by Electronic school teacher to circumvent DVDs of similar to those conducted on college Frontier Foundation (‘‘EFF’’) and the various adaptations of Shakespeare’s and university campuses. Organization for Transformative Works. works in order to create a compilation Proposed Class 5: This proposed class Proponents sought to permit, for of clips demonstrating the lasting would allow circumvention of access example, a fan of James Bond films to influence of these works. Hobbs and controls on lawfully made and acquired circumvent access controls on DVDs of LCA requested that the existing motion pictures used in connection with these films in order to incorporate brief exemption for grades K–12 be expanded multimedia e-book authorship. excerpts into a noncommercial video to include student uses rather than only Class 5 was jointly proposed by commenting on the portrayal of female uses by educators, to allow Authors Alliance and Bobette Buster to characters in those films. The proposal

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sought renewal of the existing Entertainment Software Association NTIA recommended renewing the exemption, and expansion of that (‘‘ESA’’) and the Recording Industry current exemptions for educational and exemption to Blu-ray discs and all Association of America), DVD Copy derivative uses, and expanding those ‘‘noninfringing’’ or ‘‘fair’’ uses. Control Association, and the Advanced exemptions in several respects. As a Proponents argued that the existing Access Content System Licensing general matter, NTIA proposed that all exemption has resulted in the creation Administrator (‘‘AACS LA’’). Opponents of the exemptions should encompass of a wide variety of new, noninfringing voiced parallel concerns across most of ‘‘motion pictures and similar works, and expansion of that exemption these audiovisual classes. In general, audiovisual works’’ on DVDs and Blu- to Blu-ray discs is necessary because, they contended that there are viable ray discs, or obtained via online among other things, there is a significant alternatives to circumvention that are distribution services. NTIA rejected amount of material that can only be adequate for many of the proposed uses, proposals to encompass all found in that format. including clip licensing, screen-capture ‘‘noninfringing’’ or ‘‘fair uses,’’ instead For each exemption, proponents technology, streaming platforms such as recommending a more tailored argued that the requested exemption TV Everywhere, disc-to-digital services, approach. In Class 1, NTIA would facilitate fair uses of the accessed and digital rights libraries like recommended an exemption for works—for example, because of the UltraViolet. With respect to proposals to educational uses by college and educational nature of the uses, or expand the exemptions to include Blu- university faculty and students, without because it would permit the creation of ray discs, AACS LA and Joint Creators limiting it to film studies and other a new work of authorship providing argued that the authorized courses requiring close analysis of commentary on the underlying work. circumvention of DVDs or online works, although it did not explain why Specifically, Joint Educators argued that material provides a ready alternative to elimination of that distinction was teaching, criticism, and commentary are obtain material of sufficiently high warranted. In Class 2, NTIA enumerated as favored uses under quality for all the proposed uses. recommended an exemption for K–12 section 107 and therefore, that the Opponents also urged that any educators, and for students in grades 6– proposed uses in Classes 1 and 3 for expansion of the existing exemptions 12 engaging in video projects actively colleges, universities, and MOOCs were would likely harm the market for DVDs, overseen by an instructor. In Class 3, highly likely to be fair. For Class 2, Blu-ray discs, and other licensed uses. NTIA recommended an exemption for Hobbs provided examples of educators Beyond these general points, MOOCs involving film and media using film clips as teaching tools in opponents also made specific arguments analysis, but not for students enrolled in connection with media literacy, history, such MOOCs. In Class 4, NTIA literature, and film theory, and of concerning the individual proposed classes. In Class 1, opponents urged that recommended an exemption for students using excerpts in connection instructors and students engaged in with National History Day projects, alternatives to circumvention, including screen capture, were adequate for digital media and literacy programs in arguing that these uses were fair. Hobbs libraries, museums, and nonprofit also contended that out-of-classroom classroom uses outside film studies classes. In Class 2, opponents argued organizations with an educational educational programs should be able to mission. In Classes 5 and 7, NTIA make the same uses in Class 4. that the record lacks persuasive examples of K–12 student projects that proposed renewing the exemptions for Proponents of Class 5 argued that uses nonfiction or educational multimedia e- of excerpts of motion picture clips in require circumvention and that the record did not show a need to access books offering film analysis, and for multimedia e-books intended for noncommercial videos, respectively, educational purposes are likely to be material on Blu-ray discs. Opponents and expanding them to include Blu-ray fair, citing examples of actual or opposed granting any exemption for discs, as with the other classes. Finally, prospective uses of motion picture MOOCs in Class 3 arguing, among other in Class 6, NTIA proposed an exemption excerpts in multimedia e-books for things, that the uses are not likely to be both for documentary films and for purposes of film criticism or analysis. noninfringing because the exemption ‘‘[n]arrative films portraying real events, For Class 6, Joint Filmmakers stated that would allow widespread distribution of where the prior work is used for its the proposed uses in both documentary works over the internet. With respect to biographical or historically significant and narrative films are noninfringing museum, library or nonprofit nature.’’ fair uses that provide criticism and educational programs in Class 4, commentary, education about, and opponents argued, among other things, In general, the Register recommended reporting on news and current events— that proponents had failed adequately to granting exemptions for almost all of activities that Congress has explicitly demonstrate specific adverse effects these classes; in each case, the Register identified as fair uses. Finally, Class 7 flowing from the prohibition on concluded that the uses are likely to be proponents asserted that the purposes circumvention. In Class 5, opponents fair, that alternatives to circumvention and character of noncommercial videos urged that no examples were presented were inadequate, and that the statutory are highly transformative, and in to support expanding the exemption to factors taken together weighed in favor support, submitted scholarly analysis of fictional e-books or to circumvention of of the exemption. In each of Classes 1 remix videos and evidence relating to Blu-ray discs. In Class 6, opponents through 7, the Register recommended fan video remixes that purportedly asserted that an exemption for fictional retaining the requirement in the current criticize and recontextualize the films would negatively impact the exemptions that only ‘‘short portions’’ underlying narrative works. existing market for licensing of film of works be used for purposes of For all of these audiovisual classes, clips. Finally, in Class 7, opponents ‘‘criticism or comment.’’ The Register the Office received no opposition to the argued that screen-capture software is explained that broader exemptions— renewal of the current exemptions; an adequate alternative to proposed uses covering longer portions for purposes of instead, opponents opposed expansion of Blu-ray material in noncommercial all ‘‘fair’’ or ‘‘noninfringing’’ uses—were of those exemptions. The same parties remix videos and that the existing unsupported by the record. The Register opposed all seven classes—Joint regulatory language should be refined so also explained that the exemptions Creators (representing the Motion as not to overlap with other classes should provide reasonable guidance to Picture Association of America, the addressing educational uses. the public in terms of what uses are

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likely to be fair, while at the same time Register explained that key elements of (A) Where the circumvention is undertaken mitigating undue consequences for the TEACH Act—such as the using screen-capture technology that appears copyright owners. The Register also requirements that uses be limited to to be offered to the public as enabling the found the record to not support an nonprofit educational institutions and reproduction of motion pictures after content has been lawfully acquired and decrypted, or exemption for ‘‘audiovisual works,’’ as transmissions be limited to enrolled (B) Where the motion picture is lawfully opposed to the somewhat narrower students—should be incorporated into made and acquired on a DVD protected by category of ‘‘motion pictures,’’ because the exemption to ensure that the the Content Scramble System, on a Blu-ray proponents had failed to demonstrate a exemption is appropriately limited. The disc protected by the Advanced Access need to circumvent non-motion-picture Register further found that the record Control System, or via a digital transmission audiovisual works (such as video did not support an exemption for protected by a technological measure, and games) in any of the proposed classes. student uses. where the person engaging in circumvention With respect to Class 1 in particular, reasonably believes that screen-capture With respect to Class 4, the Register software or other non-circumventing the Register recommended granting an concluded that the record did not exemption for circumvention of TPMs alternatives are unable to produce the support an exemption permitting required level of high-quality content; on DVDs, Blu-ray discs, and digital circumvention of DVDs, Blu-ray discs, (ii) For use in noncommercial videos transmissions of motion pictures by or digital transmissions in connection (including videos produced for a paid college and university faculty and with after-school or adult education commission if the commissioning entity’s use students engaged in film studies classes media literacy programs (apart from is noncommercial), (A) Where the circumvention is undertaken or other courses requiring close analysis GED programs). The Register found that of film and media excerpts. The Register using screen-capture technology that appears the proposed uses in the record could be recommended an exemption to facilitate to be offered to the public as enabling the satisfied via screen capture, and thus use of screen-capture technology for all reproduction of motion pictures after content recommended an exemption to facilitate types of courses, to address the has been lawfully acquired and decrypted, or uses of screen-capture software. (B) Where the motion picture is lawfully possibility of circumvention when using made and acquired on a DVD protected by this technology. The Register reasoned With respect to Classes 5 to 7, the Register recommended granting an the Content Scramble System, on a Blu-ray that this class (and Class 2) should disc protected by the Advanced Access continue to distinguish between exemption for circumvention of TPMs Control System, or via a digital transmission purposes requiring close analysis of film on DVDs, Blu-ray discs, and digital protected by a technological measure, and and media excerpts and more general transmissions of motion pictures for use where the person engaging in circumvention educational uses, on the ground that in nonfiction multimedia e-books reasonably believes that screen-capture screen-capture technology is an offering film analysis, in documentary software or other non-circumventing adequate substitute for the latter uses. filmmaking, and in noncommercial alternatives are unable to produce the With respect to Class 2, the Register videos. The Register also recommended required level of high-quality content; recommended granting an exemption an exemption to facilitate use of screen- (iii) For use in nonfiction multimedia e- capture technologies for these uses. For books offering film analysis, limited to circumvention of DVDs and (A) Where the circumvention is undertaken digital transmissions for educators in the multimedia e-books exemption using screen-capture technology that appears grades K–12, including accredited (Class 5), the Register recommended to be offered to the public as enabling the general educational development maintaining the limitation to e-books reproduction of motion pictures after content (‘‘GED’’) programs, in film studies or offering film analysis, finding that the has been lawfully acquired and decrypted, or other courses requiring close analysis of record did not support an exemption for (B) Where the motion picture is lawfully film and media excerpts. The Register other uses. With respect to the made and acquired on a DVD protected by found, however, that proponents filmmaking exemption (Class 6), the the Content Scramble System, on a Blu-ray submitted no examples where Blu-ray Register could not conclude, based on disc protected by the Advanced Access quality or Blu-ray-unique content was the record, that the use of motion Control System, or via a digital transmission protected by a technological measure, and required for uses in K–12 classrooms. picture clips in narrative films was, on where the person engaging in circumvention The Register also recommended an balance, likely to be noninfringing, reasonably believes that screen-capture exemption to facilitate use of screen- especially in light of the potential software or other non-circumventing capture technologies by educators in all effects on existing licensing markets for alternatives are unable to produce the types of courses. The Register found the motion picture excerpts. Finally, in required level of high-quality content; evidentiary record of proposed uses by considering the noncommercial video (iv) By college and university faculty and K–12 students to be insufficiently well exemption (Class 7), the Register students, for educational purposes, developed to recommend an exemption rejected proponents’ suggestion to (A) Where the circumvention is undertaken for DVDs, digital transmissions, or Blu- expand the exemption to encompass using screen-capture technology that appears ray discs because screen-capture to be offered to the public as enabling the ‘‘primarily noncommercial’’ videos, as reproduction of motion pictures after content software was likely to provide a ready well as opponents’ suggestion to narrow has been lawfully acquired and decrypted, or alternative for those uses. Accordingly, the exemption to certain specified (B) In film studies or other courses the Register recommended a screen- categories of noncommercial videos, requiring close analysis of film and media capture exemption to facilitate uses by finding neither change to be necessary. excerpts where the motion picture is lawfully K–12 students. Accordingly, based on the Register’s made and acquired on a DVD protected by With respect to Class 3, the Register recommendation, the Librarian adopts the Content Scramble System, on a Blu-ray disc protected by the Advanced Access recommended granting an exemption the following exemption: for circumvention of TPMs on DVDs, Control System, or via a digital transmission Blu-ray discs, and digital transmissions Motion pictures (including television protected by a technological measure, and of motion pictures by faculty of MOOCs shows and videos), as defined in 17 U.S.C. where the person engaging in circumvention 101, where circumvention is undertaken reasonably believes that screen-capture involving film studies or other courses solely in order to make use of short portions software or other non-circumventing requiring close analysis of film and of the motion pictures for the purpose of alternatives are unable to produce the media excerpts, under specified criticism or comment in the following required level of high-quality content; conditions borrowed from the TEACH instances: (v) By faculty of massive open online Act, codified at 17 U.S.C. 110(2). The (i) For use in documentary filmmaking, courses (MOOCs) offered by accredited

