83_FR_54218 83 FR 54010 - Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies

83 FR 54010 - Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies

LIBRARY OF CONGRESS
Copyright Office

Federal Register Volume 83, Issue 208 (October 26, 2018)

Page Range54010-54031
FR Document2018-23241

In this final rule, the Librarian of Congress adopts exemptions to the provision of the Digital Millennium Copyright Act (``DMCA'') that prohibits circumvention of technological measures that control access to copyrighted works, codified in the United States Code. As required under the statute, the Acting Register of Copyrights, following a public proceeding, submitted a Recommendation concerning proposed exemptions to the Librarian of Congress. After careful consideration, the Librarian adopts final regulations based upon the Acting Register's Recommendation.

Federal Register, Volume 83 Issue 208 (Friday, October 26, 2018)
[Federal Register Volume 83, Number 208 (Friday, October 26, 2018)]
[Rules and Regulations]
[Pages 54010-54031]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-23241]


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LIBRARY OF CONGRESS

U.S. Copyright Office

37 CFR Part 201

[Docket No. 2017-10]


Exemption to Prohibition on Circumvention of Copyright Protection 
Systems for Access Control Technologies

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

ACTION: Final rule.

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SUMMARY: In this final rule, the Librarian of Congress adopts 
exemptions to the provision of the Digital Millennium Copyright Act 
(``DMCA'') that prohibits circumvention of technological measures that 
control access to copyrighted works, codified in the United States 
Code. As required under the statute, the Acting Register of Copyrights, 
following a public proceeding, submitted a Recommendation concerning 
proposed exemptions to the Librarian of Congress. After careful 
consideration, the Librarian adopts final regulations based upon the 
Acting Register's Recommendation.

DATE: Effective October 28, 2018.

FOR FURTHER INFORMATION CONTACT: Regan A. Smith, General Counsel and 
Associate Register of Copyrights, by email at [email protected], 
Anna Chauvet, Assistant General Counsel, by email at 
[email protected], or Kevin Amer, Senior Counsel for Policy and 
International Affairs, by email at [email protected]. Each can be 
contacted by telephone by calling (202) 707-8350.

SUPPLEMENTARY INFORMATION: The Librarian of Congress, pursuant to 
section 1201(a)(1) of title 17, United States Code, has determined in 
this seventh triennial rulemaking proceeding that the prohibition 
against circumvention of technological measures that effectively 
control access to copyrighted works shall not apply to persons who 
engage in noninfringing uses of certain classes of such works. This 
determination is based upon the Recommendation of the Acting Register 
of Copyrights, which was transmitted to the Librarian on October 5, 
2018.\1\
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    \1\ Acting Register of Copyrights, Section 1201 Rulemaking: 
Seventh Triennial Proceeding to Determine Exemptions to the 
Prohibition on Circumvention, Recommendation of the Acting Register 
of Copyrights (Oct. 2018) (``Acting Register's Recommendation'').
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    The below discussion summarizes the rulemaking proceeding and 
Register's Recommendation, announces the Librarian's determination, and 
publishes the regulatory text specifying the exempted classes of works. 
A more complete discussion of the rulemaking process, the evidentiary 
record, and the Acting Register's analysis can be found in the Acting 
Register's Recommendation, which is posted at www.copyright.gov/1201/2018/.

I. Background

A. Statutory Requirements

    Congress enacted the DMCA in 1998 to implement certain provisions 
of the WIPO Copyright and WIPO Performances and Phonograms Treaties. 
Among other things, title I of the DMCA, which added a new chapter 12 
to title 17 of the U.S. Code, prohibits circumvention of technological 
measures employed by or on behalf of copyright owners to protect access 
to their works. In enacting this aspect of the law, Congress observed 
that technological protection measures (``TPMs'') can ``support new 
ways of disseminating copyrighted materials to users, and . . . 
safeguard the availability of legitimate uses of those materials by 
individuals.'' \2\
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    \2\ 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 4, 1998, at 7 (Comm. Print 1998).
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    Section 1201(a)(1) provides in pertinent part that ``[n]o person 
shall circumvent a technological measure that effectively controls 
access to a work protected under [title 17].'' Under the statute, to 
``circumvent a technological measure'' means ``to descramble a 
scrambled work, to decrypt an encrypted work, or otherwise to avoid, 
bypass, remove, deactivate, or impair a technological measure, without 
the authority of the copyright owner.'' \3\ A technological measure 
that ``effectively controls access to a work'' is one that ``in the 
ordinary course of its operation, requires the application of 
information, or a process or a treatment, with the authority of the 
copyright owner, to gain access to the work.'' \4\
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    \3\ 17 U.S.C. 1201(a)(3)(A).
    \4\ Id. at 1201(a)(3)(B).
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    Section 1201(a)(1) also includes what Congress characterized as a 
``fail-safe'' mechanism,\5\ which requires the Librarian of Congress, 
following a rulemaking proceeding, to publish any class of copyrighted 
works as to which the Librarian has determined that noninfringing uses 
by persons who are users of a copyrighted work are, or are likely to 
be, adversely affected by the prohibition against circumvention in the 
succeeding three-year period, thereby exempting that class from the 
prohibition for that period.\6\ The Librarian's determination to grant 
an exemption is based upon the recommendation of the Register of 
Copyrights, who conducts the rulemaking proceeding.\7\ The Register, in 
turn, consults with the Assistant Secretary for Communications and 
Information of the Department of Commerce, who oversees the National 
Telecommunications and Information Administration (``NTIA''), in the 
course of formulating her recommendation.\8\
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    \5\ See H.R. Rep. No. 105-551, pt. 2, at 36 (1998) (``Commerce 
Comm. Report'').
    \6\ See 17 U.S.C. 1201(a)(1).
    \7\ Id. at 1201(a)(1)(C).
    \8\ Id.
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    The primary responsibility of the Register and the Librarian 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 develops a comprehensive administrative record using 
information submitted by interested members of the public, and makes 
recommendations to the Librarian concerning whether exemptions are 
warranted based on that record.
    Under the statutory framework, the Librarian, and thus the 
Register, must consider ``(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

[[Page 54011]]

for or value of copyrighted works; and (v) such other factors as the 
Librarian considers appropriate.'' \9\
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    \9\ Id.
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    Significantly, exemptions adopted by rule under section 1201(a)(1) 
apply only to the conduct of circumventing a technological measure that 
controls access to a copyrighted work. Other parts of section 1201, by 
contrast, address the manufacture and provision of--or ``trafficking'' 
in--products and services designed for purposes of circumvention. 
Section 1201(a)(2) bars trafficking in products and services that are 
used to circumvent technological measures that control access to 
copyrighted works (for example, a password needed to open a media 
file),\10\ while section 1201(b) bars trafficking in products and 
services used to circumvent technological measures that protect the 
exclusive rights of the copyright owner in their works (for example, 
technology that prevents the work from being reproduced).\11\ The 
Librarian of Congress has no authority to adopt exemptions for the 
anti-trafficking prohibitions contained in section 1201(a)(2) or 
(b).\12\ More broadly, activities conducted under the regulatory 
exemptions must still comply with other applicable laws, including non-
copyright provisions.
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    \10\ Id. at 1201(a)(2).
    \11\ Id. at 1201(b).
    \12\ See id. at 1201(a)(1)(E) (``Neither the exception under 
subparagraph (B) from the applicability of the prohibition contained 
in subparagraph (A), nor any determination made in a rulemaking 
conducted under subparagraph (C), may be used as a defense in any 
action to enforce any provision of this title other than this 
paragraph.'').
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    Also significant is the fact that the statute contains certain 
permanent exemptions to permit specified uses. These include: Section 
1201(d), which exempts certain activities of nonprofit libraries, 
archives, and educational institutions; section 1201(e), which exempts 
``lawfully authorized investigative, protective, information security, 
or intelligence activity'' of a state or the federal government; 
section 1201(f), which exempts certain ``[r]everse engineering'' 
activities to facilitate interoperability; section 1201(g), which 
exempts certain types of research into encryption technologies; section 
1201(h), which exempts certain activities to prevent the ``access of 
minors to material on the internet''; section 1201(i), which exempts 
certain activities ``solely for the purpose of preventing the 
collection or dissemination of personally identifying information''; 
and section 1201(j), which exempts certain acts of ``security testing'' 
of computers and computer systems.

C. Rulemaking Standards

    In adopting the DMCA, Congress imposed legal and evidentiary 
requirements for the section 1201 rulemaking proceeding, as discussed 
in greater detail in the Acting Register's Recommendation and the 
Copyright Office's recent policy study on section 1201.\13\ The 
Register will recommend granting an exemption only ``when the 
preponderance of the evidence in the record shows that the conditions 
for granting an exemption have been met.'' \14\ ``[I]t is the totality 
of the rulemaking record (i.e., the evidence provided by commenters or 
administratively noticed by the Office) that must, on balance, reflect 
the need for an exemption by a preponderance of the evidence. Such 
evidence must, on the whole, show that it is more likely than not that 
users of a copyrighted work will, in the succeeding three[hyphen]year 
period, be adversely affected by the prohibition on circumvention in 
their ability to make noninfringing uses of a particular class of 
copyrighted works.'' \15\
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    \13\ Acting Register's Recommendation at 9-19; U.S. Copyright 
Office, Section 1201 of Title 17 105-15 (2017), https://www.copyright.gov/policy/1201/section-1201-full-report.pdf 
(``Section 1201 Report'').
    \14\ Section 1201 Report at 111; accord Register of Copyrights, 
Section 1201 Rulemaking: Sixth Triennial Proceeding to Determine 
Exemptions to the Prohibition on Circumvention, Recommendation of 
the Register of Copyrights 14 (Oct. 2015). References to the 
Register's Recommendations in prior rulemakings are cited by the 
year of publication followed by ``Recommendation'' (e.g., ``2015 
Recommendation''). Prior Recommendations are available on the 
Copyright Office website at https://www.copyright.gov/1201/.
    \15\ Section 1201 Report at 112.
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    To establish a case for an exemption, proponents must show at a 
minimum (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. In addition, the Librarian must also 
examine the statutory factors listed in section 1201(a)(1)(C): ``(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.'' In some cases, weighing these factors requires 
the consideration of the benefits that the technological measure brings 
with respect to the overall creation and dissemination of works in the 
marketplace, in addition to any negative impact.
    Finally, when granting an exemption, section 1201(a)(1) specifies 
that the exemption adopted as part of this rulemaking must be defined 
based on ``a particular class of works.'' \16\ Among other things, the 
determination of the appropriate scope of a ``class of works'' 
recommended for exemption may also take into account the adverse 
effects an exemption may have on the market for or value of copyrighted 
works. Accordingly, ``it can be appropriate to refine a class by 
reference to the use or user in order to remedy the adverse effect of 
the prohibition and to limit the adverse consequences of an 
exemption.'' \17\
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    \16\ 17 U.S.C. 1201(a)(1)(B).
    \17\ 2006 Recommendation at 19.
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D. Streamlined Renewal Process

    Following a comprehensive policy study, and in response to 
stakeholder feedback, for this seventh triennial proceeding, the Office 
introduced a streamlined process to renew section 1201 exemptions 
adopted during the 2015 rulemaking.\18\ Previously, in recognition of 
legislative history stating that the basis of an exemption should be 
established de novo in each triennial proceeding,\19\ the Office had 
required the factual record be developed anew in each rulemaking.\20\ 
In its Section 1201 Report, the Office evaluated the possibility of a 
renewal process, noting a ``broad consensus in favor of streamlining 
the process for renewing exemptions to which there is no meaningful 
opposition.'' \21\ As described in further detail in that report, the 
Office ultimately concluded that ``the statutory language appears to be 
broad enough to permit determinations to be based upon evidence drawn 
from prior proceedings, but only upon a conclusion that this evidence 
remains reliable to support granting an exemption in the current

