80 FR 81369 - Section 1201 Study: Notice and Request for Public Comment

LIBRARY OF CONGRESS
Copyright Office

Federal Register Volume 80, Issue 249 (December 29, 2015)

The United States Copyright Office is undertaking a public study to assess the operation of section 1201 of Title 17, including the triennial rulemaking process established under the DMCA to adopt exemptions to the prohibition against circumvention of technological measures that control access to copyrighted works. To aid this effort, and to ensure thorough assistance to Congress, the Office is seeking public input on a number of key questions.

[Federal Register Volume 80, Number 249 (Tuesday, December 29, 2015)]
[Notices]
[Pages 81369-81373]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-32678]


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LIBRARY OF CONGRESS

U.S. Copyright Office

[Docket No. 2015-8]


Section 1201 Study: Notice and Request for Public Comment

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Notice of inquiry.

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SUMMARY: The United States Copyright Office is undertaking a public 
study to assess the operation of section 1201 of Title 17, including 
the triennial rulemaking process established under the DMCA to adopt 
exemptions to the prohibition against circumvention of technological 
measures that control access to copyrighted works. To aid this effort, 
and to ensure thorough assistance to Congress, the Office is seeking 
public input on a number of key questions.

DATES: Written comments must be received no later than 11:59 p.m. 
Eastern Time on February 25, 2016. Written reply comments must be 
received no later than 11:59 p.m. Eastern Time on March 25, 2016. The 
Office will be announcing one or more public meetings, to take place 
after written comments are received, by separate notice in the future.

ADDRESSES: All comments must be submitted electronically. Specific 
instructions for submitting comments will be posted on the Copyright 
Office Web site at http://www.copyright.gov/policy/1201 on or before 
February 1, 2016. To meet accessibility standards, all comments must be 
provided in a single file not to exceed six megabytes (MB) in one of 
the following formats: Portable Document File (PDF) format containing 
searchable, accessible text (not an image); Microsoft Word; 
WordPerfect; Rich Text Format (RTF); or ASCII text file format (not a 
scanned document). All comments must include the name of the submitter 
and any organization the submitter represents. The Office will post all 
comments publicly in the form that they are received. If electronic 
submission of comments is not feasible, please contact the Office using 
the contact information below for special instructions.

FOR FURTHER INFORMATION CONTACT: Regan A. Smith, Associate General 
Counsel, by email at [email protected] or by telephone at 202-707-8350; or 
Kevin Amer, Senior Counsel for Policy and International Affairs, by 
email at [email protected] or by telephone at 202-707-8350.

SUPPLEMENTARY INFORMATION:

I. Background

    The Digital Millennium Copyright Act (``DMCA'') has played a 
pivotal role in the development of the modern digital economy. Enacted 
in 1998 to implement the United States' obligations under two 
international treaties,\1\ it is intended to foster the growth of the 
digital marketplace by ensuring adequate legal protections for 
copyrighted content.\2\ As envisioned by Congress, the DMCA seeks to 
balance the interests of copyright owners and users, including the 
personal interests of consumers, in the digital environment.\3\ In 
addition to provisions limiting the liability of online service 
providers,\4\ the DMCA includes provisions prohibiting the 
circumvention of technological measures used to protect copyrighted 
works as well as trafficking in anticircumvention devices.\5\ These 
anticircumvention provisions, codified in section 1201 of the Copyright 
Act, were the subject of a 2014 hearing held by the House Judiciary 
Committee's Subcommittee on Courts, Intellectual Property and the 
Internet as part of its comprehensive review of the nation's copyright 
law,\6\ and, as discussed below, a recently concluded rulemaking 
conducted by the Copyright Office. In accordance with the request from 
the House Judiciary Committee's Ranking Member to the Register of 
Copyrights at the April 2015 House Judiciary Committee hearing on 
copyright review, and consistent with the Register's testimony in that 
hearing that the impact and efficacy of section 1201 merit analysis at 
this time, the Office is undertaking a study and soliciting public 
input.\7\
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    \1\ See WIPO Copyright Treaty art. 11, Dec. 20, 1996, 36 I.L.M. 
65 (1997); WIPO Performances and Phonograms Treaty art. 18, Dec. 20, 
1996, 36 I.L.M. 76 (1997).
    \2\ See H.R. Rep. No. 105-551, pt. 2, at 23 (1998).
    \3\ See id. at 26.
    \4\ See 17 U.S.C. 512.
    \5\ The DMCA also established protections for the integrity of 
copyright management information. See id. 1202.
    \6\ See Chapter 12 of Title 17: Hearing Before the Subcomm. on 
Courts, Intellectual Prop., and the Internet of the H. Comm. on the 
Judiciary, 113th Cong. (2014) (``Chapter 12 of Title 17 Hearing'').
    \7\ See Register's Perspective on Copyright Review: Hearing 
Before the H. Comm. on the Judiciary, 114th Cong. 6 (2015) 
(``Register's Perspective on Copyright Review Hearing'') (statement 
of Maria A. Pallante, Register of Copyrights and Director, U.S. 
Copyright Office) (``For [certain] aspects of section 1201, we are 
recommending a comprehensive study, including the permanent 
exemptions for security, encryption, and privacy research.''); id. 
at 49 (statement of Rep. John Conyers, Jr., Ranking Member, H. Comm. 
on the Judiciary) (``[T]here are policy issues that warrant studies 
and analysis, including section 512, section 1201, mass 
digitization, and moral rights. I would like the Copyright Office to 
conduct and complete reports on those policy issues . . . .''). 
Separately, as discussed below, the Register has also proposed 
amending the triennial rulemaking process to ease the burden of 
renewing existing exemptions. See id. at 5 (statement of Maria A. 
Pallante, Register of Copyrights and Director, U.S. Copyright 
Office) (``We are therefore recommending a legislative change to 
provide a presumption in favor of renewal in cases where there is no 
opposition.'').
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A. Overview of Section 1201

