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the kind of public notice given, and existing exemptions for readoption. This email at regans@copyright.gov, Kevin R. other information the Lead Executive NPRM also initiates three rounds of Amer, Deputy General Counsel, by finds pertinent to the analysis of the public comment on the newly-proposed email at [email protected], or Terry referendum and its results. exemptions. Interested parties are Hart, Assistant General Counsel, by invited to make full legal and email at [email protected]. Each can § 1500.107 Confidential information. evidentiary submissions in support of or be contacted by telephone by calling The ballots and other information or in opposition to the proposed (202) 707–8350. reports that reveal, or tend to reveal, the exemptions, in accordance with the SUPPLEMENTARY INFORMATION: On June vote of any person covered under the requirements set forth below. 22, 2020, the Office published a order and the voter list shall be strictly DATES: Initial written comments notification of inquiry requesting confidential and shall not be disclosed. (including documentary evidence) and petitions to renew current exemptions, § 1500.108 OMB control number. multimedia evidence from proponents oppositions to the renewal petitions, The control number assigned to the and other members of the public who and petitions for newly proposed information collection requirement in support the adoption of a proposed exemptions in connection with the this subpart by the Office of exemption, as well as parties that eighth triennial section 1201 Management and Budget pursuant to the neither support nor oppose an rulemaking.1 In response, the Office Paperwork Reduction Act of 1995, 44 exemption but seek to share pertinent received thirty-two renewal petitions, U.S.C. 3501 et seq., is OMB control information about a proposal, are due eight comments in opposition to number xxxx. December 14, 2020. Written response renewal of a current exemption, and comments (including documentary seven comments supporting renewal of Dated: September 4, 2020. evidence) and multimedia evidence a current exemption.2 These comments Kenneth White, from those who oppose the adoption of are discussed further below. In addition, Senior Policy Analyst, Under Secretary for a proposed exemption are due February the Office received twenty-six petitions Economic Affairs. 9, 2021. Written reply comments from for new exemptions or expansion of [FR Doc. 2020–20035 Filed 10–14–20; 8:45 am] supporters of particular proposals and previously granted exemptions. BILLING CODE 3510–20–P parties that neither support nor oppose With this NPRM, the Office sets forth a proposal are due March 10, 2021. the exemptions that it intends to Commenting parties should be aware recommend for readoption without the LIBRARY OF CONGRESS that rather than reserving time for need for further development of the potential extensions of time to file administrative record, and outlines the U.S. Copyright Office comments, the Office has already proposed classes for new exemptions for established what it believes to be the which the Office initiates three rounds 37 CFR Part 201 most generous possible deadlines of public comment. [Docket No. 2020–11] consistent with the goal of concluding the triennial proceeding in a timely I. Standard for Evaluating Proposed Exemptions To Permit Circumvention fashion. Exemptions of Access Controls on Copyrighted ADDRESSES: The Copyright Office is As the notification of inquiry Works using the regulations.gov system for the explained, for a temporary exemption AGENCY: U.S. Copyright Office, Library submission and posting of comments in from the prohibition on circumvention of Congress. this proceeding. All comments are to be granted through the triennial therefore to be submitted electronically rulemaking, it must be established that ACTION: Notice of proposed rulemaking. through regulations.gov. The Office is ‘‘persons who are users of a copyrighted SUMMARY: The United States Copyright accepting two types of comments. First, work are, or are likely to be in the Office is conducting the eighth triennial commenters who wish briefly to express succeeding 3-year period, adversely rulemaking proceeding under the Digital general support for or opposition to a affected by the prohibition . . . in their Millennium Copyright Act (‘‘DMCA’’), proposed exemption may submit such ability to make noninfringing uses concerning possible temporary comments electronically by typing into under [title 17] of a particular class of exemptions to the DMCA’s prohibition the comment field on regulations.gov. copyrighted works.’’ 3 To define an against circumvention of technological Second, commenters who wish to appropriate class of copyrighted works, measures that control access to provide a fuller legal and evidentiary the Office begins with the broad copyrighted works. In this proceeding, basis for their position may upload a the Copyright Office is considering Word or PDF document, but such longer 1 85 FR 37399 (June 22, 2020). petitions for the renewal of exemptions submissions must be completed using 2 The comments received in response to the the long-comment form provided on the notification of inquiry are available at https:// that were granted during the seventh www.regulations.gov/docketBrowser?rpp=25&so= triennial rulemaking along with Office’s website at https:// DESC&sb=comment petitions for new exemptions to engage www.copyright.gov/1201/2021. Specific DueDate&po=0&dct=PS&D=COLC-2020-0010 and in activities not currently permitted by instructions for submitting comments, on the Copyright Office website. Renewal petitions including multimedia evidence that are available at https://www.copyright.gov/1201/ existing exemptions. On June 22, 2020, 2021/petitions/renewal/, and petitions for new the Office published a notification of cannot be uploaded through exemptions are available at https:// inquiry requesting petitions to renew regulations.gov, are also available on www.copyright.gov/1201/2021/petitions/proposed/. existing exemptions and comments in that web page. If a commenter cannot References to renewal petitions and comments are meet a particular submission by party name (abbreviated where appropriate) and response to those petitions, as well as a brief identification of the previously granted petitions for new exemptions. Having requirement, please contact the Office exemption, followed by either ‘‘Renewal Pet.,’’ carefully considered the comments using the contact information below for ‘‘Supp.’’ (for comments supporting an exemption), received in response to that notification, special instructions. or ‘‘Opp.’’ (for comments opposing an exemption). References to petitions for new exemptions are by in this notice of proposed rulemaking FOR FURTHER INFORMATION CONTACT: party name (abbreviated where appropriate), the (‘‘NPRM’’), the Office announces its Regan A. Smith, General Counsel and Office’s proposed class number, and ‘‘Pet.’’ intention to recommend each of the Associate Register of Copyrights, by 3 17 U.S.C. 1201(a)(1)(C).

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categories of works identified in 17 • Users are adversely affected in their Office explained in its 2017 policy U.S.C. 102 and then refines them by ability to make such noninfringing uses study, the ‘‘Register must apply the other criteria, such as the technological or, alternatively, users are likely to be same evidentiary standards in protection measures (‘‘TPMs’’) used, adversely affected in their ability to recommending the renewal of distribution platforms, and/or types of make such noninfringing uses during exemptions as for first-time exemption uses or users.4 the next three years. This element is requests,’’ and the statute requires that In evaluating the evidence, the analyzed in reference to section ‘‘a determination must be made statutory factors listed in section 1201(a)(1)(C)’s five statutory factors. specifically for each triennial period.’’ 11 • 1201(a)(1)(C) are weighed: (i) The The statutory prohibition on The Office further determined that ‘‘the availability for use of copyrighted circumventing access controls is the statutory language appears to be broad works; (ii) the availability for use of cause of the adverse effects.7 enough to permit determinations to be works for nonprofit archival, The Register will consider the Copyright based upon evidence drawn from prior preservation, and educational purposes; Act and relevant judicial precedents proceedings, but only upon a (iii) the impact that the prohibition on when analyzing whether a proposed use conclusion that this evidence remains the circumvention of technological is likely to be noninfringing.8 When reliable to support granting an measures applied to copyrighted works considering whether such uses are being exemption in the current has on criticism, comment, news adversely impacted by the prohibition proceeding.’’ 12 The Office first reporting, teaching, scholarship, or on circumvention, the rulemaking instituted this streamlined renewal research; (iv) the effect of circumvention focuses on ‘‘distinct, verifiable, and process in the seventh triennial of technological measures on the market measurable impacts’’ compared to ‘‘de rulemaking, which concluded in 2018.13 for or value of copyrighted works; and minimis impacts.’’ 9 Taking the The process elicited requests to renew (v) such other factors as the Librarian administrative record as a whole, the each of the exemptions that had been considers appropriate.5 After Office will consider whether the previously exempted, none of which 14 developing a comprehensive preponderance of the evidence shows were meaningfully contested. As a administrative record, the Register that the conditions for granting an result, the Office was able to makes a recommendation to the exemption have been met.10 recommend renewal of all previously 15 Librarian of Congress concerning granted exemptions. The streamlined II. Review of Petitions To Renew renewal process was praised by whether exemptions are warranted Existing Exemptions based on that record. participants during the ensuing As with the previous rulemaking 16 The Office has previously articulated rulemaking phases. proceeding, the Office is using a Following the same procedure that the substantive legal and evidentiary streamlined process for recommending was successfully implemented in the standard for the granting of an readoption of previously-adopted last cycle, for this rulemaking, the Office exemption under section 1201(a)(1) exemptions to the Librarian. As the solicited petitions for the renewal of multiple times, including in video and exemptions as they are currently PowerPoint tutorials, its 2017 policy 7 Id. at 115; see also id. at 115–27. formulated, without modification. As study for Congress on section 1201, and 8 Id. at 115–17. While controlling precedent noted, streamlined renewal is based in prior recommendations of the directly on point is not required to justify an upon a determination that, due to a lack exemption, there is no ‘‘rule of doubt’’ favoring an Register concerning proposed classes of of legal, marketplace, or technological exemptions, each of which is accessible exemption when it is unclear that a particular use is fair or otherwise noninfringing. See U.S. changes, the factors that led the Office from the Office’s section 1201 Copyright Office, Section 1201 Rulemaking: Sixth to recommend adoption of the rulemaking web page at https:// Triennial Proceeding to Determine Exemptions to exemption in the prior rulemaking will www.copyright.gov/1201/. In the Prohibition on Circumvention, Recommendation of the Register of Copyrights 15 continue into the forthcoming triennial considering whether to recommend an (2015) (‘‘2015 Recommendation’’). period.17 That is, the same facts and exemption, the Office must inquire: 9 Commerce Comm. Report at 37; see also Staff of circumstances underlying the ‘‘Are users of a copyrighted work H. Comm. on the Judiciary, 105th Cong., Section- previously-adopted regulatory adversely affected by the prohibition on by-Section Analysis of H.R. 2281 as Passed by the United States House of Representatives on August exemption may be relied on to renew circumvention in their ability to make 4th, 1998, at 6 (Comm. Print 1998) (using the the exemption. Accordingly, to the noninfringing uses of a class of equivalent phrase ‘‘substantial adverse impact’’) extent that any renewal petition copyrighted works, or are users likely to (‘‘House Manager’s Report’’); see also, e.g., Section proposed uses beyond the current 1201 Study at 119–21 (discussing same and citing be so adversely affected in the next exemption, the Office disregarded those 6 application of this standard in five prior three years?’’ This inquiry breaks rulemakings). portions of the petition for purposes of down into the following elements: 10 See 17 U.S.C. 1201(a)(1)(C) (asking whether considering the renewal of the • The proposed class includes at least users ‘‘are, or are likely to be in the succeeding 3- exemption, and instead focused on some works protected by copyright. year period, adversely affected by the prohibition whether it provided sufficient • [on circumvention] in their ability to make The uses at issue are noninfringing noninfringing uses’’) (emphasis added); Section information to warrant readoption of the under title 17. 1201 Study at 111–12; see also Sea Island Broad. exemption in its current form. Corp. v. FCC, 627 F.2d 240, 243 (D.C. Cir. 1980) The Office received thirty-two (noting that ‘‘[t]he use of the ‘preponderance of 4 petitions to renew existing exemptions, See H.R. Rep. No. 105–551, pt. 2, at 38 (1998) evidence’ standard is the traditional standard in (‘‘Commerce Comm. Report’’); U.S. Copyright civil and administrative proceedings’’); 70 FR including at least one petition to renew Office, Section 1201 Rulemaking: Seventh Triennial 57526, 57528 (Oct. 3, 2005); 2018 Recommendation each currently-adopted exemption. Each Proceeding to Determine Exemptions to the at 18; 2015 Recommendation at 13–14; U.S. Prohibition on Circumvention, Recommendation of Copyright Office, Section 1201 Rulemaking: Fifth 11 the Acting Register of Copyrights 13–14 (2018) Section 1201 Study at 142, 145. Triennial Proceeding to Determine Exemptions to 12 Id. at 143. (‘‘2018 Recommendation’’); U.S. Copyright Office, the Prohibition on Circumvention, 13 2018 Recommendation at 17. Section 1201 of Title 17, at 26, 108–10 (2017), Recommendation of the Register of Copyrights 6 14 https://www.copyright.gov/policy/1201/section- (2012) (‘‘2012 Recommendation’’); U.S. Copyright Id. at 22. 1201-full-report.pdf (‘‘Section 1201 Study’’); see Office, Section 1201 Rulemaking: Second Triennial 15 Id. at 19. also 82 FR 49550, 49551 (Oct. 26, 2017) (same). Proceeding to Determine Exemptions to the 16 See, e.g., id. at 19 n.80 (collecting transcript 5 17 U.S.C. 1201(a)(1)(C). Prohibition on Circumvention, Recommendation of testimony from 2018 rulemaking). 6 Section 1201 Study at 114. the Register of Copyrights 19–20 (2003). 17 Section 1201 Study at 143–44.