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nonprofit educational institutions to enabling the reproduction of motion pictures print disabled are not impeded from officially enrolled students through online after content has been lawfully acquired and accessing books in electronic formats platforms (which platforms themselves may decrypted. presents a quintessential case for an be operated for profit), for educational exemption. The Register determined purposes, where the MOOC provider through 2. Proposed Class 9: Literary Works the online platform limits transmissions to Distributed Electronically—Assistive that converting e-books into accessible the extent technologically feasible to such Technologies 24 formats is likely a noninfringing use both as a matter of fair use and under officially enrolled students, institutes Proponents of Proposed Class 9 seek copyright policies and provides copyright 17 U.S.C. 121, also known as the to allow circumvention of technological informational materials to faculty, students ‘‘Chafee Amendment,’’ which allows measures protecting literary works and relevant staff members, and applies authorized entities to create accessible distributed in electronic form (including technological measures that reasonably versions of works exclusively for use by e-books, digital textbooks, and PDF prevent unauthorized further dissemination persons who are blind, visually of a work in accessible form to others or articles) so that such works can be impaired, or print disabled. The Register retention of the work for longer than the accessed by persons who are blind, also found that TPMs are likely to have course session by recipients of a transmission visually impaired, or print disabled. The an adverse effect on noninfringing through the platform, as contemplated by 17 Librarian, upon the recommendation of activities, as many e-book titles and U.S.C. 110(2), the Register, granted an exemption in (A) Where the circumvention is undertaken literary works in electronic format (such 2012 for these purposes. using screen-capture technology that appears as electronic textbooks and PDF articles) to be offered to the public as enabling the The American Foundation for the Blind, American Council for the Blind,, are currently unavailable in accessible reproduction of motion pictures after content formats. The Register further concluded has been lawfully acquired and decrypted, or Samuelson-Glushko Technology Law & (B) In film studies or other courses Policy Clinic at Colorado Law, and LCA that all five statutory factors favored the requiring close analysis of film and media filed petitions seeking to have the exemption. Finally, like the existing excerpts where the motion picture is lawfully Librarian renew the existing exemption. exemption, the recommended made and acquired on a DVD protected by Based on these petitions, the exemption allows the intended the Content Scramble System, on a Blu-ray Copyright Office proposed the following beneficiaries of section 121 to benefit disc protected by the Advanced Access class: from the waiver on circumvention. Control System, or via a digital transmission Accordingly, based on the Register’s protected by a technological measure, and Proposed Class 9: This proposed class recommendation, the Librarian adopts would allow circumvention of access where the person engaging in circumvention the following exemption: reasonably believes that screen-capture controls on lawfully made and acquired software or other non-circumventing literary works distributed electronically for Literary works, distributed electronically, alternatives are unable to produce the purposes of accessibility for persons who are that are protected by technological measures required level of high-quality content; print disabled. This exemption has been that either prevent the enabling of read-aloud (vi) By kindergarten through twelfth-grade requested for literary works distributed functionality or interfere with screen readers educators, including of accredited general electronically, including e-books, digital or other applications or assistive educational development (GED) programs, textbooks, and PDF articles. technologies, for educational purposes, Proponents argued that reproducing (i) When a copy of such a work is lawfully obtained by a blind or other person with a (A) Where the circumvention is undertaken copies in accessible formats is a using screen-capture technology that appears disability, as such a person is defined in 17 to be offered to the public as enabling the noninfringing use, and that, while U.S.C. 121; provided, however, that the rights reproduction of motion pictures after content improvements have been made to make owner is remunerated, as appropriate, for the has been lawfully acquired and decrypted, or literary works more accessible since the price of the mainstream copy of the work as (B) In film studies or other courses last triennial rulemaking, there are still made available to the general public through requiring close analysis of film and media a substantial number of works that customary channels, or excerpts where the motion picture is lawfully cannot be accessed using accessibility (ii) When such work is a nondramatic made and acquired on a DVD protected by technologies such as text-to-speech literary work, lawfully obtained and used by the Content Scramble System, or via a digital programs. an authorized entity pursuant to 17 U.S.C. transmission protected by a technological There was no opposition to renewing 121. measure, and where the person engaging in the 2012 exemption. Significantly, the circumvention reasonably believes that 3. Proposed Classes 11 to 15: Computer Association of American Publishers, screen-capture software or other non- Programs That Enable Devices To representing book publishers, filed circumventing alternatives are unable to Connect to a Wireless Network That supportive comments indicating that it produce the required level of high-quality Offers Telecommunications and/or had no objection to a renewal of the content; Information Services (’’Unlocking’’) 25 (vii) By kindergarten through twelfth-grade existing exemption, explaining that the students, including those in accredited market does not yet offer sufficient Proposed Classes 11 through 15 general educational development (GED) accessibility to literary works. would allow circumvention of access programs, for educational purposes, where NTIA supported renewal of the controls on wireless devices such as the circumvention is undertaken using current exemption, finding that the cellphones and all-purpose tablet screen-capture technology that appears to be record regarding the state of computers to allow them to connect to offered to the public as enabling the reproduction of motion pictures after content accessibility of literary works is not the network of a different mobile has been lawfully acquired and decrypted; substantially different than it was three wireless carrier, a process commonly and years ago. known as ‘‘unlocking.’’ Wireless carriers (viii) By educators and participants in The Register recommended granting typically lock wireless devices to their nonprofit digital and media literacy programs the exemption. According to the networks when they have subsidized offered by libraries, museums and other Register, the need to ensure that persons the cost of a device at the time of nonprofit entities with an educational who are blind, visually impaired or purchase; carriers then recoup that mission, in the course of face-to-face instructional activities for educational 24 The Register’s analysis and conclusions for this 25 The Register’s analysis and conclusions for purposes, where the circumvention is class, including citations to the record and relevant these classes, including citations to the record and undertaken using screen-capture technology legal authority, can be found in the relevant legal authority, can be found in the that appears to be offered to the public as Recommendation at 127–37. Recommendation at 138–71.

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subsidy through wireless service were limited to ‘‘all-purpose’’ tablet their preferred wireless carriers, charges paid by the purchaser. computers—that is, tablet computers harming the resale value of used The Register has recommended, and that can run a wide variety of devices, and harming the environment the Librarian has adopted, exemptions programs—as opposed to devices by encouraging disposal rather than permitting unlocking of cellphones in dedicated to the consumption of reuse of devices. three prior rulemakings. Based on the particular types of content such as e- No party opposed Proposed Class 12 evidentiary record in the last triennial book readers. (all-purpose tablet computers) or proceeding, the 2012 version of the Proposed Class 14 (wearable computing Proposed Class 13: This proposed class exemption was limited to cellphones would allow the unlocking of mobile devices). Prepaid wireless carrier obtained on or before January 26, 2013. connectivity devices. ‘‘Mobile connectivity TracFone nominally filed comments in Congress enacted the Unlocking Act to devices’’ are devices that allow users to opposition to the cellphone unlocking reinstate the cellphone unlocking connect to a mobile data network through exemption in Class 11, though at bottom exemption that was adopted in 2010, either a direct connection or the creation of it was not opposed to renewal of the which lacked such a limitation. In the a local Wi-Fi network created by the device. exemption, so long as it was clear that Unlocking Act, Congress also instructed The category includes mobile hotspots and the exemption did not permit the Librarian to review any future removable wireless broadband modems. illegitimate phone trafficking—a proposal for a cellphone unlocking Class 13, covering mobile practice where subsidized prepaid exemption according to the usual connectivity devices, was proposed cellphones are purchased, unlocked, process in this triennial rulemaking, as CCA and RWA. and resold (often abroad) at a profit. The Alliance of Automobile Manufacturers well as to consider in this rulemaking Proposed Class 14: This proposed class whether to extend the cellphone would allow the unlocking of wearable (‘‘Auto Alliance’’) and General Motors unlocking exemption to other categories wireless devices. ‘‘Wearable wireless LLC (‘‘GM’’) filed opposition comments of wireless devices. As noted above, the devices’’ include all wireless devices that are in Class 13 solely to stress that any Unlocking Act also defines, on a designed to be worn on the body, including exemption should exclude ‘‘mobile’’ permanent basis, categories of persons smart watches, fitness devices, and health connectivity devices embedded in and entities that can take advantage of monitoring devices. motor vehicles, and Class 13 proponents any unlocking exemption. Class 14, covering wearable wireless agreed that such a limitation would be Consistent with Congress’s directive devices, was proposed by CCA and appropriate. Auto Alliance opposed in the Unlocking Act, the Copyright RWA. Class 15 on the ground that it is ill- Office invited proposals to continue an defined and could inadvertently sweep Proposed Class 15: This proposed class unlocking exemption for wireless in cars and trucks. would allow the unlocking of all wireless NTIA proposed adopting an telephone handsets and/or to extend the ‘‘consumer machines,’’ including smart exemption to other categories of meters, appliances, and precision-guided exemption encompassing all used wireless devices. The petitions received commercial equipment. wireless devices, without enumerating generally asked for continuation of the the types of devices to which the Class 15 was proposed by CCA, and current cellphone unlocking exemption, exemption applies. At the same time, encompassed a broad and diverse range and expansion of that exemption to NTIA acknowledged that based on the of devices and equipment, including cover additional types of devices. record in the rulemaking, it would be any ‘‘smart’’ device utilizing a data The Office grouped the petitions into appropriate to exclude one type of connection to connect to the internet or five distinct classes based on the type of wireless device—vehicle-based interact with other smart devices. CCA, device at issue, as described below: hotspots—from the exemption. however, failed to further define the The Register recommended adopting Proposed Class 11: This proposed class kinds of ‘‘smart’’ devices the exemption an unlocking exemption covering would allow the unlocking of wireless would cover beyond those already telephone handsets. ‘‘Wireless telephone wireless telephone handsets (i.e., handsets’’ includes all mobile telephones encompassed by Classes 11 through 14, cellphones), all-purpose tablet including feature phones, smart phones, and let alone the types of TPMs used by computers, mobile connectivity devices, ‘‘phablets’’ that are used for two-way voice such devices, or the methods of and wearable wireless devices. communication. circumvention. Indeed, it was not According to the Register, the unlocking Class 11, covering cellphones, was apparent from the record whether any exemption is likely to facilitate proposed by Consumers Union, the such devices actually exist. For noninfringing uses both under section Competitive Carriers Association instance, while CCA suggested that 117 and as a matter of fair use. The (‘‘CCA’’), the Institute of Scrap smart power meters would be Register further explained that, unlike Recycling Industries (‘‘ISRI’’), encompassed by the proposal, evidence the section 117 privilege, fair use is not Pymatuning Communications at the public hearing (at which CCA did limited to the owner of the computer (‘‘Pymatuning’’), and the Rural Wireless not participate) indicated that smart program, and so there is no need to limit Association (‘‘RWA’’). meters generally do not have mobile the exemption to the owner of the data (i.e., 3G/4G) connections, rendering device software. The Register also found Proposed Class 12: This proposed class the concept of ‘‘unlocking’’ irrelevant to that, as to the devices encompassed by would allow the unlocking of all-purpose tablet computers. This class would that type of device. Classes 11 to 14, proponents had encompass devices such as the Apple iPad, In general, proponents argued that provided sufficient evidence of adverse Microsoft Surface, Amazon Kindle Fire, and unlocking was permitted under section effects flowing from the inability to Samsung Galaxy Tab, but would exclude 117 of the Copyright Act, which allows unlock a device due to a TPM; in specialized devices such as dedicated e-book the owners of computer programs to contrast, proponents of Class 15, readers and dedicated handheld gaming make certain reproductions of or encompassing a broad and undefined devices. adaptations to those programs, and as a range of ‘‘consumer machines’’ and Class 12, covering all-purpose tablets, matter of fair use. They explained that ‘‘smart’’ devices, failed to make a was proposed by Consumers Union, the inability to unlock one’s wireless showing of actual adverse effects. In CCA, ISRI, Pymatuning, and RWA. As device leads to adverse effects by addition, the Register concluded that reflected in the proposal, the petitions impeding consumers’ ability to choose three of the five statutory factors tended