Prohibitions on Circumvention and Trafficking
    Section 1201 prohibits the circumvention of technological measures 
employed by or on behalf of copyright owners to control access to their 
works (also known as ``access controls''), as well as the trafficking 
in technologies or services that facilitate such circumvention.\8\ It 
also prohibits trafficking in technologies or services that facilitate 
circumvention of technological measures that protect the exclusive 
rights granted to copyright owners under Title 17 (also known as ``copy 
controls'').\9\ In enacting section 1201, Congress recognized that 
technological measures can be deployed ``not only to prevent piracy and 
other economically harmful unauthorized uses of copyrighted material, 
but also to support new ways of disseminating copyrighted materials to 
users,'' as well as to make ``the process of obtaining permissions 
easier.'' \10\ Violations of

[[Page 81370]]

section 1201 are subject to both civil and criminal penalties.\11\
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    \8\ 17 U.S.C. 1201(a); see Staff of H. Comm. on the Judiciary, 
105th Cong., Section-by-Section Analysis of H.R. 2281 as Passed by 
the United States House of Representatives on August 4th, 1998, at 
5-9 (Comm. Print 1998) (``House Manager's Report'').
    \9\ 17 U.S.C. 1201(b); see House Manager's Report at 12-13. 
While section 1201 does not prohibit the circumvention of copy 
controls, in some cases access control and copy control measures are 
merged, and thus circumvention of such measures is prohibited by 
section 1201(a)(1). U.S. Copyright Office, Section 1201 Rulemaking: 
Sixth Triennial Proceeding to Determine Exemptions to the 
Prohibition on Circumvention, Recommendation of the Register of 
Copyrights 4 n.13 (2015), http://copyright.gov/1201/2015/registers-recommendation.pdf (``2015 Recommendation''); U.S. Copyright Office, 
Recommendation of the Register of Copyrights in RM 2008-8, 
Rulemaking on Exemptions from Prohibition on Circumvention of 
Copyright Protection Systems for Access Control Technologies 44-47 
(June 11, 2010), http://www.copyright.gov/1201/2010/initialed-registers-recommendation-june-11-2010.pdf (``2010 Recommendation'').
    \10\ House Manager's Report at 6.
    \11\ 17 U.S.C. 1203-1204.
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Rulemaking Process
    Section 1201 includes a triennial rulemaking process through which 
the Librarian of Congress, following a public proceeding conducted by 
the Register of Copyrights in consultation with the National 
Telecommunications and Information Administration of the Department of 
Commerce (``NTIA''), may grant limited exceptions to section 
1201(a)(1)'s bar on the circumvention of access controls. By statute, 
the triennial rulemaking process addresses only the prohibition on the 
act of circumvention itself; section 1201 does not provide a mechanism 
to grant exceptions to the anti-trafficking provisions of sections 
1201(a)(2) or 1201(b).\12\ The section 1201 rulemaking is intended to 
serve as a ``fail-safe'' mechanism through which the Copyright Office 
can monitor developments in the copyright marketplace and recommend 
limited exemptions as needed to prevent the unnecessary restriction of 
fair and other noninfringing uses.\13\ In keeping with that goal, the 
primary responsibility of the Office in the rulemaking proceeding is to 
assess whether the implementation of access controls impairs the 
ability of individuals to make noninfringing uses of copyrighted works 
within the meaning of section 1201(a)(1). To do this, the Register 
solicits proposals from the public, develops a comprehensive 
administrative record using information submitted by interested 
parties, and makes recommendations to the Librarian concerning whether 
exemptions are warranted based on that record. While the first 
triennial rulemaking completed in the year 2000 considered nearly 400 
comments, resulting in the adoption of two exemptions,\14\ the process 
has grown such that the recently concluded sixth triennial rulemaking 
considered nearly 40,000 comments, resulting in exemptions for twenty-
two types of uses.\15\
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    \12\ Id. 1201(a)(1)(C).
    \13\ H.R. Rep. No. 105-551, pt. 2, at 36.
    \14\ Exemption to Prohibition on Circumvention of Copyright 
Protection Systems for Access Control Technologies, Final Rule, 65 
FR 64556, 64557 (Oct. 27, 2000).
    \15\ 2015 Recommendation at 2-7 (2015).
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    Those seeking an exemption from the prohibition on circumvention 
must establish that ``persons who are users of a copyrighted work are, 
or are likely to be in the succeeding 3-year period, adversely affected 
by the prohibition . . . in their ability to make noninfringing uses 
under this title of a particular class of copyrighted works.'' \16\ To 
meet the statutory standard, a proponent must show: (1) That uses 
affected by the prohibition on circumvention are or are likely to be 
noninfringing; and (2) that as a result of a technological measure 
controlling access to a copyrighted work, the prohibition is causing, 
or in the next three years is likely to cause, an adverse impact on 
those uses.\17\ With respect to the first requirement, proponents in 
prior rulemakings have pointed to several types of noninfringing uses 
that could be affected by the prohibition of section 1201(a)(1), 
including fair use (codified in section 107 of the Copyright Act), 