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petition to renew an existing exemption more efficient process for unopposed any further information provided in the included an explanation summarizing exemptions, and the Office was mindful renewal petition are insufficient to the basis for claiming a continuing need in shaping the streamlined renewal support recommending renewal of an and justification for the exemption. In process to avoid recreating the exemption.’’ 26 The Office will then each case, petitioners also signed a requirements of the full rulemaking consider such statements and, as declaration stating that, to the best of process.20 In outlining potential appropriate, will notice the issue for their personal knowledge, there has not mechanics in its Section 1201 Study, subsequent comment phases to ensure been any material change in the facts, the Office envisioned brief filings,21 the administrative record remains law, or other circumstances set forth in with a ‘‘minimal’’ evidentiary showing reliable in light of current the prior rulemaking record such that required.22 The Office has previously developments. But in this rulemaking, renewal of the exemption would not be advised that it is sufficient for the Office has not received comments justified. petitioners to declare that ‘‘there had actually disputing whether there is a The Office received fifteen comments not been any material change in the continued basis for any exemptions. in response to the renewal petitions; facts, law, or other circumstances set In the next rulemaking, the Office seven of these supported renewal of a forth in the prior rulemaking record may consider whether to include a specific exemption. Eight raised discrete such that renewal of the exemption mechanism for petitioners to disclaim concerns with specific petitions, but would not be justified.’’ 23 In the current types of uses or other aspects of an none opposed the verbatim readoption proceeding, the Office explained that it exemption if they believe only partial of an existing regulatory exemption. expects petitioners would need only ‘‘a renewal is appropriate. As detailed Rather, many of these comments paragraph or two’’ to explain the need below, after reviewing the petitions for address whether the petitions received for renewal and that documentary renewal and comments in response, the were sufficient for the Office to consider evidence at this stage of the process is Office concludes that it has received a renewal of the full scope of an accepted but not necessary.24 sufficient petition to renew each exemption, rather than themselves Petitioners must also ‘‘sign a declaration existing exemption, and it does not find disputing the reliability of the attesting to the continued need for the any meaningful opposition to such previously-analyzed administrative exemption and the truth of the renewal. Accordingly, the Office intends record.18 These comments are explanation provided in support’’ and to recommend readoption of all existing specifically addressed in the context of attest that ‘‘there has not been any exemptions in their current form. the relevant exemption below. material change in the facts, law, or A. Audiovisual Works—Criticism and The Office has generally not required other circumstances set forth in the petitions to speak to each and every Comment—Universities and K–12 prior rulemaking record . . . that Educational Institutions type of use, but rather generally aver originally demonstrated the need for the that the overall conditions persist.19 selected exemption, such that renewal Multiple organizations petitioned to Requiring a fulsome showing would of the exemption would not be renew the exemption for motion undermine the goal of the streamlined justified.’’ 25 That attestation also serves pictures 27 for educational purposes by process. The impetus for instituting the as a basis for the Office to evaluate college and university or K–12 faculty streamlined process was to create a whether the entirety of the prior and students (codified at 37 CFR administrative record supporting a 201.40(b)(1)(ii)(A)).28 The petitions 18 See, e.g., DVD Copy Control Ass’n (‘‘DVD given exemption continues to obtain. demonstrated the continuing need and CCA’’) & Advanced Access Content Sys. Licensing The Office thus concludes that the justification for the exemption, stating Adm’r (‘‘AACS LA’’) AV Educ. Opp’n at 4 (‘‘the that educators and students continue to failure of any proponent to provide any example of petitions received are formally and use by K–12 students should result in the Copyright substantively sufficient for the Office to rely on excerpts from digital media for Office finding in this streamlined renewal process consider in evaluating whether renewal class presentations and coursework. that the exemption may not be renewed as to such of the existing exemptions is Peter Decherney, Katherine Sender, uses’’); DVD CCA & AACS LA Nonfiction John Jackson, Console-ing Passions, the Multimedia Ebooks Opp’n at 2 (‘‘To the extent the appropriate. proponents are requesting renewal of the full To the extent a commenter questions American Association of University exemption, the failure to provide any example of whether there is a continued need for a Professors (‘‘AAUP’’), International use of this expansion to all nonfiction works specific exempted use or otherwise Communication Association (‘‘ICA’’), beyond film analysis should render the exemption’s believes that the scope of an exemption Library Copyright Alliance (‘‘LCA’’), expanded nonfiction uses ineligible for the streamlined renewal process’’); ESA, MPA & RIAA should be narrowed, that commenter and Society for Cinema and Media Noncom. Video Opp’n at 1 (‘‘the Register should should come forward and oppose the Studies (‘‘SCMS’’) (collectively ‘‘Joint . . . carefully scrutinize OTW’s petition, and all of exemption. As explained in the Educators I’’) provide several examples the streamlined renewal petitions, to consider notification of inquiry, opposition to a of professors using DVD clips in the whether the examples of alleged exemption use provided in the petitions fall within the parameters renewal request asks opponents to classroom; for example, ‘‘Cornell of the existing exemptions’’). provide evidence that would make it University Communication professor 19 See 85 FR at 37401 (‘‘The petitioner must ‘‘reasonable for the Office to conclude Lee Humphreys samples short segments provide a brief explanation summarizing the basis that the prior rulemaking record and of movies and television shows for her for claiming a continuing need and justification for the exemption. The required showing is meant to lectures in her ‘Media Communication’ 20 be minimal.’’); Section 1201 Study at 144 (‘‘The Section 1201 Study at 144 (also noting that class’’ and has ‘‘shifted from using clips Office believes that the evidentiary showing ‘‘some stakeholders expressed wariness that, in from YouTube because she wants to practice, a short-form filing might recreate the required in a declaration can be minimal, as the aim show higher quality clips and to avoid is only to show that the harm that existed when the requirements of the current rulemaking’’). 21 exemption was first granted continues to occur or See id. at 143 (Office will request ‘‘parties would return but for the exemption, thus providing seeking renewal of an exemption to submit a short 26 Id. at 37402; see also 2018 Recommendation at a sufficient justification for the Office to rely upon declaration outlining the continuing need for an 18. the prior rulemaking record in making a new exemption’’); see also id. at 144 (referring to ‘‘a 27 Unless otherwise noted, all references to recommendation supporting renewal of the short-form filing’’). motion pictures as a category include television 22 exemption. Moreover, this approach appears Id. at 144. programs and videos. consistent with relevant case law upholding 23 2018 Recommendation at 18. 28 Joint Educators I AV Educ. Renewal Pet.; determinations based upon a single sworn 24 85 FR at 37401. Brigham Young Univ. & Brigham Young Univ.— affidavit.’’). 25 Id. Idaho (collectively, ‘‘BYU’’) AV Educ. Renewal Pet.

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showing the attached advertisements to circumvention.’’ 35 DVD CCA and AACS meaningful opposition, the Office her students.’’ 29 In addition, co- LA are correct in noting that, although believes that the conditions that led to petitioner Peter Decherney declares that the 2018 rulemaking eliminated prior adoption of this exemption are likely to he ‘‘continues to teach a course on language limiting the exemption to continue during the next triennial Multimedia Criticism’’ where his circumstances where ‘‘close analysis’’ of period. Accordingly, the Office intends students ‘‘produce short videos video is required, it retained the to recommend renewal of this analyzing media.’’ 30 Indeed, Joint requirement that the user ‘‘reasonably exemption. Educators I broadly suggest that the believe[ ] that non-circumventing B. Audiovisual Works—Criticism and ‘‘entire field’’ of video essays or alternatives are unable to produce the Comment—Massively Open Online multimedia criticism ‘‘could not have required level of high-quality Courses (‘‘MOOCs’’) existed in the United States without fair content.’’ 36 From their comment, it use and the 1201 educational appears that DVD CCA and AACS LA Brigham Young University and Peter exemption.’’ 31 Through these believe that the ‘‘close analysis’’ Decherney, Katherine Sender, John submissions, petitioners demonstrated requirement should be reinstated, but Jackson, Console-ing Passions, ICA, personal knowledge and experience wish to reiterate a ‘‘lack of opposition’’ LCA, and SCMS (collectively ‘‘Joint with regard to this exemption based on to the exemption in light of recognition Educators II’’) petitioned to renew the their representation of thousands of that schools are currently ‘‘wrestling exemption for motion pictures for digital and literacy educators and/or with implementing distance educational uses in MOOCs (codified at members supporting educators and learning.’’ 37 37 CFR 201.40(b)(1)(ii)(B)).41 No students, combined with past The Office has examined the record oppositions were filed against participation in the section 1201 and finds the petitions sufficient. As readoption of this exemption. The triennial rulemaking. explained above, it does not follow that petition demonstrated the continuing DVD CCA and AACS LA filed petitioners seeking renewal must need and justification for the comments that do not object to the provide an ‘‘explanation why screen exemption, stating that instructors renewal of this exemption but ask the capture technology could not suffice to continue to rely on the exemption to Office to address several purported capture and show’’ for each and every develop, provide, and improve MOOCs, deficiencies in the renewal petitions.32 one of the film clips they seek to use.38 as well as increase the number of (and Because DVD CCA and AACS LA Petitioners made that showing in the therefore access to) MOOCs in the field expressly disclaim opposition to prior rulemaking, and their renewal of film and media studies—with Joint streamlined renewal of this exemption, petition attests that there has been no Educators II noting that the ‘‘exemption the Office does not treat the concerns material change in the facts. Indeed, has never been so relevant as it is now raised as meaningful opposition. It does, Joint Educators I reference the need of during the COVID–19 pandemic and the however, provide brief additional a communication professor to embed universal shift of our education systems comment on the points raised by DVD clips in PowerPoint rather than played to online learning.’’ 42 CCA and AACS LA regarding the from YouTube ‘‘because she wants to In response to the renewal petition, sufficiency of the petition. Regarding show higher quality clips and to avoid DVD CCA and AACS LA filed a the lack of evidence of use of the showing the attached advertisements to comment noting that they did not exemption by K–12 educators or her students.’’ 39 The same petition also oppose renewal of the exemption but students, DVD CCA and AACS LA argue provides multiple examples asserting a asking the Office to address what they that ‘‘the failure of any proponent to continued need to make use of the described as the ‘‘apparent failure of the provide any example of use by K–12 exemption for purposes of engaging in proponents’’ to employ technological students should result in the Copyright film analysis, precisely the kind of measures preventing retention and Office finding in this streamlined pedagogy that has been discussed in redistribution of MOOC content.43 The renewal process that the exemption may connection with the prior ‘‘close comment suggests that this does not not be renewed as to such uses.’’ 33 As analysis’’ limitation.40 This is sufficient. reflect any changed circumstances, and explained above, petitioners need not It then becomes opponents’ burden to notes that the Office suggested in the address every possible use covered by establish a basis for concluding that the seventh rulemaking that the proper an exemption when seeking to renew an prior findings no longer obtain. DVD method to air DVD CCA and AACS LA’s exemption, and the Office has CCA and AACS LA AV have provided concerns would be to oppose the 44 concluded that the petition was no such evidence here. renewal. Again, they have not done submitted in a sufficient manner.34 Based on the information provided in so. The Office declines to address A similar conclusion applies to DVD the renewal petitions and the lack of whether any user’s activities may or CCA and AACS LA’s complaint that may not be consistent with the ‘‘the users ignore the threshold 35 DVD CCA & AACS LA AV Educ. Opp’n at 7. exemption. The relevant exemption requirement to consider alternatives to 36 37 CFR 201.40(b)(1). language is not in dispute, and 37 DVD CCA & AACS LA AV Educ. Opp’n at 6– interpreting compliance with or 7. 29 eligibility for the exemption is outside Joint Educators I AV Educ. Renewal Pet. at 3. 38 Id. at 6. 30 the scope of this proceeding. If DVD Id. 39 Joint Educators I AV Educ. Renewal Pet. at 3. 31 CCA and AACS LA believe that the Id. 40 See also, e.g., 2015 Recommendation at 92 32 DVD CCA & AACS LA AV Educ. Opp’n. (citing examples where high-definition quality is exemption should be adjusted or 33 Id. at 4. necessary, including close analysis of ‘‘The Wizard eliminated in light of abuse or difficulty 34 To the extent the eighth rulemaking has of Oz (to highlight prop wires and other ‘stage-like’ in complying with the condition that received information relating to whether the elements), Citizen Kane (to appreciate depth of exemption remains necessary for K–12 educational field, chiaroscuro effects, and subtle narrative 41 activities, Joint Educator’s petition for expansion of elements), Jacques Tati’s Playtime (to better BYU AV Educ. MOOCS Renewal Pet.; Joint this exemption also suggests it continues to be approximate the intended 70mm viewing Educators AV Educ. MOOCs Renewal Pet. necessary, especially in light of the ongoing experience and appreciate the film’s very detailed 42 Joint Educators II AV Educ. MOOCs Renewal pandemic. See Decherney, Sender, Jackson, Stein, and complex composition), and Saving Private Pet. at 3. Gaglani, Wisbauer, Berg, Siddiqui, Robertson, Ryan (to experience the enhanced color and 43 DVD CCA & AACS LA AV Educ. MOOCs Opp’n Console-ing Passions, AAUP, ICA, LCA & SCMS contrast effect of bleach bypass film processing, at 1. (collectively ‘‘Joint Educators III) Class 1 Pet. at 2. hyper-realism, and complex soundscapes)’’). 44 Id. at 2 n.3.