[[Page 54012]]

proceeding.'' \22\ The Office concluded that renewal may be sought only 
for exemptions in their current form, without modification, and that 
the Register ``must apply the same evidentiary standards in 
recommending the renewal of exemptions as for first- time exemption 
requests.'' \23\
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    \18\ Section 1201 Report at 127-28, 145-46.
    \19\ See Commerce Comm. Report at 37 (explaining that for every 
rulemaking, ``the assessment of adverse impacts on particular 
categories of works is to be determined de novo'').
    \20\ Exemptions to Permit Circumvention of Access Controls on 
Copyrighted Works, 82 FR 29804, 29805 (June 30, 2017) (``NOI'').
    \21\ Section 1201 Report at vi.
    \22\ Id. at 143.
    \23\ Id. at 142, 145.
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    The Office detailed the renewal process in its notices for this 
proceeding.\24\ Streamlined renewal is based upon a determination that, 
due to a lack of legal, marketplace, or technological changes, the 
factors that led the Register to recommend adoption of the exemption in 
the prior rulemaking are expected to continue into the forthcoming 
triennial period.\25\ That is, the same material facts and 
circumstances underlying the previously-adopted regulatory exemption 
may be relied on to renew the exemption.\26\ Because the statute itself 
requires that exemptions must be adopted upon a fresh determination 
concerning the next three-year period, the fact that the Librarian 
previously adopted an exemption creates no presumption that readoption 
is appropriate. Instead, the Office first solicited petitions 
summarizing the continuing need and justification for the exemption, 
and petitioners signed a declaration stating that, ``to the best of 
their personal knowledge, there has not been any material change in the 
facts, law, or other circumstances set forth in the prior rulemaking 
record such that renewal of the exemption would not be justified.'' 
\27\ Next, the Office solicited comments from participants opposing the 
readoption of the exemption. Opponents were required to provide 
evidence that would allow the Acting Register to reasonably conclude 
that the prior rulemaking record and any further information provided 
in the petitions are insufficient for her to recommend renewal without 
the benefit of a further developed record. For example, ``a change in 
case law might affect whether a particular use is noninfringing, new 
technological developments might affect the availability for use of 
copyrighted works, or new business models might affect the market for 
or value of copyrighted works.'' \28\ If the appropriateness of 
renewing an exemption is meaningfully contested, that exemption would 
be fully noticed for written comment and public hearing to generate an 
updated administrative record for the Register to evaluate whether to 
recommend readoption, modification, or elimination of that exemption to 
the Librarian.\29\
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    \24\ NOI, 82 FR at 29805-07; Exemptions to Permit Circumvention 
of Access Controls on Copyrighted Works, 82 FR 49550, 49552 (Oct. 
26, 2017) (``NPRM'').
    \25\ NOI, 82 FR at 29805-06; NPRM, 82 FR at 49552.
    \26\ Section 1201 Report at 143-44; NOI, 82 FR at 29806; NPRM, 
82 FR at 49552.
    \27\ NPRM, 82 FR at 49552.
    \28\ Section 1201 Report at 145.
    \29\ See NPRM, 82 FR at 49554 (stating that if a renewal 
petition is meaningfully opposed, ``the exemption would be 
considered pursuant to the more comprehensive rulemaking process 
(i.e., three rounds of written comment, followed by public 
hearings)'').
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    The streamlined renewal process elicited favorable responses during 
the 2018 rulemaking hearings. As detailed below, as a result of this 
new process, the Acting Register was able to recommend renewal of all 
exemptions adopted in the 2015 rulemaking, and subsequently consider 
whether some of them should be modified to accommodate additional new 
uses through the development of an expanded administrative record.

II. History of the Seventh Triennial Proceeding

    In this rulemaking, the Copyright Office used the phased comment 
structure introduced in the last proceeding, to best facilitate a clear 
and thorough record. As promised in its Section 1201 Report,\30\ the 
Office also created video tutorials explaining the rulemaking process, 
issued the Notice of Proposed Rulemaking (``NPRM'') earlier to give 
parties more time to participate, and offered increased opportunities 
for participant input, including through an established procedure for 
transparent ex parte meetings.
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    \30\ Section 1201 Report at 149-51.
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    The Office initiated the seventh triennial rulemaking proceeding 
through a Notice of Inquiry (``NOI'') on June 30, 2017.\31\ The NOI 
requested petitions for renewals, petitions in opposition to renewal, 
and any petitions for new exemptions. In response, the Office received 
thirty-nine renewal petitions, five comments regarding the scope of the 
renewal petitions, and one comment in opposition to renewal of a 
current exemption.\32\ The Office also received twenty-three petitions 
for new exemptions, including seventeen seeking to expand certain 
current exemptions, and six petitions for new exemptions.
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    \31\ NOI, 82 FR at 29804.
    \32\ Comments received in this rulemaking are available at 
http://copyright.gov/1201/2018.
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    Next, on October 26, 2017, the Office issued its NPRM identifying 
the existing exemptions for which the Acting Register intended to 
recommend renewal, and outlined the proposed classes for new exemptions 
(including proposed expansions of previously- adopted exemptions) for 
which three rounds of public comments were initiated.\33\ Those classes 
were organized into twelve classes of works. Seven of the twelve 
proposed exemptions seek expansions of existing exemptions, while five 
propose new exemptions. The Office received 181 total submissions in 
response to the NPRM, substantially less than the approximately 40,000 
submissions received in the last rulemaking.
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    \33\ NPRM, 82 FR at 49550, 49553-63.
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    After analyzing the written comments, the Office held seven days of 
hearings in Washington, DC (April 10-13) and Los Angeles, California 
(April 23-25). For the first time, the roundtables at both locations 
held audience participation panels and were live streamed online. Video 
recordings for these roundtables are available through the Office's 
website and YouTube pages.\34\ In total, the Office heard testimony 
from seventy-seven individuals. After the hearings, the Office issued 
questions to hearing participants in four proposed classes and received 
eighteen responses.\35\ Subsequently, the Office received an 
unsolicited letter from the Computer Crime and Intellectual Property 
Section of the Criminal Division of the United States Department of 
Justice (``CCIPS'') regarding Proposed Class 10, and the Office 
solicited comment from Class 10 participants in response.\36\
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    \34\ Video recordings of the roundtables are available at 
https://www.copyright.gov/1201/2018/ and https://www.youtube.com/uscopyrightoffice/.
    \35\ Participant's post-hearing letter responses are available 
on the Office's website. Responses to Post- Hearing Questions, U.S. 
Copyright Office, (last visited Oct 2, 2018), https://www.copyright.gov/1201/2018/post-hearing/answers/.
    \36\ Letter from John T. Lynch, Jr., Chief, Comput. Crime & 
Intellectual Prop. Section, Criminal Div., U.S. Dep't of Justice, to 
Regan A. Smith, Gen. Counsel & Assoc. Register of Copyrights, U.S. 
Copyright Office (June 28, 2018), https://www.copyright.gov/1201/2018/USCO-letters/USDOJ_Letter_to_USCO.pdf; Letter from to Regan A. 
Smith, Gen. Counsel & Assoc. Register of Copyrights, U.S. Copyright 
Office, to Class 10 Participants (June 29, 2018), https://www.copyright.gov/1201/2018/additional-correspondence/Proposed_Class_10_Letter.pdf.
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    As noted in its NPRM, the Office determined that further informal 
communications with non-governmental participants might be beneficial 
in limited circumstances.\37\ The Office thus established guidelines 
for ex parte meetings, noting that the Office will not consider or 
accept any new documentary materials at these

[[Page 54013]]

meetings, and requiring participants to provide a letter summarizing 
the meeting for the Office to include in the rulemaking record.\38\ The 
Office held nine ex parte meetings with participants concerning five 
proposed classes.\39\
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    \37\ NPRM, 82 FR at 49563; see Section 1201 Report at 150-51 
(documenting stakeholder desire for such further communication).
    \38\ NPRM, 82 FR at 49563; Ex Parte Communications, U.S. 
Copyright Office (last visited Oct. 2, 2018), https://www.copyright.gov/1201/2018/ex-parte-communications.html.
    \39\ See Ex Parte Communications, U.S. Copyright Office, https://www.copyright.gov/1201/2018/ex-parte-communications.html (last 
visited Oct. 2, 2018).
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    As required by section 1201(a)(1), the Acting Register consulted 
with NTIA during this rulemaking. NTIA provided input at various stages 
and participated in the public hearings held in Washington, DC and Los 
Angeles. NTIA formally communicated its views on each of the proposed 
exemptions to the Acting Register on September 25, 2018.\40\
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    \40\ NTIA's recommendations can be viewed at https://www.copyright.gov/1201/2018/2018_NTIA_Letter.pdf.
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III. Summary of Register's Recommendation

A. Renewal Recommendations

    As set forth in the NPRM, the Acting Register received petitions to 
renew every one of the exemptions adopted pursuant to the sixth 
triennial rulemaking. To the extent any renewal petition proposed uses 
beyond the current exemption, the Office disregarded those portions of 
the petition for purposes of considering the renewal of the exemption, 
and instead focused on whether it provided sufficient information to 
warrant readoption of the exemption in its current form.\41\ While a 
single party filed an opposition to renewal, the Acting Register 
concluded that its opposition was not sufficiently material to 
undermine the conclusion that the record and legal reasoning from the 
prior rulemaking supported renewal.\42\ Finding the renewal petitions 
sufficient under the guidelines outlined above, the Acting Register 
thus recommended renewal of each of the existing exemptions.\43\ The 
existing exemptions, and the bases for the recommendation to readopt 
each exemption in accordance with the streamlined renewal process, are 
summarized below. Where noted, these exemptions served as a baseline 
for the Acting Register in considering subsequent requests for 
expansion.
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    \41\ See, e.g., NPRM, 82 FR at 49554.
    \42\ Id.
    \43\ The Acting Register's analysis and conclusions regarding 
streamlined renewals can be found in the NPRM. See id. at 49552-58.
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1. Literary Works Distributed Electronically--Assistive Technologies
    Multiple organizations petitioned to renew the exemption for 
literary works distributed electronically (i.e., e-books), for use with 
assistive technologies for persons who are blind, visually impaired, or 
have print disabilities. No oppositions were filed against readoption 
of this exemption. The petitions demonstrated the continuing need and 
justification for the exemption, stating that individuals who are 
blind, visually impaired, or print disabled are significantly 
disadvantaged with respect to obtaining accessible e-book content 
because TPMs interfere with the use of assistive technologies such as 
screen readers and refreshable Braille displays. In addition, the 
petitioners demonstrated personal knowledge and experience with regard 
to the assistive technology exemption; they are all organizations that 
advocate for the blind, visually impaired, and print disabled.
    Accordingly, the Acting Register recommends renewal of the 
following exemption:

    Literary works, distributed electronically, that are protected 
by technological measures that either prevent the enabling of read-
aloud functionality or interfere with screen readers or other 
applications or assistive technologies:
    (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.
2. Literary Works--Compilations of Data Generated by Implanted Medical 
Devices--To Access Personal Data
    Hugo Campos, member of the Coalition of Medical Device Patients and 
Researchers, and represented by the Harvard Law School Cyberlaw Clinic, 
petitioned to renew the exemption covering access to patient data on 
networked medical devices. No oppositions were filed against the 
petition to renew this exemption. Mr. Campos's petition demonstrated 
the continuing need and justification for the exemption, stating that 
patients continue to need access to data output from their medical 
devices to manage their health. Mr. Campos himself is a patient needing 
access to the data output from his medical device.
    Accordingly, the Acting Register recommends renewal of the 
following exemption:

    Literary works consisting of compilations of data generated by 
medical devices that are wholly or partially implanted in the body 
or by their corresponding personal monitoring systems, where such 
circumvention is undertaken by a patient for the sole purpose of 
lawfully accessing the data generated by his or her own device or 
monitoring system and does not constitute a violation of applicable 
law, including without limitation the Health Insurance Portability 
and Accountability Act of 1996, the Computer Fraud and Abuse Act of 
1986 or regulations of the Food and Drug Administration, and is 
accomplished through the passive monitoring of wireless 
transmissions that are already being produced by such device or 
monitoring system.
3. Computer Programs--``Unlocking'' of Cellphones, Tablets, Mobile 
Hotspots, or Wearable Devices
    Multiple organizations petitioned to renew the exemption for 
computer programs that operate cellphones, tablets, mobile hotspots, or 
wearable devices (e.g., smartwatches), to allow connection of a used 
device to an alternative wireless network (``unlocking''). No 
oppositions were filed against the petitions seeking to renew this 
exemption. The petitions demonstrated the continuing need and 
justification for the exemption, stating that consumers of the 
enumerated products continue to need to be able to unlock the devices 
so they can switch network providers. For example, the Institute of 
Scrap Recycling Industries, Inc. (``ISRI'') stated that its members 
continue to purchase or acquire donated cell phones and tablets, and 
try to reuse them, but that wireless carriers still lock devices to 
prevent them from being used on other carriers. In addition, the 
petitioners demonstrated personal knowledge and experience with regard 
to this exemption: Competitive Carriers Association, Owners' Rights 
Initiative (``ORI''), and ISRI represent companies that rely on the 
ability to unlock cellphones.
    Accordingly, the Acting Register recommends renewal of this 
exemption and will consider proposed expansions below in the discussion 
on Proposed Class 5.
4. Computer Programs--``Jailbreaking'' of Smartphones, Smart TVs, 
Tablets, or Other All-Purpose Mobile Computing Devices
    Multiple organizations petitioned to renew the exemptions for 
computer programs that operate smartphones, smart TVs, tablets, or 
other all-purpose mobile computing devices, to allow the

[[Page 54014]]

device to interoperate with or to remove software applications 
(``jailbreaking''). The petitions demonstrate the continuing need and 
justification for the exemptions, and that petitioners had personal 
knowledge and experience with regard to these exemptions. Specifically, 
the petitions state that, absent the exemptions, TPMs applied to the 
enumerated products would have an adverse effect on noninfringing uses, 
such as being able to install third-party applications on a smartphone 
or to download third-party software on a smart TV to enable 
interoperability. For example, the Electronic Frontier Foundation's 
(``EFF's'') petition outlined its declarant's experience searching 
current mobile computing device markets and technologies, working as a 
software engineer, and participating in four prior 1201 rulemakings. 
Similarly, the Libiquity petition was submitted by a person who 
``work[s] with the operating system and many of the system libraries 
that lie at the core of the firmware systems of a large majority of 
smartphones, portable all-purpose mobile computing devices, and smart 
televisions.'' In a brief two-page comment, BSA  The Software 
Alliance (``BSA'') opposed the readoption of this exemption, asserting 
that ``alternatives to circumvention exist,'' and that ``jailbreaking 
can undermine the integrity and security of a platform's operating 
system in a manner that facilitates copyright infringement and exposes 
users to heightened risks of privacy violations.''
    In the NPRM, the Office concluded that BSA's opposition was not 
sufficient to draw the conclusion that the past rulemaking record is no 
longer reliable, or that the reasoning adopted in the Register's 2015 
Recommendation cannot be relied upon for the next three-year period. 
Specifically, the Office stated that BSA's comment largely re-
articulated a general opposition to a jailbreaking exemption, and noted 
that the past three rulemakings have adopted some form of an exemption 
for jailbreaking certain types of mobile computing devices. The Office 
also noted that BSA had failed to identify any specific circumvention 
alternatives, changes in case law, new technological developments, or 
new issues that had not already been considered and evaluated in 
granting the exemption previously.
    Accordingly, the Acting Register recommends renewal of this 
exemption and will consider proposed expansions below in the discussion 
on Proposed Class 6.
5. Computer Programs--Diagnosis, Repair, and Lawful Modification of 
Motorized Land Vehicles
    Multiple organizations petitioned to renew the exemption for 
computer programs that control motorized land vehicles, including farm 
equipment, for purposes of diagnosis, repair, and modification of the 
vehicle. The petitions demonstrated the continuing need and 
justification for the exemption to prevent owners of motorized land 
vehicles from being adversely impacted in their ability to diagnose, 
repair, and modify their vehicles as a result of TPMs that protect the 
copyrighted computer programs on the electronic control units 
(``ECUs'') that control the functioning of the vehicles. Indeed, the 
Motor & Equipment Manufacturers Association, which during the sixth 
triennial rulemaking initially opposed any exemption that would impact 
the software and TPMs in vehicles, now supports the exemption as 
striking an appropriate balance between encouraging marketplace 
competition and innovation while mitigating the impact on safety, 
regulatory, and environmental compliance. The petitioners demonstrated 
personal knowledge and experience with regard to this exemption; each 
either represents or gathered information from individuals conducting 
repairs or businesses that manufacture, distribute, and sell motor 
vehicle parts, and perform vehicle service and repair.
    Accordingly, the Acting Register recommends renewal of this 
exemption and will consider proposed expansions below in the discussion 
on Proposed Class 7.
6. Computer Programs--Security Research
    Multiple organizations and security researchers petitioned to renew 
the exemption for purposes of good-faith security research. The 
petitioners demonstrated the continuing need and justification for the 
exemption, and personal knowledge and experience with regard to this 
exemption. For example, Professors Bellovin, Blaze, and Heninger stated 
that they have conducted their own security research in reliance on the 
existing exemption, and that they ``regularly engage'' with other 
security researchers who have similarly relied on the exemption. They 
provided an example of a recent computer security conference in which 
thousands of participants relied on the existing exemption to examine 
and test electronic voting devices--the results of which were reported 
to election officials to improve the security of their voting systems.
    Accordingly, the Acting Register recommends renewal of this 
exemption and will consider proposed expansions below in the discussion 
on Proposed Class 10.
7. Computer Programs--3D Printers
    Michael Weinberg and ORI jointly petitioned to renew the exemption 
for computer programs that operate 3D printers to allow use of 
alternative feedstock. No oppositions were filed against readoption of 
this exemption. The petition demonstrated the continuing need and 
justification for the exemption, and the petitioners demonstrated 
personal knowledge and experience, in particular, through Mr. 
Weinberg's experience petitioning for the exemption adopted in 2015. In 
addition, the petition states that printers continue to restrict the 
use of third-party feedstock, thereby requiring renewal of the 
exemption.
    Accordingly, the Acting Register recommends renewal of this 
exemption and will consider proposed expansions below in the discussion 
on Proposed Class 12.
8. Video Games Requiring Server Communication--for Continued Individual 
Play and Preservation of Games by Libraries, Archives, and Museums
    Multiple organizations petitioned to renew the exemption for video 
games for which outside server support has been discontinued. The 
petitions stated that individuals still need the exemption to engage in 
continued play and libraries and museums continue to need the exemption 
to preserve and curate video games in playable form. In addition, the 
petitioners demonstrated personal knowledge and experience with regard 
to this exemption through past participation in the 1201 triennial 
rulemaking relating to access controls on video games and consoles, 
and/or representing major library associations with members that have 
relied on this exemption.
    Accordingly, the Acting Register recommends renewal of this 
exemption and will consider proposed expansions below in the discussion 
on Proposed Class 8.
9. Audiovisual Uses--Educational and Derivative Uses
    Multiple individuals and organizations petitioned to renew the 
exemption consisting of multiple subparts covering use of short 
portions of motions pictures for various educational and derivative 
uses. No

[[Page 54015]]

oppositions were filed. Petitions to renew the various subparts of the 
exemption are discussed below.
9a. Audiovisual Uses--Educational Uses--Colleges and Universities
    Multiple individuals and organizations petitioned to renew the 
exemption's subpart covering use of motion picture clips for 
educational uses by college and university instructors and students 
(codified at 37 CFR 201.40(b)(1)(iv) (2016)). No oppositions were filed 
against readoption. The petitions demonstrated the continuing need and 
justification for the exemption, and personal knowledge and experience 
with regard to the exempted use. For example, Professors Decherney, 
Sender, and Carpini, the Department of Communications at the University 
of Michigan (``DCSUM''), the International Communication Association 
(``ICA''), the Society for Cinema and Media Studies (``SCMS''), the 
American Association of University Professors (``AAUP''), and the 
Library Copyright Alliance (``LCA'') stated that courses on video 
essays (or multimedia or videographer criticism), now taught at many 
universities, would not be able to exist without relying on this 
exemption. Similarly, Professor Hobbs, who represents more than 17,000 
digital and media literacy educators, and the National Association for 
Media Literacy Education (``NAMLE''), an organization devoted to media 
literacy with more than 3,500 members, stated that teachers must 
sometimes circumvent a DVD protected by the Content Scramble System 
(``CSS'') when screen-capture software or other non-circumventing 
alternatives are unable to produce the required level of high-quality 
content.
9b. Audiovisual Uses--Educational Uses--Primary and Secondary Schools 
(K-12)
    Multiple organizations petitioned to renew the exemption's subparts 
covering use of motion picture clips for educational uses by K-12 
instructors and students. No oppositions were filed against readoption. 
The petitions demonstrated the continuing need and justification for 
the exemption, stating that K-12 instructors and students continue to 
rely on excerpts from digital media for class presentations and 
coursework, and must sometimes use screen-capture technology. In 
addition, the petitioners demonstrated personal knowledge and 
experience with regard to this exemption through representation of 
thousands of digital and literacy educators and/or members supporting 
K-12 instructors and students, combined with past participation in the 
section 1201 triennial rulemaking.
9c. Audiovisual Uses--Educational Uses--Massive Open Online Courses 
(``MOOCs'').
    Professors Decherney, Sender, and Carpini, DCSUM, ICA, SCMS, and 
LCA petitioned to renew the exemption's subpart covering use of motion 
picture clips for educational uses in MOOCs. No oppositions were filed 
against readoption. The petition demonstrated the continuing need and 
justification for the exemption, stating that instructors continue to 
rely on the exemption to develop, provide, and improve MOOCs, as well 
as increase the number of (and therefore access to) MOOCs in the field 
of film and media studies. For example, the declarant, Professor 
Decherney, demonstrated personal knowledge by describing his reliance 
on the exemption to teach MOOCs on film and media studies.
9d. Audiovisual Uses--Educational Uses--Educational Programs Operated 
by Libraries, Museums, and Other Nonprofits
    Multiple organizations petitioned to renew the subpart of the 
exemption covering use of motion picture clips for educational uses in 
digital and literacy programs offered by libraries, museums, and other 
nonprofits. No oppositions were filed against readoption. The petitions 
demonstrated the continuing need and justification for the exemption, 
and demonstrated personal knowledge and experience with regard to the 
exempted use. For example, LCA stated that librarians across the 
country have relied on the current exemption and will continue to do so 
for their digital and literacy programs. In addition, Professor Hobbs 
and NAMLE stated that librarians will continue to rely on the exemption 
for their digital and literacy programs, and to advance the digital 
media knowledge of their patrons.
9e. Audiovisual Uses--Derivative Uses--Multimedia E-Books Offering Film 
Analysis
    A professor and two organizations collectively petitioned to renew 
the subpart of the exemption covering the use of motion picture clips 
for multimedia e-books offering film analysis. No oppositions were 
filed against readoption. The petition demonstrated the continuing need 
and justification for the exemption, attesting that the availability of 
video necessary for authors to undertake film analysis in e-books 
continues to be limited to formats encumbered by technological 
protection measures. In addition, the petitioners demonstrated personal 
knowledge through Professor Buster's continued work on an e-book series 
based on her lecture series, ``Deconstructing Master Filmmakers: The 
Uses of Cinematic Enchantment,'' and Authors Alliance's feedback that 
its members continue to desire authoring e-books that incorporate film 
for the purpose of analysis.
9f. Audiovisual Uses--Derivative Uses--Documentary Filmmaking
    Multiple organizations petitioned to renew the subpart of the 
exemption covering the use of motion picture clips for uses in 
documentary films. No oppositions were filed against readoption. The 
petitions summarized the continuing need and justification for the 
exemption, and the petitioners demonstrated personal knowledge and 
experience with regard to the exempted use. For example, Film 
Independent (``FI''), the International Documentary Association 
(``IDA''), Kartemquin Educational Films, Inc. (``KEF''), the Center for 
Independent Documentary (``CID''), and Women in Film and Video 
(``WIFV'') stated that TPMs such as encryption continue to prevent 
filmmakers from accessing needed material in a sufficiently high 
quality to satisfy demands of distributors and viewers. Petitioners 
state that they personally know many filmmakers who have found it 
necessary to rely on this exemption, and will continue to do so.
9g. Audiovisual Uses--Derivative Uses--Noncommercial Remix Videos
    Two organizations petitioned to renew the subpart of the exemption 
covering the use of motion picture clips for uses in noncommercial 
videos. No oppositions were filed against readoption. The petitions 
demonstrated the continuing need and justification for the exemption, 
and the petitioners demonstrated personal knowledge and experience with 
regard to the exempted use. For example, the Organization for 
Transformative Works (``OTW'') has advocated for the noncommercial 
video exemption in past triennial rulemakings, and has heard from a 
number of noncommercial remix artists who have used the exemption and 
anticipate needing to use it in the future. Similarly, New Media Rights 
(``NMR'') stated that it has spoken to a number of noncommercial video 
creators who have relied on this exemption, and intend to do so in the 
future.
    Accordingly, the Acting Register recommends renewal of this 
exemption, including all of its subparts, and will

[[Page 54016]]

consider proposed expansions below in the discussion on Proposed Class 
1.