certain educational uses (section 110), and certain uses of computer 
programs (section 117).\18\ The second requirement asks whether 
technological measures are ``diminishing the ability of individuals to 
use these works in ways that are otherwise lawful.'' \19\ Congress 
stressed that proponents must establish that a ``substantial 
diminution'' of the availability of works for noninfringing uses is 
``actually occurring'' in the marketplace--or, in ``extraordinary 
circumstances,'' may establish the ``likelihood of future adverse 
impact during that time period'' where such evidence is ``highly 
specific, strong and persuasive.'' \20\
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    \16\ 17 U.S.C. 1201(a)(1)(C); see 2015 Recommendation at 13-14; 
2010 Recommendation at 10. Under the APA, ``[e]xcept as otherwise 
provided by statute, the proponent of a rule or order has the burden 
of proof.'' 5 U.S.C. 556(d). The Breaking Down Barriers to 
Innovation Act of 2015, introduced in both the House and the Senate, 
would shift the burden of proof away from proponents of exemptions 
and provide discretion to the Librarian to conduct a rulemaking 
proceeding outside the triennial process. H.R. 1883, 114th Cong. 
sec. 3(a)(1)(E) (2015); S. 990, 114th Cong. sec. 3(a)(1)(E) (2015).
    \17\ 17 U.S.C. 1201(a)(1)(B).
    \18\ See, e.g., Transcript, U.S. Copyright Office, Hearing on 
Exemption to Prohibition on Circumvention of Copyright Protection 
Systems for Access Control Technologies 10:17-11:9 (May 2, 2000) 
(statement of Peter Jaszi, Digital Future Coalition) (discussing 
adverse effects of section 1201(a)(1) on noninfringing uses under 
sections 107 and 110); Internet Archive, Creative Commons, and 
Berkman Center for Internet & Society, Initial Comments Submitted in 
Response to U.S. Copyright Office's Oct. 15, 2002 Notice of Inquiry 
at 7-9 (2002) (seeking an exemption to allow software archiving as 
allowed under sections 117 and 107); National Association of 
Independent Schools, Initial Comments Submitted in Response to U.S. 
Copyright Office's Nov. 24, 1999 Notice of Inquiry (2000) 
(discussing fair use for educational purposes).
    \19\ H.R. Rep. No. 105-551, pt. 2, at 37.
    \20\ House Manager's Report at 6.
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    In considering a proposed exemption, the Librarian--and hence the 
Register--must also weigh the statutory factors listed in section 
1201(a)(1)(C), namely: ``(i) the availability for use of copyrighted 
works; (ii) the availability for use of works for nonprofit archival, 
preservation, and educational purposes; (iii) the impact that the 
prohibition on the circumvention of technological measures applied to 
copyrighted works has on criticism, comment, news reporting, teaching, 
scholarship, or research; (iv) the effect of circumvention of 
technological measures on the market for or value of copyrighted works; 
and (v) such other factors as the Librarian considers appropriate.'' 
\21\
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    \21\ 17 U.S.C. 1201(a)(1)(C). In the latest triennial 
rulemaking, due to the increasing prevalence of technological 
measures employed in connection with embedded computer software, 
many participants urged the Register and Librarian to consider non-
copyright issues relating to health, safety, and environmental 
concerns under the rubric of ``other factors'' appropriate for 
consideration. See 2015 Recommendation at 2-3. The Breaking Down 
Barriers to Innovation Act of 2015 would add two additional factors 
to the list to be considered by the Librarian when deciding whether 
to grant an exemption: (1) Whether the prohibition on circumvention 
impacts accessibility for persons with disabilities, and (2) whether 
the prohibition impacts the furtherance of security research. H.R. 
1883 sec. 3(a)(1)(B)(v); S. 990 sec. 3(a)(1)(B)(v).
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    In addition, section 1201(a)(1) specifies that exemptions adopted 
through the triennial rulemaking must be defined based on ``a 
particular class of works.'' \22\ The legislative history explains that 
``the `particular class of copyrighted works' [is intended to] be a 
narrow and focused subset of the broad categories of works'' appearing 
in section 102 of Title 17, such as literary works, musical works, and 
sound recordings.\23\ In the course of prior rulemakings, the Register 
has concluded that, based on the record presented, a ``class of works'' 
defined initially by reference to a section 102 category or subcategory 
of works may be additionally refined by reference to the medium in 
which the works are distributed, the particular access controls at 
issue, or the particular type of use and/or user to which the exemption 
will apply.\24\
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    \22\ See 17 U.S.C. 1201(a)(1)(B) (emphasis added).
    \23\ H.R. Rep. No. 105-551, pt. 2, at 38.
    \24\ U.S. Copyright Office, Recommendation of the Register of 
Copyrights in RM 2005-11, Rulemaking on Exemptions from Prohibition 
on Circumvention of Copyright Protection Systems for Access Control 
Technologies 9-10 (Nov. 17, 2006), http://www.copyright.gov/1201/docs/1201_recommendation.pdf.
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    Exemptions adopted via the rulemaking process are to remain in 
effect for three years. Congress made clear that the basis for an 
exemption must be established de novo in each triennial proceeding.\25\ 
Accordingly, even if the same exemption is sought

