81 FR 66296 - Section 1201 Study: Request for Additional Comments

LIBRARY OF CONGRESS
U.S. Copyright Office

Federal Register Volume 81, Issue 187 (September 27, 2016)

Page Range		66296-66299
FR Document		2016-23167
The United States Copyright Office is requesting additional written comments in connection with its ongoing study on the operation of the statutory provisions regarding the circumvention of copyright protection systems. This request provides an opportunity for interested parties to address certain issues raised by various members of the public in response to the Office's initial Notice of Inquiry.
Federal Register, Volume 81 Issue 187 (Tuesday, September 27, 2016)
[Federal Register Volume 81, Number 187 (Tuesday, September 27, 2016)]
[Notices]
[Pages 66296-66299]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-23167]


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LIBRARY OF CONGRESS

U.S. Copyright Office

[Docket No. 2015-8]


Section 1201 Study: Request for Additional Comments

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

ACTION: Notice of Inquiry.

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SUMMARY: The United States Copyright Office is requesting additional 
written comments in connection with its ongoing study on the operation 
of the statutory provisions regarding the circumvention of copyright 
protection systems. This request provides an opportunity for interested 
parties to address certain issues raised by various members of the 
public in response to the Office's initial Notice of Inquiry.

DATES: Written comments must be received no later than 11:59 p.m. 
Eastern Time on October 27, 2016. Written reply comments must be 
received no later than 11:59 p.m. Eastern Time on November 16, 2016.

ADDRESSES: The Copyright Office is using the regulations.gov system for 
the submission and posting of public comments in this proceeding. All 
comments are therefore to be submitted electronically through 
regulations.gov. Specific instructions for submitting comments are 
available on the Copyright Office Web site at http://copyright.gov/policy/1201/commentsubmission/. If electronic submission of comments is 
not feasible, please contact the Office using the contact information 
below for special instructions.

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

SUPPLEMENTARY INFORMATION:

I. Background

    At the request of the Ranking Member of the House Committee on the 
Judiciary, the Copyright Office is conducting a study to assess the 
operation of section 1201 of title 17. In December 2015, the Office 
issued a Notice of Inquiry identifying several aspects of the statutory 
and regulatory framework that the Office believes are ripe for review, 
and inviting public comment on those and any other pertinent issues.\1\ 
The Notice provided for two rounds of written comments. In response, 
the Office received sixty-eight initial comments and sixteen reply 
comments.\2\ The Office then announced public roundtables on the topics 
addressed in the Notice and comments.\3\ These sessions, held in 
Washington, DC and San Francisco, California in May 2016, involved 
participation by more than thirty panelists, representing a wide range 
of interests and perspectives. Transcripts of the roundtables are 
available at http://copyright.gov/policy/1201/, and video recordings 
will be available at that location at a later date.
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    \1\ Section 1201 Study: Notice and Request for Public Comment, 
80 FR 81369 (Dec. 29, 2015).
    \2\ All comments may be accessed from the Copyright Office Web 
site at http://copyright.gov/policy/1201/ by clicking the ``Public 
Comments'' tab, followed by the ``Comments'' link.
    \3\ Software-Enabled Consumer Products Study and Section 1201 
Study: Announcement of Public Roundtables, 81 FR 17206 (Mar. 28, 
2016).
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    In the written comments and during the roundtables, parties 
expressed a variety of views regarding whether legislative amendments 
to section 1201 may be warranted. Among other suggested changes, 
commenters discussed proposals to update the statute's permanent 
exemption framework and to amend the anti-trafficking provisions to 
permit third-party assistance with lawful circumvention activities. At 
this time, as explained below, the Office is interested in receiving 
additional stakeholder input on particular aspects of those proposals. 
In addition, parties submitted numerous and varied views regarding the 
triennial rulemaking process under section 1201(a)(1)(C); while the 
Office continues to thoroughly evaluate these comments in conducting 
its study, this second Notice of Inquiry does not specifically address 
those issues.
    A party choosing to respond to this Notice of Inquiry need not 
address every topic below, but the Office requests that responding 
parties clearly identify and separately address those subjects for 
which a response is submitted. Parties also are invited to address any 
other pertinent issues that the Office should consider in conducting 
its study.

II. Subjects of Inquiry

1. Proposals for New Permanent Exemptions

    a. Assistive Technologies for Use by Persons Who Are Blind, 
Visually Impaired, or Print Disabled. The written comments and 
roundtable discussions revealed widespread support for adoption of a 
permanent exemption to facilitate access to works in electronic formats 
by persons who are blind, visually impaired, or print disabled. The 
Office invites comment regarding specific provisions that commenters 
believe should be included in legislation proposing such an exemption. 
For example, the exemption for this purpose granted in the 2015 
rulemaking permits circumvention of access controls applied to literary 
works distributed electronically, where the access controls ``either 
prevent the enabling of read-aloud functionality or interfere with 
screen readers or other applications or assistive technologies.'' \4\ 
The exemption applies in the following circumstances:
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    \4\ Exemption to Prohibition on Circumvention of Copyright 
Protection Systems for Access Control Technologies, 80 FR 65944, 
65950 (Oct. 28, 2015) (``2015 Final Rule'').

    (i) When a copy of such a work is lawfully obtained by a blind 
or other person with a disability, as such a person is defined in 17 
U.S.C. 121; provided, however, that the rights owner is remunerated, 
as appropriate, for the price of the mainstream copy of the work as 
made available to the general public through customary channels, or
    (ii) When such work is a nondramatic literary work, lawfully 
obtained and used by an authorized entity pursuant to 17 U.S.C. 
121.\5\
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    \5\ Id.