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to favor the proponents, while the other execute software that could not neither case, however, did BSA dispute two were neutral. otherwise be installed or run on that the noninfringing nature of jailbreaking. The recommended exemption is device, or to remove pre-installed Instead, BSA argued that the existence limited to ‘‘used’’ devices. A ‘‘used’’ software that could not otherwise be of alternatives to jailbreaking, such as device is defined as a device that has uninstalled. The Register has twice ‘‘developer editions’’ of devices that do been lawfully acquired and previously before recommended, and the Librarian not need to be jailbroken, obviate the activated on a wireless network. The has twice adopted, an exemption need for an exemption. In addition, with recommended exemption permits permitting jailbreaking of smartphones. respect to the exemption for all-purpose charities and commercial enterprises EFF filed a petition seeking a mobile computing devices in Class 17, (including bulk recyclers) to unlock jailbreaking exemption for all ‘‘mobile BSA disputed EFF’s effort to distinguish used cellphones, while excluding computing devices,’’ including wireless between all-purpose mobile computing illegitimate trafficking that seeks to telephone handsets that are capable of devices on the one hand, and desktops profit from the subsidized phones sold running a wide range of applications and laptops on the other, arguing that by prepaid wireless carriers. Although (i.e., ‘‘smartphones’’) and tablet the distinction is not sufficiently clear. some proponents called for elimination computers (‘‘tablets’’). EFF explained In response, EFF offered two further of the ‘‘used’’ requirement for that its requested exemption is not criteria to define these devices: First, cellphones and tablets—which in theory intended to extend to devices designed that they be portable, in the sense that would permit unlocking of new, primarily for the consumption of a they are ‘‘designed to be carried or subsidized devices—the Register single type of media, such as dedicated worn’’; and second, that they ‘‘come concluded that the record did not e-book readers, or to desktop or laptop equipped with an operating system that support extending the exemption in this computers. Maneesh Pangasa filed a is primarily designed for mobile use,’’ respect as the evidence did not establish separate petition seeking an exemption such as Android, iOS, Blackberry OS or a practical ability to unlock subsidized for tablet computers. The Copyright Windows Phone. devices that had never been connected Office divided these proposals into two Commenters representing automobile to a carrier. Finally, the recommended proposed classes to ensure an adequate manufacturers filed comments under exemption excludes devices embedded administrative record on which to make Class 17 raising the concern that the in motor vehicles from the exemption a recommendation. Based on these class could arguably encompass for mobile connectivity devices by petitions, the Office included the computing systems that are embedded including the condition that the devices following proposed exemptions in the in ‘‘mobile’’ automobiles and other be ‘‘portable.’’ NPRM: vehicles. EFF clarified, however, that Accordingly, based on the Register’s Class 17 was not intended to include Proposed Class 16: This proposed class software running on vehicle electronics, recommendation, the Librarian adopts would permit the jailbreaking of wireless the following exemption: telephone handsets to allow the devices to but only portable devices designed to be carried or worn by a person. (i) Computer programs that enable the run lawfully acquired software that is otherwise prevented from running, or to NTIA favored a jailbreaking following types of wireless devices to exemption for all ‘‘mobile computing connect to a wireless telecommunications remove unwanted preinstalled software from network, when circumvention is undertaken the device. devices,’’ a category which (contrary to solely in order to connect to a wireless Proposed Class 17: This proposed class EFF’s proposal) would appear to telecommunications network and such would permit the jailbreaking of all-purpose include devices that are designed connection is authorized by the operator of mobile computing devices to allow the primarily for the consumption of a such network, and the device is a used devices to run lawfully acquired software single type of media, including that is otherwise prevented from running, or device: dedicated e-book readers, which are to remove unwanted preinstalled software (A) Wireless telephone handsets (i.e., from the device. The category ‘‘all-purpose separately addressed in Proposed Class cellphones); mobile computing device’’ includes all- 18 below. Although NTIA asserted that (B) All-purpose tablet computers; purpose non-phone devices (such as the the works and TPMs at issue are (C) Portable mobile connectivity devices, Apple iPod touch) and all-purpose tablets strikingly similar and in many cases such as mobile hotspots, removable wireless (such as the Apple iPad or the Google broadband modems, and similar devices; and identical, it cited no evidence to support Nexus). The category does not include (D) Wearable wireless devices designed to that claim with respect to dedicated e- specialized devices such as e-book readers or be worn on the body, such as smartwatches book readers, handheld video game handheld gaming devices, or laptop or or fitness devices. consoles, or other dedicated media desktop computers. (ii) A device is considered ‘‘used’’ for consumption devices. purposes of this exemption when it has Relying on case law and prior The Register recommended previously been lawfully acquired and determinations of the Register, continuing the existing jailbreaking activated on the wireless telecommunications proponents argued that jailbreaking of exemption for smartphones, and network of a wireless carrier. smartphones and all-purpose mobile extending it to all-purpose mobile 4. Proposed Classes 16 and 17: computing devices constitutes fair use computing devices. As in previous Jailbreaking—Smartphones and All- of the device software. Proponents also rulemakings, the Register concluded Purpose Mobile Computing Devices 26 pointed to a series of benefits that have that jailbreaking to facilitate resulted from the existing smartphone interoperability is likely to constitute a Proposed Classes 16 and 17 address jailbreaking exemption, such as the noninfringing fair use, and that the an activity commonly known as ability to install otherwise unsupported prohibition on circumvention is having ‘‘jailbreaking,’’ which is the process of operating system upgrades and the rapid an adverse effect on this type of use. gaining access to the operating system of growth in the market for legitimate, non- Further, the Register concluded that a computing device, such as a manufacturer-approved apps, and three of the statutory factors (availability smartphone or tablet, to install and argued that similar benefits would result for use of copyrighted works, the impact if the exemption included all-purpose on criticism, comment, news reporting, 26 The Register’s analysis and conclusions for these classes, including citations to the record and mobile computing devices. teaching, scholarship, or research, and relevant legal authority, can be found in the The Business Software Alliance the effect of circumvention of Recommendation at 172–92. (‘‘BSA’’) opposed both classes. In technological measures on the market

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for or value of the copyrighted works) Software Freedom Conservancy (‘‘SFC’’) The Register recommended granting favored an exemption, while the other proposed an exemption to permit the proposed exemption, explaining that two were not implicated by these circumvention of access controls on circumvention of access controls on classes. firmware (i.e., the operating system) of smart TV firmware is likely to enable The Register also concluded, based on such smart TVs to enable installation of noninfringing uses of that firmware. the overall record, that the category of third-party software. First, it appears to be undisputed that ‘‘all-purpose mobile computing The Copyright Office included the smart TV firmware incorporates FLOSS devices’’ in Class 17 has been following proposed exemption in the applications, and that modification of meaningfully defined, but that certain NPRM: those applications would constitute a refinements were appropriate to address Proposed Class 20: This proposed class licensed, and therefore noninfringing, concerns regarding its scope. The would permit the jailbreaking of computer- use. Second, with respect to non-FLOSS recommended exemption thus embedded televisions (‘‘smart TVs’’). proprietary software included in the incorporates EFF’s suggestion to specify Asserted noninfringing uses include firmware, the Register concluded that that the devices be portable, that they be accessing lawfully acquired media on modifications to that firmware to enable designed to run a wide variety of external devices, installing user-supplied interoperability with third-party licensed applications, enabling the operating software are likely to constitute a fair applications, and that they come system to interoperate with local networks equipped with an operating system and external peripherals, and enabling use. The Register also found that the primarily designed for mobile use. The interoperability with external devices, and prohibition on circumvention is recommended exemption thus excludes improving the TV’s accessibility features adversely affecting legitimate vehicle-embedded systems, devices (e.g., for hearing-impaired viewers). The noninfringing uses of smart TV designed primarily for consumption of a TPMs at issue include firmware encryption firmware, and that the proposed specific type of media (such as e-book and administrative access controls that alternatives to circumvention, such as readers and handheld gaming devices), prevent access to the TV’s operating system. connecting a laptop computer to the TV, and computers confined to desktop or According to SFC, access to the are inadequate, because they would not laptop operating systems, such as firmware would allow various allow installation of software on the Windows 8 or Mac OS. If a hybrid noninfringing uses, including improving smart TV to improve its functioning as device can act either as a laptop or a accessibility features (such as the size of a TV, such as facilitating more tablet, the user will need to investigate closed captioning), enabling or prominent subtitles. The Register also what type of operating system it expanding the TV’s compatibility with concluded that no evidence was contains in order to determine whether peripheral hardware and external submitted to illustrate opponents’ claim the exemption applies. storage devices, and making changes to that jailbreaking of smart TVs will make Accordingly, based on the Register’s display features such as the aspect ratio. it easier to gain unauthorized access to recommendation, the Librarian adopts SFC argued that the majority of smart copyrighted content, or that it would the following exemption: TV firmware incorporates the otherwise undermine smart TVs as a manufacturer’s own proprietary platform for the consumption of Computer programs that enable smartphones and portable all-purpose mobile applications along with free, libre and expressive works. computing devices to execute lawfully open source software (‘‘FLOSS’’) Accordingly, based on the Register’s obtained software applications, where applications produced by third parties. recommendation, the Librarian adopts circumvention is accomplished for the sole SFC argued that, under the relevant the following exemption: purpose of enabling interoperability of such FLOSS licenses, smart TV owners are Computer programs that enable smart applications with computer programs on the authorized to modify the FLOSS televisions to execute lawfully obtained smartphone or device, or to permit removal applications and to run them without software applications, where circumvention of software from the smartphone or device. restriction. SFC also argued that fair use is accomplished for the sole purpose of For purposes of this exemption, a ‘‘portable enabling interoperability of such applications all-purpose mobile computing device’’ is a permits reproduction and alteration of proprietary applications to the extent with computer programs on the smart device that is primarily designed to run a television. wide variety of programs rather than for necessary to permit interoperability consumption of a particular type of media with lawfully acquired programs. 6. Proposed Class 21: Vehicle content, is equipped with an operating Proposed Class 20 was opposed by Software—Diagnosis, Repair or system primarily designed for mobile use, Joint Creators and LG Electronics U.S.A. Modification 28 and is intended to be carried or worn by an (‘‘LG’’), a manufacturer of smart TVs. Modern automobiles and agricultural individual. Opponents argued that an exemption vehicles and machinery are equipped would not facilitate noninfringing uses, 5. Proposed Class 20: Jailbreaking— with systems of interconnected 27 and was unnecessary because a laptop Smart TVs computers that monitor and control a can be connected to TV sets to view the In addition to their traditional variety of vehicle functions. These output of any applications and because functionality, many modern televisions computers are referred to as electronic LG smart TVs already provide all of the (‘‘TVs’’) have built-in software features control units, or ‘‘ECUs,’’ which are features that SFC claims can be added that can stream content over the protected by TPMs. EFF requested an only by jailbreaking. In addition, Joint internet, interact with other devices in exemption to permit circumvention of Creators raised concerns that the home, or run applications. These TPMs protecting ECU computer jailbreaking would allow the installation internet-enabled TVs are often referred programs for the purposes of diagnosis, of infringing software as well as to as ‘‘Smart TVs.’’ Smart TV firmware repair and modification of vehicles. The software such as ‘‘Popcorn Time,’’ an is often protected by TPMs that prevent Intellectual Property & Technology Law application that facilitates access to and owners of those TVs from installing Clinic of the University of Southern viewing of pirated movies. third-party software on them. The NTIA supported the proposed California Gould School of Law (‘‘IPTC exemption, on the ground that it is not 27 The Register’s analysis and conclusions for this 28 The Register’s analysis and conclusions for this class, including citations to the record and relevant materially different than the exemptions class, including citations to the record and relevant legal authority, can be found in the that have been granted in the past for legal authority, can be found in the Recommendation at 202–17. jailbreaking of smartphones. Recommendation at 218–49.