[[Page 81371]]

again, it cannot be granted unless its proponents establish a new 
record that satisfies the statutory criteria.
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    \25\ See H.R. Rep. No. 105-551, pt. 2, at 37 (explaining that 
for every rulemaking, ``the assessment of adverse impacts on 
particular categories of works is to be determined de novo'').
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Permanent Exemptions
    In addition to the temporary exemptions adopted pursuant to the 
triennial rulemaking process, section 1201 provides eight permanent 
exemptions to the prohibition on circumvention, namely for certain 
activities of nonprofit libraries, archives, and educational 
institutions (section 1201(d)) and law enforcement (section 1201(e)); 
for reverse engineering (section 1201(f)); encryption research (section 
1201(g)); the protection of personally identifying information (section 
1201(i)); security testing (section 1201(j)); the prevention of access 
by minors to the internet (section 1201(h)); and relating to certain 
analog devices such as VHS and Beta format cassettes (section 1201(k)). 
Separately, section 112 includes a limited permanent exception to 
section 1201 for purposes of making ephemeral recordings.\26\ As 
discussed below, the applicability and usefulness of the existing 
permanent exemptions has been questioned by some.\27\
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    \26\ 17 U.S.C. 112(a)(2).
    \27\ See Register's Perspective on Copyright Review Hearing at 
29 (statement of Maria A. Pallante, Register of Copyrights and 
Director, U.S. Copyright Office) (``The permanent exemptions in 
Section 1201 relating to reverse engineering, encryption research, 
and security testing are an ongoing issue, with some stakeholders 
suggesting that they are too narrow in scope and others of the view 
that they strike an appropriate balance. For its part, the Office 
has previously highlighted the limited nature of the existing 
security testing exemptions and supported congressional review of 
the problem.'') (citations omitted).
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Unlocking Consumer Choice and Wireless Competition Act
    In 2014, Congress addressed certain issues relating to section 1201 
by passing the Unlocking Consumer Choice and Wireless Competition Act 
(``Unlocking Act''), which primarily concerned the circumvention of 
technological measures that control access to computer programs that 
enable wireless telephone handsets to connect to wireless communication 
networks (``cellphone unlocking'').\28\ The Unlocking Act reinstated 
the cellphone unlocking exemption adopted by the Librarian in 2010,\29\ 
replacing the narrower version adopted in 2012,\30\ and directed the 
Librarian to consider in the 2015 rulemaking whether to ``extend'' the 
exemption ``to include any other category of wireless devices in 
addition to wireless telephone handsets.'' \31\ (On the Register's 
recommendation, the Librarian granted additional exemptions for tablets 
and other types of wireless devices in the 2015 proceeding.\32\)
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    \28\ Unlocking Consumer Choice and Wireless Competition Act, 
Public Law 113-144, 128 Stat. 1751 (2014). Subsequently, the 
Librarian adopted regulatory amendments to reflect the new 
legislation. See Exemption to Prohibition on Circumvention of 
Copyright Protection Systems for Wireless Telephone Handsets, Final 
Rule, 79 FR 50552 (Aug. 25, 2014).
    \29\ See Exemption to Prohibition on Circumvention of Copyright 
Protection Systems for Access Control Technologies, Final Rule, 75 
FR 43825, 43828-32 (July 27, 2010).
    \30\ See Unlocking Consumer Choice and Wireless Competition Act 
sec. 2(a), 128 Stat. at 1751.
    \31\ Id. 2(b), 128 Stat. at 1751.
    \32\ See Exemption to Prohibition on Circumvention of Copyright 
Protection Systems for Access Control Technologies, Final Rule, 80 
FR 65944, 65952, 65962-63.
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    The Unlocking Act also permanently established that circumvention 
under any exemption to permit a wireless telephone handset or other 
wireless device to connect to a different telecommunications network 
may be initiated by the owner of the handset or device, by another 
person at the direction of the owner, or by a provider of commercial 
mobile radio or data service, so long as the purpose is to enable the 
owner or a family member to connect to a wireless network in an 
authorized manner.\33\ The legislation served to clarify that the owner 
of a device or the owner's family member can obtain assistance with the 
circumvention from another party notwithstanding the anti-trafficking 
provisions of section 1201.\34\
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    \33\ Unlocking Consumer Choice and Wireless Competition Act sec. 
2(a), (c), 128 Stat. at 1751-52; see also 37 CFR 201.40(b)(3) 
(2012).
    \34\ Other bills have recently been introduced that would alter 
the operation of section 1201. Recent examples include the Unlocking 
Technology Act of 2015, H.R. 1587, 114th Cong. (2015); and the 
Breaking Down Barriers to Innovation Act of 2015, H.R. 1883, S. 990, 
114th Cong. (2015).
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B. Areas of Concern