The Office is interested in commenters' views on whether this language 
would be appropriate for adoption as a permanent exemption, or whether 
there are specific changes or additional provisions that Congress may 
wish to consider.
    b. Device Unlocking. Some commenters advocated the adoption of a 
permanent exemption to permit circumvention of access controls on 
wireless devices for purposes of

[[Page 66297]]

``unlocking'' such devices--i.e., enabling them to connect to the 
network of a different mobile wireless carrier. Since 2006, the 
rulemaking process has involved consideration of exemptions permitting 
unlocking of cellphones, and in the 2015 rulemaking, pursuant to 
Congress's direction,\6\ the Register considered whether to extend the 
exemption to other categories of wireless devices. At the conclusion of 
the 2015 proceeding, the Librarian, upon the Register's recommendation, 
adopted an unlocking exemption that applies to used wireless devices of 
the following types:
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    \6\ See Unlocking Consumer Choice and Wireless Competition Act, 
Public Law 113-144, sec. 2(b), 128 Stat. 1751, 1751 (2014).

    (A) Wireless telephone handsets (i.e., cellphones);
    (B) All-purpose tablet computers;
    (C) Portable mobile connectivity devices, such as mobile 
hotspots, removable wireless broadband modems, and similar devices; 
and
    (D) Wearable wireless devices designed to be worn on the body, 
such as smartwatches or fitness devices.\7\
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    \7\ 2015 Final Rule, 80 FR at 65952.

    The Office invites comment on whether an unlocking exemption would 
be appropriate for adoption as a permanent exemption or whether such 
activities are more properly considered as part of the triennial 
rulemaking. For commenters who favor consideration of a permanent 
exemption, the Office is interested in commenters' views on whether the 
language of the 2015 unlocking exemption would be appropriate for 
adoption as a permanent exemption, or whether there are specific 
changes or additional provisions that Congress may wish to consider.
    c. Computer Programs. Several commenters expressed concern over the 
scope of section 1201 in the context of copyrighted computer programs 
that enable the operation of a machine or device. These commenters 
suggested that by prohibiting the circumvention of access controls on 
such programs, the statute prevents the public from engaging in 
legitimate activities, such as the repair of automobiles or the use of 
third-party device components, that seem far removed from the 
protection of creative expression that section 1201 was intended to 
address. To respond to this concern, some commenters argued that 
Congress should establish a statutory exemption that would permit 
circumvention of technological protection measures (``TPM''s) 
controlling access to such software in appropriate circumstances. The 
Office is interested in additional views on such proposals.
    For purposes of focusing the discussion, the Office invites comment 
on whether there are specific formulations of such an exemption that 
could serve as helpful starting points for further consideration of 
legislation. For example, Congress could consider adoption of a 
permanent exemption for purposes of diagnosis, maintenance, and repair. 
Such legislation could provide that a person who has lawfully obtained 
the right to use a computer program may circumvent a TPM controlling 
access to that program, so long as the circumvention is undertaken for 
purposes of diagnosis, maintenance, or repair. Are existing legal 
doctrines or statutes, such as the current language addressing machine 
maintenance and repair in section 117(c),\8\ the doctrine of repair and 
reconstruction in patent law,\9\ case law addressing refurbishment 
under trademark law,\10\ or ``right to repair'' bills introduced into 
various state legislatures,\11\ helpful to inform the appropriate scope 
of repair in this context? To what extent would the combination of such 
an exemption with the current language of 1201(f) \12\--which allows 
circumvention for purposes of facilitating interoperability under 
certain circumstances--adequately address users' concerns regarding 
section 1201's impact on consumer activities?
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    \8\ 17 U.S.C. 117(c).
    \9\ See Aro Mfg. Co. v. Convertible Top Replacement Co., 365 
U.S. 336 (1961); see also Aro Mfg. Co. v. Convertible Top 
Replacement Co., 377 U.S. 476 (1964).
    \10\ See Champion Spark Plug Co. v. Sanders, 331 U.S. 125 
(1947); see also Karl Storz Endoscopy-America, Inc. v. Fiber Tech 
Med., Inc., 4 F. App'x 128, 131-32 (4th Cir. 2001) (``[T]he Lanham 
Act does not apply in the narrow category of cases where a 
trademarked product is repaired, rebuilt or modified at the request 
of the product's owner,'' so long as ``the owner is not, to the 
repairer's knowledge, merely obtaining modifications or repairs for 
purposes of resale.'').
    \11\ See, e.g., H.R. 3383, 189th Gen. Ct. (Mass. 2015); S. 
3998B, 2015 Leg., Reg. Sess. (N.Y. 2015); Assemb. 6068A, 2015 Leg., 
Reg. Sess. (N.Y. 2015); Legis. B. 1072, 104th Leg., 2d Sess. (Neb. 
2016); H.R. 1048, 89th Leg., Reg. Sess. (Minn. 2015); see also Mass. 
Gen. Laws ch. 93K (2013).
    \12\ 17 U.S.C. 1201(f).
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    Please also comment upon whether it would be advisable to consider, 
in addition to diagnosis, maintenance, or repair, an exemption to 
explicitly permit circumvention for purposes of engaging in any lawful 
modification of a computer program. Such an exemption could allow 
circumventions undertaken to make non-infringing adaptations, 
including, for example, uses permitted under section 117(a) and/or the 
fair use doctrine.\13\ Please address whether this broader formulation 
would, or would not, be likely to result in economically harmful 
unauthorized uses of copyrighted works.
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    \13\ See 17 U.S.C. 117(a), 107.
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    With either formulation, would concerns over enabling unauthorized 
uses be mitigated by conditioning the exemption on the circumventing 
party not engaging in any unauthorized use of a copyrighted work other 
than the accessed computer program, or by limiting the exemption to 
computer programs that are ``not a conduit to protectable 
expression''--i.e., those that do ``not in turn create any protected 
expression'' when executed? \14\ In the United Kingdom, for example, 
the prohibition on circumvention specifically excludes TPMs applied to 
computer programs, but does apply in at least some circumstances where 
copyrighted content is generated by a computer program (e.g., graphical 
content in video games).\15\ The Office is particularly interested in 
any information or perspectives on the impact of the UK law and how 
operating under it contrasts or not with the U.S. experience. 
Alternatively, should the exemption be limited to computer programs in 
particular categories of devices?
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    \14\ Lexmark Int'l, Inc. v. Static Control Components, Inc., 387 
F.3d 522, 548 (6th Cir. 2004).
    \15\ Copyright, Designs and Patents Act 1988, c. 48, Sec.  296ZA 
(UK); see Nintendo Co. Ltd. v. Playables Ltd. [2010] EWHC 1932 (Ch) 
(Eng.) (construing related anti-trafficking provision).
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    The Office is interested in commenters' views on the advisability 
of these various approaches. Which of these models, if any, would 
facilitate users' ability to engage in permissible uses of software, 
while preserving congressional intent in supporting new ways of 
disseminating copyrighted materials to users? \16\ Responding parties 
are also encouraged to suggest alternate formulations, keeping in mind 
the Office's goal of focusing discussion on this topic.
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    \16\ 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 6 (Comm. 
Print 1998).
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    d. Obsolete Technologies. In prior rulemakings, the Copyright 
Office and the Librarian of Congress have considered multiple petitions 
to permit circumvention of an access control mechanism protecting a 
given class of works that fails to permit access because of 
malfunction, damage, or obsoleteness.\17\ The Office has