B. New or Expanded Designations of Classes

    Based upon the record in this proceeding regarding proposed 
expansions to existing exemptions or newly proposed exemptions, the 
Acting Register recommends that the Librarian determine that the 
following classes of works be exempt from the prohibition against 
circumvention of technological measures set forth in section 
1201(a)(1):
1. Proposed Class 1: Audiovisual Works--Criticism and Comment \44\
    Several petitions sought expansion of the existing exemption for 
circumvention of access controls protecting ``short portions'' of 
motion pictures on DVDs, Blu-Ray discs, and digitally transmitted video 
for purposes of criticism and comment by various users, including 
creators of noncommercial videos, college and university faculty and 
students, faculty of MOOCs, documentary filmmakers, and for nonfiction 
multimedia e-books offering film analysis. With the exception of one 
petition, proponents sought to keep the limitation to circumvention for 
uses of ``short portions'' of motion pictures, which the Register has 
previously found to be ``integral'' in recommending the current 
exemption. The proposed expansions implicate the same types of TPMs 
regardless of proposed noninfringing use, namely CSS-protected DVDs, 
AACS-protected Blu-ray discs, and various TPMs applicable to online 
distribution services. Because the new proposals raised some shared 
concerns, including the impact of TPMs on the alleged noninfringing 
uses of motion pictures and whether alternative methods of accessing 
the content could alleviate potential adverse impacts, the Office 
grouped these petitions into one class. This approach also accounted 
for a petition which proposed an ``overarching exemption that would 
embrace multiple audiovisual classes'' and collapse (essentially) all 
of the subparts in the existing exemption to eliminate limitations on 
the types of user or use--and instead allow circumvention so long as 
the purpose is for criticism and comment.
---------------------------------------------------------------------------

    \44\ The Acting Register's analysis and conclusions for this 
class, including citations to the record and relevant legal 
authority, can be found in the Recommendation at 31-89.
---------------------------------------------------------------------------

Screen-Capture Technology
    For several of the activities it covers, the current exemption 
expressly permits the use of screen-capture technology and also allows 
circumvention only where the user ``reasonably believes that screen-
capture software or other non-circumventing alternatives are unable to 
produce the required level of high-quality content.'' Here, proponents 
sought to remove references to screen-capture technology, arguing that 
it is not a viable alternative because it does not permit the proposed 
uses, or else results in degraded-quality (and thus unusable) content. 
Others contended that the dual references to screen-capture technology 
are confusing. In response, opponents argued that screen-capture 
technology remains an adequate alternative to circumvention.
    In the 2015 rulemaking, the Register concluded that certain uses of 
motion picture clips for criticism and comment do not require access to 
higher-quality content, and that screen-capture technology may be an 
alternative to circumvention--but that it can be unclear to users as to 
whether screen-capture technology may in fact involve circumvention. 
Accordingly, in this rulemaking the Acting Register recommended 
retaining a screen-capture provision for these categories to address 
the possibility of circumvention when using this technology. In 
addition, the Acting Register found it appropriate to continue to 
distinguish between purposes requiring high-quality motion picture 
clips and more general purposes that do not.
AACS2 Technology
    Opponents argued that the exemption should not be expanded to 
include AACS2 technology, which is employed to protect ultra-high-
definition or ``4K'' content distributed on Ultra HD Blu-ray discs. 
Opponents maintained that none of the petitions expressly sought 
extension to AACS2, and that the current exemption does not extend to 
AACS2 on Ultra HD Blu-ray discs, as that technology did not exist at 
the time of the 2015 rulemaking. In response, proponents asserted that 
the Acting Register should extend the proposed exemption to AACS2 
technology because although AACS2 is different in form, it is 
fundamentally the same in function.
    The Acting Register found the record insufficient to support 
extending the proposed class to AACS2. Her analysis of this proposed 
exemption thus addressed only TPMs employed on DVDs and Blu-ray discs, 
and by various online streaming services to protect motion pictures.
a. Single Overarching Exemption for Purposes of Comment and Criticism
    EFF, NMR, and OTW proposed permitting circumvention to make use of 
motion picture excerpts so long as the purpose is for criticism and 
comment. They did not provide specific examples of proposed 
noninfringing uses or analyze such proposed uses under the 1201 
statutory factors, but rather focused on ``the value of adopting a 
simple overarching exemption that would embrace multiple audiovisual 
classes'' for purposes of criticism and comment. EFF, NMR, and OTW 
asserted that the existing language is ``practically unreadable'' due 
to their complexities, and ``a challenge for clients and attorneys 
alike to apply in practice.''
    Opponents contended that the petition to create a single 
overarching exemption overstates the complexity of the existing 
exemption, and that the proposed expansion would eliminate carefully 
drawn distinctions among potential users of motion picture content. 
Opponents also asserted that to be appropriately narrow, exemptions 
should identify the specific persons who will be adversely affected in 
their abilities to make noninfringing uses by the section 1201 
prohibition.
    NTIA opposed the removal of all limitations on the types of user or 
use, concluding that ``eliminating all of the categories of specific 
users . . . would stray too far from the statutory requirement of 
specificity.''
    The Acting Register declined to recommend adopting EFF, NMR, and 
OTW's proposed language, finding it overly broad for purposes of 
section 1201, and inconsistent with the rulemaking record upon which 
the current exemption has been adopted. She noted that courts evaluate 
fair use claims on a case-by-case basis, and the context in which use 
of the work is being made is part of that inquiry (e.g., commercial 
versus noncommercial use). She found that the proposed language would 
eliminate these legally important distinctions.
b. Universities and K-12 Educational Institutions
    BYU filed a petition to create a single consolidated exemption that 
would permit circumvention for nonprofit educational purposes in 
accordance with sections 110(1) and 110(2) of the Copyright Act. BYU 
proposed eliminating the ``criticism and comment'' limitation, 
references to screen-capture technology, and distinctions based on 
education level and type of educational course.
    Opponents argued that although section 110(1) allows certain public

[[Page 54017]]

performances of complete motion pictures in classrooms without 
obtaining licenses, it does not allow those performances to be made 
from unauthorized copies. Opponents also noted that sections 110(1) and 
110(2) provide exceptions only to the public performance and display 
rights, not to the rights of reproduction or distribution, and that 
therefore they would not fully cover the proposed uses, which involve 
making and ``librarying'' copies of full-length films.
    NTIA recommended allowing circumvention for colleges and 
universities to make use of entire motion pictures. In its view, the 
storage of a copy ``in a central secured server available only for 
transmission to the institution's classrooms'' is ``not fundamentally 
different from the uses allowed by the existing exemption'' for 
purposes of analyzing whether the activity is a fair use.
    The Acting Register concluded that section 110 cannot, by itself, 
establish that BYU's proposed activities are noninfringing because any 
performances of motion pictures under sections 110(1) and 110(2) must 
originate from lawfully acquired copies. The Acting Register thus 
evaluated whether the copies made and used to facilitate the proposed 
motion picture performances were themselves noninfringing under section 
112(f) and/or the fair use doctrine. The Acting Register determined 
that on its face, section 112(f) does not permit nonprofit educational 
institutions to make copies to facilitate performances under section 
110(1). She found, however, that section 112(f) does support a 
conclusion that making and temporarily storing digital copies of motion 
pictures to perform ``reasonable and limited portions'' in distance 
teaching would be noninfringing, assuming the other requirements of 
section 110(2) are met. But she determined that such activity appears 
to be already covered by the existing exemption.
    Regarding the use of short motion picture clips in face-to-face 
teaching, the Acting Register concluded that the record demonstrates 
that a significant number of the proposed uses are likely to be fair, 
such as using short film clips to create compilations from foreign 
language films with and without subtitles. By contrast, based on the 
relevant case law, the Acting Register could not conclude as a general 
matter that the contemplated uses of full-length motion pictures are 
likely to be fair. She found that DVD and Blu-ray players are still 
widely available on the market and that extending the exemption to such 
uses could undermine the value of the market for works in those 
formats. She noted that, although institutions may incur a cost in re-
purchasing digital versions of audiovisual works, the section 1201 
exemption process is not meant to guarantee consumers the ability to 
access content through their preferred method or format.
    Ultimately, the Acting Register recommended an expansion that 
allows K-12 and university faculty and students to engage with motion 
picture excerpts of high quality in contexts other than courses 
requiring close analysis of film excerpts, as well as for teaching or 
scholarship more generally. Based upon additional examples provided in 
this rulemaking cycle, the Acting Register recommended that the 
exemption retain the requirement that a person must reasonably believe 
that non-circumventing alternatives are unworkable, but remove the 
references to ``film studies or other courses requiring close 
analysis'' and eliminate distinctions between K-12 and universities and 
colleges, as well as between faculty and students. The Acting Register 
recommended, however, that the exemption require K-12 students to act 
under the direct supervision of K-12 educators.
c. Massively Open Online Courses (``MOOCs'')
    Professors Decherney, Sender, Carpini, and DCSUM requested an 
expansion to allow faculty of MOOCs to circumvent for ``all online 
courses'' (i.e., remove the limitation to ``film studies or other 
courses requiring close analysis of film and media excerpts''), and for 
MOOCs offered by unaccredited and for-profit educational institutions. 
They maintained that without expanding the exempted use of MOOCs, there 
would be no ability for unaccredited, for-profit, or for-credit online 
educational offerings to use motion picture clips in MOOCs without 
licensing. They also argued that because the motion picture clips in 
this context would be used exclusively for educational purposes, such 
use would be unlikely to harm the market for motion pictures.
    Opponents argued that proponents failed to support their assertion 
that including for-profit and unaccredited educational institutions 
likely constitutes fair use, and that the record lacked any examples of 
for-profit or unaccredited educational institutions wanting, but 
unable, to offer MOOCs, suggesting the expansion would cover only 
speculative uses.
    Based on its review of the record, NTIA recommended expansion to 
for-profit educational institutions, but not to unaccredited 
educational institutions.
    The Acting Register concluded that the record lacked examples 
sufficient to evaluate or recommend expansion to for-profit or 
unaccredited educational institutions, and did not demonstrate that 
section 1201 is inhibiting the use of motion pictures in online 
education offered by for-profit and/or unaccredited educational 
institutions. The Acting Register also found that proponents' broadly 
framed proposal seeking to encompass ``all online courses'' would 
seemingly encompass any online video that could be characterized as an 
educational experience. The Register therefore recommended that the 
MOOCs language from the existing exemption be readopted without 
substantive changes.
d. Filmmaking
    FI, IDA, and KEF sought expansion of the current exemption to 
permit circumvention for use of motion picture clips in all types of 
films (i.e., remove the ``documentary'' limitation), a request rejected 
by the Register in 2015. Proponents argued that the exemption should be 
expanded because defining a ``documentary'' film is difficult, as many 
films that are not traditionally classified as a ``documentary'' use 
motion picture excerpts to engage in educational and social commentary. 
Proponents also asserted that many filmmakers do not know whether they 
are permitted to use the exemption.
    The 2015 rulemaking identified fair use as the noninfringing basis 
for this exemption, and the Acting Register evaluated the proposed 
expansion on the same grounds. Proponents provided multiple examples of 
non-documentary films using short motion picture clips for parody or 
for the clip's biographical or historical significance, ostensibly to 
provide criticism or commentary. Proponents also disputed that either 
clips created using non-circumventing screen capture technology, or 
clips obtained via licensing are viable alternatives for the proposed 
uses, and argued that expansion of the exemption to non-documentaries 
would not affect the market for motion pictures.
    Opponents maintained that proponents failed to develop a record of 
likely noninfringing uses to support extension of the exemption to non-
documentary films. Opponents also argued that the proposed uses would 
negatively impact the clip licensing market for motion pictures, and 
that licenses are readily available for using short portions of motion 
pictures. Opponents further contended that screen-capture technologies 
serve as valid alternatives to circumvention.
    NTIA concluded that the existing exemption should be expanded to 
all