Rulemaking Process
    As the number of participants in the triennial rulemaking has 
expanded with each successive cycle, the Office has done what it can 
within the existing statutory framework to streamline the proceedings. 
For the recent sixth triennial rulemaking proceeding, the Register (in 
consultation with NTIA and past proceeding participants) adjusted the 
administrative procedures to make the process more accessible and 
understandable; facilitate participation, coordination, and the 
development of the factual record; and reduce administrative burdens on 
both the participants and the Copyright Office.\35\ The Office 
solicited initial petitions setting forth only the essential elements 
of proposed exemptions and then issued a Notice of Proposed Rulemaking 
that reviewed and grouped the proposals and provided detailed guidance 
on the submission of written comments.\36\ The Office also refined the 
comment phase to encourage a more organized and complete administrative 
record, including by instituting three distinct rounds of comments to 
allow participants to better respond to issues raised by other 
commenters.\37\ The Office instituted procedures to encourage advance 
submission of multimedia evidence where appropriate.\38\
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    \35\ See generally Exemption to Prohibition on Circumvention of 
Copyright Protection Systems for Access Control Technologies, Notice 
of Inquiry, 79 FR 55687 (Sept. 17, 2014) (``Sixth Triennial 
Rulemaking NOI''); Exemption to Prohibition on Circumvention of 
Copyright Protection Systems for Access Control Technologies, Notice 
of Proposed Rulemaking, 79 FR 73856 (Dec. 12, 2014) (``Sixth 
Triennial Rulemaking NPRM''); cf. Exemption to Prohibition on 
Circumvention of Copyright Protection Systems for Access Control 
Technologies, Notice of Inquiry, 76 FR 60398 (Sept. 29, 2011).
    \36\ Sixth Triennial Rulemaking NPRM, 79 FR 73856, 73858-71.
    \37\ See Sixth Triennial Rulemaking NPRM, 79 FR 73856, 73857-58; 
see also Sixth Triennial Rulemaking NOI, 79 FR 55687, 55693.
    \38\ See Sixth Triennial Rulemaking NPRM, 79 FR 73856, 73858.
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    Even with these improvements, however, the rulemaking procedure, as 
enacted by Congress, is resource-intensive for both participants and 
the Office. An area of particular concern is the requirement that 
previously granted exemptions be reviewed anew. During the most recent 
rulemaking, a number of petitions essentially sought renewal of 
existing exemptions--for example, unlocking of cellphones and 
jailbreaking of smartphones. Some of these petitions--including a 
petition to permit circumvention so that literary works distributed 
electronically could continue to be accessed by persons who are blind, 
visually impaired, or print disabled--were unopposed.\39\ In testimony, 
the Register has recommended that Congress amend the rulemaking process 
to create a presumption in favor of renewal when there is no meaningful 
opposition to the continuation of an exemption.\40\
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    \39\ See 2015 Recommendation at 127-37.
    \40\ In her testimony, the Register noted this issue is ripe for 
legislative process. See Register's Perspective on Copyright Review 
Hearing at 27 (statement of Maria A. Pallante, Register of 
Copyrights and Director, U.S. Copyright Office); 2015 Recommendation 
at 4. The Breaking Down Barriers to Innovation Act of 2015 would 
require the renewal of previously-granted exemptions unless 
``changed circumstances'' justify revoking the exemption. H.R. 1883 
sec. 3(a)(1)(F)(iii); S. 990 sec. 3(a)(1)(F)(iii).