[[Page 66298]]

recommended, and the Librarian has adopted, multiple exemptions after 
finding that the definition of ``obsolete'' in section 108 captures the 
circumstances under which such an exemption was justified, i.e., where 
the access control ``is no longer manufactured or is no longer 
reasonably available in the commercial marketplace.'' \18\ The Office 
is interested in commenters' views on whether Congress should consider 
a legislative amendment to permit circumvention of such faulty access 
controls, or whether there are other specific changes or additional 
provisions that Congress may wish to consider to address this issue.
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    \17\ See, e.g., Exemption to Prohibition on Circumvention of 
Copyright Protection Systems for Access Control Technologies, 65 FR 
64556, 64564-66, 64574 (Oct. 27, 2000) (``2000 Recommendation and 
Final Rule''); Exemption to Prohibition on Circumvention of 
Copyright Protection Systems for Access Control Technologies, Final 
Rule, 68 FR 62011, 62013-16 (Oct. 31, 2003) (``2003 Final Rule''); 
Exemption to Prohibition on Circumvention of Copyright Protection 
Systems for Access Control Technologies, 71 FR 68472, 68474-75, 
68480 (Nov. 27, 2006) (``2006 Final Rule''); Exemption to 
Prohibition on Circumvention of Copyright Protection Systems for 
Access Control Technologies, 75 FR 43825, 43833-34, 43839 (July 27, 
2010) (``2010 Final Rule''); 2015 Final Rule, 80 FR at 65955, 65961.
    \18\ 17 U.S.C. 108(c); see, e.g., 2000 Recommendation and Final 
Rule, 65 FR at 64565-66; Recommendation of the Register of 
Copyrights in RM 2002-4; Rulemaking on Exemptions from Prohibition 
on Circumvention of Copyright Protection Systems for Access Control 
Technologies 40 (Oct. 27, 2003); 2003 Final Rule, 68 FR at 62013-14; 
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 36 & 
n.105 (Nov. 17, 2006); 2006 Final Rule, 71 FR at 68475.
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    e. International Considerations. In addition to the questions on 
specific proposals provided above, please discuss the interaction of 
these proposals with existing international obligations of the United 
States, including free trade agreements.

2. Proposed Amendments to Existing Permanent Exemptions

    Some parties expressed the view that the existing permanent 
exemptions for security testing, encryption research, and reverse 
engineering \19\ do not adequately accommodate good-faith research into 
malfunctions, security flaws, and vulnerabilities in computer 
programs.\20\ The Office invites comment on whether legislation to 
address this concern may be warranted, and if so, on specific changes 
that should be considered. In particular, the Office requests 
commenters' views on the following topics:
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    \19\ 17 U.S.C. 1201(f), (g), (j).
    \20\ Similarly, in the 2015 rulemaking, the Register noted that 
section 1201(j) ``does not seem sufficiently robust in light of the 
perils of today's connected world.'' U.S. Copyright Office, Section 
1201 Rulemaking: Sixth Triennial Proceeding to Determine Exemptions 
to the Prohibition on Circumvention 3 (2015), http://copyright.gov/1201/2015/registersrecommendation.pdf (``2015 Recommendation'').
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    a. In the 2015 rulemaking, the Register recommended, and the 
Librarian of Congress adopted, an exemption that permits circumvention 
of TPMs controlling access to computer programs in the following 
circumstances:

    (i) . . . the circumvention is undertaken on a lawfully acquired 
device or machine on which the computer program operates solely for 
the purpose of good-faith security research and does not violate any 
applicable law, including without limitation the Computer Fraud and 
Abuse Act of 1986, as amended and codified in title 18, United 
States Code; . . . and the device or machine is one of the 
following:
    (A) A device or machine primarily designed for use by individual 
consumers (including voting machines);
    (B) A motorized land vehicle; or
    (C) A medical device designed for whole or partial implantation 
in patients or a corresponding personal monitoring system, that is 
not and will not be used by patients or for patient care.
    (ii) For purposes of this exemption, ``good-faith security 
research'' means accessing a computer program solely for purposes of 
good-faith testing, investigation and/or correction of a security 
flaw or vulnerability, where such activity is carried out in a 
controlled environment designed to avoid any harm to individuals or 
the public, and where the information derived from the activity is 
used primarily to promote the security or safety of the class of 
devices or machines on which the computer program operates, or those 
who use such devices or machines, and is not used or maintained in a 
manner that facilitates copyright infringement.\21\
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    \21\ 2015 Recommendation at 319-20; 2015 Final Rule, 80 FR at 
65956.

    The Office is interested in commenters' views on whether this 
language would be appropriate for adoption as a permanent exemption, or 
whether there are specific changes or additional provisions that 
Congress may wish to consider.
    b. The exemption for security testing under section 1201(j) is 
limited to activities undertaken ``with the authorization of the owner 
or operator of [the] computer, computer system, or computer network.'' 
\22\ In the 2015 rulemaking, the Register noted that in some cases ``it 
may be difficult to identify the relevant owner'' for purposes of this 
requirement and that ``it may not be feasible to obtain authorization 
even where there is an identifiable owner.'' \23\ Echoing those 
concerns, one group of commenters argued that the authorization 
requirement should be eliminated, while another urged Congress to 
provide greater clarity in situations involving multiple owners. Please 
assess whether legislation may be appropriate in this area and discuss 
any specific legislative proposals that you believe should be 
considered.
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    \22\ 17 U.S.C. 1201(j)(1).
    \23\ 2015 Recommendation at 309.
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    c. Section 1201(j) provides a two-factor framework to determine 
whether a person qualifies for the security testing exemption.\24\ In 
the 2015 rulemaking, the Register noted that these factors ``would 
appear to be of uncertain application to at least some'' security 
research activities.\25\ Some commenters advocated the removal of one 
or both of these factors from the statute.\26\ Please assess the 
advisability of such changes, or discuss any other specific legislative 
proposals you believe should be considered.
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    \24\ 17 U.S.C. 1201(j)(3).
    \25\ 2015 Recommendation at 309.
    \26\ The proposed Breaking Down Barriers to Innovation Act of 
2015 would eliminate the two-factor framework, as well as the 
multifactor framework under section 1201(g)(3). H.R. 1883, 114th 
Cong. sec. 3(c)(3), 3(e)(2) (2015); S. 990, 114th Cong. sec. 
3(c)(3), 3(e)(2) (2015).
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    d. The exemption for encryption research in section 1201(g) is 
similarly limited to activities qualifying under a four-factor 
framework that includes making ``a good faith effort to obtain 
authorization'' before the circumvention.\27\ In the 2015 rulemaking, 
the Register noted that meeting these requirements ``may not always be 
feasible'' for researchers.\28\ Please assess whether legislation may 
be appropriate in this area and discuss any specific legislative 
proposals that you believe should be considered.
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    \27\ 17 U.S.C. 1201(g)(2)(C).
    \28\ 2015 Recommendation at 307.
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    e. Section 1201(f) permits circumvention for the ``sole purpose'' 
of identifying and analyzing elements of computer programs necessary to 
achieve interoperability.\29\ In the 2015 rulemaking, the Register 
noted that ``section 1201(f)(1) is limited to circumvention solely for 
the identification and analysis of program elements necessary for 
interoperability, and does not address circumvention after that 
analysis has been performed.'' \30\ Please assess whether legislation 
may be appropriate in this area and discuss any specific legislative 
proposals that you believe should be considered.
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    \29\ 17 U.S.C. 1201(f).
    \30\ 2015 Recommendation at 337 n.2295.
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3. Anti-Trafficking Provisions

    Commenters offered differing views regarding the role of the anti-
trafficking provisions under sections 1201(a)(2) and 1201(b). User 
groups expressed

[[Page 66299]]

concern that, to the extent these provisions prohibit third parties 
from providing assistance to beneficiaries of exemptions, or prohibit 
the making and distribution of necessary tools, they undermine 
beneficiaries' practical ability to engage in the permitted conduct. 
Copyright owners, however, cautioned against amendment of the anti-
trafficking provisions, arguing that because circumvention tools may be 
used for lawful and unlawful purposes alike, it would be impossible to 
ensure that tools manufactured and distributed pursuant to an 
exemption, once available in the marketplace, would be employed solely 
for authorized uses. The Office is interested in receiving additional 
views on this topic, and specifically invites comment on the following 
issues:
    a. A few parties argued that section 1201 contains an implied right 
permitting a beneficiary of a statutory or administrative exemption to 
make a tool for his or her own use in engaging in the permitted 
circumvention. What are commenters' views regarding this interpretation 
of the statute? To what extent, if any, does the statutory prohibition 
on the ``manufacture'' of circumvention tools affect the analysis? \31\ 
If such a right is not currently implied, or the question is uncertain, 
should Congress consider amending the statute to expressly permit such 
activity, while maintaining the prohibition against trafficking in such 
tools?
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    \31\ See 17 U.S.C. 1201(a)(2), (b)(1).
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    b. Some parties suggested that, in certain circumstances, third-
party assistance may fall outside the scope of the anti-trafficking 
provisions and therefore may be permissible under current law. What are 
commenters' views regarding this interpretation of the statute? Are 
there forms of third-party assistance that do not qualify as a 
``service'' within the meaning of sections 1201(a)(2) and 1201(b)(1)? 
If so, what considerations are relevant to this analysis?