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exemption beneficiaries reasonable available without circumvention of the Office intends to recommend technological measures, the proper technological protection measures.’’ 48 renewal of this exemption. response would be to submit an In response, DVD CCA and AACS LA E. Audiovisual Works—Criticism and opposition to this exemption so the filed a comment that did not object to Comment—Filmmaking Office can determine whether fuller renewal of an exemption limited to ‘‘e- airing through notice and comment to books offering filming analysis,’’ but did Multiple organizations petitioned to evaluate this issue is appropriate. object to renewing the existing renew the exemption for motion Based on the information provided in exemption as it is currently pictures for uses in documentary films the renewal petition and the lack of formulated.49 DVD CCA and AACS LA or other films where use is in parody or opposition, the Office believes that the asserted that the renewal petition failed for a biographical or historically conditions that led to adoption of this to ‘‘provide any example of use of this significant nature (codified at 37 CFR exemption are likely to continue during expansion to all nonfiction works 201.40(b)(1)(i)(A)).54 The petitions the next triennial period. Accordingly, beyond film analysis.’’ 50 As a result, summarized the continuing need and the Office intends to recommend they argue that the evidence is only justification for the exemption, and the renewal of this exemption. sufficient to support an exemption for petitioners demonstrated personal use in e-books offering film analysis. knowledge and experience with regard C. Audiovisual Works—Criticism and As noted above, however, in making to this exemption. For example, the Comment—Digital and Media Literacy a petition to renew an exemption, it is International Documentary Association, Programs sufficient for petitioners to declare that Film Independent, and Kartemquin LCA and Professor Renee Hobbs to their knowledge, ‘‘there had not been Educational Films (collectively ‘‘Joint petitioned to renew the exemption for any material change in the facts, law, or Filmmakers’’)—which represent motion pictures for educational uses in other circumstances set forth in the thousands of independent filmmakers nonprofit digital and media literacy prior rulemaking record such that across the nation—stated that TPMs programs offered by libraries, museums, renewal of the exemption would not be such as encryption continue to prevent and other nonprofits (codified at 37 CFR justified.’’ 51 Petitioners are not required filmmakers from accessing needed 201.40(b)(1)(ii)(C)).45 No oppositions to provide examples that pertain to material, and that this is ‘‘especially were filed against readoption of this every type of use covered by the true for the kind of high fidelity motion exemption. The petition demonstrated exemption. To the extent an opponent picture material filmmakers need to the continuing need and justification for of renewal seeks to narrow an satisfy both distributors and viewers.’’ 55 the exemption, and petitioners exemption, it should ‘‘provide evidence Petitioners state that they personally demonstrated personal knowledge and that would allow the Acting Register to know many filmmakers who have found experience with regard to this reasonably conclude that the prior it necessary to rely on this exemption exemption. For example, the petition rulemaking record and any further and will continue to do so.56 stated that librarians across the country information provided in the petitions DVD CCA and AACS LA filed have relied on the current exemption are insufficient for her to recommend comments that did not oppose renewal and will continue to do so for their renewal without the benefit of a further of the exemption but did object to the digital and media literacy programs.46 developed record.’’ 52 characterization of the exemption filed Based on the information provided in In this case, the Office determined in by the filmmaking proponents.57 the renewal petitions and the lack of the 2018 proceeding that the record was Specifically, DVD CCA and AACS LA opposition, the Office believes that the sufficient to justify recommending an noted that the exemption is limited to conditions that led to adoption of this exemption that includes nonfiction uses criticism or comment, documentary exemption are likely to continue during beyond film analysis.53 The Office filmmaking, or any filmmaking that the next triennial period. Accordingly, concludes that the renewal petition, would make use of a clip in a parody the Office intends to recommend which seeks renewal of the exemption or for its biographical or historical renewal of this exemption. as previously adopted, is sufficient to nature; in their view, petitioners suggest support renewal. Although DVD CCA the exemption covers all fair use or D. Audiovisual Works—Criticism and noninfringing uses.58 The Office does Comment—Multimedia E-Books and AACS LA note that the statements in the renewal petition are limited to not find it necessary to opine on the Multiple petitioners jointly sought to examples related to e-books offering characterization of the petitions by DVD renew the exemption for the use of film analysis, this opposition does not CCA and AACS LA and believes that motion picture excerpts in nonfiction amount to evidence in the form of legal, petitioners’ declarations have met the multimedia e-books (codified at 37 CFR marketplace, or technological changes minimal showing sufficient to support 201.40(b)(1)(i)(C)).47 The petition that render the prior rulemaking record renewal of the exemption without demonstrated the continuing need and insufficient to support recommending modification. justification for the exemption. In renewal. Based on the information provided in addition, the petitioners demonstrated Based on the information provided in the renewal petitions and the lack of personal knowledge through Professor the renewal petition and the lack of opposition, the Office believes that the Buster’s continued work on an e-book opposition, the Office believes that the conditions that led to adoption of this series based on her lecture series, conditions that led to adoption of this exemption are likely to continue during ‘‘Deconstructing Master Filmmakers: exemption are likely to continue during The Uses of Cinematic Enchantment,’’ 54 Joint Filmmakers Documentary Films Renewal the next triennial period. Accordingly, Pet.; New Media Rights (‘‘NMR’’) Documentary which, they said, ‘‘relies on the Films Renewal Pet. availability of high-resolution video not 48 Id. at 3. 55 Joint Filmmakers Documentary Films Renewal 49 DVD CCA & AACS LA Nonfiction Multimedia Pet. at 3. 45 LCA & Hobbs AV Educ. Nonprofits Renewal E-Books Opposition Pet. 56 Id.; NMR Documentary Films Renewal Pet. at Pet. 50 Id. at 2. 3. 46 Id. 51 2018 Recommendation at 18. 57 DVD CCA & AACS LA Documentary 47 Buster, Authors Alliance & AAUP Nonfiction 52 Id. Filmmaking Opp’n. Multimedia E-Books Renewal Pet. 53 Id. at 64. 58 Id. at 2.

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the next triennial period. Accordingly, (‘‘RIAA’’) did not object to the renewal Based on the information provided in the Office intends to recommend of the exemption for noncommercial the renewal petition and the lack of renewal of this exemption. videos but did object to the proposed opposition, the Office believes that the change in the language sought by OTW, conditions that led to adoption of this F. Audiovisual Works—Criticism and exemption are likely to continue during Comment—Noncommercial Videos arguing that it involves a modification of the current exemption.65 The Office the next triennial period. Accordingly, Two organizations petitioned to agrees that OTW’s proposed the Office intends to recommend renew the exemption for motion modifications are appropriately renewal of this exemption. pictures for uses in noncommercial addressed as part of the full rulemaking H. Literary Works—Accessibility videos (codified at 37 CFR proceeding, and therefore the Office has 201.40(b)(1)(i)(B)).59 The petitions included this request with the proposed Multiple organizations petitioned to demonstrated the continuing need and classes discussed below.66 renew the exemption for literary works justification for the exemption, and the Based on the information provided in distributed electronically (i.e., e-books), petitioners demonstrated personal the renewal petitions and the lack of for use with assistive technologies for knowledge and experience with regard opposition, the Office believes that the persons who are blind, visually to this exemption. For example, one of conditions that led to adoption of this impaired, or have print disabilities the petitioners, the Organization for exemption are likely to continue during (codified at 37 CFR 201.40(b)(3)).70 No Transformative Works (‘‘OTW’’), has the next triennial period. Accordingly, oppositions were filed against advocated for the noncommercial video the Office intends to recommend readoption of this exemption. The exemption in past triennial renewal of this exemption. petitions demonstrated the continuing rulemakings, and has heard from ‘‘a need and justification for the number of noncommercial remix G. Audiovisual Works—Accessibility exemption, stating that individuals who artists’’ who have used the exemption Multiple organizations petitioned to are blind, visually impaired, or print and anticipate needing to use it in the renew the exemption for motion disabled are significantly disadvantaged future.60 OTW included an account pictures for the provision of captioning with respect to obtaining accessible e- from an academic stating that footage and/or audio description by disability book content because TPMs interfere ripped from DVDs and Blu-ray was services offices or similar units at with the use of assistive technologies.71 preferred for ‘‘vidders’’ (noncommercial educational institutions for students Petitioners noted that the record remix artists) because ‘‘it is high quality with disabilities (codified at 37 CFR underpinning this exemption ‘‘has stood enough to bear up under the 201.40(b)(2)(i)(A)).67 No oppositions and been re-established in the past six transformations that vidders make to were filed against readoption of this triennial reviews, dating back to 2003,’’ it.’’ 61 Similarly, NMR stated that its staff exemption. and that the ‘‘accessibility of ebooks is personally knows ‘‘many video creators The petition demonstrated the frequently cited as a top priority’’ by its that have found it necessary to rely on continuing need and justification for the members.72 In addition, petitioners this exemption during the current exemption, and the petitioners noted the unique challenges COVID–19 triennial period’’ and who intend to demonstrated personal knowledge and poses to the blind, visually impaired, make these types of uses in the next experience. For example, Brigham and print disabled due to limited triennial period.62 Young University asserts that its physical access to libraries and the shift OTW contends that ‘‘the exemption disability services offices ‘‘sometimes to virtual learning.73 Finally, the should be renewed using the relatively need to create accessible versions of petitioners demonstrated personal simple language defining the exempted motion pictures’’ to accommodate its knowledge and experience with regard class from the 2008 rulemaking, students with disabilities.68 Both to the assistive technology exemption; covering both DVDs and Blu-Ray (and petitions stated that there is a need for they are all organizations that advocate streaming where necessary) ‘when the exemption going forward; indeed, for the blind, visually impaired, and circumvention is accomplished solely in one group of petitioners states that ‘‘the print disabled. order to accomplish the incorporation of need is likely to increase significantly in Based on the information provided in short portions of motion pictures into light of the ongoing COVID–19 the renewal petitions and the lack of new works for the purpose of criticism pandemic as many educational opposition, the Office believes that the or comment, and where the person institutions shift to online learning and conditions that led to adoption of this engaging in circumvention believes and the use of digital multimedia by faculty exemption are likely to continue during has reasonable grounds for believing increases.’’ 69 the next triennial period. Accordingly, that circumvention is necessary to fulfill the Office intends to recommend the purpose of the use.’ ’’ 63 OTW asserts 65 DVD CCA & AACS LA Noncom. Videos Opp’n; renewal of this exemption. that this change would not constitute ESA, MPA & RIAA Noncom. Videos Opp’n. ‘‘an expansion of the existing 66 The Office notes that much of the language that I. Literary Works—Medical Device Data exemption, but a more understandable has been added to the exemption since 2008 was Hugo Campos petitioned to renew the restatement.’’ 64 Two comments, one sought by proponents of the exemption, e.g., the addition of a reference to the statutory definition of exemption covering access to patient from DVD CCA and AACS LA and the motion pictures was sought by EFF. See 2012 data on networked medical devices other from the Entertainment Software Recommendation at 105. In some cases, the (codified at 37 CFR 201.40(b)(4)).74 No Association (‘‘ESA’’), Motion Picture addition of such language was supported by OTW oppositions were filed, and Consumer Association (‘‘MPA’’), and Recording itself. See, e.g., id. at 110 (adding clarification that commissioned videos are included within Industry Association of America exemption if ultimate use is noncommercial, a 70 Am. Council for the Blind (‘‘ACB’’), Am. Fed’n proposal that was supported by OTW). for the Blind (‘‘AFB’’), Nat’l Fed’n of the Blind 59 NMR Noncom. Videos Renewal Pet.; OTW 67 Ass’n of Transcribers and Speech-to-Text (‘‘NFB’’), LCA, American Association of Law Noncom. Videos Renewal Pet. Providers (‘‘ATSP’’), Ass’n on Higher Educ. and Libraries (‘‘AALL’’), Benetech/Bookshare, and 60 OTW Noncom. Videos Renewal Pet. at 3. Disability (‘‘AHEAD’’) & LCA Captioning Renewal HathiTrust Assistive Technologies Renewal Pet. 61 Id. Pet.; BYU Captioning Renewal Pet. 71 Id. at 3. 62 NMR Noncom. Videos Renewal Pet. at 3. 68 BYU Captioning Renewal Pet. at 3. 72 Id. at 3–4. 63 OTW Noncom. Videos Renewal Pet. at 4. 69 ATSP, AHEAD & LCA Captioning Renewal Pet. 73 Id. at 4. 64 Id. at 3. 74 Campos Medical Devices Renewal Pet.