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[[Page 81372]]

Consumer Issues
    Since the enactment of section 1201, the use of technological 
measures has been useful in expanding consumer choice and the avenues 
for dissemination of creative works, for example, movies and video 
games.\41\ At the same time, as the Copyright Office has stated, it is 
also apparent that the prohibition on circumvention impacts a wide 
range of consumer activities that have little to do with the 
consumption of creative content or the core concerns of copyright.\42\ 
Considering these impacts, some stakeholders have expressed concern 
over the effect of section 1201 on competition and innovation in the 
marketplace. In their view, technological measures are often deployed 
to ``lock in'' particular business models by inhibiting the development 
of interoperable products, such as printer cartridges, or to prevent 
individuals from engaging in otherwise legitimate pursuits, such as the 
repair of automobiles and farm equipment--despite the fact that these 
sorts of activities seem far removed from piracy of copyrighted 
works.\43\
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    \41\ See, e.g., Chapter 12 of Title 17 Hearing at 28-29 
(statement of Christian Genetski, Senior Vice-President and General 
Counsel, Entertainment Software Association).
    \42\ 2015 Recommendation at 2.
    \43\ See, e.g., Chapter 12 of Title 17 Hearing at 43-44 
(statement of Corynne McSherry, Intellectual Property Director, 
Electronic Frontier Foundation); Unintended Consequences: Fifteen 
Years under the DMCA, Electronic Frontier Foundation, https://www.eff.org/pages/unintended-consequences-fifteen-years-under-dmca 
(last updated March 2013). The proposed Unlocking Technology Act of 
2015 would amend both the anticircumvention and anti-trafficking 
provisions of section 1201(a) to prohibit such conduct only when 
done with the intent to facilitate the infringement of a copyrighted 
work. H.R. 1587 sec. 2(a).
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    These concerns were highlighted throughout the recently completed 
sixth triennial proceeding. In the 2015 rulemaking, some of the 
proposed exemptions concerned the ability to access and make 
noninfringing uses of expressive copyrighted works, such as motion 
pictures, video games, and e-books, which Congress undoubtedly had in 
mind when it created the triennial review process. But others concerned 
the ability to circumvent access controls on copyrighted computer code 
in consumer devices. Proponents of these latter classes sought to 
access the computer code not for its creative content, but rather to 
enable greater functionality and interoperability of devices ranging 
from cellphones, tablets, and smart TVs to 3-D printers, automobiles, 
tractors, and pacemakers.\44\ As the Register has testified, the effect 
of section 1201 on a wide range of consumer goods that today contain 
copyrighted software merits review.\45\
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    \44\ 2015 Recommendation at 2; Register's Perspective on 
Copyright Review Hearing at 29-30 (statement of Maria A. Pallante, 
Register of Copyrights and Director, U.S. Copyright Office).
    \45\ Register's Perspective on Copyright Review Hearing at 29-30 
(statement of Maria A. Pallante, Register of Copyrights and 
Director, U.S. Copyright Office).
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Third-Party Assistance
    A related issue is whether section 1201 should be clarified to 
ensure that intended beneficiaries of exemptions are able to engage in 
the permitted circumvention activities.\46\ For example, a vehicle 
owner may require assistance from a repair shop technician to take 
advantage of an exemption that allows circumvention of access controls 
on automobile software to make a repair.\47\ The anti-trafficking 
provisions of section 1201, however, prevent the adoption of exemptions 
that permit third parties to offer circumvention services.\48\ While 
the Unlocking Act clarified section 1201 to permit specified third 
parties to circumvent technological measures on behalf of device owners 
in the case of cellphones and other wireless devices, the statute does 
not extend to other types of uses or allow the Librarian to grant an 
exemption that provides for third-party assistance in other 
circumstances.
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    \46\ Id. at 29 (noting that intended beneficiaries of exemptions 
lack the practical ability to engage in the permitted circumvention 
themselves and suggesting the need for further study).
    \47\ See 2015 Recommendation at 4-5.
    \48\ Id.
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Permanent Exemptions
    Another concern is that section 1201's permanent exemptions have 
failed to keep up with changing technologies. In testimony, the 
Register has identified the limited nature of the existing security 
testing exemptions and supported congressional review of this 
problem.\49\ Based on the record in the most recent section 1201 
rulemaking, the Register concluded that commenting parties had made a 
``compelling case that the current permanent exemptions in section 
1201, specifically section 1201(f) for reverse engineering, section 
1201(g) for encryption research, and section 1201(j) for security 
testing, are inadequate to accommodate their intended purposes.'' \50\ 
For example, when considering a requested exemption for good-faith 
security research, the Register noted that ``the existing permanent 
exemptions . . . do not cover the full range of proposed security 
research activities, many of which . . . are likely [to] be 
noninfringing.'' \51\ Separately, others have suggested that section 
1201(d)'s exemption for activities of nonprofit entities is inadequate 
to meet the legitimate archiving and preservation needs of libraries 
and archives.\52\
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    \49\ Register's Perspective on Copyright Review Hearing at 29 
(statement of Maria A. Pallante, Register of Copyrights and 
Director, U.S. Copyright Office).
    \50\ 2015 Recommendation at 307. Legislation recently introduced 
in Congress would increase exemptions for reverse engineering, 
encryption research, the protection of personally identifying 
information, and security testing. See Breaking Down Barriers to 
Innovation Act of 2015, H.R. 1883 sec. 3(b)-(e); Breaking Down 
Barriers to Innovation Act of 2015, S. 990 sec. 3(b)-(e).
    \51\ 2015 Recommendation at 299. The Breaking Down Barriers to 
Innovation Act of 2015 would increase exemptions for reverse 
engineering, encryption research, the protection of personally 
identifying information, and security testing. H.R. 1883 sec. 3(b)-
(e); S. 990 sec. 3(b)-(e).
    \52\ See, e.g., 2015 Recommendation at 327 (discussing proposal 
for exemption for video game preservationists); Pan C. Lee et al., 
Samuelson Law, Technology & Public Policy Clinic, University of 
California, Berkeley School of Law, on behalf of Public Knowledge, 
Updating 17 U.S.C. 1201 for Innovators, Creators, and Consumers in 
the Digital Age 52 (2010), https://www.publicknowledge.org/assets/uploads//2_Circumvention.pdf.
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International Issues
    As noted above, section 1201 was adopted in 1998 to implement the 
United States' obligations under two international treaties.\53\ Those 
treaties--the WIPO Copyright Treaty and the WIPO Performances and 
Phonograms Treaty--require signatory countries to provide ``adequate 
legal protection and effective legal remedies against the circumvention 
of effective technological measures'' that are used by authors, 
performers, and phonogram producers in connection with the exercise of 
their rights, and that restrict acts, in respect of their works, 
performances, or phonograms, which are not authorized by rightsholders 
or permitted by law.\54\ Since then, the United States has included 
anticircumvention provisions in a number of bilateral and regional 
agreements entered into with other nations.\55\ Therefore, any 
proposals to