    Dated: September 21, 2016.
Maria A. Pallante,
Register of Copyrights, U.S. Copyright Office.
[FR Doc. 2016-23167 Filed 9-26-16; 8:45 am]
 BILLING CODE 1410-30-P
66296 Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Notices

On August 29, 2016, Creative filed a FOR FURTHER INFORMATION CONTACT: second Notice of Inquiry does not
petition for review and on September 1, Kevin R. Amer, Senior Counsel for specifically address those issues.
2016, Respondents, Intervenor, and Policy and International Affairs, by A party choosing to respond to this
OUII filed replies in opposition to email at kamer@loc.gov or by telephone Notice of Inquiry need not address every
Creative’s petition. at 202–707–8350; or Regan A. Smith, topic below, but the Office requests that
The Commission has determined not Associate General Counsel, by email at responding parties clearly identify and
to review the ID. The investigation is resm@loc.gov or by telephone at 202– separately address those subjects for
terminated. 707–8350. which a response is submitted. Parties
The authority for the Commission’s SUPPLEMENTARY INFORMATION: also are invited to address any other
determination is contained in section pertinent issues that the Office should
337 of the Tariff Act of 1930, as I. Background consider in conducting its study.
amended (19 U.S.C. 1337), and in Part At the request of the Ranking Member II. Subjects of Inquiry
210 of the Commission’s Rules of of the House Committee on the
Practice and Procedure (19 CFR part Judiciary, the Copyright Office is 1. Proposals for New Permanent
210). conducting a study to assess the Exemptions
By order of the Commission. operation of section 1201 of title 17. In a. Assistive Technologies for Use by
Issued: September 21, 2016. December 2015, the Office issued a Persons Who Are Blind, Visually
Lisa R. Barton, Notice of Inquiry identifying several Impaired, or Print Disabled. The written
Secretary to the Commission. aspects of the statutory and regulatory comments and roundtable discussions
[FR Doc. 2016–23243 Filed 9–26–16; 8:45 am] framework that the Office believes are revealed widespread support for
BILLING CODE 7020–02–P
ripe for review, and inviting public adoption of a permanent exemption to
comment on those and any other facilitate access to works in electronic
pertinent issues.1 The Notice provided formats by persons who are blind,
for two rounds of written comments. In visually impaired, or print disabled. The
LIBRARY OF CONGRESS response, the Office received sixty-eight Office invites comment regarding
initial comments and sixteen reply specific provisions that commenters
U.S. Copyright Office
comments.2 The Office then announced believe should be included in
[Docket No. 2015–8] public roundtables on the topics legislation proposing such an
addressed in the Notice and comments.3 exemption. For example, the exemption
Section 1201 Study: Request for These sessions, held in Washington, DC for this purpose granted in the 2015
Additional Comments and San Francisco, California in May rulemaking permits circumvention of
2016, involved participation by more access controls applied to literary works
AGENCY: U.S. Copyright Office, Library
than thirty panelists, representing a distributed electronically, where the
of Congress.
wide range of interests and perspectives. access controls ‘‘either prevent the
ACTION: Notice of Inquiry. Transcripts of the roundtables are enabling of read-aloud functionality or
SUMMARY: The United States Copyright available at http://copyright.gov/policy/ interfere with screen readers or other
Office is requesting additional written 1201/, and video recordings will be applications or assistive technologies.’’ 4
comments in connection with its available at that location at a later date. The exemption applies in the following
ongoing study on the operation of the In the written comments and during circumstances:
statutory provisions regarding the the roundtables, parties expressed a (i) When a copy of such a work is lawfully
circumvention of copyright protection variety of views regarding whether obtained by a blind or other person with a
systems. This request provides an legislative amendments to section 1201 disability, as such a person is defined in 17
opportunity for interested parties to may be warranted. Among other U.S.C. 121; provided, however, that the rights
suggested changes, commenters owner is remunerated, as appropriate, for the
address certain issues raised by various price of the mainstream copy of the work as
members of the public in response to discussed proposals to update the
statute’s permanent exemption made available to the general public through
the Office’s initial Notice of Inquiry. customary channels, or
framework and to amend the anti- (ii) When such work is a nondramatic
DATES: Written comments must be
trafficking provisions to permit third- literary work, lawfully obtained and used by
received no later than 11:59 p.m.
party assistance with lawful an authorized entity pursuant to 17 U.S.C.
Eastern Time on October 27, 2016.
circumvention activities. At this time, as 121.5
Written reply comments must be
explained below, the Office is interested
received no later than 11:59 p.m. The Office is interested in commenters’
in receiving additional stakeholder
Eastern Time on November 16, 2016. views on whether this language would
input on particular aspects of those
ADDRESSES: The Copyright Office is be appropriate for adoption as a
proposals. In addition, parties submitted
using the regulations.gov system for the permanent exemption, or whether there
numerous and varied views regarding
submission and posting of public are specific changes or additional
the triennial rulemaking process under
comments in this proceeding. All provisions that Congress may wish to
section 1201(a)(1)(C); while the Office
comments are therefore to be submitted consider.
continues to thoroughly evaluate these
electronically through regulations.gov. b. Device Unlocking. Some
comments in conducting its study, this
Specific instructions for submitting commenters advocated the adoption of
asabaliauskas on DSK3SPTVN1PROD with NOTICES