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Reports submitted a comment in conditions that led to adoption of this vehicles, including farm equipment, for support.75 Mr. Campos’s petition exemption are likely to continue during purposes of diagnosis, repair, or demonstrated the continuing need and the next triennial period. Accordingly, modification of a vehicle function justification for the exemption, stating the Office intends to recommend (codified at 37 CFR 201.40(b)(9)).85 The that patients continue to need access to renewal of this exemption. petitions demonstrated the continuing data output from their medical devices K. Computer Programs—Jailbreaking need and justification for the to manage their health.76 Mr. Campos exemption. For example, the Motor & demonstrated personal knowledge and Multiple organizations petitioned to Equipment Manufacturers Association experience with regard to this renew the exemptions for computer (‘‘MEMA’’) stated that over the past exemption, as he is a patient needing programs that operate smartphones, three years, its membership ‘‘has seen access to the data output from his tablets and other portable all-purpose firsthand that the exemption is helping medical device and is a member of a mobile computing devices, smart TVs, protect consumer choice and a coalition whose members research, or voice assistant devices to allow the competitive market, while mitigating comment on, and examine the device to interoperate with or to remove risks to intellectual property and vehicle effectiveness of networked medical software applications (‘‘jailbreaking’’) safety.’’ 86 The Auto Care Association devices. (codified at 37 CFR 201.40(b)(6)–(8)).80 (‘‘ACA’’) stated that ‘‘[u]nless this Based on the information provided in The petitions demonstrate the exemption is renewed, the software the renewal petition and the lack of continuing need and justification for the measures manufacturers deploy for the opposition, the Office believes that the exemption, and that petitioners had purpose of controlling access to vehicle conditions that led to adoption of this personal knowledge and experience software will prevent Auto Care exemption are likely to continue during with regard to this exemption. For members from lawfully assisting the next triennial period. Accordingly, example, regarding smart TVs consumers in the maintenance, repair, the Office intends to recommend specifically, the Software Freedom and upgrade of their vehicles.’’ 87 SEMA renewal of this exemption. Conservancy (‘‘SFC’’) asserts that it has stated that it ‘‘is unaware of any factor, ‘‘reviewed the policies and product J. Computer Programs—Unlocking incident or reason to change the offerings of major Smart TV exemption and the need for the Multiple organizations petitioned to manufacturers (Sony, LG, Samsung, etc.) exemption remains valid and renew the exemption for computer and they are substantially the same as imperative.’’ 88 The petitioners programs that operate cellphones, those examined during the earlier demonstrated personal knowledge and tablets, mobile hotspots, or wearable 81 rulemaking process.’’ The petitions experience with regard to this devices (e.g., smartwatches), to allow state that, absent an exemption, TPMs exemption; each either represents or connection of a new or used device to applied to the enumerated products an alternative wireless network gathered information from individuals would have an adverse effect on conducting repairs or businesses that (‘‘unlocking’’) (codified at 37 CFR noninfringing uses, such as being able to 201.40(b)(5)).77 No oppositions were manufacture, distribute, and sell motor install third-party applications on a vehicle parts, and perform vehicle filed against the petitions seeking to smartphone or download third-party renew this exemption; Consumer service and repair. Consumer Reports software on a smart TV to enable 89 Reports filed in support of renewal.78 filed in support of the petition. interoperability.82 For example, EFF’s Although not opposing readoption of The petitions demonstrate the petition outlined its declarant’s continuing need and justification for the this exemption, the Alliance for experience with instances where it was Automotive Innovation (‘‘AAI’’) exemption, stating that consumers of the necessary to replace the software on a enumerated products continue to need submitted comments raising concerns smartphone, smart TV, and tablet.83 90 to be able to unlock the devices so they with the ACA and MEMA petitions. Consumer Reports filed a comment in Specifically, the AAI argued that the can switch network providers. For support of the exemption,84 and no one example, ISRI stated that its members two petitions ‘‘mischaracterize the opposed renewal. scope of the existing exemption and continue to purchase or acquire donated Based on the information provided in cell phones, tablets, and other wireless appear to argue for an expanded the renewal petitions and the lack of exemption, rather than for renewal of devices and try to reuse them, but that meaningful opposition, the Office wireless carriers still lock devices to the existing exemption as it is ‘currently believes that the conditions that led to formulated, without modification.’ ’’ 91 It prevent them from being used on other adoption of this exemption are likely to carriers.79 In addition, the petitioners states that both ACA and MEMA suggest continue during the next triennial ‘‘that the existing exemption permits demonstrated personal knowledge and period. Accordingly, the Office intends experience with regard to this third party repair shops to circumvent to recommend renewal of this access controls on vehicle software in exemption. CCA and ISRI represent exemption. companies that rely on the ability to order to provide commercial repair unlock cellphones. Both petitioners also L. Computer Programs—Repair of services.’’ 92 AAI asserts that participated in past 1201 triennial Motorized Land Vehicles ‘‘[p]roviding a commercial service that rulemakings relating to unlocking Multiple organizations petitioned to lawfully-acquired wireless devices. 85 ACA Vehicle Repair Renewal Pet.; Am. Farm renew the exemption for computer Bureau Fed’n Vehicle Repair Renewal Pet.; Based on the information provided in programs that control motorized land Consumer Tech. Ass’n Vehicle Repair Renewal Pet.; the renewal petitions and the lack of MEMA Vehicle Repair Renewal Pet.; Specialty opposition, the Office believes that the 80 EFF Jailbreaking Renewal Pet.; NMR Equip. Mkt. Ass’n (‘‘SEMA’’) Vehicle Repair Jailbreaking Renewal Pet.; SFC Jailbreaking Renewal Pet. 86 75 Consumer Reports Medical Devices Supp. Renewal Pet. MEMA Vehicle Repair Renewal Pet. at 3. 76 Campos Medical Devices Renewal Pet. at 3. 81 SFC Jailbreaking Renewal Pet. at 3. 87 ACA Vehicle Repair Renewal Pet. at 3. 77 Competitive Carriers Ass’n (‘‘CCA’’) Unlocking 82 EFF Jailbreaking Renewal Pet. at 3; NMR 88 SEMA Vehicle Repair Renewal Pet. at 3. Renewal Pet.; Inst. of Scrap Recycling Industries Jailbreaking Renewal Pet. at 3; SFC Jailbreaking 89 Consumer Reports Vehicle Repair Supp. (‘‘ISRI’’) Unlocking Renewal Pet. Renewal Pet. at 3. 90 AAI Vehicle Repair Opp’n. 78 Consumer Reports Unlocking Supp. 83 EFF Jailbreaking Renewal Pet. at 3–4. 91 Id. at 1. 79 ISRI Unlocking Renewal Pet. at 3. 84 Consumer Reports Jailbreaking Supp. 92 Id. at 2.

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requires circumventing access controls diagnostics, and they show no sign of to recommend renewal of this or copy controls (e.g., using or providing changing course.98 Consumer Reports exemption. certain engine tuning software) is filed in support of the petition.99 N. Computer Programs—Security indisputably trafficking in an unlawful In comments filed in response to the Research service under Sections 1201(a)(2) and petitions, DVD CCA and AACS LA did (b) and, therefore, is clearly outside the not object to renewal of the exemption, Multiple organizations and security scope of the existing exemption.’’ 93 but did request that the Office researchers petitioned to renew the The Office addressed the relationship ‘‘expressly . . . reject the implied exemption permitting circumvention for of this exemption to the anti-trafficking assertion that some of the activity used purposes of good-faith security research provisions in some detail in the 2018 as examples in the renewal petition . . . (codified at 37 CFR 201.40(b)(11)).104 Recommendation. In response to is permitted under the current The petitioners demonstrated the petitioners’ requests, the Office exemption.’’ 100 Specifically, they continuing need and justification for the recommended removal of the language pointed to an example in which exemption, as well as personal in the prior repair exemption requiring petitioners stated a purported need to knowledge and experience with regard that circumvention be ‘‘undertaken by ‘‘repair any disrupted functionality’’ in to this exemption. For example, the the authorized owner.’’ 94 That change, Sonos smart speakers for which the petition from Professor J. Alex the Office explained, was intended to manufacturer had ceased to provide Halderman, the Center for Democracy ‘‘account[] for the possibility that software updates.101 DVD CCA and and Technology (‘‘CDT’’), and the U.S. certain third parties may qualify as AACS LA contend that such activity Technology Policy Committee of the ‘user[s]’ eligible for an exemption from does not constitute ‘‘repair’’ under the Association for Computing Machinery liability under section 1201(a)(1).’’ 95 In exemption because, under relevant (‘‘ACM’’) highlighted a number of making this recommendation, which the licensing schemes, a manufacturer ‘‘may concerns justifying the continuing need Librarian accepted, the Office declined outright deactivate one or more for the exemption, including the need to to express any ‘‘view as to whether functions due to the product’s TPM find and detect vulnerabilities in voting particular examples of assistance do or being compromised. These results are machines and other election systems, do not constitute unlawful not the consequences of the product the increased proliferation of consumer circumvention services’’—specifically, falling out of repair or breaking.’’ 102 Internet of Things devices, and the ‘‘whether vehicle or other repair DVD CCA and AACS LA do not increasing reliance on digital systems services may run afoul of the anti- appear to be arguing that the use of this combined with greater aggressiveness trafficking provisions when engaging in on the part of threat actors, including example renders the renewal petitions 105 circumvention on behalf of insufficient with respect to home other nation states. The petition from customers.’’ 96 The Office adheres to this systems. The Office agrees that the Professors Matt Blaze and Steven position and accordingly expresses no sufficiency of the petitions do not Bellovin asserted that in the past three view as to the activities described by depend on whether this specific years ‘‘one of us has received threats of ACA and MEMA. example qualifies under the current litigation from copyright holders in Based on the information provided in connection with his security research on exemption. Even if this example were 106 the renewal petitions and the lack of excluded, the petitions attest to a software in voting systems.’’ Finally, opposition to the specific exemption, continuing need for the exemption and MEMA stated that its membership the Office believes that the conditions the continued validity of the prior ‘‘experienced firsthand that the that led to adoption of this exemption record.103 To the extent DVD CCA and exemption is helping encourage are likely to continue during the next AACS LA are asking the Office to opine innovation in the automotive industry triennial period. Accordingly, the Office while mitigating risks to intellectual on examples of particular uses, such a 107 intends to recommend renewal of this request is beyond the scope of the property and vehicle safety.’’ No oppositions were filed against exemption. renewal phase, though they are free to readoption of this exemption, while raise such concerns in the comment M. Computer Programs—Repair of Consumer Reports filed in support of phase to the extent they relate to Smartphones, Home Appliances, and renewal.108 A petition seeking renewal proposed expansions of the current rule. Home Systems of a separate exemption submitted by Based on the information provided in Multiple organizations petitioned to Hugo Campos, a member of a coalition the renewal petitions and the lack of renew the exemption for computer of medical device patients and opposition to renewal, the Office programs that control smartphones, researchers, also noted support for this believes that the conditions that led to home appliances, or home systems, for exemption.109 adoption of this exemption are likely to diagnosis, maintenance, or repair of the Based on the information provided in continue during the next triennial device or system (codified at 37 CFR the renewal petitions and the lack of period. Accordingly, the Office intends 201.40(b)(10)).97 The petitions opposition, the Office believes that the demonstrated the continuing need and conditions that led to adoption of this 98 EFF Device Repair Renewal Pet. at 3; EFF, exemption are likely to continue during justification for the exemption. For Repair Ass’n & iFixit Device Repair Renewal Pet. at example, EFF, the Repair Association, 3. the next triennial period. Accordingly, and iFixit asserted that ‘‘[m]anufacturers 99 Consumer Reports Device Repair Supp. of these devices continue to implement 100 DVD CCA & AACS LA Device Repair Opp’n 104 Blaze & Bellovin Security Research Renewal technological protection measures that at 1. Pet.; Halderman, CDT & ACM Security Research 101 Id. at 3. Renewal Pet.; MEMA Security Research Renewal inhibit lawful repairs, maintenance, and Pet. 102 DVD CCA & AACS LA Device Repair Opp’n 105 at 4. Halderman, CDT & ACM Security Research 93 Id. Renewal Pet. at 4. 103 See, e.g., EFF Device Repair Renewal Pet. at 94 106 2018 Recommendation at 223–25. 3 (‘‘Manufacturers of these devices continue to Blaze & Bellovin Security Research Renewal 95 Id. at 225. implement technological protection measures that Pet. at 3. 96 Id. inhibit lawful repairs, maintenance, and 107 MEMA Security Research Renewal Pet. at 3. 97 EFF Device Repair Renewal Pet.; EFF, Repair diagnostics, and they show no sign of changing 108 Consumer Reports Security Research Supp. Ass’n & iFixit Device Repair Renewal Pet. course.’’). 109 Campos Medical Device Renewal Pet. at 4.

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the Office intends to recommend University Library’s Computing Lab, III. Analysis and Classification of renewal of this exemption. retroTECH, which has a significant Proposed New or Expanded Exemptions O. Computer Programs—Software collection of recovered video game Having addressed the petitions to Preservation consoles, made accessible for research renew existing exemptions, the Office and teaching uses pursuant to the now turns to the petitions for new or The Software Preservation Network exemption.114 In addition, the Museum expanded exemptions. The Office (‘‘SPN’’) and LCA petitioned to renew of Digital Arts and Entertainment in received twenty-six petitions,119 which the exemption for computer programs Oakland, California, relied on the it has organized into seventeen other than video games, for the exemption to restore a recent PC game, proposed classes, as described below. preservation of computer programs and in collaboration with Microsoft and the Before discussing those classes, the computer program-dependent materials original developers, despite potential Office first explains the process and by libraries, archives, and museums DRM issues.115 The petitioners standards for submission of written (codified at 37 CFR 201.40(b)(13)).110 demonstrated personal knowledge and comments. The petitions state that libraries, archives, and museums continue to experience with regard to this A. Submission of Written Comments need the exemption to preserve and exemption through past participation in the section1201 triennial rulemaking, Persons wishing to address proposed curate software and materials dependent exemptions in written comments should on software. For example, the petition and/or through their representation of members that have relied on this familiarize themselves with the asserts that ‘‘researchers at UVA substantive legal and evidentiary designed a project in order to access the exemption. Readoption of this exemption was unopposed. standards for the granting of an ‘Peter Sheeran papers’—a collection of exemption under section 1201(a)(1), drawings and plans from a local Based on the information provided in which are also described in more detail Charlottesville architecture firm,’’ and the renewal petitions and the lack of on the Office’s form for submissions of that without the exemption, ‘‘the opposition, the Office believes that the longer comments, available on its outdated Computer Aided Design conditions that led to adoption of this website. In addressing factual matters, (‘‘CAD’’) software used to create many exemption are likely to continue during commenters should be aware that the of the designs in the Sheeran papers the next triennial period. Accordingly, Office favors specific, ‘‘real-world’’ may have remained inaccessible to the Office intends to recommend examples supported by evidence over researchers, rendering the designs renewal of this exemption. speculative, hypothetical observations. themselves inaccessible, too.’’ 111 In In cases where the technology at issue addition, the petitioners demonstrated Q. Computer Programs—3D Printing is not apparent from the requested personal knowledge and experience exemption, it can be helpful for with regard to this exemption through Michael Weinberg petitioned to renew commenters to describe the TPM(s) that past participation in the section 1201 the exemption for computer programs control access to the work and method triennial rulemaking relating to access that operate 3D printers to allow use of of circumvention. controls on software, and/or alternative feedstock (codified at 37 CFR 116 Commenters’ legal analysis should representing major library associations 201.40(b)(14)). No oppositions were explain why the proposal meets or fails with members that have relied on this filed against readoption of this to meet the criteria for an exemption exemption. Readoption of this exemption. The petition demonstrated under section 1201(a)(1), including, exemption was unopposed. the continuing need and justification for Based on the information provided in the exemption, and the petitioner without limitation, why the uses sought the renewal petitions and the lack of demonstrated personal knowledge and are or are not noninfringing as a matter opposition, the Office believes that the experience. Specifically, Mr. Weinberg of law. The legal analysis should also conditions that led to adoption of this declared he is a member of the 3D discuss statutory or other legal exemption are likely to continue during printing community and has been provisions that could impact the the next triennial period. Accordingly, involved with this exemption request necessity for or scope of the proposed the Office intends to recommend during each cycle it has been considered exemption. Legal assertions should be renewal of this exemption. by the Office.117 In addition, the supported by statutory citations, petition states that 3D printers continue relevant case law, and other pertinent P. Computer Programs—Video Game to limit the types of materials used, and authority. In cases where a class Preservation new companies and printers may proposes to expand an existing SPN and LCA petitioned to renew the consider implementing similar exemption, participants should focus exemption for preservation of video restrictions in the future, thereby their comments on the legal and games for which outside server support requiring renewal of the exemption.118 evidentiary bases for modifying the has been discontinued (codified at 37 exemption, rather than the underlying Based on the information provided in CFR 201.40(b)(12)).112 Consumer exemption; as discussed above, the the renewal petition and the lack of Reports supported the petition.113 The Office intends to recommend each opposition, the Office believes that the petitions state that libraries, archives, current temporary exemption for conditions that led to adoption of this and museums continue to need the renewal. exemption are likely to continue during exemption to preserve and curate video To ensure a clear and definite record the next triennial period. Accordingly, games in playable form. For example, for each of the proposals, commenters the Office intends to recommend the petition highlights the Georgia Tech are required to provide a separate renewal of this exemption. submission for each proposed class 110 SPN & LCA Software Preservation Renewal during each stage of the public comment Pet. 114 SPN & LCA Abandoned Video Game Renewal period. Although a single comment may 111 Id. at 3. Pet. at 3. 115 112 SPN & LCA Abandoned Video Game Renewal Id. 119 In addition, as noted, OTW’s renewal petition Pet. 116 Weinberg 3D Printers Renewal Pet. seeks to amend the current regulatory language. The 113 Consumer Reports Abandoned Video Game 117 Id. at 3. Office is treating that request as a petition for Supp. 118 Id. expansion.