[[Page 81373]]

modify or amend Section 1201 would require consideration of the United 
States' international obligations.
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    \53\ See H.R. Rep. No. 105-551, pt. 2, at 20.
    \54\ WIPO Copyright Treaty art. 11, Dec. 20, 1996, 36 I.L.M. 65 
(1997); WIPO Performances and Phonograms Treaty art. 18, Dec. 20, 
1996, 36 I.L.M. 76 (1997).
    \55\ See United States-Australia Free Trade Agreement, U.S.-
Austl., art. 17.4.7, May 18, 2004, 43 I.L.M. 1248, http://www.ustr.gov/trade-agreements/free-trade-agreements/australian-fta/final-text; United States-Bahrain Free Trade Agreement, U.S.-Bahr., 
art. 14.4.7, Sept. 14, 2004, 44 I.L.M. 544, http://www.ustr.gov/trade-agreements/free-trade-agreements/bahrain-fta/final-text; 
United States-Chile Free Trade Agreement, U.S.-Chile, art. 17.7.5, 
June 6, 2003, 42 I.L.M. 1026, http://www.ustr.gov/trade-agreements/free-trade-agreements/chile-fta/final-text; United States-Colombia 
Trade Promotion Agreement, U.S.-Colom., art. 16.7.4, Nov. 22, 2006, 
http://www.ustr.gov/trade-agreements/free-trade-agreements/colombia-fta/final-text; Dominican Republic-Central America-United States 
Free Trade Agreement, U.S.-Costa Rica-Dom. Rep.-El Sal.-Guat.-Hond.-
Nicar., art 15.5.7, Aug. 5, 2004, 43 I.L.M. 514, https://ustr.gov/trade-agreements/free-trade-agreements/cafta-dr-dominican-republic-central-america-fta/final-text; United States-Jordan Free Trade 
Agreement, U.S.-Jordan, art. 4(13), Oct. 24, 2000, 41 I.L.M. 63, 
http://www.ustr.gov/trade-agreements/free-trade-agreements/jordan-fta/final-text; United States-Korea Free Trade Agreement, U.S.-S. 
Kor. art. 18.4.7, June 30, 2007, 46 I.L.M. 642, https://ustr.gov/trade-agreements/free-trade-agreements/korus-fta/final-text; United 
States-Morocco Free Trade Agreement, U.S.-Morocco, art. 15.5.8, June 
15, 2004, 44 I.L.M. 544, http://www.ustr.gov/trade-agreements/free-trade-agreements/morocco-fta/final-text; United States-Oman Free 
Trade Agreement, U.S.-Oman, art. 15.4.7, Jan. 19, 2006, http://www.ustr.gov/trade-agreements/free-trade-agreements/oman-fta/final-text; United States-Panama Trade Promotion Agreement, U.S.-Pan., art 
15.5.7, June 28, 2007, http://www.ustr.gov/trade-agreements/free-trade-agreements/panama-tpa/final-text; United States-Peru Trade 
Promotion Agreement, U.S.-Peru, art. 16.7.4, Apr. 12, 2006, http://www.ustr.gov/trade-agreements/free-trade-agreements/peru-tpa/final-text; United States-Singapore Free Trade Agreement, U.S.-Sing., art. 
16.4.7, May 6, 2003, 42 I.L.M. 1026, https://ustr.gov/trade-agreements/free-trade-agreements/singapore-fta/final-text.
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C. Relationship to Software Study