[[Page 54018]]

films. It maintained that the record supports a finding that in many 
instances the use of short portions of motion pictures is likely a 
noninfringing fair use and that opponents failed to demonstrate the 
expansion to non-documentaries would cause market harm.
    Based on the extensive record, the Acting Register recommended that 
the existing exemption for documentary films be expanded to include a 
subset of fictional (e.g., narrative) films for purposes of criticism 
and comment, where the clip is used for parody or its biographical or 
historically significant nature. She concluded this limitation would 
best reflect the examples in the record, many of which appear to 
involve the use of clips for purposes of criticism and comment, while 
preserving the requirement that filmmakers continue to seek 
authorization before using excerpts for general storytelling uses. The 
Acting Register found that the use of small portions of films for these 
purposes is consistent with principles of fair use and is unlikely to 
supplant the market for motion pictures, but cautioned that filmmakers 
would continue to need to obtain authorization for uses of clips 
outside of these uses.
e. Multimedia E-Books
    The Authors Alliance, AAUP, OTW, the Interactive Fiction Technology 
Foundation, and Professor Buster (collectively, ``Authors Alliance et 
al.'') sought expansion of the current exemption to permit 
circumvention for use of motion picture clips in all nonfiction 
multimedia e-books by removing the ``offering film analysis'' 
limitation. Authors Alliance et al. also sought expansion to fictional 
multimedia e-books and removal of references to screen-capture 
technology.
    The 2015 rulemaking identified fair use as the noninfringing basis 
for this exemption, and the proposed expansion was evaluated on the 
same grounds. Proponents asserted that the uses of clips for comment or 
criticism in nonfiction multimedia e-books beyond those offering film 
analysis, as well as fictional multimedia e-books, are transformative 
and thus fair. Proponents also argued that expansion will not 
negatively impact the market for or value of copyrighted works. 
Proponents asserted that screen capture is an inadequate alternative to 
circumvention and that licensing remains an unworkable alternative due 
to high fees, difficulties in locating the rightsholders, and the 
delays caused by protracted negotiations.
    In response, opponents argued that the record lacked evidence of 
actual use of a motion picture clip in a fictional e-book or in an 
``other nonfiction'' e-book, and that in the absence of actual use, 
evaluating the proposal is all but impossible. Regarding nonfictional 
uses, opponents asserted that many of the alleged additional uses would 
qualify under the current ``film analysis'' limitation. As to fictional 
uses, opponents maintained that the creation of fan fiction multimedia 
e-books would frequently infringe the right to prepare derivative 
works. Opponents also asserted that as with the proposed filmmaking 
expansion, there will be harm to the clip licensing market if the 
proposed e-books uses are exempted.
    NTIA recommended expanding the exempted use to include all 
nonfiction multimedia e-books (i.e., eliminating the ``offering film 
analysis'' limitation), but did not recommend expansion to fictional 
multimedia e-books.
    The Acting Register found that the record failed to establish that 
the proposed uses in fictional e-books would likely be noninfringing, 
and thus she did not recommend expanding the exemption to such works. 
She did find, however, that the record supported expansion to all 
nonfiction multimedia e-books. Such an expansion, she concluded, is 
unlikely to harm, and may increase, the availability of copyrighted 
works. In addition, the Acting Register found that the proposed uses 
will facilitate criticism, comment, teaching and/or scholarship, and 
that they are unlikely to substitute for the original work in the 
marketplace.
f. Conclusion for Class 1
    Accordingly, the Acting Register recommends that the Librarian 
adopt the following exemption:

    Motion pictures (including television shows and videos), as 
defined in 17 U.S.C. 101, where the motion picture is lawfully made 
and acquired on a DVD protected by the Content Scramble System, on a 
Blu-ray disc protected by the Advanced Access Content System, or via 
a digital transmission protected by a technological measure, and the 
person engaging in circumvention under paragraph (b)(1)(i) and 
(b)(1)(ii)(A) and (B) of this section reasonably believes that non-
circumventing alternatives are unable to produce the required level 
of high-quality content, or the circumvention is undertaken using 
screen-capture technology that appears to be offered to the public 
as enabling the reproduction of motion pictures after content has 
been lawfully acquired and decrypted, where circumvention is 
undertaken solely in order to make use of short portions of the 
motion pictures in the following instances:
    (i) For the purpose of criticism or comment:
    (A) For use in documentary filmmaking, or other films where the 
motion picture clip is used in parody or for its biographical or 
historically significant nature;
    (B) For use in noncommercial videos (including videos produced 
for a paid commission if the commissioning entity's use is 
noncommercial); or
    (C) For use in nonfiction multimedia e-books.
    (ii) For educational purposes:
    (A) By college and university faculty and students or 
kindergarten through twelfth-grade (K-12) educators and students 
(where the K-12 student is circumventing under the direct 
supervision of an educator), including of accredited general 
educational development (GED) programs, for the purpose of 
criticism, comment, teaching, or scholarship;
    (B) By faculty of massive open online courses (MOOCs) offered by 
accredited nonprofit educational institutions to officially enrolled 
students through online platforms (which platforms themselves may be 
operated for profit), in film studies or other courses requiring 
close analysis of film and media excerpts, for the purpose of 
criticism or comment, where the MOOC provider through the online 
platform limits transmissions to the extent technologically feasible 
to such officially enrolled students, institutes copyright policies 
and provides copyright informational materials to faculty, students, 
and relevant staff members, and applies technological measures that 
reasonably prevent unauthorized further dissemination of a work in 
accessible form to others or retention of the work for longer than 
the course session by recipients of a transmission through the 
platform, as contemplated by 17 U.S.C. 110(2); or
    (C) By educators and participants in nonprofit digital and media 
literacy programs offered by libraries, museums, and other nonprofit 
entities with an educational mission, in the course of face-to-face 
instructional activities, for the purpose of criticism or comment, 
except that such users may only circumvent using screen-capture 
technology that appears to be offered to the public as enabling the 
reproduction of motion pictures after content has been lawfully 
acquired and decrypted.

2. Proposed Class 2: Audiovisual Works--Accessibility 45
    Proposed Class 2 would allow circumvention of technological 
measures protecting motion pictures (including television shows and 
videos) on DVDs, Blu-ray discs, and via digital transmissions, for 
disability services professionals at educational institutions to create 
accessible versions for students with disabilities by adding captions 
and/or audio description.\46\ Proponents

[[Page 54019]]

explained that nearly all educational institutions are subject to 
disability laws such as the Americans With Disabilities Act (``ADA''), 
section 504 of the Rehabilitation Act (``Section 504''), and the 
Individuals With Disabilities Education Act (``IDEA''), which require 
accommodations for students with disabilities. Proponents maintained 
that creating accessible versions by adding captions and/or audio 
description is necessary because inaccessible motion pictures remain 
prevalent in the video industry, and copyright owners fail to 
retroactively make motion pictures accessible or grant permission to 
disability services offices to make those works accessible, even when 
contacted directly.
---------------------------------------------------------------------------

    \45\ The Acting Register's analysis and conclusions for this 
class, including citations to the record and relevant legal 
authority, can be found in the Recommendation at 89-111.
    \46\ ``Captioning'' is ``the process of converting the audio 
content'' of audiovisual material, such as a motion picture, ``into 
text and displaying the text on a screen, monitor, or other visual 
display system.'' Nat'l Ass'n of the Deaf, What is Captioning?, 
NAD.ORG, https://www.nad.org/resources/technology/captioning-for-access/what-is-captioning/ (last visited Oct. 2, 2018). By contrast, 
``audio description'' is a narration added to the soundtrack of 
audiovisual material, such as a motion picture, to describe 
significant visual details (e.g., descriptions of new scenes, 
settings, costumes, body language) for individuals with sight 
impairments. Am. Council of the Blind, The Audio Description 
Project, ACB.ORG, http://www.acb.org/adp/ad.html (last visited Oct. 
2, 2018). Audio description may also be referred to as ``video 
description'' or ``descriptive narration.'' Id.
---------------------------------------------------------------------------

    Proponents asserted that adding captions and/or audio description 
to motion pictures for the purpose of making them accessible to 
students with disabilities constitutes fair use based on the 
legislative history of section 107. Proponents also argued that viable 
alternatives to circumvention do not exist, and that not allowing 
circumvention will negatively affect the market for the copyrighted 
motion pictures because educational institutions will not use content 
that they cannot easily convert into an accessible format.
    In response, opponents noted that while accessibility is an 
important issue, the proposed class was too broad because it did not 
take into account the extent to which DVDs and Blu-ray discs already 
include closed captions and audio description. They argued that the 
result of altering a motion picture--such as by adding captioning and/
or audio description--is likely a derivative work that involves a 
creative interpretation of the underlying work. Opponents generally 
contended that the wide availability of versions with captioning and/or 
audio description already in the market constitutes a viable 
alternative to circumvention.
    NTIA recommended that the proposed exemption allow ``disability 
services offices and equivalent units'' to ``circumvent TPMs on 
audiovisual works in educational settings to add accessibility 
features'' to motion pictures, including ``through the provision of 
closed and open captions and audio description.'' In agreement with the 
Acting Register, NTIA believes that the exemption should apply 
``regardless of grade level'' of the student, and apply to both 
nonprofit and for-profit educational institutions required to make 
motion pictures accessible to students under disability laws.
    The Acting Register concluded that an exemption should be granted, 
with a few adjustments to the language outlined in the petition. She 
recommended that the exemption permit circumvention where the 
accessible version is created as a necessary accommodation for a 
student or students with disabilities under a federal or state 
disability law, such as the ADA, IDEA, or Section 504. In addition, the 
Acting Register recommended that the exemption apply to for-profit and 
nonprofit educational institutions, as well as to K-12 institutions, 
colleges, and universities, because they are subject to such disability 
laws. The Acting Register also recommended that the exemption allow 
circumvention only after the educational institution has conducted a 
reasonable market check and determined that an accessible version is 
not available, not available at a fair price, or not available in a 
timely way. The record suggested that these searches are already 
occurring, and that regardless of whether a decision is made to create 
an accessible version, outsource the creation of an accessible version, 
or purchase an accessible version, the educational institution would 
incur a cost. In this way, the market check requirement seeks to 
prevent copies being made of works already available in accessible 
formats, while encouraging the motion picture industry to further 
expand the availability of accessible versions in the marketplace. 
Finally, the recommended exemption requires the accessible versions to 
be provided to students and stored by the educational institution in a 
manner that reasonably prevents unauthorized further dissemination of 
the work.
    Accordingly, the Acting Register recommends that the Librarian 
adopt the following exemption:

    (i) Motion pictures (including television shows and videos), as 
defined in 17 U.S.C. 101, where the motion picture is lawfully 
acquired on a DVD protected by the Content Scramble System, on a 
Blu-ray disc protected by the Advanced Access Content System, or via 
a digital transmission protected by a technological measure, where:
    (A) Circumvention is undertaken by a disability services office 
or other unit of a kindergarten through twelfth-grade educational 
institution, college, or university engaged in and/or responsible 
for the provision of accessibility services to students, for the 
purpose of adding captions and/or audio description to a motion 
picture to create an accessible version as a necessary accommodation 
for a student or students with disabilities under an applicable 
disability law, such as the Americans With Disabilities Act, the 
Individuals with Disabilities Education Act, or Section 504 of the 
Rehabilitation Act;
    (B) The educational institution unit in paragraph (b)(2)(i)(A) 
of this section has, after a reasonable effort, determined that an 
accessible version cannot be obtained at a fair price or in a timely 
manner; and
    (C) The accessible versions are provided to students or 
educators and stored by the educational institution in a manner 
intended to reasonably prevent unauthorized further dissemination of 
a work.
    (ii) For purposes of this paragraph (b)(2), ``audio 
description'' means an oral narration that provides an accurate 
rendering of the motion picture.
3. Proposed Class 5: Computer Programs--Unlocking \47\
    Proposed Class 5 would expand an existing exemption for activity 
known as ``unlocking,'' that is, circumvention of access controls on 
computer programs for the purpose of enabling a wireless device to 
connect to a different mobile network provider. The Copyright Office 
has received petitions to permit the unlocking of cellphones since 
2006. In 2015, as directed by the Unlocking Consumer Choice and 
Wireless Competition Act (``Unlocking Act''),\48\ the Register 
considered whether to expand the exemption to additional categories of 
wireless devices. Based on the record in that proceeding, the Register 
recommended, and the Librarian granted, an exemption covering 
cellphones, all-purpose tablet computers, portable mobile connectivity 
devices such as mobile hotspots, and wearable devices such as 
smartwatches or fitness devices.
---------------------------------------------------------------------------

    \47\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Recommendation at 145-63.
    \48\ Public Law 113-144, 128 Stat. 1751 (2014).
---------------------------------------------------------------------------

    The current exemption also is limited to used devices, i.e. those 
previously activated on a wireless carrier. First adopted in 2010, this 
limitation was implemented in response to concerns raised by wireless 
carriers engaged in the business of selling cellphones at substantially 
discounted prices and recouping that investment through the sale of 
prepaid wireless service. These companies feared that including new

[[Page 54020]]

phones in the class could foster illegal trafficking activity, which 
involves ``the bulk purchase of unused handsets that have been offered 
for sale at subsidized prices . . . and then unlocking and reselling 
those unlocked handsets for a profit.'' \49\
---------------------------------------------------------------------------

    \49\ 2015 Recommendation at 145.
---------------------------------------------------------------------------

    In this proceeding, ISRI petitioned for expansions that would (1) 
remove the enumerated device categories and instead permit 
circumvention to unlock ``any wireless device''; and (2) eliminate the 
requirement that a wireless device be ``used.'' As to the limitation on 
devices, proponents argued that the owner of any connected device 
should be able to transfer it to the carrier of his or her choice. 
Proponents warned that the rapid pace of innovation within the Internet 
of Things industry makes it impossible to predict the specific 
categories of wireless devices that consumers may need to unlock. 
Regarding the ``used'' limitation, proponents argued that illegal 
trafficking does not implicate copyright interests and that concerns 
about such activity therefore are outside the proper scope of this 
rulemaking. Proponents further suggested that, in contrast to 2015, 
there now exists a need to unlock unused devices, offering examples of 
corporations acquiring excess devices that are never activated but that 
they later seek to recycle. The Office received no comments opposing 
either of these requested expansions.
    NTIA recommended granting both aspects of the petition. As it did 
in 2015, NTIA concluded that ``proponents have provided sufficient 
evidence to demonstrate that circumvention of TPMs on all lawfully 
acquired wireless devices is a noninfringing use.'' In its view, the 
statutory prohibition ``limits consumer choice of wireless network 
providers, limits recyclers' ability to recycle or resell wireless 
devices, and limits competition between wireless network providers.'' 
NTIA also concluded that proponents met their burden with respect to 
unused devices, pointing to evidence that since 2015, ``business 
practices have changed, resulting in a need for bulk and individual 
unlocking of new wireless devices.'' NTIA proposes replacing the term 
``used'' in the exemption with the phrase ``lawfully acquired.''
    The Acting Register recommended expanding the exemption to unused 
devices falling within the categories listed in the current exemption. 
She concluded that unlocking such devices is likely noninfringing under 
section 117(a) of the Copyright Act for the same reasons noted in the 
2015 Recommendation with respect to used devices. She further found 
that unlocking such devices is likely a fair use, regardless of whether 
the devices are new or used. With respect to potential cellphone 
trafficking, the Acting Register found that although such activity 
limits the network provider's ability to sell devices at a discount, 
there were no allegations relating to trafficking raised in this 
proceeding, and it is not clear that the economic harm caused by that 
activity affects the value of the computer programs allowing devices to 
connect to wireless networks. She further noted that other causes of 
action, such as unfair competition or unjust enrichment, may be 
available to address injury to non-copyright interests. In addition, 
the Acting Register concluded that absent an exemption, users are 
likely to be adversely affected in their ability to unlock unused 
devices of these types. She found that extending the exemption to such 
devices will increase the availability of the software within them and 
that the record lacked evidence that doing so would harm the market for 
copyrighted works.
    The Acting Register therefore recommended removal of the provision 
in the current exemption requiring that a covered device be ``used.'' 
Consistent with NTIA's recommendation, she proposed adding language 
requiring that such a device be ``lawfully acquired.'' Because the 
regulations implementing the Unlocking Act already require that 
circumvention under this exemption be initiated by the ``owner'' of the 
relevant device or by a person or service provider at the direction of 
the owner, the Acting Register views this as a technical, rather than a 
substantive, change.\50\
---------------------------------------------------------------------------

    \50\ 37 CFR 201.40(c) (2016).
---------------------------------------------------------------------------

    The Acting Register determined, however, that the record was 
insufficient to support expanding the exemption to additional types of 
wireless devices. As in 2015, she found the record too sparse to 
support a finding that unlocking wireless devices of all types is 
likely to be a fair use. Proponents did provide evidence regarding 
three specific categories of devices: Home security devices, 
agricultural equipment, and vehicle GPS trackers. Based on the record, 
the Acting Register concluded that these devices are similar to those 
covered by the current exemption in relevant respects, and that 
unlocking them therefore is likely to be a fair use. But she concluded 
that proponents failed to establish that they are, or are likely to be, 
adversely affected by section 1201 in their ability to unlock these 
types of devices. Proponents did not demonstrate that it would be 
possible to connect these devices to an alternate wireless network even 
if an exemption were granted. The Acting Register thus found that they 
failed to carry their burden to show actual or likely adverse effects 
resulting from the bar on circumvention. She therefore declined to 
recommend removal of the exemption's enumerated device categories.
    Accordingly, the Acting Register recommends that the Librarian 
adopt the following exemption:

    Computer programs that enable the following types of lawfully 
acquired wireless devices to connect to a wireless 
telecommunications network, when circumvention is undertaken solely 
in order to connect to a wireless telecommunications network and 
such connection is authorized by the operator of such network:
    (i) Wireless telephone handsets (i.e., cellphones);
    (ii) All-purpose tablet computers;
    (iii) Portable mobile connectivity devices, such as mobile 
hotspots, removable wireless broadband modems, and similar devices; 
and
    (iv) Wearable wireless devices designed to be worn on the body, 
such as smartwatches or fitness devices.

4. Proposed Class 6: Computer Programs--Jailbreaking \51\
---------------------------------------------------------------------------

    \51\ The Acting Register's analysis and conclusions for this 
class, including citations to the record and relevant legal 
authority, can be found in the Recommendation at 163-85.
---------------------------------------------------------------------------

    Proposed Class 6 would expand an existing exemption for activity 
known as ``jailbreaking''--that is, the process of gaining access to 
the operating system of a computing device to install and execute 
software that could not otherwise be installed or run on that device, 
or to remove pre-installed software that could not otherwise be 
uninstalled. An existing exemption permits the jailbreaking of 
smartphones and portable all-purpose mobile computing devices. In this 
proceeding, EFF filed a petition seeking to expand the current 
exemption by: (1) Adding voice assistant devices, such as the Amazon 
Echo and Google Home, to the categories of devices covered by the 
exemption; and (2) allowing jailbreaking not only to install, run, or 
remove software, but also for the purpose of enabling or disabling 
hardware features of the relevant device.
    In proponents' view, the fair use analysis relied upon by the 
Register in recommending the previous jailbreaking exemptions is 
equally applicable in the context of voice assistant devices. Moreover, 
regarding the 1201 statutory factors, proponents argued that a

[[Page 54021]]

jailbreaking exemption will have either no effect or a positive effect 
on the availability of copyrighted firmware and application software.
    Opponents principally argued that jailbreaking is likely to enable 
voice assistant devices to access pirated content. Opponents asserted 
that piracy concerns are greater in the context of voice assistant 
devices than in that of other devices, as the former are relatively 
simple devices that do not incorporate the same ``hardware and software 
complexity'' that exists in personal computers, and therefore they 
provide more limited security options. Opponents further suggested that 
jailbreaking would facilitate the installation of counterfeit apps and 
apps that enable unauthorized access to copyrighted content. Opponents 
challenged the contention that jailbreaking is necessary to promote the 
development of new applications.
    NTIA recommended granting the exemption in the form requested by 
proponents.
    It agreed that jailbreaking voice assistant devices is unlikely to 
harm the market for copyrighted works, noting that there is no evidence 
of market harm for the devices covered by the current exemption. NTIA 
rejected opponents' argument about unauthorized access to entertainment 
content on the ground that it ``fail[s] to explain why infringement is 
more likely on voice assistant platforms than on smartphones, tablets, 
and other devices already subject to the exemption.'' NTIA further 
concluded that proponents had demonstrated that users in this class are 
adversely affected by the statutory prohibition.
    The Acting Register found that proponents met their burden of 
showing that jailbreaking voice assistant devices within the meaning of 
the current exemption is likely to be a fair use. She concluded that 
the record failed to show that the prior jailbreaking exemptions have 
harmed the market for firmware in smartphones or all-purpose mobile 
devices, and that nothing in the record suggests that a different 
conclusion is warranted for voice assistant devices. Additionally, the 
Acting Register found the record insufficient to establish that an 
expanded exemption is likely to harm the market for copyrighted works 
streamed to voice assistant devices. While acknowledging that piracy of 
streamed content is a highly significant concern, the evidence was 
insufficient to conclude that allowing jailbreaking of voice assistant 
devices created a greater risk of unauthorized access to streaming 
content than exists with respect to other devices, and suggested that 
subscription streaming services typically control access to their 
content with TPMs separate from those protecting the firmware. The 
Acting Register thus recommended adoption of an exemption authorizing 
the jailbreaking of voice assistant devices, which must be ``designed 
to take user input primarily by voice.'' The recommended exemption 
excludes video game consoles, set-top boxes, DVD and Blu-Ray players, 
and similar devices that typically are operated using buttons. To 
address opponents' serious concerns over the potential use of 
jailbroken devices as platforms for unauthorized content, the Acting 
Register recommended including language expressly excluding 
circumvention undertaken for purpose of accessing such material.
    Accordingly, the Acting Register recommends that the Librarian 
adopt the following exemption:

    Computer programs that enable voice assistant devices to execute 
lawfully obtained software applications, where circumvention is 
accomplished for the sole purpose of enabling interoperability of 
such applications with computer programs on the device, or to permit 
removal of software from the device, and is not accomplished for the 
purpose of gaining unauthorized access to other copyrighted works. 
For purposes of this paragraph (b)(8), a ``voice assistant device'' 
is a device that is primarily designed to run a wide variety of 
programs rather than for consumption of a particular type of media 
content, is designed to take user input primarily by voice, and is 
designed to be installed in a home or office.