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U.S.C.’’) proposed two similar notified DOT and EPA of the pendency concerns—tended to weigh against an exemptions for agricultural machinery of the rulemaking. DOT and EPA, as exemption. specifically. well as California ARB, responded with Overall, the Register concluded that Based on these petitions, the Office varying degrees of concern about the while from a copyright perspective included the following proposed potential impact of an exemption. EPA proponents had made the case for an exemption in the NPRM: opposed any exemption, while DOT and exemption, based on the record, the Proposed Class 21: This proposed class California ARB expressed significant exemption needed to be carefully would allow circumvention of TPMs reservations. The agencies’ concerns tailored to address a number of protecting computer programs that control were focused on potential adverse concerns. Accordingly, the the functioning of a motorized land vehicle, effects on safety and the environment. recommended exemption excludes including personal automobiles, commercial For example, EPA explained that computer programs in ECUs that are motor vehicles, and agricultural machinery, vehicle modifications are often chiefly designed to operate vehicle for purposes of lawful diagnosis and repair, performed to increase engine power or entertainment and telematics systems or aftermarket personalization, modification, boost fuel economy, but that these due to insufficient evidence or other improvement. Under the exemption demonstrating a need to access such as proposed, circumvention would be modifications increase vehicle allowed when undertaken by or on behalf of emissions and thus violate the Clean Air ECUs, and out of concern that such the lawful owner of the vehicle. Act. circumvention might enable In contrast to these other agencies, unauthorized access to creative or Proponents explained that NTIA fully supported adoption of the proprietary content. The exemption also circumvention of TPMs protecting proposed exemption. NTIA believed excludes circumvention ‘‘on behalf of’’ copyrighted computer programs in that an exemption was necessary to vehicle owners, as a broader exception ECUs may be necessary to make allow consumers to continue to engage allowing third parties to engage in noninfringing uses of those programs to in the longstanding practice of working circumvention activities on behalf of diagnose and repair automobiles and on their own vehicles, and that the non- others is in tension with the anti- agricultural equipment, and to make copyright concerns raised by opponents trafficking provisions of section modifications, such as enhancing a and other agencies could be addressed 1201(a)(2) and (b). Moreover, by passing vehicle’s suspension or installing a gear by those agencies in the exercise of their the Unlocking Act—which amended with a different radius. They assert that respective regulatory authorities. NTIA section 1201 to allow unlocking of vehicle owners are entitled to use the acknowledged, however, that a delay in cellphones and other devices to be computer programs in ECUs to implementation—as recommended by carried out by third parties ‘‘at the diagnose, repair or modify vehicles as a the Register and discussed below— direction of’’ device owners—Congress matter of fair use, or under section 117. might nonetheless be appropriate to indicated its view that extending the EFF argues that absent an exemption, permit other agencies to consider and reach of an exemption to cover third- vehicle owners must take their cars to prepare for the new rule, and urged that party actors requires a legislative authorized repair shops, or purchase any such delay be as short as amendment. The exemption also expensive manufacturer-authorized practicable. expressly excludes acts of tools, to diagnose and repair their Based on the record, the Register circumvention that would violate any vehicles. Similarly, IPTC U.S.C. recommended granting an exemption. other law, including regulations explained that TPMs restricting access The Register concluded that promulgated by DOT or EPA. Finally, in to computer programs that run reproducing and altering the computer light of the significant concerns raised agricultural vehicles and machinery programs on ECUs for purposes of by DOT and EPA, the recommended place the livelihoods of farmers and facilitating diagnosis, repair and exemption will become operative twelve other business owners at risk, because modification of vehicles may constitute months from the effective date of the vehicle owners must sometimes wait a noninfringing activity as a matter of new regulation to provide these and significant periods of time before their fair use and/or under the exception set other potentially interested agencies an disabled vehicles can be repaired by an forth in section 117 of the Copyright opportunity to consider and prepare for authorized technician. Act, which permits the owner of a copy the lifting of the DMCA prohibition. The proposed exemption was of a computer program to make certain Acknowledging the views of the NTIA, opposed by the Association of copies and adaptations of the program. the Register determined that a twelve- Equipment Manufacturers, Association The Register also concluded that owners month delay was the shortest period of Global Automakers (‘‘Global of vehicles and agricultural machinery that would reasonably permit other Automakers’’), Auto Alliance, Eaton are adversely impacted as a result of agencies to consider appropriate action. Corporation, GM, John Deere, and Motor TPMs that protect the copyrighted Accordingly, based on the Register’s & Equipment Manufacturers Association computer programs on the ECUs that recommendation, the Librarian adopts (‘‘MEMA’’). In general, opponents control the functioning of their vehicles. the following exemption: argued that an exemption would not The Register further found that while facilitate noninfringing uses, and was two of the statutory factors weighed in Computer programs that are contained in and control the functioning of a motorized unnecessary in any event because favor of the exemption (availability for land vehicle such as a personal automobile, vehicle owners have alternative options, use of copyrighted works and impact on commercial motor vehicle or mechanized such as manufacturer-authorized repair criticism, comment, news reporting, agricultural vehicle, except for computer shops and tools. They also asserted that teaching, scholarship or research), and programs primarily designed for the control the proposal presented serious public two of the factors were neutral of telematics or entertainment systems for health, safety and environmental (availability for use for nonprofit such vehicle, when circumvention is a concerns. For example, users might archival, preservation and educational necessary step undertaken by the authorized purposes and the effect on the market owner of the vehicle to allow the diagnosis, circumvent in order to avoid restrictions repair or lawful modification of a vehicle on vehicle emissions imposed by federal for or value of copyrighted works), the function; and where such circumvention and state law. fifth factor—under which commenting does not constitute a violation of applicable In light of the commenters’ parties and federal agencies raised law, including without limitation regulations observations, the Copyright Office serious safety and environmental promulgated by the Department of

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Transportation or the Environmental Third, the Medical Device Research purposes, because these provisions do Protection Agency; and provided, however, Coalition (‘‘MDRC’’), a group of patients not provide sufficient assurance that the that such circumvention is initiated no and researchers, filed a petition seeking activities in which the researchers seek earlier than 12 months after the effective date an exemption to allow the to engage will be considered exempt. of this regulation. circumvention of TPMs on computer The Office received comments in 7. Proposed Classes To Permit Research programs on implanted medical devices, opposition to these proposed classes of Software Flaws, Proposed Class 25: such as pacemakers, implantable from a wide range of companies and Software—Security Research; Proposed cardioverter defibrillators, insulin organizations representing copyright Class 22: Vehicle Software—Security pumps, and continuous glucose owners. The general software security and Safety Research; Proposed Class monitors, and their corresponding research exemption in Class 25 was 27A: Medical Device Software— personal monitoring systems. MDRC’s opposed by AdvaMed, Auto Alliance, Security and Safety Research 29 petition covered two proposed uses— BSA, GM, Intellectual Property Owners The Office received a number of allowing research into software flaws Association (‘‘IPO’’), LifeScience Alley, that adversely affect the safety, security petitions for proposed exemptions to Medical Device Innovation Safety and and efficacy of medical devices, and permit circumvention of TPMs for Security Consortium, and Software allowing a patient to access the purposes of conducting good-faith Information Industry Association. The information generated by his or her own testing for and the identification, vehicle software security research device. The Office originally categorized disclosure and correction of exemption in Class 22 was opposed by the petition into a single class. The malfunctions, security flaws and Global Automakers, Auto Alliance, GM, NPRM thus described the class as vulnerabilities in computer programs. John Deere, and MEMA. The medical follows: The proponents of these security device software security exemption in exemptions observed as a general matter Proposed Class 27: This proposed class Class 27A was opposed by AdvaMed, that computer programs are pervasive in would allow circumvention of TPMs IPO, Jay Schulman, LifeScience Alley, protecting computer programs in medical modern machines and devices, and National Association of devices designed for attachment to or Manufacturers (‘‘NAM’’). In general, including vehicles, home appliances implantation in patients and in their and medical devices, and that corresponding monitoring devices, as well as opponents argued that proponents had independent security research is the outputs generated through those failed to establish that security research necessary to uncover flaws in those programs. As proposed, the exemption would activities encompassed by the computer programs. The Copyright be limited to cases where circumvention is at exemption are noninfringing, and that, Office grouped the security-related the direction of a patient seeking access to in any event, an exemption was petitions into three proposed classes. information generated by his or her own unnecessary both because of the device, or at the direction of those First, the Office received two permanent exemptions in sections conducting research into the safety, security, 1201(f), 1201(g), and 1201(j), and submissions from academic researchers and effectiveness of such devices. The seeking an exemption to permit good- proposal would cover devices such as because manufacturers frequently faith research into malfunctions, pacemakers, implantable cardioverter authorize independent security security flaws or vulnerabilities in defibrillators, insulin pumps, and continuous research. Opponents also argued that computer programs installed on all glucose monitors. any exemption for software security types of systems and devices. The Based on the record as it developed in research should also include an express NPRM described the proposed class as the course of the proceeding, the disclosure requirement, so that the follows: Register came to the conclusion that software developer or product Proposed Class 27 should be divided manufacturer has sufficient time to Proposed Class 25: This proposed class correct any flaw before its existence would allow researchers to circumvent into Proposed Class 27A, concerning access controls in relation to computer security research on medical devices, becomes more widely known and thus programs, databases, and devices for and Proposed Class 27B, concerning more susceptible to exploitation by purposes of good-faith testing, identifying, access to patient data generated by malicious actors. Relatedly, opponents disclosing, and fixing of malfunctions, medical devices. Class 27A is addressed asserted that the proposal presented security flaws, or vulnerabilities. with the other security research classes, serious public health and safety Second, EFF filed a petition seeking while 27B is separately discussed concerns. For example, opponents an exemption to allow the below. claimed that information obtained by circumvention of TPMs on computer Proponents maintained that the engaging in security research could be programs that are embedded in security of software and the devices that used by bad actors to hack into highly motorized land vehicles for purposes of execute software is of critical regulated machines and devices, researching the security or safety of that importance because security flaws pose including medical devices and vehicles. vehicle. The NPRM described the potentially serious threats, including In light of commenters’ observations, proposed class as follows: physical injury and death of the Copyright Office notified DOT, EPA individuals, property damage, and and FDA of the pendency of the Proposed Class 22: This proposed class would allow circumvention of TPMs financial harm. Proponents argued that rulemaking. All three agencies protecting computer programs that control security research is noninfringing as a responded and expressed significant the functioning of a motorized land vehicle matter of fair use and, in the case of reservations. The agencies voiced for the purpose of researching the security or vehicle security research, under the concerns about the potential effects on safety of such vehicles. Under the exemption exceptions set forth in section 117 as public health and safety; for example, as proposed, circumvention would be well. They further asserted that the DOT expressed concern that allowed when undertaken by or on behalf of permanent statutory exemptions to independent security researchers may the lawful owner of the vehicle. section 1201(a)(1)’s prohibition that are not fully appreciate the potential directed to reverse engineering (section ramifications of their acts of 29 The Register’s analysis and conclusions for these classes, including citations to the record and 1201(f)), encryption research (section circumvention on automobile safety or relevant legal authority, can be found in the 1201(g)), and security testing (section the logistical limitations affecting Recommendation at 250–320. 1201(j)) are inadequate for their potential remedial actions.