comments are available on the 1 Section 1201 Study: Notice and Request for
a permanent exemption to permit
Copyright Office Web site at http:// Public Comment, 80 FR 81369 (Dec. 29, 2015).
circumvention of access controls on
copyright.gov/policy/1201/ 2 All comments may be accessed from the wireless devices for purposes of
commentsubmission/. If electronic Copyright Office Web site at http://copyright.gov/
submission of comments is not feasible, policy/1201/ by clicking the ‘‘Public Comments’’ 4 Exemption to Prohibition on Circumvention of

tab, followed by the ‘‘Comments’’ link. Copyright Protection Systems for Access Control
please contact the Office using the 3 Software-Enabled Consumer Products Study and Technologies, 80 FR 65944, 65950 (Oct. 28, 2015)
contact information below for special Section 1201 Study: Announcement of Public (‘‘2015 Final Rule’’).
instructions. Roundtables, 81 FR 17206 (Mar. 28, 2016). 5 Id.

VerDate Sep<11>2014 17:08 Sep 26, 2016 Jkt 238001 PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 E:\FR\FM\27SEN1.SGM 27SEN1
Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Notices 66297

‘‘unlocking’’ such devices—i.e., For purposes of focusing the likely to result in economically harmful
enabling them to connect to the network discussion, the Office invites comment unauthorized uses of copyrighted
of a different mobile wireless carrier. on whether there are specific works.
Since 2006, the rulemaking process has formulations of such an exemption that With either formulation, would
involved consideration of exemptions could serve as helpful starting points for concerns over enabling unauthorized
permitting unlocking of cellphones, and further consideration of legislation. For uses be mitigated by conditioning the
in the 2015 rulemaking, pursuant to example, Congress could consider exemption on the circumventing party
Congress’s direction,6 the Register adoption of a permanent exemption for not engaging in any unauthorized use of
considered whether to extend the purposes of diagnosis, maintenance, and a copyrighted work other than the
exemption to other categories of repair. Such legislation could provide accessed computer program, or by
wireless devices. At the conclusion of that a person who has lawfully obtained limiting the exemption to computer
the 2015 proceeding, the Librarian, the right to use a computer program may programs that are ‘‘not a conduit to
upon the Register’s recommendation, circumvent a TPM controlling access to protectable expression’’—i.e., those that
adopted an unlocking exemption that that program, so long as the do ‘‘not in turn create any protected
applies to used wireless devices of the circumvention is undertaken for expression’’ when executed? 14 In the
following types: purposes of diagnosis, maintenance, or United Kingdom, for example, the
repair. Are existing legal doctrines or prohibition on circumvention
(A) Wireless telephone handsets (i.e.,
cellphones); statutes, such as the current language specifically excludes TPMs applied to
(B) All-purpose tablet computers; addressing machine maintenance and computer programs, but does apply in at
(C) Portable mobile connectivity devices, repair in section 117(c),8 the doctrine of least some circumstances where
such as mobile hotspots, removable wireless repair and reconstruction in patent copyrighted content is generated by a
broadband modems, and similar devices; and law,9 case law addressing refurbishment computer program (e.g., graphical
(D) Wearable wireless devices designed to under trademark law,10 or ‘‘right to content in video games).15 The Office is
be worn on the body, such as smartwatches repair’’ bills introduced into various particularly interested in any
or fitness devices.7 state legislatures,11 helpful to inform the information or perspectives on the
The Office invites comment on appropriate scope of repair in this impact of the UK law and how operating
whether an unlocking exemption would context? To what extent would the under it contrasts or not with the U.S.
be appropriate for adoption as a combination of such an exemption with experience. Alternatively, should the
permanent exemption or whether such the current language of 1201(f) 12— exemption be limited to computer
activities are more properly considered which allows circumvention for programs in particular categories of
as part of the triennial rulemaking. For purposes of facilitating interoperability devices?
commenters who favor consideration of under certain circumstances— The Office is interested in
a permanent exemption, the Office is adequately address users’ concerns commenters’ views on the advisability
interested in commenters’ views on regarding section 1201’s impact on of these various approaches. Which of
whether the language of the 2015 consumer activities? these models, if any, would facilitate
unlocking exemption would be Please also comment upon whether it users’ ability to engage in permissible
appropriate for adoption as a permanent would be advisable to consider, in uses of software, while preserving
exemption, or whether there are specific addition to diagnosis, maintenance, or congressional intent in supporting new
changes or additional provisions that repair, an exemption to explicitly ways of disseminating copyrighted
Congress may wish to consider. permit circumvention for purposes of materials to users? 16 Responding parties
c. Computer Programs. Several engaging in any lawful modification of are also encouraged to suggest alternate
commenters expressed concern over the a computer program. Such an formulations, keeping in mind the
scope of section 1201 in the context of exemption could allow circumventions Office’s goal of focusing discussion on
copyrighted computer programs that undertaken to make non-infringing this topic.
enable the operation of a machine or adaptations, including, for example, d. Obsolete Technologies. In prior
device. These commenters suggested uses permitted under section 117(a) rulemakings, the Copyright Office and
that by prohibiting the circumvention of and/or the fair use doctrine.13 Please the Librarian of Congress have
access controls on such programs, the address whether this broader considered multiple petitions to permit
statute prevents the public from formulation would, or would not, be circumvention of an access control
engaging in legitimate activities, such as mechanism protecting a given class of
the repair of automobiles or the use of
8 17 U.S.C. 117(c). works that fails to permit access because
third-party device components, that
9 See Aro Mfg. Co. v. Convertible Top of malfunction, damage, or
Replacement Co., 365 U.S. 336 (1961); see also Aro obsoleteness.17 The Office has
seem far removed from the protection of Mfg. Co. v. Convertible Top Replacement Co., 377
creative expression that section 1201 U.S. 476 (1964).
14 Lexmark Int’l, Inc. v. Static Control
10 See Champion Spark Plug Co. v. Sanders, 331
was intended to address. To respond to Components, Inc., 387 F.3d 522, 548 (6th Cir. 2004).
U.S. 125 (1947); see also Karl Storz Endoscopy-
this concern, some commenters argued America, Inc. v. Fiber Tech Med., Inc., 4 F. App’x 15 Copyright, Designs and Patents Act 1988, c. 48,