    The scope of this study is limited to the operation and 
effectiveness of section 1201. It is not intended to focus on broader 
issues concerning the role of copyright with respect to software 
embedded in everyday products. Those issues are the subject of a 
separate and concurrent Copyright Office study.\56\ Although, as noted, 
section 1201 certainly has implications for the use of such products, 
members of the public who wish to address the impact of other 
provisions of copyright law on embedded software are encouraged to 
submit comments in that separate process. More information about the 
Software-Enabled Consumer Products Study may be found at http://www.copyright.gov/policy/software/.
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    \56\ See Software-Enabled Consumer Products Study: Notice and 
Request for Public Comment, 80 FR 77668 (Dec. 15, 2015).
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II. Subjects of Inquiry

    The Office invites written comments on the specific subjects below. 
A party choosing to respond to this Notice of Inquiry need not address 
every subject, but the Office requests that responding parties clearly 
identify and separately address each subject for which a response is 
submitted.
General
    1. Please provide any insights or observations regarding the role 
and effectiveness of the prohibition on circumvention of technological 
measures in section 1201(a).
    2. How should section 1201 accommodate interests that are outside 
of core copyright concerns, for example, in cases where circumvention 
of access controls protecting computer programs implicates issues of 
product interoperability or public safety?
Rulemaking Process
    3. Should section 1201 be adjusted to provide for presumptive 
renewal of previously granted exemptions--for example, when there is no 
meaningful opposition to renewal--or otherwise be modified to 
streamline the process of continuing an existing exemption? If so, how?
    4. Please assess the current legal requirements that proponents of 
an exemption must satisfy to demonstrate entitlement to an exemption. 
Should they be altered? If so, how? In responding, please comment on 
the relationship to traditional principles of administrative law.
    5. Please provide additional suggestions to improve the rulemaking 
process.
Anti-Trafficking Prohibitions
    6. Please assess the role of the anti-trafficking provisions of 
sections 1201(a)(2) and 1201(b) in deterring copyright infringement, 
and address whether any amendments may be advisable.
    7. Should section 1201 be amended to allow the adoption of 
exemptions to the prohibition on circumvention that can extend to 
exemptions to the anti-trafficking prohibitions, and if so, in what 
way? For example, should the Register be able to recommend, and the 
Librarian able to adopt, exemptions that permit third-party assistance 
when justified by the record?
Permanent Exemptions
    8. Please assess whether the existing categories of permanent 
exemptions are necessary, relevant, and/or sufficient. How do the 
permanent exemptions affect the current state of reverse engineering, 
encryption research, and security testing? How do the permanent 
exemptions affect the activities of libraries, archives, and 
educational institutions? How might the existing permanent exemptions 
be amended to better facilitate such activities?
    9. Please assess whether there are other permanent exemption 
categories that Congress should consider establishing--for example, to 
facilitate access to literary works by print-disabled persons?
Other
    10. To what extent and how might any proposed amendments to section 
1201 implicate the United States' trade and treaty obligations?
    11. Please identify any pertinent issues not referenced above that 
the Copyright Office should consider in conducting its study.

    Dated: December 22, 2015.
Maria A. Pallante,
Register of Copyrights, U.S. Copyright Office.
[FR Doc. 2015-32678 Filed 12-28-15; 8:45 am]
 BILLING CODE 1410-30-P