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not address more than one proposed the rulemaking process and encourage possible further refinement of this class, class, the same party may submit joint participation among parties with including dividing it into subclasses multiple written comments on different common interests (though collaboration based on specific uses. proposals. The Office acknowledges that is not required). Accordingly, the Office First, as noted, OTW filed a renewal the requirement of separate submissions has categorized the petitions into petition requesting that the exemption may require commenters to repeat seventeen proposed classes of works. regarding the creation of noncommercial certain information across multiple Each proposed class is briefly videos be amended to incorporate the submissions, but the Office believes that described below; additional information language of the exemption for such uses the administrative benefits of creating a can be found in the underlying petitions adopted in the 2010 rulemaking.124 That self-contained, separate record for each posted on the Office website. As exemption permitted circumvention proposal will be worth the modest explained in the notification of inquiry, undertaken ‘‘solely in order to amount of added effort. the proposed classes ‘‘represent only a accomplish the incorporation of short The first round of public comment is starting point for further consideration portions of motion pictures into new limited to submissions from proponents in the rulemaking proceeding, and will works for the purpose of criticism or (i.e., those parties who proposed new be subject to further refinement based comment, and where the person exemptions during the petition phase) on the record.’’ 122 The Office further engaging in circumvention believes and and other members of the public who notes that it has not put forward precise has reasonable grounds for believing support the adoption of a proposed regulatory language for the proposed that circumvention is necessary to fulfill exemption, as well as any members of classes, because any specific language the purpose of the use.’’ 125 Noting that the public who neither support nor for exemptions that the Register the current exemption is longer than oppose an exemption but seek only to ultimately recommends to the Librarian this formulation, OTW contends that share pertinent information about a will depend on the full record ‘‘the complexity of [the current] specific proposal. developed during this rulemaking. provisions substantially increases the Proponents of exemptions should Indeed, in the case of proposed difficulty of communicating and present their complete affirmative case modifications to existing exemptions, as implementing the exemptions in for an exemption during the initial stated above, the Register may propose practice.’’ 126 In OTW’s view, reverting round of public comment, including all altering current regulatory language to to the 2010 language would not expand legal and evidentiary support for the expand the scope of an exemption, the scope of the existing rule but merely proposal. Members of the public who where the record suggests such a change would help ‘‘clarify the exemption for oppose an exemption should present the is appropriate. ordinary users.’’ 127 The exemption, full legal and evidentiary basis for their After examining the petitions, the however, has been expanded since opposition in the second round of Office has preliminarily identified some 2010, including by encompassing works public comment. The third round of initial legal and factual areas of interest on a Blu-ray disc or received via a public comment will be limited to with respect to certain proposed classes. digital transmission, and by including supporters of particular proposals and The Office stresses, however, that these language clarifying that the exemption those who neither support nor oppose a areas are not exhaustive, and includes ‘‘videos produced for a paid proposal, who, in either case, seek to commenters should consider and offer commission if the commissioning reply to points made in the earlier all legal argument and evidence they entity’s use is noncommercial.’’ 128 The rounds of comments. Reply comments believe necessary to create a complete Office seeks comment on whether, or to should not raise new issues, but should record. These early observations are what extent, commenters believe the instead be limited to addressing offered without prejudice to the Office’s suggested language would alter the arguments and evidence presented by ability to raise other questions or others. substance of the current provision. As concerns at later stages of the part of that analysis, commenters should B. The Proposed Classes proceeding. Finally, ‘‘where an discuss the extent to which the evidence exemption request resurrects legal or As noted above, the Office has submitted in the prior rulemaking may factual arguments that have been reviewed and classified the proposed be relied upon to support the proposed previously rejected, the Office will exemptions set forth in the twenty- change. continue to rely on past reasoning to seven petitions received in response to Second, Joint Educators III seek to dismiss such arguments in the absence expand the current exemption for its notification of inquiry. Any 123 exemptions adopted must be based on of new information.’’ educational uses to allow a greater ‘‘a particular class of works,’’ 120 and Proposed Class 1: Audiovisual Works— number of users to engage in ‘‘online each class is intended to ‘‘be a narrow Criticism and Comment instructional learning.’’ 129 They and focused subset of the broad acknowledge that the existing Three petitions seek to expand the exemption already covers the use of categories of works . . . identified in existing exemptions for circumvention 121 short clips in distance learning by Section 102 of the Copyright Act.’’ of access controls protecting motion As explained in the Notice of Inquiry, certain users—college and university pictures on DVDs, Blu-ray discs, and faculty and students, K–12 educators the Office consolidates or groups related digitally transmitted video for purposes and/or overlapping proposed of criticism and comment, including for exemptions where possible to simplify 124 OTW Noncomm. Videos Renewal Pet. at 3. educational purposes by certain users. OTW’s petition refers to that proceeding as the ‘‘2008 rulemaking,’’ but the Office generally 120 Because these petitions raise some 17 U.S.C. 1201(a)(1)(B). identifies each proceeding by its year of 121 Commerce Comm. Report at 38; see also shared concerns, the Office has grouped them into one class, as it did during the completion. Section 1201 Study at 109–10 (noting that while ‘‘in 125 75 FR 43825, 43827 (2010). some cases, [the Office] can make a greater effort to seventh triennial proceeding. This 126 OTW Noncomm. Videos Renewal Pet. at 3. group similar classes together, and will do so going grouping is without prejudice to 127 forward,’’ ‘‘in other cases, the Office’s ability to Id. narrowly define the class is what enabled it to 128 37 CFR 201.40(b)(1). See 2015 recommend the exemption at all, and so the Office 122 85 FR at 37403. Recommendation at 103–06 (expanding exemption will continue to refine classes when merited by the 123 Section 1201 Study at 147; see also 79 FR to include Blu-ray and digital transmission). record’’). 55687, 55690 (Sept. 17, 2014). 129 Joint Educators III Class 1 Pet. at 2.

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and students, and faculty of accredited that it has previously rejected similar broad swatch of motion pictures as massive open online courses proposed classes as overbroad.138 And Class 1. (MOOCs).130 Indeed, the 2018 in the previous rulemaking, the Office Proposed Class 3: Audiovisual Works— Recommendation specifically described declined a proposed exemption by BYU Accessibility the exemption language pertaining to that would permit circumvention for college and university and K–12 users nonprofit educational purposes in ATSP, AHEAD, and LCA petition to as ‘‘broad enough to encompass accordance with sections 110(1) and expand the existing exemption relating exempted uses under sections 110(1) 110(2) and eliminate the ‘‘criticism and to the creation of accessible versions of and 110(2) (i.e., face-to-face and comment’’ limitation and references to motion pictures for students with distance teaching).’’ 131 Joint Educators screen-capture technology.139 The disabilities. They propose several III, however, seek to expand the Office invites comment on whether any changes to the existing exemption exemption to other online learning changed circumstances warrant altering language, which includes the following platforms that offer ‘‘supplemental that determination. requirements: education, upskilling, retraining, • Circumvention is undertaken by a recharging, and lifelong learning,’’ such Proposed Class 2: Audiovisual Works— disability services office or other unit of as Khan Academy, LinkedIn Learning, Texting a kindergarten through twelfth-grade Osmosis.org and Code.org.132 To enable SolaByte Corp. petitions for a new educational institution, college, or these providers to exercise the exemption to access ‘‘licensed audio/ university engaged in and/or exemption, they propose an expansion responsible for the provision of allowing ‘‘educators and preparers of video works stored on optical disc media for the purpose of creating short accessibility services to students, for the online learning materials to use short purpose of adding captions and/or portions of motion pictures (including (10 seconds or less) A/V clips that enhance communication effectiveness audio description to a motion picture to television shows and videos), as defined create an accessible version as a in 17 U.S.C. 101, for the purpose of and understanding when using TEXTing 140 necessary accommodation for a student criticism, comment, illustration and messages.’’ The proposed class ‘‘[i]ncludes movies, TV shows, music or students with disabilities under an explanation in offerings for registered applicable disability law, such as the learners on online learning platforms video, other copyrighted works’’ that are stored on ‘‘[p]ackaged and replicated Americans With Disabilities Act, the when use of the film and media excerpts Individuals with Disabilities Education will contribute significantly to DVD or Blu-ray discs playable on 141 Act, or Section 504 of the Rehabilitation learning.’’ 133 computer or CE player hardware.’’ Eligible users would include persons Act; Third, BYU requests to expand the • class of eligible users to include ‘‘who want to create expressive clips The educational institution unit ‘‘college and university employees,’’ that convey their thoughts when has, after a reasonable effort, determined instead of ‘‘college and university texting.’’ 142 that an accessible version cannot be obtained at a fair price or in a timely faculty.’’ 134 In addition, it seeks to Because these proposed activities do broaden the permitted uses from manner; and not appear to be limited to criticism and • ‘‘criticism, comment, teaching, or comment or educational uses, the Office The accessible versions are scholarship’’ to ‘‘a noninfringing use has classified this proposal as a separate provided to students or educators and under 17 U.S.C. 107, 110(1), 110(2), or proposed class. The Office seeks stored by the educational institution in 112(f).’’ 135 BYU’s proposal also would additional detail about the scope of the a manner intended to reasonably remove the current reference to screen- prevent unauthorized further proposed exemption from SolaByte or 143 capture technology and the requirement others, such as whether the exemption dissemination of a work. that the exempted use be limited to would be available for commercial First, petitioners seek to expand the ‘‘short portions’’ of motion pictures.136 services. Commenters should describe exemption ‘‘to allow for the remediation With respect to both BYU’s and Joint with specificity the relevant TPMs and of video for faculty and staff, as well as 144 Educators III’s petitions, the Office notes whether their presence is adversely students.’’ They recommend that the that certain proposals to remove the affecting noninfringing uses, including current language be revised to read: ‘‘to limitations on eligible users of this identifying whether eligible users may create an accessible version as a exemption were considered during the access expressive clips through alternate necessary accommodation for students, 145 2015 and 2018 rulemakings, and invites channels that do not require faculty, and staff with disabilities.’’ comment on any changed legal or circumvention and the legal basis for Second, to clarify that a covered factual circumstances with respect to concluding that the proposed uses are educational institution unit (‘‘EIU’’) may 137 these provisions. In particular, the likely to be noninfringing. Similarly, create accessible versions ‘‘proactively,’’ Office seeks specific examples where commenters should address any petitioners suggest removing the phrase the presence of TPMs is resulting in an anticipated effect that circumvention of ‘‘as a necessary accommodation’’ and adverse effect on users who are not TPMs would have on the market for or requiring only that the creation of an already included in the existing value of the relevant copyrighted works, accessible version be ‘‘consistent with’’ 146 regulatory language. Further, with which appears to extend to the same an applicable disability law. Third, respect to BYU’s request to expand the petitioners ask the Office to clarify that types of permitted uses, the Office notes 138 See 2015 Recommendation at 100 (citing the ‘‘reasonable effort’’ requirement Recommendation of the Register of Copyrights in applies ‘‘only where an ‘accessible 130 Id. at 2–3. RM 2005–11, Rulemaking on Exemptions from version’ is available that contains 131 2018 Recommendation at 86. Prohibition on Circumvention of Copyright captions and descriptions of sufficient 132 Joint Educators III Class 1 Pet. at 2. Protection Systems for Access Control Technologies quality to satisfy applicable disability 133 Id. at 17–19 (Nov. 17, 2006) (‘‘2006 134 BYU Class 1 Pet. at 2. Recommendation’’)). 135 Id. 139 2018 Recommendation at 32, 52–53. 143 37 CFR 201.40(b)(2)(i). 136 Id. 140 SolaByte Class 2 Pet. at 2. 144 ATSP, AHEAD & LCA Class 3 Pet. at 2. 137 2018 Recommendation at 53–55; 2015 141 Id. 145 Id. Recommendation at 102. 142 Id. 146 Id. at 3.