5. Proposed Class 7: Computer Programs--Repair \52\
---------------------------------------------------------------------------

    \52\ The Acting Register's analysis and conclusions for these 
classes, including citations to the record and relevant legal 
authority, can be found in the Recommendation at 185-231.
---------------------------------------------------------------------------

    Several organizations petitioned to expand the current exemption 
allowing for circumvention of access controls controlling the 
functioning of motorized land vehicles for purposes of diagnosis, 
repair, or lawful modification of a vehicle function to allow an 
additional range of activities. The Office synthesized these 
suggestions into Proposed Class 7. Although the commenters' proposals 
varied in scope, and there was no singular unified proposed exemption, 
the Acting Register grouped them into the following four categories:

    (1) Removing the current limitation prohibiting circumvention of 
TPMs to access computer programs primarily designed for the control 
of vehicle telematics and entertainment systems;
    (2) expanding the exemption to apply to other types of software-
enabled devices, including appliances, computers, toys, and other 
Internet of Things devices;
    (3) extending the exemption to allow circumvention by third-
party service providers, and in particular, independent vehicle 
repair shops, for purposes of diagnosis, repair, and lawful 
modification; and
    (4) allowing the acquisition, use, and dissemination of 
circumvention tools in furtherance of diagnosis, repair, and 
modification.

    The Acting Register first considered proposed expansions within the 
context of motorized land vehicles, and then addressed expansion of the 
exemption to other types of devices.
    Regarding motorized land vehicles, proponents asserted that 
diagnosis, repair, and lawful modification of vehicle telematics and 
entertainment systems are fair uses and noninfringing under section 
117. Proponents contended that, because these systems are increasingly 
integrated with functional vehicle firmware, access is necessary to 
engage in diagnosis, repair, and lawful modification of vehicle 
functions--activities the Register found to be likely noninfringing in 
recommending the existing exemption. Proponents sought access to 
telematics systems in order to obtain diagnostic data for the same 
purposes. Proponents asserted that vehicle firmware is ``effectively 
useless'' outside of the vehicle, with essentially no separate market 
for the software apart from the vehicles. In addition, proponents 
suggested users should be permitted to access ``storage capacity'' in 
vehicle entertainment systems, and to repair infotainment/entertainment 
modules.
    In response, opponents contended that the proposed activities are 
not favored under fair use because access to entertainment and 
telematics systems could allow unauthorized access to expressive 
content. Opponents asserted that telematics and entertainment firmware 
have value apart from a vehicle, and may be paid for on a continuing 
basis separate from the vehicle purchase. Opponents also argued that 
circumvention of telematics is unnecessary because diagnostic data is 
still available through the onboard diagnostics port and, further, a 
nationwide Memorandum of Understanding requires manufacturers to make 
this data available to vehicle owners and independent repair shops.
    Commenters seeking to expand the exemption to allow diagnosis, 
repair, and modification of other software-enabled devices likewise 
asserted that these activities are noninfringing under the fair use 
doctrine and section 117. The Acting Register considered these

[[Page 54022]]

arguments for those types of devices cognizably reflected in the 
record, namely home appliances, smartphones, video game consoles, 
computers and ancillary or peripheral computing devices, and 
consumables, plus a few examples of specific additional devices.
    Opponents maintained that repair of these devices is not a 
transformative use because it merely causes a device to be used for the 
same purpose for which it was originally intended. In some cases, 
opponents also suggested that once the firmware on some devices is 
accessed, even for repair, it is compromised such that it can no longer 
prevent piracy; and consequently, these uses diminish the value of and 
market for the devices and other creative works. Regarding repair of 
video game consoles specifically, opponents expressed concern that 
circumvention of TPMs creates the risk of unauthorized access to 
content and piracy.
    Concerning third-party assistance, several proponents requested 
that the exemption specifically permit third parties, such as repair 
services, to assist owners in carrying out the authorized activities. 
Alternatively, proponents suggested removing the current exemption 
language requiring that circumvention be ``undertaken by the authorized 
owner'' of the vehicle. Regarding circumvention tools, proponents asked 
the Office to recommend language that would allow exemption 
beneficiaries, including third parties, to not only make, use, and 
acquire tools, but also to distribute them. Opponents contended that 
the proposals concerning third-party assistance and circumvention tools 
would impermissibly expand the exemption to activity that would 
constitute unlawful trafficking in violation of sections 1201(a)(2) and 
(b).
    NTIA supported expanding the exemption to a ``new definable sub-
class'' of home appliances and mobile handsets (such as cell phones) 
``when circumvention is a necessary step to allow the diagnosis, 
repair, or lawful modification of a device function.'' NTIA concluded 
that these are noninfringing fair uses, in part because ``diagnosis is 
a critical component of repairing a device'' and subsequent 
modification of devices is transformative. With respect to vehicles, 
NTIA supported expanding the existing exemption to allow ``use of 
telematics data for diagnostic purposes.'' It recommended, however, 
``limiting use to obtaining the diagnostic data from the telematics 
module for purposes of repair and modification of the vehicle, and not 
repair or modification to the module itself.'' As to vehicle 
entertainment systems, NTIA ``continue[d] to have reservations about 
the strength of [the] record and the potential for infringement'' and 
did not recommend an expansion to permit access for the proposed uses, 
including ``storage capacity.''
    NTIA further recommended removing the current exemption's reference 
to ``the authorized owner of the vehicle''--a change that it 
characterizes as ``extending the current exemption to allow third-party 
service providers to diagnose, repair and modify software- enabled 
vehicles on behalf of owners.'' But NTIA recommended denying the 
proposals to ``permit third-party commercialization of software repair 
tools for vehicles in this class,'' concluding that such activity is 
``likely to constitute trafficking.''
    The Acting Register recommended expanding the current exemption in 
areas where there was sufficient record support for such a change, 
while retaining language to ensure that both the class of works and the 
permitted uses are appropriately defined. As a result, the Acting 
Register recommended two separate exemptions, one relating to motorized 
land vehicles, and one related to the repair and maintenance of 
additional categories of devices.
    Regarding motor vehicles, the recommended exemption removes the 
requirement that circumvention be ``undertaken by the authorized 
owner'' of the vehicle, instead providing that it apply where such 
items are ``lawfully acquired.'' This change responds to proponents' 
concerns that the language of the existing exemption improperly 
excludes other users with a legitimate interest in engaging in 
noninfringing diagnosis, repair, or modification activities. The Acting 
Register expressed no view on whether particular types of third-party 
assistance may or may not implicate the anti-trafficking provisions. 
Those provisions, found in section 1201(a)(2) and (b), are unchanged 
and must be separately analyzed to determine whether third-party 
assistance would be permissible.
    The Acting Register also recommended removing the language 
excluding access to computer programs designed for the control of 
telematics or entertainment systems. The Acting Register was persuaded 
that, due to increasing integration of vehicle computer systems since 
the 2015 rulemaking, retaining this limitation may impede noninfringing 
uses that can only be accomplished by incidentally accessing these 
systems. Nonetheless, the Acting Register credited opponents' concerns 
about unauthorized access to expressive works through subscription 
services unrelated to vehicle functioning, and accordingly the 
recommended exemption specifically excludes access to ``programs 
accessed through a separate subscription service.'' While the broadened 
exemption permits incidental access to a vehicle infotainment system, 
it provides that such access is allowed only to the extent it is ``a 
necessary step to allow the diagnosis, repair or lawful modification of 
a vehicle function'' and includes the additional requirement that 
circumvention may not be ``accomplished for the purpose of gaining 
unauthorized access to other copyrighted works.'' Because the Acting 
Register found the record insufficient to support expanding the 
exemption to permit diagnosis, repair, or lawful modification of the 
telematics and infotainment systems themselves, the regulatory language 
does not extend to those activities.
    In addition, the Acting Register recommended a new exemption 
allowing for the circumvention of TPMs restricting access to firmware 
that controls smartphones and home appliances and home systems for the 
purposes of diagnosis, maintenance, or repair. In doing so, the Acting 
Register adopted the definitions of ``maintenance'' and ``repair'' in 
section 117(d). Here again, the recommended text includes the condition 
that circumvention not be ``accomplished for the purpose of gaining 
unauthorized access to other copyrighted works.'' The Acting Register 
did not recommend extending this exemption to circumvention for 
purposes of modifying a device function, concluding that 
``modification'' was not defined with sufficient precision to conclude 
as a general category it is likely to be noninfringing.
    Accordingly, the Acting Register recommends that the Librarian 
adopt the following exemptions:

    (1) Computer programs that are contained in and control the 
functioning of a lawfully acquired motorized land vehicle such as a 
personal automobile, commercial vehicle or mechanized agricultural 
vehicle, except for programs accessed through a separate 
subscription service, when circumvention is a necessary step to 
allow the diagnosis, repair or lawful modification of a vehicle 
function, where such circumvention does not constitute a violation 
of applicable law, including without limitation regulations 
promulgated by the Department of Transportation or the Environmental 
Protection Agency, and is not accomplished for the purpose of 
gaining unauthorized access to other copyrighted works.
    (2) Computer programs that are contained in and control the 
functioning of a lawfully

[[Page 54023]]

acquired smartphone or home appliance or home system, such as a 
refrigerator, thermostat, HVAC or electrical system, when 
circumvention is a necessary step to allow the diagnosis, 
maintenance or repair of such a device or system, and is not 
accomplished for the purpose of gaining access to other copyrighted 
works. For purposes of this paragraph (b)(10):
    (i) The ``maintenance'' of a device or system is the servicing 
of the device or system in order to make it work in accordance with 
its original specifications and any changes to those specifications 
authorized for that device or system; and
    (ii) The ``repair'' of a device or system is the restoring of 
the device or system to the state of working in accordance with its 
original specifications and any changes to those specifications 
authorized for that device or system.