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By contrast, NTIA fully supported recommended exemption, the Register activity be used primarily to promote adoption of a broad exemption for all additionally found that legitimate the security or safety of the devices computer programs, regardless of the security research has been hindered by containing the computer programs on device on which they are run, so that TPMs that limit access to those which the research is conducted, or of good-faith security researchers can programs. those who use those devices. engage in socially beneficial work. NTIA The Register also noted that different The Register noted that in the interest believed that the concerns of other parts of the Administration appear to of adhering to Congress’s basic purpose agencies could adequately be addressed hold divergent views on issues in section 1201(j), where appropriate, by stating explicitly in the exemption surrounding security research and the the recommended exemption tracks that it does not obviate compliance with wisdom of granting an exemption for Congress’s language rather than other applicable laws. NTIA nonetheless this purpose, and that the exemption alternative formulations suggested by acknowledged the possibility that a could cover any number of highly proponents, including by expressly delay in implementation—as regulated products. Accordingly, to give excluding acts that violate any other recommended by the Register and other parts of the government sufficient law, such as the Computer Fraud and discussed below—could be appropriate opportunity to respond, the Register Abuse Act of 1986. to permit other agencies to consider and recommended that, as a general matter, Accordingly, based on the Register’s prepare for the new rule. the exemption should not go into effect recommendation, the Librarian adopts The Register found that while the until twelve months after the effective the following exemption: Class 25 proposal to allow research on date of the new regulation (as noted (i) Computer programs, where the computer programs generally was very above, the Register found that twelve circumvention is undertaken on a lawfully broad (and potentially swallowed the months was the shortest period that acquired device or machine on which the proposals in Class 22 and Class 27A), would reasonably permit other agencies computer program operates solely for the the record focused primarily on to respond). The Register, however, purpose of good-faith security research and consumer-facing products rather than recommended immediate does not violate any applicable law, large-scale industrial or government implementation of the exemption for including without limitation the Computer systems such as power or transit voting machines, on the ground that Fraud and Abuse Act of 1986, as amended systems. The record also included there was no public safety issue or other and codified in title 18, United States Code; and provided, however, that, except as to specific evidence concerning motor proffered justification for delay of this voting machines, such circumvention is vehicles, implanted medical devices aspect of the exemption. initiated no earlier than 12 months after the such as pacemakers and glucose The Register also noted the specific effective date of this regulation, and the monitors, and electronic voting concern expressed by other agencies device or machine is one of the following: machines. that acts of security research must not (A) A device or machine primarily Based on this record, the Register put members of the public at risk. The designed for use by individual consumers recommended adopting an exemption to recommended exemption thus provides (including voting machines); enable good-faith security research on that security research must be (B) A motorized land vehicle; or computer programs within devices or conducted in a controlled setting (C) A medical device designed for whole or partial implantation in patients or a machines primarily designed for use by designed to avoid harm to individuals corresponding personal monitoring system, individual consumers (including voting or the public. In the case of medical that is not and will not be used by patients machines), motorized land vehicles, and devices specifically, the recommended or for patient care. implanted medical devices and their exemption incorporates FDA’s (ii) For purposes of this exemption, ‘‘good- corresponding monitoring systems. At suggestion to exclude research on faith security research’’ means accessing a the same time, the Register concluded medical devices that are being used, or computer program solely for purposes of that the record did not support the could be used, by patients. good-faith testing, investigation and/or open-ended exemption urged by Class As explained above, a significant correction of a security flaw or vulnerability, 25 proponents, encompassing all issue with respect to the security where such activity is carried out in a exemptions involves the proper controlled environment designed to avoid computer programs on all systems and any harm to individuals or the public, and devices, including highly sensitive disclosure of security research findings, where the information derived from the systems such as nuclear power plants as the interests of the manufacturer and activity is used primarily to promote the and air traffic control systems, and that the public may both be affected by the security or safety of the class of devices or the exemption should be limited to the nature and timing of disclosure of machines on which the computer program consumer-oriented uses that were the software flaws. Indeed, Congress operates, or those who use such devices or focus of proponents’ submissions. included disclosure to the system machines, and is not used or maintained in The Register concluded that good- developer as one of the factors to be a manner that facilitates copyright faith security research into computer considered in determining a person’s infringement. programs used to operate such devices eligibility for the security testing 8. Proposed Class 23: Abandoned and machines is likely a noninfringing exemption in section 1201(j). Although Software—Video Games Requiring fair use of those programs or, in the case the Register expressed support for Server Communication 30 of vehicle software, may be a responsible disclosure of security flaws, noninfringing use under section 117. she acknowledged the difficulty of Many modern video games—which The Register also concluded that the attempting to define disclosure may be played on a personal computer permanent exemptions in sections standards in the context of this or a dedicated gaming console—require 1201(f), 1201(g), and 1201(j) are rulemaking, as opinions seem sharply a network connection to a remote server inadequate to accommodate the divided on this point. Accordingly, operated by the game’s developer to proposed research activities due to rather than incorporating an express enable core functionalities. Before some various limitations and conditions disclosure rule, the recommended games can be played at all, including in contained in those provisions. Further, exemption draws upon what the 30 The Register’s analysis and conclusions for this with respect to computer programs used Register perceives to be the basic intent class, including citations to the record and relevant to operate the types of devices and of section 1201(j) by specifying that the legal authority, can be found in the machines encompassed by the information derived from the research Recommendation at 321–53.

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single-player mode, the game must if the exemption were to permit an exemption for libraries and archives, connect to an ‘‘authentication server’’ to circumvention of TPMs on video game as well as for museums, to allow verify that the game is a legitimate copy. consoles, those consoles could be used circumvention of TPMs so that video Other games require a connection to a to play pirated video games. Opponents games can be preserved in playable ‘‘matchmaking server’’ to enable users to also urged that petitioners had failed to condition when authentication servers play the game with other people over demonstrate cognizable adverse effects, are discontinued. In accordance with the internet in multiplayer mode. In the arguing, for example, that the vast section 108, such institutions must be case of a game that relies on an majority of games can continue to be open to the public and/or to unaffiliated authentication server, the game may be played in single-player mode when researchers, and the activities at issue rendered entirely unplayable if the server support has ended, and that there must not be for commercial purposes. server connection is lost. When a are other alternative means of playing As with gamers generally, the matchmaking server is taken offline, the games in multiplayer mode without a recommended exemption for game may still be playable, though with matchmaking server, including by using preservationists does not extend to online multiplayer play disabled. a local area network. ESA also argued circumvention to enable online EFF and Kendra Albert, a student at that, at the point of sale, consumers multiplayer play, which is an activity Harvard Law School, jointly filed a receive ample notice that server support that would extend beyond the walls of petition seeking an exemption to enable may be discontinued. the preserving institution. But because those who have lawfully acquired NTIA supported adoption of the the risk of piracy is much lower in a copies of video games to access and play proposed exemption for continued preservationist setting than with respect those games when authentication or gameplay and for preservation uses, to gamers at large, the Register matchmaking servers have been both for single-player and multiplayer recommended that preservationists have permanently taken offline. As the record play. NTIA argued that gamers should the ability to circumvent TPMs developed, it became evident that the be permitted to restore access to a work controlling access to video game console proposal focused on two types of use: that they had originally been allowed to software when necessary to maintain a (1) People who wish to continue to play use. In addition, according to NTIA, console game in playable form. physical or downloaded copies of video consumers receive inconsistent notice at Accordingly, based on the Register’s games they have lawfully acquired best that developers may discontinue recommendation, the Librarian adopts (referred to in the Recommendation as support for multiplayer use, and LAN- the following exemption: ‘‘gamers’’); and (2) those who seek to enabled multiplayer play is an inadequate substitute to play over the (i) Video games in the form of computer preserve individual video games and programs embodied in physical or make them available for research and internet. downloaded formats that have been lawfully study (referred to in the Based on a review of the evidentiary acquired as complete games, when the Recommendation as ‘‘preservationists’’). record, the Register recommended an copyright owner or its authorized The Copyright Office set forth the exemption to allow continued gameplay representative has ceased to provide access to following proposed exemption in the and preservation activities when an external computer server necessary to facilitate an authentication process to enable NPRM: developer server support for a video game has ended, though one more local gameplay, solely for the purpose of: Proposed Class 23: This proposed class circumscribed than that proposed. With (A) Permitting access to the video game to allow copying and modification of the would allow circumvention of TPMs on respect to gamers, the Register lawfully acquired video games consisting of computer program to restore access to the communication with a developer-operated concluded that the record supported game for personal gameplay on a personal server for the purpose of either granting an exemption for video games computer or video game console; or authentication or to enable multiplayer that require communication with an (B) Permitting access to the video game to matchmaking, where developer support for authentication server to allow gameplay allow copying and modification of the those server communications has ended. This when the requisite server is taken computer program to restore access to the exception would not apply to video games offline. The Register explained that the game on a personal computer or video game whose audiovisual content is primarily inability to circumvent the TPM would console when necessary to allow stored on the developer’s server, such as preclude all gameplay, a significant preservation of the game in a playable form by an eligible library, archives or museum, massive multiplayer online role-playing adverse effect, and that circumvention games. where such activities are carried out without to restore access would qualify as a any purpose of direct or indirect commercial Proponents of Class 23 argued that noninfringing fair use. At the same time, advantage and the video game is not uses to enable continued gameplay or the Register determined that proponents distributed or made available outside of the multiplayer play constitute fair use, but had failed to provide persuasive support physical premises of the eligible library, that the prohibition on circumvention for an exemption for online multiplayer archives or museum. prevents owners from restoring access to play, in large part because it is not clear (ii) Computer programs used to operate games they have lawfully acquired. on the current record how the provision video game consoles solely to the extent They also stressed that the inability to of circumvention tools to multiple users necessary for an eligible library, archives or museum to engage in the preservation restore access has adverse effects on to facilitate an alternative matchmaking activities described in paragraph (i)(B). efforts to preserve video games and service could be accomplished without (iii) For purposes of the exemptions in make them available for research and running afoul of the anti-trafficking paragraphs (i) and (ii), the following study. provision in section 1201(a)(2). The definitions shall apply: The proposed class was opposed by Register also confirmed that the (A) ‘‘Complete games’’ means video games ESA and Joint Creators. They argued exemption for gamers should not extend that can be played by users without accessing that the proposed exemption was too to jailbreaking of console software or reproducing copyrightable content stored broad, would not facilitate any because such jailbreaking is strongly or previously stored on an external computer noninfringing uses, and could adversely server. associated with video game piracy. (B) ‘‘Ceased to provide access’’ means that impact the market for video games. ESA With respect to preservation uses, the copyright owner or its authorized expressed particular concern about the looking to certain aspects of section 108 representative has either issued an potential for piracy as a result of of the Copyright Act for guidance, the affirmative statement indicating that external circumvention activities, explaining that Register found that the record supported server support for the video game has ended