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law.’’ 147 The Office notes that in to stream content ‘‘results in only an FloSports. Without further clarification, recommending the existing regulatory ephemeral copy in addition to the live the petition does not seem to relate to language, it stated that an EIU may broadcast.’’ 154 FloSports seeks to enable a particular class of works. proceed after reaching a conclusion ‘‘copies of the audio and video data files Nor is it apparent to what extent the ‘‘that it must create an accessible [to] be stored on a longer-term basis and asserted adverse effects are attributable version as a necessary accommodation synchronized for later replay by the to ‘‘[t]he cost and practical difficulty of for a student with disabilities.’’ 148 viewer.’’ 155 It states that ‘‘[t]he cost and obtaining synchronization licenses,’’ 161 Fourth, petitioners recommend practical difficulty of obtaining qualifying the ‘‘reasonable effort’’ synchronization licenses, combined as opposed to TPMs. As noted, the requirement in circumstances where with the cost and technical challenges Office will only recommend an ‘‘no accessible version of a video of creating individualized audio and exemption where causation has been included with a textbook exists, but a visual stored files for each viewer established; that is, where the Office can publisher might be willing to generate seeking to access the stored files, conclude that the statutory prohibition an accessible version of the video at effectively control viewers access to the on circumventing access controls is the extra cost,’’ by eliminating this material for fair use purposes.’’ 156 cause of the adverse effects.162 requirement when a publisher does not FloSports contends that the recording Finally, the Office seeks additional include an accessible version of of such material constitutes fair use on information regarding the intended 149 materials with purchased materials. the following basis: noninfringing uses, including whether it The Office would welcome comment Individual recordings of audiovisual would be appropriate to clarify that the upon whether petitioners believe that performances, historically, had been used by petition is directed at facilitating the extra costs should be of an directors of the groups in such recordings to educational, noncommercial uses. unreasonable amount, or whether they instruct, teach, and otherwise educated [sic] Petitioner appears to operate a contend that every offer carrying the participants in the recordings on what 163 additional cost should be dismissed, went right, what went wrong, and how each commercial livestreaming service, along with any thoughts from copyright could improve. Generally, the individual and it is unclear whether this exemption owners or licensors on this issue. performances in the audiovisual streams this is intended to facilitate growth in that Finally, petitioners recommend petition considers are a very small percentage market. In addition to factual ‘‘altering the current exemption of the entire copyrighted work (e.g., all development regarding the intended individual performances combined for an language to make clear that an EIU can uses, the Office welcomes information entire copyrighted broadcast). Further, there on the legal basis for finding that such reuse stored accessible versions instead is no current market for educational of re-circumventing and re-remediating recordings at the moment. Granting this uses would be fair. For example, in inaccessible media when complying exemption, or the performance of such a connection with petitioner’s statement with an accommodation request.’’ 150 recording, would not adversely affect the that ‘‘the individual performances in the The Office seeks comment on whether market for the copyrighted recordings.157 audiovisual streams this petition this exemption, including petitioners’ The Office invites comment on this considers are a very small percentage of suggested regulatory language, should proposal but notes at the outset that the the entire copyrighted work,’’ 164 be adopted. description of the proposed class in the commenters should address the well- Proposed Class 4: Audiovisual Works— petition is insufficiently clear to meet established principle that copying even Livestream Recording the statutory requirement to identify ‘‘a a quantitatively ‘‘insubstantial portion’’ of a work may weigh against fair use FloSports, Inc. petitions for an particular class of copyrighted works.’’ 158 While the petition generally where the material is qualitatively exemption ‘‘for circumvention of 165 technology used in the digital storage of describes the class as covering significant to that work. These factual audiovisual works originating as a livestreams of ‘‘sports and other and legal issues should be described livestream of sports and other competitive events,’’ elsewhere it states with sufficient particularity to enable competitive events.’’ 151 The exemption that the relevant works are ‘‘audiovisual the Office to determine whether the ‘‘would enable a livestreaming service recordings of musical performances as specific uses are likely to be fair. As it identified in 17 U.S.C. 102(a)(6) and 17 has done in the past, the Office is to provide individual viewers, via a 159 virtual digital video recorder (‘vDVR’), U.S.C. 106(a)(5).’’ It then states that inclined to reject overbroad proposed with access to a recording on a server the proposed class ‘‘incorporates any classes such as ‘‘fair use works’’ or for fair use purposes.’’ 152 and all works for which audiovisual ‘‘educational fair use works.’’ 166 Absent The petition indicates that recordings may be made and used as fair such clarification, the Office will circumvention is necessary to alter the use. This includes individual school decline further consideration of the performances.’’ 160 Given this functioning of HTTP Live Streaming petition.167 (‘‘HLS’’), ‘‘a live-video streaming inconsistent information, the Office is unable to determine whether, for technique that enables high quality 161 example, the petition is intended to Id. streaming of media content over the 162 See Section 1201 Study at 115 (‘‘The statutory internet from web servers.’’ 153 cover the use of copyrighted broadcasts prohibition on circumventing access controls [must According to FloSports, the use of HLS owned by another party or simply be] the cause of the adverse effects.’’). musical or other works that may be 163 See Flosports, https://www.flosports.tv/join- 147 Id. captured in broadcasts owned by now/ (advertising ‘‘plans starting from $12.49/mo’’) 148 2018 Recommendation at 109–10. (last visited Oct. 8, 2020). 164 149 Id. The petition refers to a purchased textbook, 154 Id. FloSports Class 4 Pet. at 3. but the Office queries if that was petitioner’s intent, 155 Id. 165 See Harper & Row Publrs., Inc. v. Nation since the exemption concerns access to audiovisual 156 Id. Enters., 471 U.S. 539, 564–65 (1985). works. 157 Id. at 3. 166 See 2015 Recommendation at 100 (citing 2006 150 Id. 158 17 U.S.C. 1201(a)(1)(C) (emphasis added); see Recommendation at 17–19). 151 FloSports Class 4 Pet. at 2. supra Section I. 167 Cf. 79 FR 73856, 73859 (Dec. 12, 2014) 152 Id. 159 FloSports Class 4 Pet. at 2. (declining to put forward exemption proposals that 153 Id. 160 Id. could not be granted as a matter of law).

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Proposed Class 5: Audiovisual Works— legal or factual circumstances bearing in detail. For example, commenters may Preservation upon that issue. wish to address the extent to which there is overlap with respect to the types LCA proposes a new exemption to Proposed Classes 7(a): Motion Pictures of TPMs applied to these works, the facilitate preservation of audiovisual and 7(b): Literary Works—Text and Data nature of the proposed research works stored on DVDs or Blu-ray discs. Mining activities, the relevant markets for the a class that would include ‘‘[m]otion Authors Alliance, AAUP, and LCA pictures (including television shows works, and the availability of potential petition for an exemption ‘‘for alternatives to circumvention. and videos), as defined in 17 U.S.C. 101, researchers to circumvent technological where the motion picture is lawfully protection measures on lawfully Proposed Class 8: Literary Works— acquired on a DVD protected by the accessed literary works distributed Accessibility Content Scramble System, or on a Blu- electronically as well as on lawfully ACB, AFB, NFB, LCA, AALL, ray disc protected by the Advanced accessed motion pictures, in order to Benetech/Bookshare, and HathiTrust Access Content System, and is no longer deploy text and data mining petition to expand the current reasonably available in the commercial techniques.’’ 173 Petitioners believe that exemption for the use of assistive marketplace, for the purpose of lawful these two categories of works ‘‘should technologies by visually impaired preservation of the motion picture, by a be grouped together in a single 168 persons in connection with library, archives, or museum.’’ The exemption because they involve the electronically distributed literary works. petition is quite terse, consisting of a same petitioners, the same proposed The current regulatory language applies single sentence, and so the Office use, and implicate the same arguments to literary works, distributed encourages proponents to develop the for an exemption.’’ 174 The proposed electronically, that are protected by legal and factual administrative record class includes both works embodied in technological measures that either in their initial submissions. physical discs and those transmitted prevent the enabling of read-aloud The Office seeks comment on whether digitally.175 The users seeking access functionality or interfere with screen this proposed exemption should be include ‘‘researchers engaged in text readers or other applications or assistive adopted, including any proposed and data mining in the humanities, technologies: regulatory language. social sciences, and sciences.’’ 176 • When a copy of such a work is Proposed Class 6: Audiovisual Works— For reasons of administrative lawfully obtained by a blind or other Space-Shifting efficiency, the Office has grouped these person with a disability, as such a proposals into one category that person is defined in 17 U.S.C. 121; Somewhat related to LCA’s petition, encompasses two proposed classes provided, however, that the rights but not cabined to preservation pertaining to motion pictures and owner is remunerated, as appropriate, activities conducted by libraries, literary works, respectively (i.e., Classes for the price of the mainstream copy of archives, or museums, SolaByte 7(a) and 7(b)). Commenters therefore the work as made available to the proposes a broader exemption that may submit a single comment general public through customary would be available to ‘‘[t]he legitimate addressing one or both aspects of the channels; or owner of the DVD or blu-ray disc and petition. It is important to emphasize, • When such work is a nondramatic licensee of the content’’ for the purpose however, that proponents are required literary work, lawfully obtained and of ‘‘making a usable personal back up to make the statutorily required showing used by an authorized entity pursuant to copy.’’ 169 The exemption ‘‘would apply with respect to each category of works. 17 U.S.C. 121.179 to any title of audio/visual works 5 As discussed above, the statute requires 170 The proposed exemption would years after its public release date.’’ that exemptions describe ‘‘a particular amend this language to reflect recent 177 SolaByte notes that ‘‘[i]ncomplete class of copyrighted works.’’ changes to U.S. law to implement the licensing of titles by internet media Congress made clear that such a class Marrakesh Treaty to Facilitate Access to service providers requires the owner of may not encompass more than one of Published Works for Persons Who Are the disc to subscribe to multiple service the categories of works set out in section Blind, Visually Impaired, or Otherwise providers at high personal cost to cover 102; to the contrary, the ‘‘particular 180 171 Print Disabled (‘‘Marrakesh Treaty’’). a fraction of their library titles.’’ class’’ language refers to ‘‘a narrow and These include updates to the Chaffee The Office seeks comment on whether focused subset’’ of the section 102 Amendment, codified at section 121 of 178 this proposed exemption should be categories. This means that for each title 17, and the newly adopted section adopted, including any proposed type of work for which an exemption is 121A, which pertains to the import and regulatory language. The Office notes sought, petitioners must demonstrate an export of works in accessible formats. that in the 2006, 2012, 2015, and 2018 actual or likely adverse impact on a Petitioners propose the following rulemakings, the Librarian rejected noninfringing use as a result of the changes: proposed exemptions for space-shifting statutory prohibition on circumvention. • Updating the description of eligible or format-shifting, finding that the In the case of this proposal, to the extent users from ‘‘blind or other person with proponents had failed to establish under proponents believe the relevant factual a disability’’ to ‘‘eligible person, as such applicable law that space-shifting is a and legal issues are similar as to the two a person is defined in 17 U.S.C. 121’’; 172 noninfringing use. The Office invites classes of works, the supporting • Updating the description of eligible comment on whether, in the past three comments should describe those matters works to ‘‘literary works and previously years, there has been any change in the published musical works that have been 173 Authors Alliance, AAUP & LCA Class 6 Pet. fixed in the form of text or notation’’; 168 at 2. LCA Class 5 Pet. at 2. and 169 174 Id. SolaByte Class 6 Pet. at 2. • Adding the phrase ‘‘or 121A’’ to the 170 Id. 175 Id. at 3. 171 Id. 176 Id. end of 37 CFR 201.40(b)(3)(ii). As an 172 See 83 FR 54010, 54026–27 (Oct. 26, 2018); 80 177 17 U.S.C. 1201(a)(1)(C) (emphasis added); see FR 65944, 65960 (Oct. 28, 2015); 77 FR 65260, supra Section I. 179 37 CFR 201.40(b)(3). 65276–77 (Oct. 26, 2012); 71 FR 68472, 68478 (Nov. 178 Commerce Comm. Report at 38 (emphasis 180 Marrakesh Treaty, art. 7, June 27, 2013, 52 27, 2006). added). I.L.M. 1312.