that Congress should establish a 128, 131–32 (4th Cir. 2001) (‘‘[T]he Lanham Act § 296ZA (UK); see Nintendo Co. Ltd. v. Playables
statutory exemption that would permit does not apply in the narrow category of cases Ltd. [2010] EWHC 1932 (Ch) (Eng.) (construing
where a trademarked product is repaired, rebuilt or related anti-trafficking provision).
circumvention of technological
modified at the request of the product’s owner,’’ so 16 See Staff of H. Comm. on the Judiciary, 105th
protection measures (‘‘TPM’’s) long as ‘‘the owner is not, to the repairer’s Cong., Section-by-Section Analysis of H.R. 2281 as
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controlling access to such software in knowledge, merely obtaining modifications or Passed by the United States House of
appropriate circumstances. The Office is repairs for purposes of resale.’’). Representatives on August 4th, 1998, at 6 (Comm.
11 See, e.g., H.R. 3383, 189th Gen. Ct. (Mass. Print 1998).
interested in additional views on such
2015); S. 3998B, 2015 Leg., Reg. Sess. (N.Y. 2015); 17 See, e.g., Exemption to Prohibition on
proposals. Assemb. 6068A, 2015 Leg., Reg. Sess. (N.Y. 2015); Circumvention of Copyright Protection Systems for
Legis. B. 1072, 104th Leg., 2d Sess. (Neb. 2016); Access Control Technologies, 65 FR 64556, 64564–
6 See Unlocking Consumer Choice and Wireless H.R. 1048, 89th Leg., Reg. Sess. (Minn. 2015); see 66, 64574 (Oct. 27, 2000) (‘‘2000 Recommendation
Competition Act, Public Law 113–144, sec. 2(b), also Mass. Gen. Laws ch. 93K (2013). and Final Rule’’); Exemption to Prohibition on
128 Stat. 1751, 1751 (2014). 12 17 U.S.C. 1201(f).
Circumvention of Copyright Protection Systems for
7 2015 Final Rule, 80 FR at 65952. 13 See 17 U.S.C. 117(a), 107. Continued

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66298 Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Notices