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and such support is in fact no longer these uses are noninfringing under The recommended exemption also available or, alternatively, server support has either the fair use doctrine or section excludes circumvention for the purpose been discontinued for a period of at least six 117. Public Knowledge asserts that of accessing design software, design months; provided, however, that server absent an exemption, 3D printer owners support has not since been restored. files or proprietary data. (C) ‘‘Local gameplay’’ means gameplay will be forced to pay more for feedstock, Accordingly, based on the Register’s conducted on a personal computer or video and innovation in the 3D printing space recommendation, the Librarian adopts game console, or locally connected personal will be adversely affected. the following exemption: computers or consoles, and not through an This proposed class was opposed by Computer programs that operate 3D online service or facility. Stratasys, Inc. (‘‘Stratasys’’), a 3D printer printers that employ microchip-reliant (D) A library, archives or museum is manufacturer. Among other things, technological measures to limit the use of considered ‘‘eligible’’ when the collections of Stratasys contended that the proposed feedstock, when circumvention is the library, archives or museum are open to uses do not qualify as noninfringing accomplished solely for the purpose of using the public and/or are routinely made under section 117 because 3D printer alternative feedstock and not for the purpose available to researchers who are not affiliated of accessing design software, design files or with the library, archives or museum. owners license rather than own the software that is installed on the 3D proprietary data; provided, however, that the 9. Proposed Class 26: Software—3D printer. Stratasys also argued that exemption shall not extend to any computer Printers 31 proponents had failed adequately to program on a 3D printer that produces goods or materials for use in commerce the physical 3D printing—also known as demonstrate cognizable adverse effects. production of which is subject to legal or ‘‘additive’’ manufacturing—is a Stratasys explained that 3D printers are regulatory oversight or a related certification technology that translates digital files used to produce medical implants, process, or where the circumvention is into physical objects by adding aerospace parts, and other goods that are otherwise unlawful. successive layers of material. Some 3D subject to safety or regulatory guidelines, and expressed concern that 10. Proposed Class 27B: Networked printer manufacturers use TPMs to limit Medical Devices—Patient Data 32 the types of material—or ‘‘feedstock’’— an exemption could permit use of that can be used in their 3D printers to inferior materials in such applications. Many modern implanted medical manufacturer-approved feedstock. Notably, this concern was reinforced by devices, such as pacemakers, Proponent Public Knowledge sought FDA, which, in a letter to the Office, implantable cardioverter defibrillators, an exemption to permit the worried that an exemption for this class insulin pumps and continuous glucose circumvention of access controls on might create unintended public health monitors, measure and record data computer programs on 3D printers with and safety risks in relation to medical about physiological developments chip-based verification systems to devices. Stratasys also expressed the taking place within the body, and enable the use of non-manufacturer- concern that an exemption could be communicate that data wirelessly to a approved feedstock in such printers. used to access proprietary design corresponding personal monitoring The requested exemption would software, design files, or data. system. Some personal monitoring encompass both the modifications NTIA favored granting the proposed systems, in turn, transmit data to a necessary to make a 3D printer accept exemption, on the ground that it would hospital or monitoring company, and alternative feedstock, and potentially benefit consumers and fuel innovation ultimately to the patient’s physician. further modifications to allow the use of by reducing costs of feedstock and by Increasingly, these transmissions of data feedstock consisting of material that is allowing the use of new types of are protected by TPMs, including different from what a 3D printer has feedstock. Although NTIA encryption schemes. MDRC requested been designed to use (e.g., metal instead acknowledged concerns that 3D-printed an exemption that would allow a of plastic). parts might use inferior materials, it patient, or persons acting on behalf of The Copyright Office set forth the concluded that the exemption should the patient, to circumvent TPMs on following proposed exemption in the not attempt to address concerns about these transmissions so that the patient is NPRM: quality control. able to access the data generated by his The Register recommended granting Proposed Class 26: This proposed class or her own medical device and any an exemption for 3D printers with chip- corresponding personal monitoring would allow circumvention of TPMs on based verification systems, explaining firmware or software in 3D printers to allow system, without the need to visit a use of non-manufacturer-approved feedstock that the proposed uses of operating hospital or doctor’s office. in the printer. system software to permit the use of As explained above, MDRC’s petition alternative feedstock are likely According to Public Knowledge, non- also encompassed security research into noninfringing as a matter of fair use or medical device software. The Office manufacturer-approved feedstock is under section 117, and that the often much less expensive than that accordingly set forth the following class prohibition on circumvention appears to in the NPRM: provided by the manufacturer. In be adversely affecting the proposed addition, use of feedstock composed of uses. At the same time, the Register Proposed Class 27: The proposed class would allow circumvention of TPMs a different material may require observed that proponents’ proposal— modification of the printer’s operating protecting computer programs in medical and the evidence offered in support— devices designed for attachment to or system software, for example, to change was focused largely on nonindustrial preset variables such as the rate at implantation in patients and in their uses of printers rather than the sorts of corresponding monitoring devices, as well as which the heated feedstock is extruded uses that could present the types of the outputs generated through those to create the object or the temperature safety and regulatory concerns programs. As proposed, the exemption would of the extrusion nozzle. According to highlighted by Stratasys and FDA. In be limited to cases where circumvention is at Public Knowledge, the reproductions light of the record, and to address the the direction of a patient seeking access to and adaptations necessary to engage in safety and regulatory issues, the information generated by his or her own recommended exemption excludes 31 The Register’s analysis and conclusions for this 32 The Register’s analysis and conclusions for this class, including citations to the record and relevant circumvention of TPMs on 3D printers class, including citations to the record and relevant legal authority, can be found in the that are used to print objects that are legal authority, can be found in the Recommendation at 356–77. subject to legal or regulatory oversight. Recommendation at 378–403.

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device, or at the direction of those own medical data, but argued that this In addition, the Register concluded that conducting research into the safety, security, right is satisfied by obtaining data via the statutory factors favor an exemption. and effectiveness of such devices. The authorized means, such as through a In light of concerns about the effect of proposal would cover devices such as patient’s health care provider. pacemakers, implantable cardioverter circumvention on the battery life of Opponents also relied heavily on the defibrillators, insulin pumps, and continuous implanted medical devices, the Register claim that the exemption would create glucose monitors. recommended that the exemption reflect health and safety concerns. For As also noted above, the Register example, opponents contended that the approach suggested by MDRC, so it concluded that Proposed Class 27 requesting data from implanted devices is limited to passively accessing data should be divided into Proposed Class at an abnormally high rate could reduce that is already being generated or 27A, concerning security research, and the battery life of such devices. transmitted by the device. Further, as Proposed Class 27B, concerning patient Opponents suggested that the Copyright suggested by FDA, the recommended data, to allow the two types of uses to Office allow an opportunity for FDA to exemption expressly provides that any be separately analyzed. Class 27A is provide input on the proposed actions taken under the exemption must addressed with the other security exemption. be compliant with all applicable laws research-related classes above. A In light of opponents’ comments, the and regulations. The recommended discussion of Class 27B follows. Office advised FDA of the pendency of exemption does not permit MDRC explained that an exemption to this proceeding. In a responsive letter to circumvention ‘‘at the direction of a circumvent TPMs protecting medical the Office, FDA expressed concern device data would give patients real- patient,’’ as a broader exception about facilitating access to data that allowing third parties to engage in time access to their own health data, includes patient health information or allowing them, for example, to circumvention activities on behalf of personally identifiable information, others could implicate the anti- immediately detect major health risks or noting that the use of such data is facilitate highly personalized treatment. trafficking provisions of section subject to government regulation. FDA 1201(a)(2) and (b). Unlike the As framed by MDRC, the exemption recommended that any exemption recommended exemptions for security would provide access only to TPM- indicate that it was not intended to protected data outputs of medical override the regulations of other federal research and vehicle diagnosis, repair devices, not to computer programs agencies. and modification, the Register contained within medical devices or NTIA supported the proposed recommended that the exemption for their corresponding monitoring systems. exemption, explaining among other access to patient data be effective Although MDRC explained that such things that the exemption would allow without delay because the passive data is uncopyrightable to the extent it patients to see and react to data monitoring of data transmissions did merely consists of physiological facts, collected by their devices in real time. not appear to present any immediate such as a patient’s blood glucose level, NTIA also concluded that the safety or health concerns. it expressed concern that the data exemption is unlikely to adversely affect Accordingly, based on the Register’s outputs of some devices may constitute the operation of the medical device copyrightable compilations. MDRC recommendation, the Librarian adopts itself, based on MDRC’s assertion that the following exemption: asserted that the proposed use of such data would be passively intercepted as compilations would be a fair use, and it is wirelessly transmitted from the Literary works consisting of compilations urged the Office to adopt an exemption device or monitoring system. of data generated by medical devices that are covering such circumstances. MDRC The Register recommended granting wholly or partially implanted in the body or explained that the prohibition on the proposed exemption. The Register by their corresponding personal monitoring circumvention adversely affects observed that in many cases, data systems, where such circumvention is patients’ ability to monitor their own outputs generated by devices would undertaken by a patient for the sole purpose health in real time, and that those likely be uncopyrightable, and that in of lawfully accessing the data generated by adverse effects are likely to increase such cases, section 1201(a)(1)—which is his or her own device or monitoring system because FDA has encouraged limited to works protected under title and does not constitute a violation of manufacturers to impose TPMs on data 17—would not apply. The Register applicable law, including without limitation outputs. Responding to concerns about noted, however, that some data outputs the Health Insurance Portability and the impact of such an exemption on the could qualify for protection as literary Accountability Act of 1996, the Computer battery life of implanted devices, MDRC works if they reflect a sufficiently Fraud and Abuse Act of 1986 or regulations explained that the exemption could be original selection and presentation of of the Food and Drug Administration, and is limited to passive monitoring of data data, and that opponents themselves accomplished through the passive that is already being transmitted by the agreed that such outputs could be monitoring of wireless transmissions that are medical device or monitoring system. subject to copyright. Accordingly, the already being produced by such device or The Office received comments in Register concluded that an exemption monitoring system. opposition to the proposed exemption would be appropriate to enable patients’ B. Classes Considered but Not from AdvaMed, IPO, LifeScience Alley, access to their own medical data as Recommended and NAM. AdvaMed agreed with MDRC embodied in protectable data that in certain circumstances, the compilations generated by implanted Based upon the record in this selection and arrangement of data medical devices and corresponding proceeding, the Register of Copyrights generated by a medical device might be personal monitoring systems. The recommends that the Librarian copyrightable as a compilation. Register concluded that accessing one’s determine that the following classes of Opponents, however, provided little own medical data is likely to be a fair works shall not be exempt from the argument to counter MDRC’s claim that and noninfringing use, and that TPMs prohibition against circumvention of patient access to such medical data on that data are likely to have an technological measures set forth in constitutes a noninfringing fair use. adverse impact on such access, section 1201(a)(1): Indeed, they conceded that patients especially as TPMs become more have an ‘‘inherent right’’ to access their prevalent in response to FDA guidance.

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1. Proposed Classes 8 and 10: proponents argued that reconsideration reaffirmed judicial reluctance to Audiovisual Works and Literary Works of that position was warranted in light embrace a general space-shifting Distributed Electronically—Space- of a recent district court decision, Fox privilege. 33 34 Shifting and Format-Shifting Broadcasting Co. v. Dish Network LLC, At the same time, the Register Proposed Classes 8 and 10 would as well as certain statements from recognized the consumer appeal of the legislative history of certain aspects of have permitted circumvention of proposals, and marketplace efforts to the Copyright Act, including a technological measures protecting meet consumer demand for accessing discussion of how the creation of a motion pictures, e-books, and other movies and books in a wide variety of limited copyright in sound recordings audiovisual or literary works to allow formats. According to the Register, the might impact home audio recording. users to view the materials on alternate policy judgments surrounding the devices for personal use or to create Opponents urged that noncommercial space- and format-shifting are not creation of a novel exception for space- back-up copies. Broadly speaking, this or format-shifting of copyrighted works activity is referred to as ‘‘space-shifting’’ established fair uses under the law. They further argued that, in any event, are complex and thus best left to and, in some cases, ‘‘format-shifting.’’ Congress or the courts. Public Knowledge requested an an exemption is unwarranted in light of exemption to engage broadly in the continued growth of licensed digital 2. Proposed Class 18: Jailbreaking— noncommercial space-shifting of motion distribution services that provide Dedicated E-Book Readers 36 pictures distributed on DVDs, Blu-ray meaningful alternatives to discs, and downloaded files. Alpheus circumvention, including digital rights This class would have allowed Madsen requested an exemption to locker services such as UltraViolet and circumvention of technological allow circumvention of access controls Disney Movies Anywhere and disc-to- measures protecting dedicated e-book on DVDs specifically in order to play digital services such as VUDU and readers, such as Amazon’s Kindle the DVDs on the Linux operating Flixter that allow consumers to convert Paperwhite, to run lawfully acquired system. These overlapping exemptions previously purchased DVDs or Blu-ray third-party applications or software on were combined into the following class: discs into high-quality digital files. such devices. Maneesh Pangasa filed a According to opponents, an exemption petition seeking this exemption, and the Proposed Class 8: This proposed class that allowed broad-based space- or would allow circumvention of access NPRM described the class as follows: format-shifting would undermine not controls on lawfully made and acquired Proposed Class 18: This proposed class audiovisual works for the purpose of only the existing markets for DVDs and would permit the jailbreaking of dedicated e- noncommercial space-shifting or format- Blu-ray discs but also these emerging book readers to allow those devices to run shifting. This exemption has been requested online distribution models. for audiovisual material made available on NTIA, as it has in the past, supported lawfully acquired software that is otherwise DVDs protected by CSS, Blu-ray discs what it termed a ‘‘narrowed version’’ of prevented from running. protected by AACS, and TPM-protected an exemption to allow circumvention Pangasa, however, failed to submit online distribution services. when the work is not accompanied by further written comments or evidentiary an additional copy of the work in an Christopher Meadows, in turn, material in support of the petition and alternate digital format. In NTIA’s view, proposed an exemption to engage in did not participate in the public noncommercial space- or format-shifting the exemption is an issue of consumer hearings. The written comments that of e-books, to allow consumers to view protection, although NTIA were received in connection with this TPM-protected e-books on alternate acknowledged the broader debate about class were abbreviated and did not offer viewing platforms and to create back-up the merits and legality of copies. The proposed exemption was noncommercial space-shifting. specific factual information or legal described as follows: The Register recommended against argument in support of the exemption. the adoption of a proposed exemption, At the public hearing, proponent Jay Proposed Class 10: This proposed class Freeman briefly mentioned that people would allow circumvention of access on the ground that the law of fair use, controls on lawfully made and acquired as it stands today, does not sanction have jailbroken e-book readers to install literary works distributed electronically for broad-based space-shifting or format- screen savers or achieve other the purpose of noncommercial space-shifting shifting. The Register rejected functionality, but no further evidence or format-shifting. This exemption has been proponents’ attempt to rely on the Dish was presented in relation to this class. requested for literary works distributed Network case, explaining that the uses at There were no opposition comments electronically [as] e-books. issue there were much more filed. For both classes, proponents argued circumscribed than the uses proposed Although, as part of its discussion of that space- and format-shifting for for this exemption. In particular, the the jailbreaking exemptions for personal, noncommercial uses are fair service at issue in Dish Network smartphones and all-purpose mobile uses. In the past four rulemakings, the included many safeguards to prevent computing devices, NTIA expressed Register has declined to recommend, unfettered use of the relevant content, support for a jailbreaking exemption for including limitations on the length of and the Librarian has declined to adopt, dedicated e-book readers, NTIA did not time content would be available on the an exemption for such uses because the point to anything specific in the record device to which a work is transferred. proponents had failed to establish a to support the requested exemption. legal or factual record sufficient to Accordingly, the Register concluded establish that the space- or format- that the case was both factually and In light of the insufficiency of factual shifting of audiovisual works, e-books, legally distinguishable. On the other or legal support for the proposed and other copyrighted works constitutes hand, the recent case of Fox News exemption, the Register declined to a noninfringing use. In this rulemaking, Network, LLC v. TVEyes Inc.,35 recommend it.