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alternative, petitioners request of the vehicle or device, noting The Office seeks comment on whether clarification that exercising the rights participants’ concern that such language this proposed exemption should be described in section 121A does not ‘‘improperly excludes other users with a adopted, including any proposed implicate section 1201.181 legitimate interest in engaging in regulatory language. The Office notes In addition, petitioners request that noninfringing diagnosis, repair, or that in the seventh triennial rulemaking the Office ‘‘eliminate the reference to modification activities.’’ 188 But the it considered a similar petition to the price of ‘mainstream’ copies of Office emphasized the limited nature of remove the list of enumerated device works . . . and replace this term with the change: categories, but concluded that the a more inclusive phrase such as ‘market To be clear, removal of the ‘‘authorized proponents had failed to carry their 182 price of an inaccessible copy.’ ’’ owner’’ language should in no way be burden of demonstrating adverse effects The Office seeks comment on whether understood to suggest that the exemption on noninfringing uses with respect to all this proposed exemption, including extends to conduct prohibited by the anti- types of wireless devices with cellular petitioners’ suggested regulatory trafficking provisions; such an exemption is connection capability.193 Comments language, should be adopted. beyond the Librarian’s authority to responding to this petition should adopt.... The recommended revision Proposed Class 9: Literary Works— simply accounts for the possibility that address the extent to which factual and Medical Device Data certain third parties may qualify as ‘‘user[s]’’ legal issues pertaining to certain categories of devices may be relevant to Hugo Campos, a member of a eligible for an exemption from liability under section 1201(a)(1). Such parties still will be wireless devices more generally. coalition of medical device patients and required to consider whether their activities researchers, requests two modifications could separately give rise to liability under Proposed Class 11: Computer to the current exemption permitting section 1201(a)(2) or (b). Given the legal Programs—Jailbreaking circumvention to access compilations of uncertainty in this area, services electing to Two petitions seek to expand or data generated by medical devices or proceed with circumvention activity clarify the categories of devices covered corresponding personal monitoring pursuant to the exemption do so at their peril.189 by the exemptions for jailbreaking, systems. First, he seeks removal of the which currently include smartphones language limiting the exemption to The Office invites comment on the and portable all-purpose mobile devices ‘‘that are wholly or partially extent to which this analysis may be 183 computing devices, smart televisions, implanted in the body.’’ He notes relevant to the current proposal. and voice assistant devices.194 SFC that ‘‘[m]any current and upcoming Proposed Class 10: Computer petitions for a new exemption to enable devices obtain medical data about a Programs—Unlocking the installation of alternative firmware patient without the need to be fully or ISRI submitted two separate petitions in ‘‘routers and other networking partially implanted in the body,’’ devices.’’ 195 EFF proposes a including smart watches, personal EKG to expand the current exemption for ‘‘unlocking’’—i.e., connecting a wireless clarification of the current exemption monitors, and non-implanted glucose regarding smart televisions. In EFF’s 184 device to an alternative wireless meters. And he argues that ‘‘there is view, it is ‘‘unclear whether that no relevant difference between network. The current exemption permits circumvention of the following lawfully exemption includes hardware devices implanted and non-implanted devices that enable the viewing of video 185 acquired devices for unlocking with respect to copyright.’’ streams, along with other software Second, Mr. Campos requests that the purposes: applications, when such devices are not exemption ‘‘permit third parties to • Wireless telephone handsets (i.e., physically integrated into a perform the circumvention, with cellphones); • television.’’ 196 The petition refers to permission, on behalf of the patient.’’ 186 All-purpose tablet computers; • such hardware as ‘‘streaming devices’’ He notes that the Office and the Library Portable mobile connectivity and cites ‘‘the Roku line of products, the ‘‘have structured other exemptions so devices, such as mobile hotspots, Amazon Fire TV Stick, and the Apple that the identity of the person doing the removable wireless broadband modems, and similar devices; and TV’’ as examples.197 circumvention does not matter.’’ 187 • The Office seeks comment on whether Wearable wireless devices designed The Office seeks comment on whether to be worn on the body, such as these proposed exemptions should be this proposed exemption should be 190 adopted, including any proposed smartwatches or fitness devices. adopted, including any proposed In its first petition, ISRI seeks to add regulatory language. With respect to the regulatory language to define the types ‘‘laptop computers (including request to permit third-party assistance, of devices that would be covered. chromebooks) with 4G LTE or 5G or the Office notes that it has addressed other cellular connection capabilities’’ Proposed Class 12: Computer this issue on several occasions, most to the list of covered devices.191 In its Programs—Repair recently in the 2018 Recommendation’s second petition, ISRI seeks to remove Multiple organizations petition for discussion of the current exemptions for the enumeration of devices altogether new or expanded exemptions relating to repair of software-enabled motor and extend the exemption to ‘‘any other diagnosis, repair, and modification of vehicles and devices. There, the Office devices with 4G LTE or 5G or other software-enabled devices. As noted, the recommended removal of the prior cellular connection capabilities,’’ current regulations include two repair- requirement that circumvention be including, but not limited to, ‘‘Smart related exemptions, covering (1) ‘‘undertaken by the authorized owner’’ TVs, Internet of Things (IoT) devices, computer programs that are contained immersive extended reality (XR) in and control the functioning of a 181 ACB, AFB, NFB, LCA, AALL, Benetech/ Bookshare & HathiTrust Class 8 Pet. at 4. headsets, desktop computers, and lawfully acquired motorized land 192 182 Id. drones.’’ vehicle, when circumvention is a 183 Campos Class 9 Pet. at 2 (citing 37 CFR 201.40(b)(4)). 188 2018 Recommendation at 229. 193 2018 Recommendation at 162. 184 Id. at 2. 189 Id. at 225. 194 37 CFR 201.40(b)(6)–(8). 185 Id. 190 37 CFR 201.40(b)(5). 195 SFC Class 11 Pet. at 2. 186 Id. 191 ISRI Class 10 Pet. #1 at 2. 196 EFF Class 11 Pet. at 2. 187 Id. 192 ISRI Class 10 Pet. #2 at 2. 197 Id.

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necessary step to allow the diagnosis, should include discussion of any ‘‘privacy and security researchers who repair, or lawful modification of a relevant changed circumstances. investigate and publish information vehicle function; and (2) computer Finally, the Office notes that all of the about privacy flaws in computing programs that are contained in and petitions in this class appear to request devices; and individual consumers and control the functioning of a lawfully that the users eligible to exercise these hobbyists who wish to prevent their acquired smartphone or home appliance exemptions include third-party service private data from being disclosed by the or home system, when circumvention is providers.205 As above, the Office devices they own.’’ 211 a necessary step to allow the diagnosis, invites comment on the extent to which The Office seeks comment on whether maintenance, or repair of such a device its prior analysis of that issue may be these proposed changes should be 206 or system.198 applicable here. adopted. With respect to SFC’s petition, comments should include discussion of Three petitions seek to expand the Proposed Class 13: Computer the extent to which the proposed current exemptions to include Programs—Security Research activities may or may not be addressed additional types of devices. Summit Two petitions seek to expand the by permanent statutory exemptions or Imaging, Inc. and Transtate Equipment current exemption permitting current regulatory exemptions. Co., Inc. separately petition for an circumvention for purposes of good- exemption allowing circumvention of faith security research. Professor J. Alex Proposed Classes 14(a): Computer TPMs for purposes of diagnosis, Halderman, CDT, and ACM propose Programs and 14(b): Video Games— modification, and repair of medical removal of several limitations in the Preservation devices.199 iFixit and Public Knowledge current regulation: (1) The requirement SPN and LCA filed two petitions to jointly petition for an exemption that circumvention be undertaken on a expand the current exemptions for permitting circumvention ‘‘to repair ‘‘lawfully acquired device or machine preservation of software and video video game consoles and replace on which the computer program games by eligible libraries, archives, and damaged hardware.’’ 200 With respect to operates’’ and ‘‘not violate any museums.212 Both of these exemptions the latter petition, the Office notes that applicable law’’; (2) both instances of currently require that the covered works in prior rulemakings it has declined to the term ‘‘solely’’ (i.e., ‘‘solely for the not be ‘‘distributed or made available recommend exemptions for jailbreaking purpose of good-faith security research’’ outside of the physical premises of the and repair of video game consoles in and ‘‘solely for purposes of good-faith eligible library, archives, or light of evidence that circumvention of testing, investigation, and/or correction museum.’’ 213 The proposed exemptions TPMs in such devices may adversely of a security flaw or vulnerability’’); and would remove those requirements.214 affect the value of the affected software, (3) the requirement that the information The Office welcomes further elaboration as well as a lack of evidence of adverse derived from the activity be used on how proponents of the exemptions effects on noninfringing uses.201 The ‘‘primarily to promote the security or would envision these works to be Office invites comment on whether, in safety of the class of devices or distributed or made available in a the past three years, there has been any machines on which the computer manner likely to be noninfringing, change in the legal or factual program operates, or those who use respectively. For example, the current circumstances bearing upon these such devices or machines, and is not exemptions are focused on issues. used or maintained in a manner that circumvention to enable preservation facilitates copyright infringement.’’ 207 uses, in contrast to enabling provision of Two additional petitions request As petitioners note, the Office lending copies for users, a preliminary removal of the limitation to specific considered these proposed changes in distinction that the Office has found categories of devices, along with further the 2018 rulemaking and provided critical in the past when analyzing changes to the current regulatory text.202 interpretive guidance as to the potential legislative reforms to the EFF seeks to expand the exemption to 208 regulatory language’s intended scope. section 108 exception for libraries and permit circumvention for purposes of Petitioners state, however, that they archives.215 Would the proposed modification of a device, in addition to ‘‘intend to further develop the record in modification maintain this distinction, repair-related activities. iFixit and the favor of these changes in the current and if so, how? Would there be Repair Association propose to remove rulemaking period.’’ 209 conditions on access restrictions to the current requirement that SFC petitions for an expansion to registered users of an eligible library, circumvention of TPMs protecting ‘‘clarify that the definition of ‘good faith archives, or museum or would material software in motor vehicles not security research’ . . . includes good- be made available more generally to constitute a violation of applicable faith testing, investigation, and/or members of the public? The Office notes law.203 The Office notes that it correction of privacy issues (including that in the 2018 rulemaking, it declined considered similar requests regarding flaws or functionality that may expose to recommend a proposal to expand the these issues in the 2018 rulemaking.204 personal information) and permits the video game preservation exemption to Therefore, as with the above petitions, owner of the device to remove software allow circumvention by affiliate comments addressing these proposals or disable functionality that may expose archivists outside the premises of a 210 personal information.’’ Eligible users covered institution, concluding that the 198 37 CFR 201.40(b)(9)–(10). under this proposal would include 199 Summit Imaging, Inc. Class 12 Pet. at 2; 211 Id. Transtate Equip. Co. Class 12 Pet. at 2. 205 Summit Imaging, Inc. Class 12 Pet. at 3; 212 37 CFR 201.40(b)(12), (13). 200 iFixit & Public Knowledge Class 12 Pet. at 2. Transtate Equip. Co. Class 12 Pet. at 2; iFixit & 213 Id. at § 201.40(b)(12)(ii), (b)(13)(i). 201 Public Knowledge Class 12 Pet. at 2; EFF Class 12 See 2018 Recommendation at 206, 219–20; 214 SPN & LCA Class 14(a) Pet. at 2; SPN & LCA Pet. at 2–3; iFixit & Repair Ass’n Class 12 Pet. at 2015 Recommendation at 199–201; 2012 Class 14(b) Pet. at 2. 2. Recommendation at 44, 47. 215 U.S. Copyright Office, Revising Section 108: 202 206 See 2018 Recommendation at 225. EFF Class 12 Pet. at 2–3; iFixit & Repair Ass’n Copyright Exceptions for Libraries and Archives at 207 Class 12 Pet. at 2–3. Halderman, CDT & ACM Class 13 Pet. at 3. 24–34 (addressing preservation uses), 35–41 203 iFixit & Repair.org Class 12 Pet. at 3. 208 See 2018 Recommendation at 283–314. (addressing user copies) (2017), https:// 204 See 2018 Recommendation at 189–94, 206–09, 209 Halderman, CDT & ACM Class 13 Pet. at 3. www.copyright.gov/policy/section108/discussion- 310–11. 210 SFC Class 13 Pet. at 2. document.pdf.