recommended, and the Librarian has requests commenters’ views on the greater clarity in situations involving
adopted, multiple exemptions after following topics: multiple owners. Please assess whether
finding that the definition of ‘‘obsolete’’ a. In the 2015 rulemaking, the Register legislation may be appropriate in this
in section 108 captures the recommended, and the Librarian of area and discuss any specific legislative
circumstances under which such an Congress adopted, an exemption that proposals that you believe should be
exemption was justified, i.e., where the permits circumvention of TPMs considered.
access control ‘‘is no longer controlling access to computer programs c. Section 1201(j) provides a two-
manufactured or is no longer reasonably in the following circumstances: factor framework to determine whether
available in the commercial (i) . . . the circumvention is undertaken on a person qualifies for the security testing
marketplace.’’ 18 The Office is interested a lawfully acquired device or machine on exemption.24 In the 2015 rulemaking,
in commenters’ views on whether which the computer program operates solely the Register noted that these factors
Congress should consider a legislative for the purpose of good-faith security ‘‘would appear to be of uncertain
amendment to permit circumvention of research and does not violate any applicable application to at least some’’ security
such faulty access controls, or whether law, including without limitation the research activities.25 Some commenters
Computer Fraud and Abuse Act of 1986, as
there are other specific changes or amended and codified in title 18, United advocated the removal of one or both of
additional provisions that Congress may States Code; . . . and the device or machine these factors from the statute.26 Please
wish to consider to address this issue. is one of the following: assess the advisability of such changes,
e. International Considerations. In (A) A device or machine primarily or discuss any other specific legislative
addition to the questions on specific designed for use by individual consumers proposals you believe should be
(including voting machines); considered.
proposals provided above, please
(B) A motorized land vehicle; or d. The exemption for encryption
discuss the interaction of these (C) A medical device designed for whole or
proposals with existing international research in section 1201(g) is similarly
partial implantation in patients or a
obligations of the United States, corresponding personal monitoring system, limited to activities qualifying under a
including free trade agreements. that is not and will not be used by patients four-factor framework that includes
or for patient care. making ‘‘a good faith effort to obtain
2. Proposed Amendments to Existing (ii) For purposes of this exemption, ‘‘good- authorization’’ before the
Permanent Exemptions faith security research’’ means accessing a circumvention.27 In the 2015
computer program solely for purposes of rulemaking, the Register noted that
Some parties expressed the view that good-faith testing, investigation and/or
the existing permanent exemptions for meeting these requirements ‘‘may not
correction of a security flaw or vulnerability, always be feasible’’ for researchers.28
security testing, encryption research, where such activity is carried out in a
and reverse engineering 19 do not controlled environment designed to avoid Please assess whether legislation may be
adequately accommodate good-faith any harm to individuals or the public, and appropriate in this area and discuss any
research into malfunctions, security where the information derived from the specific legislative proposals that you
flaws, and vulnerabilities in computer activity is used primarily to promote the believe should be considered.
programs.20 The Office invites comment security or safety of the class of devices or e. Section 1201(f) permits
machines on which the computer program circumvention for the ‘‘sole purpose’’ of
on whether legislation to address this operates, or those who use such devices or
concern may be warranted, and if so, on identifying and analyzing elements of
machines, and is not used or maintained in computer programs necessary to achieve
specific changes that should be a manner that facilitates copyright
considered. In particular, the Office infringement.21 interoperability.29 In the 2015
rulemaking, the Register noted that
The Office is interested in ‘‘section 1201(f)(1) is limited to
Access Control Technologies, Final Rule, 68 FR commenters’ views on whether this
62011, 62013–16 (Oct. 31, 2003) (‘‘2003 Final circumvention solely for the
Rule’’); Exemption to Prohibition on Circumvention
language would be appropriate for identification and analysis of program
of Copyright Protection Systems for Access Control adoption as a permanent exemption, or elements necessary for interoperability,
Technologies, 71 FR 68472, 68474–75, 68480 (Nov. whether there are specific changes or and does not address circumvention
27, 2006) (‘‘2006 Final Rule’’); Exemption to additional provisions that Congress may
Prohibition on Circumvention of Copyright after that analysis has been
Protection Systems for Access Control
wish to consider. performed.’’ 30 Please assess whether
Technologies, 75 FR 43825, 43833–34, 43839 (July b. The exemption for security testing legislation may be appropriate in this
27, 2010) (‘‘2010 Final Rule’’); 2015 Final Rule, 80 under section 1201(j) is limited to area and discuss any specific legislative
FR at 65955, 65961. activities undertaken ‘‘with the
18 17 U.S.C. 108(c); see, e.g., 2000 proposals that you believe should be
authorization of the owner or operator considered.
Recommendation and Final Rule, 65 FR at 64565–
66; Recommendation of the Register of Copyrights of [the] computer, computer system, or
in RM 2002–4; Rulemaking on Exemptions from computer network.’’ 22 In the 2015 3. Anti-Trafficking Provisions
Prohibition on Circumvention of Copyright rulemaking, the Register noted that in Commenters offered differing views
Protection Systems for Access Control Technologies some cases ‘‘it may be difficult to
40 (Oct. 27, 2003); 2003 Final Rule, 68 FR at 62013– regarding the role of the anti-trafficking
14; Recommendation of the Register of Copyrights identify the relevant owner’’ for provisions under sections 1201(a)(2)
in RM 2005–11; Rulemaking on Exemptions from purposes of this requirement and that and 1201(b). User groups expressed
Prohibition on Circumvention of Copyright ‘‘it may not be feasible to obtain
Protection Systems for Access Control Technologies authorization even where there is an 24 17 U.S.C. 1201(j)(3).
36 & n.105 (Nov. 17, 2006); 2006 Final Rule, 71 FR
at 68475. identifiable owner.’’ 23 Echoing those 25 2015 Recommendation at 309.
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19 17 U.S.C. 1201(f), (g), (j). concerns, one group of commenters 26 The proposed Breaking Down Barriers to

20 Similarly, in the 2015 rulemaking, the Register argued that the authorization Innovation Act of 2015 would eliminate the two-
factor framework, as well as the multifactor
noted that section 1201(j) ‘‘does not seem requirement should be eliminated, framework under section 1201(g)(3). H.R. 1883,
sufficiently robust in light of the perils of today’s while another urged Congress to provide 114th Cong. sec. 3(c)(3), 3(e)(2) (2015); S. 990, 114th
connected world.’’ U.S. Copyright Office, Section
Cong. sec. 3(c)(3), 3(e)(2) (2015).
1201 Rulemaking: Sixth Triennial Proceeding to 27 17 U.S.C. 1201(g)(2)(C).
21 2015 Recommendation at 319–20; 2015 Final
Determine Exemptions to the Prohibition on
Circumvention 3 (2015), http://copyright.gov/1201/ Rule, 80 FR at 65956. 28 2015 Recommendation at 307.
22 17 U.S.C. 1201(j)(1). 29 17 U.S.C. 1201(f).
2015/registersrecommendation.pdf (‘‘2015
Recommendation’’). 23 2015 Recommendation at 309. 30 2015 Recommendation at 337 n.2295.

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Document Created: 2016-09-27 01:19:13
Document Modified: 2016-09-27 01:19:13
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Notice of Inquiry.
Dates		Written comments must be received no later than 11:59 p.m. Eastern Time on October 27, 2016. Written reply comments must be received no later than 11:59 p.m. Eastern Time on November 16, 2016.
Contact		Kevin R. Amer, Senior Counsel for Policy and International Affairs, by email at [email protected] or by telephone at 202-707-8350; or Regan A. Smith, Associate General Counsel, by email at [email protected] or by telephone at 202-707-8350.
FR Citation		81 FR 66296
81 FR 66296 - Section 1201 Study: Request for Additional Comments

LIBRARY OF CONGRESSU.S. Copyright Office

Federal Register Volume 81, Issue 187 (September 27, 2016)

LIBRARY OF CONGRESS
U.S. Copyright Office