33 The Register’s analysis and conclusions for 34 No. CV 12–4529 DMG (SHx), 2015 WL 36 The Register’s analysis and conclusions for this these classes, including citations to the record and 1137593, at *30–31 (C.D. Cal. Jan. 20, 2015). class, including citations to the record and relevant relevant legal authority, can be found in the 35 No. 13 Civ. 5315 (AKH), 2015 WL 5025274 legal authority, can be found in the Recommendation at 107–26. (S.D.N.Y. Aug. 25, 2015). Recommendation at 193–94.

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3. Proposed Class 19: Jailbreaking— NTIA concluded that the record did not works, as designated above, so that the Video Game Consoles 37 support a broader exemption, as the prohibition against circumvention of Maneesh Pangasa filed a petition record is ‘‘significantly less robust and technological measures that effectively proposing an exemption to permit detailed than it was in the last control access to copyrighted works jailbreaking of home video game rulemaking.’’ shall not apply to persons who engage consoles for an assortment of asserted The Register concluded that the in noninfringing uses of those particular noninfringing uses, including installing record in this rulemaking did not classes of works. alternative operating systems. The provide a basis for departing from her Dated: October 20, 2015. Librarian rejected a similar exemption 2012 recommendation that an Maria A. Pallante, in 2012 because of substantial concerns exemption for video game console Register of Copyrights and Director of the about video game piracy. The Copyright jailbreaking should be denied. U.S. Copyright Office. According to the Register, the record Office set forth the following proposal Determination of the Librarian of in the NPRM: was not materially different from that considered in 2012, and included Congress Proposed Class 19: This proposed class evidence demonstrating that Having duly considered and accepted would permit the jailbreaking of home video jailbreaking of video game consoles game consoles. Asserted noninfringing uses the Recommendation of the Register of include installing alternative operating continues to be closely associated with Copyrights, which Recommendation is systems, running lawfully acquired video game piracy, thus undermining hereby incorporated by reference, the applications, preventing the reporting of the value of console software as a secure Librarian of Congress, pursuant to 17 personal usage information to the distribution platform. The Register also U.S.C. 1201(a)(1)(C) and (D), hereby manufacturer, and removing region locks. concluded that the need to engage in publishes as a new rule the classes of The requested exemption would apply both console repair did not provide a basis copyrighted works that shall for a three- to older and currently marketed game for an exemption in light of the year period be subject to the exemption consoles. availability of authorized repair services provided in 17 U.S.C. 1201(a)(1)(B) from Pangasa failed to file supporting and the ability of proponents and others the prohibition against circumvention of comments or participate in the public to perform repairs without the need to technological measures that effectively hearings, and the brief written circumvent. control access to copyrighted works set comments filed by other parties 4. Proposed Class 24: Abandoned forth in 17 U.S.C. 1201(a)(1)(A). provided scant support for the Software—Music Recording Software 38 exemption. The limited amount of List of Subjects in 37 CFR Part 201 factual support offered in written This proposed exemption would have Copyright, Exemptions to prohibition comments—concerning academic allowed circumvention of a dongle-like against circumvention. access control that is allegedly no longer research projects and ‘‘homebrew’’ Final Regulations video games—largely mirrored factual supported by the developer or copyright claims that were not persuasive in the owner and protects a specific type of For the reasons set forth in the 2012 proceeding. At the public hearing, music recording software, Ensoniq preamble, 37 CFR part 201 is amended the representative of commenting party PARIS. Three individuals proposed this as follows: exemption, Richard Kelley, James iFixit provided some additional PART 201—GENERAL PROVISIONS information regarding certain types of McCloskey, and Michael Yanoska, and video game console repairs for which the Copyright Office set forth the ■ 1. The authority citation for part 201 jailbreaking might be useful. At the following proposal in the NPRM: continues to read as follows: same time, however, he acknowledged Proposed Class 24: This proposed class Authority: 17 U.S.C. 702 that the referenced repairs could be would allow circumvention of access undertaken without circumvention. controls consisting of the PACE content ■ 2. Section 201.40 is amended by Class 19 was opposed by ESA and protection system, which restricts access to revising paragraph (b) and removing Joint Creators. As in 2012, opponents the full functionality of lawfully acquired paragraph (d). provided substantial evidence that Ensoniq PARIS music recording software. The revision reads as follows: console jailbreaking is closely tied to No evidence or argument to support § 201.40 Exemption to prohibition against video game piracy. In response to this exemption was submitted after the circumvention. iFixit’s concerns about console repair, initial petition phase of the proceeding. * * * * * ESA observed that all major console The class was opposed by Joint Creators, (b) Classes of copyrighted works. manufacturers offer repair services for who raised concerns about the lack of Pursuant to the authority set forth in 17 consoles still under warranty at no supporting evidence. U.S.C. 1201(a)(1)(C) and (D), and upon charge, and for out-of-warranty consoles In light of the incomplete record, the recommendation of the Register of for prices ranging from $99 to $149. NTIA and the Register declined to Copyrights, the Librarian has iFixit agreed with this assessment. recommend granting the exemption. determined that the prohibition against NTIA supported an exemption limited C. Conclusion circumvention of technological to repair of malfunctioning hardware for measures that effectively control access systems that are obsolete or no longer Having considered the evidence in the to copyrighted works set forth in 17 covered by manufacturer warranty, on record, the contentions of the U.S.C. 1201(a)(1)(A) shall not apply to the ground that to use an authorized commenting parties, and the statutory persons who engage in noninfringing repair service, the owner must send the objectives, the Register of Copyrights uses of the following classes of console to the manufacturer and pay a has recommended that the Librarian of copyrighted works: ‘‘substantial’’ fee. At the same time, Congress publish certain classes of (1) Motion pictures (including television shows and videos), as defined 37 The Register’s analysis and conclusions for this 38 The Register’s analysis and conclusions for this class, including citations to the record and relevant class, including citations to the record and relevant in 17 U.S.C. 101, where circumvention legal authority, can be found in the legal authority, can be found in the is undertaken solely in order to make Recommendation at 195–201. Recommendation at 354–55. use of short portions of the motion

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pictures for the purpose of criticism or (A) Where the circumvention is general educational development (GED) comment in the following instances: undertaken using screen-capture programs, for educational purposes, (i) For use in documentary technology that appears to be offered to (A) Where the circumvention is filmmaking, the public as enabling the reproduction undertaken using screen-capture (A) Where the circumvention is of motion pictures after content has technology that appears to be offered to undertaken using screen-capture been lawfully acquired and decrypted, the public as enabling the reproduction technology that appears to be offered to or of motion pictures after content has the public as enabling the reproduction (B) In film studies or other courses been lawfully acquired and decrypted, of motion pictures after content has requiring close analysis of film and or been lawfully acquired and decrypted, media excerpts where the motion (B) In film studies or other courses or picture is lawfully made and acquired requiring close analysis of film and (B) Where the motion picture is on a DVD protected by the Content media excerpts where the motion lawfully made and acquired on a DVD Scramble System, on a Blu-ray disc picture is lawfully made and acquired protected by the Content Scramble protected by the Advanced Access on a DVD protected by the Content System, on a Blu-ray disc protected by Control System, or via a digital Scramble System, or via a digital the Advanced Access Control System, or transmission protected by a transmission protected by a via a digital transmission protected by a technological measure, and where the technological measure, and where the technological measure, and where the person engaging in circumvention person engaging in circumvention person engaging in circumvention reasonably believes that screen-capture reasonably believes that screen-capture reasonably believes that screen-capture software or other non-circumventing software or other non-circumventing software or other non-circumventing alternatives are unable to produce the alternatives are unable to produce the alternatives are unable to produce the required level of high-quality content; required level of high-quality content; (vii) By kindergarten through twelfth- required level of high-quality content; (v) By faculty of massive open online grade students, including those in (ii) For use in noncommercial videos courses (MOOCs) offered by accredited accredited general educational (including videos produced for a paid nonprofit educational institutions to development (GED) programs, for commission if the commissioning officially enrolled students through educational purposes, where the entity’s use is noncommercial), online platforms (which platforms (A) Where the circumvention is circumvention is undertaken using themselves may be operated for profit), undertaken using screen-capture screen-capture technology that appears for educational purposes, where the technology that appears to be offered to to be offered to the public as enabling MOOC provider through the online the public as enabling the reproduction the reproduction of motion pictures platform limits transmissions to the of motion pictures after content has after content has been lawfully acquired extent technologically feasible to such been lawfully acquired and decrypted, and decrypted; and officially enrolled students, institutes or (viii) By educators and participants in (B) Where the motion picture is copyright policies and provides nonprofit digital and media literacy lawfully made and acquired on a DVD copyright informational materials to programs offered by libraries, museums protected by the Content Scramble faculty, students and relevant staff and other nonprofit entities with an System, on a Blu-ray disc protected by members, and applies technological educational mission, in the course of the Advanced Access Control System, or measures that reasonably prevent face-to-face instructional activities for via a digital transmission protected by a unauthorized further dissemination of a educational purposes, where the technological measure, and where the work in accessible form to others or circumvention is undertaken using person engaging in circumvention retention of the work for longer than the screen-capture technology that appears reasonably believes that screen-capture course session by recipients of a to be offered to the public as enabling software or other non-circumventing transmission through the platform, as the reproduction of motion pictures alternatives are unable to produce the contemplated by 17 U.S.C. 110(2), after content has been lawfully acquired required level of high-quality content; (A) Where the circumvention is and decrypted. (iii) For use in nonfiction multimedia undertaken using screen-capture (2) Literary works, distributed e-books offering film analysis, technology that appears to be offered to electronically, that are protected by (A) Where the circumvention is the public as enabling the reproduction technological measures that either undertaken using screen-capture of motion pictures after content has prevent the enabling of read-aloud technology that appears to be offered to been lawfully acquired and decrypted, functionality or interfere with screen the public as enabling the reproduction or readers or other applications or assistive of motion pictures after content has (B) In film studies or other courses technologies, been lawfully acquired and decrypted, requiring close analysis of film and (i) When a copy of such a work is or media excerpts where the motion lawfully obtained by a blind or other (B) Where the motion picture is picture is lawfully made and acquired person with a disability, as such a lawfully made and acquired on a DVD on a DVD protected by the Content person is defined in 17 U.S.C. 121; protected by the Content Scramble Scramble System, on a Blu-ray disc provided, however, that the rights System, on a Blu-ray disc protected by protected by the Advanced Access owner is remunerated, as appropriate, the Advanced Access Control System, or Control System, or via a digital for the price of the mainstream copy of via a digital transmission protected by a transmission protected by a the work as made available to the technological measure, and where the technological measure, and where the general public through customary person engaging in circumvention person engaging in circumvention channels, or reasonably believes that screen-capture reasonably believes that screen-capture (ii) When such work is a nondramatic software or other non-circumventing software or other non-circumventing literary work, lawfully obtained and alternatives are unable to produce the alternatives are unable to produce the used by an authorized entity pursuant to required level of high-quality content; required level of high-quality content; 17 U.S.C. 121. (iv) By college and university faculty (vi) By kindergarten through twelfth- (3)(i) Computer programs that enable and students, for educational purposes, grade educators, including of accredited the following types of wireless devices