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proponents had failed to establish that ‘material,’ ’’ stating that the latter ‘‘is install modified versions of the FOSS such activity was likely more commonly used to describe the computer programs).225 noninfringing.216 Commenters substances used by 3D printers within It is somewhat unclear whether the responding to these petitions should the 3D printing community and requested exemption for ‘‘lawful use of address the extent to which the legal industry.’’ 220 Second, he proposes to computer programs’’ would apply to and factual issues relevant to this class remove the term ‘‘microchip-reliant.’’ In any lawful use or seeks merely to allow may differ from those considered his view, there is no ‘‘justification to licensed uses of FOSS software. To the previously. narrow the scope of the exemption to a extent the former is intended, the Although these proposed classes both specific subset of technological proposed exemption appears beyond the involve computer programs (which measures tied to microchip-based Librarian’s authority to grant. As the constitute literary works under the verifications,’’ and ‘‘the inclusion of the Office has consistently noted, the Copyright Act), the petition regarding limiting language creates unnecessary rulemaking requires a showing of video games involves an additional ambiguity.’’ 221 As noted, to recommend ‘‘distinct, verifiable and measurable’’ category of works insofar as video games an exemption, the Office requires a adverse impacts on noninfringing also constitute audiovisual works.217 showing that the statutory prohibition uses.226 Such evidence ‘‘cannot be Therefore, the Office is following the on circumventing access controls is hypothetical, theoretical, or speculative, same procedure discussed above in yielding adverse effects on non- but must be real, tangible, and relation to the proposed TDM infringing uses. The current reference to concrete.’’ 227 In light of that exemption: the Office has grouped these ‘‘microchip-reliant’’ was based on the requirement, ‘‘the Register has petitions into a single category record of relevant TPMs submitted in previously rejected broad proposed encompassing two proposed classes. connection with the exemption categories such as ‘fair use works’ or Commenters addressing these proposals request.222 In particular, the Office now ‘educational fair use works’ as may submit a single comment solicits descriptions and examples of inappropriate.’’ 228 SFC and any other addressing both computer programs and the prevalence of TPMs that are not proponents of this request therefore video games, but the supporting microchip-based verifications, and must narrow or clarify the specific uses evidence must be sufficient to establish descriptions of adverse effects stemming of computer programs that the proposed an adverse effect on noninfringing uses from such TPMs.223 exemption seeks to permit, so that with respect to each category of works. In general, the Office seeks comment participants and the Office may fairly In particular, the Office is interested in on whether these proposed changes assess whether they are likely to be the extent to which licensing markets should be adopted. noninfringing and adversely affected by for video games may be similar or the prohibition on circumvention. The different from those for software more Proposed Class 16: Computer Office also welcomes additional detail generally, and whether any such Programs—Copyright License regarding the first subpart of SFC’s differences may be relevant under the Investigation intended uses ‘‘investigating potential fair use analysis or the expected effect SFC petitions for a new exemption to copyright infringement of the computer of circumvention of technological permit circumvention of TPMs programs, including the statement measures on the market for or value of protecting computer programs for ‘‘FOSS computer programs ([ ] are copyrighted works.218 The Office seeks purposes of ‘‘(a) investigating potential frequently incorporated in embedded comment on these and other relevant copyright infringement of the computer computing devices in an infringing issues, including any proposed programs; and (b) making lawful use of manner).’’ regulatory language. computer programs (e.g., copying, Proposed Class 17: All Works— modifying, redistributing, and updating Proposed Class 15: Computer Accessibility Uses Programs—3D Printing free and open source software (FOSS)).’’ 224 The proposed exemption Multiple organizations representing Michael Weinberg petitions to amend does not appear to be limited to persons with disabilities (‘‘Accessibility the current exemption permitting particular users or types of devices. SFC Petitioners’’) jointly filed a petition circumvention to enable the use of states that the users seeking access proposing ‘‘a more comprehensive alternative feedstock in 3D printers. The include: exemption to resolve the shortcomings current exemption allows access to of the current, piecemeal approach to ‘‘[c]omputer programs that operate 3D software authors and publishers, including the authors of FOSS computer programs Section 1201 exemptions for 229 printers that employ microchip-reliant (which are frequently incorporated in accessibility.’’ The proposed technological measures to limit the use embedded computing devices in an exemption would permit circumvention of feedstock, when circumvention is infringing manner); and individual to access ‘‘all cognizable classes of accomplished solely for the purpose of consumers who are lawful owners of works under Section 102 (a) of the using alternative feedstock and not for embedded computing devices and licensees Copyright Act’’ to facilitate accessibility the purpose of accessing design of the computer programs embedded therein, for persons with disabilities. software, design files, or proprietary and who wish to make lawful use of Accessibility Petitioners state that this 219 computer programs protected by data.’’ Mr. Weinberg seeks two technological protection measures (e.g. the 225 changes to this language. First, he right granted by certain FOSS licenses to Id. proposes to ‘‘replace the term 226 Commerce Committee Report at 37; see also Section 1201 Study at 119–21. ‘feedstock’ . . . with the term 220 Weinberg Class 15 Pet. at 2. 227 Section 1201 Study at 120. 221 Id. 228 2015 Recommendation at 100 (citing 2006 216 2018 Recommendation at 271–75. 222 2015 Recommendation at 376. Recommendation at 17–19). 217 U.S. Copyright Office, Compendium of U.S. 223 See Lexmark Int’l Inc. v. Static Control 229 ACB, AFB, Ass’n of Late-Deafened Adults, Copyright Office Practices sec. 807.7(A)(1) (3d ed. Components, Inc., 387 F.3d 522, 547 (6th Cir. 2004) ATSP, AHEAD, Benetech/Bookshare, Gallaudet U., 2017) (‘‘Generally, a videogame contains two major (‘‘Because the statute refers to ‘control[ling] access HathiTrust, Hearing Loss Ass’n of Am., LCA, Nat’l components: the audiovisual material and the to a work protected under this title,’ it does not Ass’n of the Deaf, Nat’l Fed’n of the Blind, computer program that runs the game.’’). naturally apply when the ‘work protected under Telecomm. for the Deaf and Hard of Hearing, Inc. 218 See 17 U.S.C. 107; 1201(a)(1)(C)(iv). this title’ is otherwise accessible.’’). (collectively ‘‘Accessibility Petitioners’’) Class 17 219 37 CFR 201.40(b)(14). 224 SFC Class 16 Pet. at 2. Pet. at 4.

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exemption would allow such users, as reflected by the exemptions adopted for Accessibility Petitioners should also well as ‘‘advocates[ ] and organizations such uses in prior rulemakings), it is not include, with respect to each class, that produce accessible versions of clear to what extent various TPMs are evidence of an actual or likely adverse copyrighted works protected by effectively applied to every category of effect on accessibility uses resulting technological protection measures[,] to work in section 102, some of which may from TPMs applied to that type of work. press ahead on accessibility without the not readily lend themselves to such While the Office recognizes the vital burden of engaging in a complex, measures (e.g., sculptural works). In importance of ensuring accessibility for situation-specific analysis.’’ 230 They addition, the availability of accessible- persons with disabilities, and indeed state that the relevant barriers to access format versions of works in the has recommended legislation to make include ‘‘(1) the access controls that marketplace is a relevant consideration permanent the current exemption inhibit accessibility and (2) failures of in determining adverse effects,239 and it regarding assistive technologies for producers, publishers, and other is not clear that that factor applies electronically-distributed literary rightsholders to authorize access for equally to all categories of works. works,242 its authority in this accessibility purposes or to produce proceeding is bound by the provisions 231 The Office notes its continuing accessible versions of their works.’’ discretion to decline to put forward of the statute. Subject to these As presently suggested, this proposed proposals for public comment that are requirements, the Office invites exemption is beyond the Librarian’s unlikely to yield consideration of comment on this proposed class(es). authority to adopt because it does not exemptions consistent with the IV. Future Phases of the Eighth meet the statutory requirement to 240 describe ‘‘a particular class of standards of section 1201(a)(1). In Triennial Rulemaking copyrighted works.’’ 232 As discussed light of the important public policy As in prior rulemakings, after receipt above, the legislative history confirms considerations raised by this request of written comments, the Office will that this language is intended to refer to and past exemptions adopted with continue to solicit public engagement to ‘‘a narrow and focused subset of the respect to facilitating accessibility uses, create a comprehensive record. broad categories of works . . . identified however, the Office is noticing this Described below are the future phases of in section 102 of the Copyright Act.’’ 233 category for public comment while the administrative process that will be Therefore, the Office uses the section flagging the need to further develop and employed for this rulemaking, so that 102 categories as a starting point and refine petitioners’ request into separate parties may use this information in their refines the proposed classes by other proposed classes. Accordingly, planning. criteria, such as the types of TPMs used Accessibility Petitioners and any other A. Public Hearings or the types of uses.234 For example, proponents in this category must while the category of ‘‘literary works’’ provide evidence and legal analysis The Copyright Office intends to hold under section 102(a)(1) ‘‘embraces both sufficient to enable the Office to make public hearings in spring 2021 following prose creations such as journals, a particularized assessment as to each the last round of written comments. The periodicals or books, and computer class of works for which an exemption hearings will allow for participation by programs of all kinds,’’ Congress is sought. Based on prior exemptions videoconference and will be streamed explained that ‘‘[i]t is exceedingly adopted, the Office anticipates online. In addition, the Office will unlikely that the impact of the Accessibility Petitioners to be seeking determine at a later date, based on prohibition on circumvention of access exemptions related to TPMs protecting applicable public health guidelines, control technologies will be the same for literary works as well as motion pictures whether in-person participation will be scientific journals as it is for computer distributed electronically, and possible. A separate notice providing operating systems.’’ 235 Thus, ‘‘these two proponents should provide evidence details about the hearings and how to categories of works, while both ‘literary and proposed regulatory language with participate will be published in the works,’ do not constitute a single respect to these and any other relevant Federal Register at a later date. The ‘particular class’ for purposes of’’ classes, and clearly identify and propose Office will identify specific items of section 1201(a)(1).236 contours for each such class. For inquiry to be addressed during the Further, petitioners are required to example, the Office is not inclined to hearings. establish ‘‘distinct, verifiable and recommend an exemption for printed B. Post-Hearing Questions measurable impacts’’ on noninfringing copies of literary works, for which no uses,237 and those impacts must be TPMs are employed. Nor is the Office As with previous rulemakings, caused by the statutory prohibition on empowered to recommend regulatory following the hearings, the Copyright circumvention.238 While TPMs language that extends to sound Office may request additional undoubtedly have such impacts with recordings, musical works, architectural information with respect to particular respect to many accessibility uses (as works, etc. without development of an classes from rulemaking participants. adequate administrative record The Office may rely on this process in 230 Id. at 5. demonstrating that an exemption is cases where it would be useful for 231 Id. appropriate for each of these classes.241 participants to supply missing 232 17 U.S.C. 1201(a)(1)(C) (emphasis added). information for the record or otherwise 233 Commerce Committee Report at 38 (emphasis 239 See, e.g., 2018 Recommendation at 110 resolve issues that the Office believes added). (including market check requirement in exemption are material to particular exemptions. 234 See supra Section I. for accessibility uses of audiovisual works ‘‘to Such requests for information will take 235 House Manager’s Report at 7. prevent copies being made of works already 236 Id. As noted, the Office has repeatedly available in accessible formats, while supporting the form of a letter from the Copyright declined to recommend proposed exemptions that the motion picture industry’s effort to further Office and will be addressed to have failed to define the class of works to be expand the availability of accessible versions in the individual parties involved in the covered with sufficient particularity. See, e.g., 2018 marketplace’’). proposal as to which more information Recommendation at 131–32; 79 FR at 73859; 2006 240 79 FR at 73859 (declining to notice three is sought. While responding to such a Recommendation at 17–19. proposals for public comment). 237 Commerce Committee Report at 37. 241 See supra Section I (outlining four elements to request will be voluntary, any response 238 17 U.S.C. 1201(a)(1)(C); see also Section 1201 the evidentiary standard applied by the Office in Study at 115, 117. evaluating requests). 242 See Section 1201 Study at 84–88.

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will need to be supplied by a specified POSTAL SERVICE Change—CPI.’’ Faxed comments are not deadline. After the receipt of all accepted. responses, the Office will post the 39 CFR Part 20 FOR FURTHER INFORMATION CONTACT: questions and responses on the Office’s International Mailing Services: Kathy Frigo at 202–268–4178. website as part of the public record. Proposed Product and Price SUPPLEMENTARY INFORMATION: C. Ex Parte Communication Changes—CPI International Price and Service TM Adjustments In the seventh triennial rulemaking, AGENCY: Postal Service . in response to stakeholder requests, the ACTION: Proposed rule; request for On October 9, 2020, the Postal Service Office issued written guidelines under comments. filed a notice of mailing services price which interested non-governmental adjustments with the Postal Regulatory SUMMARY: The Postal Service proposes participants could request informal Commission (PRC), effective on January to revise Mailing Standards of the communications with the Office during 24, 2021. The Postal Service proposes to United States Postal Service, the post-hearing phase of the revise Notice 123, Price List, available International Mail Manual (IMM®), to ® proceeding. The Office expects to follow on Postal Explorer at https:// reflect changes coincident with the pe.usps.com, to reflect these new price substantially the same process in this recently announced mailing services proceeding. To ensure transparency, changes. The new prices are or will be price adjustments. available under Docket Number R2021– participating parties will be required to DATES: We must receive your comments 1 on the Postal Regulatory submit a list of attendees and a written on or before November 16, 2020. Commission’s website at www.prc.gov. summary of any oral communications, ADDRESSES: Mail or deliver comments to This proposed rule describes the price which will be posted on the Office’s the manager, Product Classification, changes for the following market website. Specific guidelines for this U.S. Postal Service®, 475 L’Enfant Plaza dominant international services: proceeding will be made available SW, RM 4446, Washington, DC 20260– • International extra services and following the public hearings. No ex 5015. You may inspect and photocopy fees. parte communications with the Office ® all written comments at USPS International Extra Services and Fees regarding this proceeding will be Headquarters Library, 475 L’Enfant permitted prior to the post-hearing Plaza SW, 11th Floor N, Washington DC The Postal Service plans to increase phase. by appointment only between the hours prices for certain market dominant Dated: October 9, 2020. of 9 a.m. and 4 p.m., Monday through international extra services including: • Regan A. Smith, Friday by calling 1–202–268–2906 in Certificate of Mailing advance. Email comments, containing • Registered MailTM General Counsel and Associate Register of • Return Receipt Copyrights. the name and address of the commenter, to: [email protected], with a • Customs Clearance and Delivery Fee [FR Doc. 2020–22893 Filed 10–14–20; 8:45 am] subject line of ‘‘January 2021 • International Business ReplyTM Mail BILLING CODE 1410–30–P International Mailing Services Price Service

CERTIFICATE OF MAILING

Fee

Individual pieces

Individual article (PS Form 3817) ...... $1.55 Duplicate copy of PS Form 3817 or PS Form 3665 (per page) ...... 1.55 Firm mailing sheet (PS Form 3665), per piece (minimum 3), First-Class Mail International only ...... 0.44

Bulk quantities

For first 1,000 pieces (or fraction thereof) ...... $8.80 Each additional 1,000 pieces (or fraction thereof) ...... 1.10 Duplicate copy of PS Form 3606 ...... 1.55

Registered Mail services covered by the International 20.1, and to associated changes to Fee: $16.30. Mail Manual. These prices will be on Notice 123, Price List. Postal Explorer at pe.usps.com. List of Subjects in 39 CFR Part 20 Return Receipt Accordingly, although exempt from Fee: $4.25. the notice and comment requirements of Foreign relations, International postal the Administrative Procedure Act (5 services. Customs Clearance and Delivery U.S.C. 553(b), (c)) regarding proposed Accordingly, 39 CFR part 20 is Fee: per piece $6.65. rulemaking by 39 U.S.C. 410(a), the proposed to be amended as follows: Postal Service invites public comment International Business Reply Service on the following proposed changes to PART 20—[AMENDED] Fee: Cards $1.55; Envelopes up to 2 Mailing Standards of the United States ounces $2.05 Postal Service, International Mail ■ 1. The authority citation for 39 CFR Following the completion of Docket Manual (IMM®), which is incorporated part 20 continues to read as follows: No. R2021–1, the Postal Service will by reference in the Code of Federal Authority: 5 U.S.C. 552(a); 13 U.S.C. 301– adjust the prices for products and Regulations in accordance with 39 CFR 307; 18 U.S.C. 1692–1737; 39 U.S.C. 101,

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