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to connect to a wireless Protection Agency; and provided, computer or video game console when telecommunications network, when however, that such circumvention is necessary to allow preservation of the circumvention is undertaken solely in initiated no earlier than 12 months after game in a playable form by an eligible order to connect to a wireless the effective date of this regulation. library, archives or museum, where telecommunications network and such (7)(i) Computer programs, where the such activities are carried out without connection is authorized by the operator circumvention is undertaken on a any purpose of direct or indirect of such network, and the device is a lawfully acquired device or machine on commercial advantage and the video used device: which the computer program operates game is not distributed or made (A) Wireless telephone handsets (i.e., solely for the purpose of good-faith available outside of the physical cellphones); security research and does not violate premises of the eligible library, archives (B) All-purpose tablet computers; any applicable law, including without or museum. (C) Portable mobile connectivity limitation the Computer Fraud and (ii) Computer programs used to devices, such as mobile hotspots, Abuse Act of 1986, as amended and operate video game consoles solely to removable wireless broadband modems, codified in title 18, United States Code; the extent necessary for an eligible and similar devices; and and provided, however, that, except as library, archives or museum to engage in (D) Wearable wireless devices to voting machines, such circumvention the preservation activities described in designed to be worn on the body, such is initiated no earlier than 12 months paragraph (i)(B). as smartwatches or fitness devices. after the effective date of this regulation, (iii) For purposes of the exemptions in (ii) A device is considered ‘‘used’’ for and the device or machine is one of the paragraphs (i) and (ii), the following purposes of this exemption when it has following: definitions shall apply: previously been lawfully acquired and (A) A device or machine primarily (A) ‘‘Complete games’’ means video activated on the wireless designed for use by individual games that can be played by users telecommunications network of a consumers (including voting machines); without accessing or reproducing wireless carrier. (B) A motorized land vehicle; or copyrightable content stored or (4) Computer programs that enable (C) A medical device designed for previously stored on an external smartphones and portable all-purpose whole or partial implantation in computer server. mobile computing devices to execute patients or a corresponding personal (B) ‘‘Ceased to provide access’’ means lawfully obtained software applications, monitoring system, that is not and will that the copyright owner or its where circumvention is accomplished not be used by patients or for patient authorized representative has either for the sole purpose of enabling care. issued an affirmative statement interoperability of such applications (ii) For purposes of this exemption, indicating that external server support with computer programs on the ‘‘good-faith security research’’ means for the video game has ended and such smartphone or device, or to permit accessing a computer program solely for support is in fact no longer available or, removal of software from the purposes of good-faith testing, alternatively, server support has been smartphone or device. For purposes of investigation and/or correction of a discontinued for a period of at least six this exemption, a ‘‘portable all-purpose security flaw or vulnerability, where months; provided, however, that server mobile computing device’’ is a device such activity is carried out in a support has not since been restored. that is primarily designed to run a wide controlled environment designed to (C) ‘‘Local gameplay’’ means variety of programs rather than for avoid any harm to individuals or the gameplay conducted on a personal consumption of a particular type of public, and where the information computer or video game console, or media content, is equipped with an derived from the activity is used locally connected personal computers or operating system primarily designed for primarily to promote the security or consoles, and not through an online mobile use, and is intended to be safety of the class of devices or service or facility. carried or worn by an individual. machines on which the computer (D) A library, archives or museum is (5) Computer programs that enable program operates, or those who use considered ‘‘eligible’’ when the smart televisions to execute lawfully such devices or machines, and is not collections of the library, archives or obtained software applications, where used or maintained in a manner that museum are open to the public and/or circumvention is accomplished for the facilitates copyright infringement. are routinely made available to sole purpose of enabling interoperability (8)(i) Video games in the form of researchers who are not affiliated with of such applications with computer computer programs embodied in the library, archives or museum. programs on the smart television. physical or downloaded formats that (9) Computer programs that operate (6) Computer programs that are have been lawfully acquired as 3D printers that employ microchip- contained in and control the functioning complete games, when the copyright reliant technological measures to limit of a motorized land vehicle such as a owner or its authorized representative the use of feedstock, when personal automobile, commercial motor has ceased to provide access to an circumvention is accomplished solely vehicle or mechanized agricultural external computer server necessary to for the purpose of using alternative vehicle, except for computer programs facilitate an authentication process to feedstock and not for the purpose of primarily designed for the control of enable local gameplay, solely for the accessing design software, design files telematics or entertainment systems for purpose of: or proprietary data; provided, however, such vehicle, when circumvention is a (A) Permitting access to the video that the exemption shall not extend to necessary step undertaken by the game to allow copying and modification any computer program on a 3D printer authorized owner of the vehicle to allow of the computer program to restore that produces goods or materials for use the diagnosis, repair or lawful access to the game for personal in commerce the physical production of modification of a vehicle function; and gameplay on a personal computer or which is subject to legal or regulatory where such circumvention does not video game console; or oversight or a related certification constitute a violation of applicable law, (B) Permitting access to the video process, or where the circumvention is including without limitation regulations game to allow copying and modification otherwise unlawful. promulgated by the Department of of the computer program to restore (10) Literary works consisting of Transportation or the Environmental access to the game on a personal compilations of data generated by

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medical devices that are wholly or is open from 8:30 a.m. to 4:30 p.m., mail and hand delivery of objections partially implanted in the body or by Monday through Friday, excluding legal and hearing requests are provided in 40 their corresponding personal monitoring holidays. The telephone number for the CFR 178.25(b). systems, where such circumvention is Public Reading Room is (202) 566–1744, In addition to filing an objection or undertaken by a patient for the sole and the telephone number for the OPP hearing request with the Hearing Clerk purpose of lawfully accessing the data Docket is (703) 305–5805. Please review as described in 40 CFR part 178, please generated by his or her own device or the visitor instructions and additional submit a copy of the filing (excluding monitoring system and does not information about the docket available any Confidential Business Information constitute a violation of applicable law, at http://www.epa.gov/dockets. (CBI)) for inclusion in the public docket. including without limitation the Health FOR FURTHER INFORMATION CONTACT: Information not marked confidential Insurance Portability and Susan Lewis, Registration Division pursuant to 40 CFR part 2 may be Accountability Act of 1996, the (7505P), Office of Pesticide Programs, disclosed publicly by EPA without prior Computer Fraud and Abuse Act of 1986 Environmental Protection Agency, 1200 notice. Submit the non-CBI copy of your or regulations of the Food and Drug Pennsylvania Ave. NW., Washington, objection or hearing request, identified Administration, and is accomplished DC 20460–0001; main telephone by docket ID number EPA–HQ–OPP– through the passive monitoring of number: (703) 305–7090; email address: 2014–0591, by one of the following wireless transmissions that are already [email protected]. methods: • Federal eRulemaking Portal: http:// being produced by such device or SUPPLEMENTARY INFORMATION: monitoring system. www.regulations.gov. Follow the online instructions for submitting comments. * * * * * I. General Information Do not submit electronically any Dated: October 20, 2015. A. Does this action apply to me? information you consider to be CBI or David S. Mao, You may be potentially affected by other information whose disclosure is Acting Librarian of Congress. this action if you are an agricultural restricted by statute. • [FR Doc. 2015–27212 Filed 10–27–15; 8:45 am] producer, food manufacturer, or Mail: OPP Docket, Environmental BILLING CODE 1410–30–P pesticide manufacturer. The following Protection Agency Docket Center (EPA/ list of North American Industrial DC), (28221T), 1200 Pennsylvania Ave. Classification System (NAICS) codes is NW., Washington, DC 20460–0001. not intended to be exhaustive, but rather • Hand Delivery: To make special ENVIRONMENTAL PROTECTION arrangements for hand delivery or AGENCY provides a guide to help readers determine whether this document delivery of boxed information, please 40 CFR Part 180 applies to them. Potentially affected follow the instructions at http:// entities may include: www.epa.gov/dockets/contacts.html. [EPA–HQ–OPP–2014–0591; FRL–9934–14] • Crop production (NAICS code 111). Additional instructions on • Animal production (NAICS code commenting or visiting the docket, Methoxyfenozide; Pesticide Tolerances 112). along with more information about • dockets generally, is available at http:// AGENCY: Environmental Protection Food manufacturing (NAICS code www.epa.gov/dockets. Agency (EPA). 311). • Pesticide manufacturing (NAICS ACTION: Final rule. II. Summary of Petitioned-For code 32532). Tolerance SUMMARY: This regulation establishes B. How can I get electronic access to In the Federal Register of March 4, tolerances for residues of other related information? 2015 (80 FR 11611) (FRL–9922–68), methoxyfenozide in or on multiple You may access a frequently updated EPA issued a document pursuant to commodities which are identified and electronic version of EPA’s tolerance FFDCA section 408(d)(3), 21 U.S.C. discussed later in this document. regulations at 40 CFR part 180 through 346a(d)(3), announcing the filing of a Interregional Research Project Number 4 the Government Printing Office’s e-CFR pesticide petition (PP 4E8298) by IR–4, (IR–4) requested these tolerances under site at http://www.ecfr.gov/cgi-bin/text- 500 College Road East, Suite 201W, the Federal Food, Drug, and Cosmetic idx?&c=ecfr&tpl=/ecfrbrowse/Title40/ Princeton, NJ 08540. The petition Act (FFDCA). 40tab_02.tpl. requested that 40 CFR part 180 be DATES: This regulation is effective amended by establishing tolerances for October 28, 2015. Objections and C. How can I file an objection or hearing residues of the insecticide requests for hearings must be received request? methoxyfenozide, (3-methoxy-2- on or before December 28, 2015, and Under FFDCA section 408(g), 21 methylbenzoic acid 2-(3,5- must be filed in accordance with the U.S.C. 346a, any person may file an dimethylbenzoyl)-2-(1,1-dimethylethyl) instructions provided in 40 CFR part objection to any aspect of this regulation hydrazide), under paragraph (a) in or 178 (see also Unit I.C. of the and may also request a hearing on those on: Chive, fresh leaves at 30.0 parts per SUPPLEMENTARY INFORMATION). objections. You must file your objection million (ppm); fruit, stone, group 12–12, ADDRESSES: The docket for this action, or request a hearing on this regulation except plum, prune, fresh at 3.0 ppm; identified by docket identification (ID) in accordance with the instructions and nut, tree, group 14–12 at 0.10 ppm. number EPA–HQ–OPP–2014–0591, is provided in 40 CFR part 178. To ensure The petition also proposed the available at http://www.regulations.gov proper receipt by EPA, you must following tolerances under paragraph (a) or at the Office of Pesticide Programs identify docket ID number EPA–HQ– be removed upon approval of the Regulatory Public Docket (OPP Docket) OPP–2014–0591 in the subject line on proposed tolerances listed above: Fruit, in the Environmental Protection Agency the first page of your submission. All stone, group 12, except plum, prune, Docket Center (EPA/DC), West William objections and requests for a hearing fresh at 3.0 ppm; nut, tree, group 14 at Jefferson Clinton Bldg., Rm. 3334, 1301 must be in writing, and must be 0.10 ppm; pistachio at 0.10 ppm; and in Constitution Ave. NW., Washington, DC received by the Hearing Clerk on or paragraph (d), chive at 4.5 ppm be 20460–0001. The Public Reading Room before December 28, 2015. Addresses for removed. The petition additionally

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