6. Proposed Class 9: Computer Programs--Software Preservation \53\
---------------------------------------------------------------------------

    \53\ Because the issues in this class are relevant to the 
analysis in Proposed Class 8, which pertains specifically to video 
games, the Acting Register addresses this class first. The Acting 
Register's analysis and conclusions for this class, including 
citations to the record and relevant legal authority, can be found 
in the Recommendation at 231-56.
---------------------------------------------------------------------------

    Proposed Class 9 seeks to address concerns that TPMs applied to 
computer programs can interfere with legitimate preservation 
activities. The Software Preservation Network (``SPN'') and the LCA 
filed a petition that would allow ``libraries, archives, museums, and 
other cultural heritage institutions'' to circumvent TPMs on ``lawfully 
acquired software for the purposes of preserving software and software-
dependent materials.'' SPN and LCA explained that the proposed 
exemption is intended to enable cultural heritage institutions to 
preserve both TPM-protected computer programs, as well as ``dependent'' 
materials--``writings, calculations, software programs, etc.'' stored 
in digital formats that are inaccessible without running the underlying 
program. Although proposed Class 9 constitutes a new exemption, 
proponents noted that the Register recommended, and the Librarian 
granted, exemptions for software preservation in 2003 and 2006, which 
allowed circumvention of access controls on computer programs and video 
games distributed in formats that have become obsolete and that require 
the original media or hardware as a condition of access. Proponents 
advanced three bases for finding their proposed activities to be 
noninfringing: (1) The fair use doctrine, (2) the section 108(c) 
exception for library and archival replacement copies, and (3) the 
section 117(a) exception for archival copies of computer programs.
    Opponents contended that the proposal is overbroad because (1) the 
exemption would improperly allow circumvention for activities beyond 
those provided for in the section 108 exceptions for libraries and 
archives; (2) the term ``computer program-dependent materials'' might 
be read to sweep in any category of copyrightable work; and (3) the 
term ``other cultural heritage institutions'' within the class of 
beneficiaries is undefined. Although opponents did not directly contest 
proponents' fair use arguments, they did assert that section 117(a)(2) 
does not protect proponents' activities.
    NTIA supported adopting the proposed exemption. In its view, the 
class was appropriately defined because it was limited to ``computer 
programs, to preservation uses, and to preservation-oriented 
institutional users.'' It agreed with proponents that the exemption 
should expressly refer to preservation of ``computer program-dependent 
materials,'' concluding that ``a user would not be able to access those 
materials without preserving the software protected by a TPM.'' It also 
agreed that the exemption should include video games, noting that 
proponents provided specific examples of games that may not be covered 
by the current preservation exemption. In addition, it found that there 
were no reasonable alternatives to circumvention, as the use of 
software with backwards compatibility ``is inadequate and can distort 
the original work.''
    The Acting Register recommended granting an exemption that 
incorporates most of the substance of proponents' request, with certain 
changes to address opponents' concerns. First, the recommended language 
limits the eligible users to libraries, archives, and museums, as 
defined according to the criteria proposed in the Office's recent 
Section 108 Discussion Document.\54\ The Acting Register declined to 
recommend including ``other cultural heritage institutions'' within the 
class of beneficiaries, finding that term to be undefined and 
potentially far-reaching. In addition, the Acting Register recommended 
that the exemption incorporate proponents' suggestion that the class be 
defined as computer programs ``that have been lawfully acquired and 
that are no longer reasonably available in the commercial 
marketplace.'' The Acting Register also recommended that in lieu of 
including the phrase ``computer program-dependent materials'' as a 
defined term, the recommended exemption simply provide that 
circumvention is permitted for the purpose of ``lawful preservation . . 
. of digital materials dependent upon a computer program as a condition 
of access.'' Finally, in response to concerns over having video game 
preservation governed by two separate exemptions, the Acting Register 
recommended that the portion of this class pertaining to video games be 
codified in the existing video game preservation exemption. Thus, the 
recommended exemption for Class 9 will cover computer programs other 
than video games, while an addition to the prior exemption for video 
games will provide for preservation of the video games addressed by 
this class (i.e., those that do not require an external server for 
gameplay). Preservation of server-based games will continue to be 
governed by the recommended exemption for Class 8.
---------------------------------------------------------------------------

    \54\ See U.S. Copyright Office, Section 108 of Title 17 51 
(2017), https://www.copyright.gov/policy/section108/discussion-document.pdf.
---------------------------------------------------------------------------

    Accordingly, the Acting Register recommends that the Librarian 
adopt the following exemption:

    (i) Computer programs, except video games, that have been 
lawfully acquired and that are no longer reasonably available in the 
commercial marketplace, solely for the purpose of lawful 
preservation of a computer program, or of digital materials 
dependent upon a computer program as a condition of access, by an 
eligible library, archives, or museum, where such activities are 
carried out without any purpose of direct or indirect commercial 
advantage and the program is not distributed or made available 
outside of the physical premises of the eligible library, archives, 
or museum.
    (ii) For purposes of the exemption in paragraph (b)(13)(i) of 
this section, a library, archives, or museum is considered 
``eligible'' if--
    (A) The collections of the library, archives, or museum are open 
to the public and/or are routinely made available to researchers who 
are not affiliated with the library, archives or museum;
    (B) The library, archives, or museum has a public service 
mission;
    (C) The library, archives, or museum's trained staff or 
volunteers provide professional services normally associated with 
libraries, archives, or museums;
    (D) The collections of the library, archives, or museum are 
composed of lawfully acquired and/or licensed materials; and
    (E) The library, archives, or museum implements reasonable 
digital security measures as appropriate for the activities 
permitted by this paragraph (b)(13).
8. Proposed Class 8: Computer Programs--Video Game Preservation \55\
---------------------------------------------------------------------------

    \55\ The Acting Register's analysis and conclusions for this 
class, including citations to the record and relevant legal 
authority, can be found in the Recommendation at 256-84.
---------------------------------------------------------------------------

    Class 8 proponents sought expansion of the provisions in the 
existing

[[Page 54024]]

exemption that allows eligible institutions to circumvent access 
controls to preserve video games for which external server support has 
been discontinued. As explained in the 2015 rulemaking, some video 
games require a network connection to a remote server operated by the 
game's developer before the video game can be accessed and played. When 
the developer takes such a server offline, a game can be rendered 
unplayable or limited to certain functions, such as single-player play 
or multiplayer play on a local network. The current exemption allows an 
eligible library, archives, or museum to circumvent this type of 
authentication mechanism to preserve lawfully acquired games in 
``complete'' form, i.e., those that can be played without accessing or 
reproducing copyrightable content stored or previously stored on an 
external computer server. The exemption requires that such games not be 
distributed or made available outside of the physical premises of the 
eligible institution.
    The Museum of Art and Digital Entertainment (``MADE'') filed a 
petition seeking to expand the exemption to allow for circumvention of 
access controls on video games that need to access creative content 
stored on a remote server, which MADE refers to as ``online'' games. 
MADE contended that the current exemption, while helpful, does not 
allow it to preserve the growing number of online video games for 
future generations to study. Proponents explained that libraries, 
archives, and museums cannot engage in certain preservation activities 
involving online games without either copying the game's server code or 
reconstructing that server's functionality, which would also require an 
exemption to circumvent TPMs on these works. MADE also sought to 
broaden the class of users of the exemption to include volunteer 
``affiliate archivists,'' who wish to circumvent access controls off-
premises, but under the supervision of preservation entities.
    Opponents objected to the proposed expansions, arguing that 
proponents' intended use of the video games is not a true preservation 
use. Instead, opponents contended that proponents wish to engage in 
recreational play that could function as a market substitute. In 
addition, the Entertainment Software Association expressed concern that 
the server copy proponents wish to recreate is an unpublished work that 
has never been distributed to the public. Overall, opponents contend 
that the proposed uses are infringing. Opponents also objected to the 
use of affiliate archivists, contending that there is a heightened risk 
of market harm if the public can circumvent access controls on video 
games in their own homes.
    NTIA supported the adoption of an expanded exemption, but one 
narrower than that requested by proponents. It proposed an expansion to 
allow preservation ``where the user uses the server component--while 
still not providing any substantial expressive content--for 
administrative tasks beyond authentication, including command and 
control functions such as tracking player progress, facilitating 
communications between players, or storing high scores.'' To 
accommodate these uses, it recommended regulatory language that would 
apply in situations where ``all or nearly all of the audiovisual 
content and gameplay mechanics reside on the player or institution's 
lawfully acquired local copy of the game.'' NTIA did not, however, 
support adding an ``affiliate archivist'' user class, concluding that 
adding such a provision risks ``introducing confusing language or 
suggesting that any such preservationists may not need to be answerable 
to the institutions for which they are volunteering.''
    The Acting Register found that the record supported granting an 
expansion in the relatively discrete circumstances where a preservation 
institution legally possesses a copy of a video game's server code and 
the game's local code. She concluded that in such circumstances, the 
preservation activities described by proponents are likely to be fair 
uses. She further found that proponents demonstrated that such uses 
would be adversely affected by the statutory prohibition absent an 
exemption. The record indicated that an exemption would enable future 
scholarship by enabling researchers to experience games as they were 
originally played and thereby better understand their design or 
construction. The Acting Register additionally found such activity 
unlikely to harm the market for video games.
    The Acting Register did not, however, recommend an exemption to 
allow for instances where the preservation institution lacks lawful 
possession of the server software. She found the record insufficient to 
support a finding that the recreation of video game server software as 
described by proponents is likely to be a fair use. A number of 
scenarios described by proponents do not involve preserving server 
software that is already in an institution's collections, but instead 
appear to involve something more akin to reconstructing the remote 
server. She found that this activity distinguishes proponents' request 
from the preservation activity at issue in the case law upon which they 
relied. Moreover, she noted, the reconstruction of a work implicates 
copyright owners' exclusive right to prepare derivative works.
    Additionally, the Acting Register concluded that the record did not 
support the addition of an ``affiliate archivist'' user class to the 
exemption, finding such activity unlikely to constitute fair use. She 
noted that both the proposed exemption language and the proponents' 
institutions' practices seemed to lack appropriate protective 
guidelines to govern such volunteers' use of copyrighted materials.
    In light of the foregoing, the Acting Register recommended an 
exemption for ``server-dependent games,'' defined as video games that 
can be played by users who lawfully possess both a copy of a game 
intended for a personal computer or video game console and a copy of 
the game's code that is stored or was previously stored on an external 
computer server. The Acting Register continues to recommend an 
exemption for ``complete games,'' but proposed revising the exemption 
language to reflect that the exemption for ``complete games'' applies 
to both gamers and preservation uses, but the exemption for ``server 
dependent games'' applies only to preservation uses. In addition, for 
the reasons explained above in the discussion of Proposed Class 9, the 
Acting Register recommended adding a paragraph to the exemption in this 
class to accommodate preservation of non-server-based video games.
    Accordingly, the Acting Register recommends that the Librarian 
adopt the following exemption:

    (i) Video games in the form of computer programs embodied in 
physical or downloaded formats that have been lawfully acquired as 
complete games, when the copyright owner or its authorized 
representative has ceased to provide access to an external computer 
server necessary to facilitate an authentication process to enable 
gameplay, solely for the purpose of:
    (A) Permitting access to the video game to allow copying and 
modification of the computer program to restore access to the game 
for personal, local gameplay on a personal computer or video game 
console; or
    (B) Permitting access to the video game to allow copying and 
modification of the computer program to restore access to the game 
on a personal computer or video game console when necessary to allow 
preservation of the game in a playable form by an eligible library, 
archives, or museum, where such activities are carried out without

[[Page 54025]]

any purpose of direct or indirect commercial advantage and the video 
game is not distributed or made available outside of the physical 
premises of the eligible library, archives, or museum.
    (ii) Video games in the form of computer programs embodied in 
physical or downloaded formats that have been lawfully acquired as 
complete games, that do not require access to an external computer 
server for gameplay, and that are no longer reasonably available in 
the commercial marketplace, solely for the purpose of preservation 
of the game in a playable form by an eligible library, archives, or 
museum, where such activities are carried out without any purpose of 
direct or indirect commercial advantage and the video game is not 
distributed or made available outside of the physical premises of 
the eligible library, archives, or museum.
    (iii) Computer programs used to operate video game consoles 
solely to the extent necessary for an eligible library, archives, or 
museum to engage in the preservation activities described in 
paragraph (b)(12)(i)(B) or (b)(12)(ii) of this section.
    (iv) For purposes of this paragraph (b)(12), the following 
definitions shall apply:
    (A) For purposes of paragraph (b)(12)(i)(A) and (b)(12)(ii) of 
this section, ``complete games'' means video games that can be 
played by users without accessing or reproducing copyrightable 
content stored or previously stored on an external computer server.
    (B) For purposes of paragraph (b)(12)(i)(B) of this section, 
``complete games'' means video games that meet the definition in 
paragraph (b)(12)(iv)(A) of this section, or that consist of both a 
copy of a game intended for a personal computer or video game 
console and a copy of the game's code that was stored or previously 
stored on an external computer server.
    (C) ``Ceased to provide access'' means that the copyright owner 
or its authorized representative has either issued an affirmative 
statement indicating that external server support for the video game 
has ended and such support is in fact no longer available or, 
alternatively, server support has been discontinued for a period of 
at least six months; provided, however, that server support has not 
since been restored.
    (D) ``Local gameplay'' means gameplay conducted on a personal 
computer or video game console, or locally connected personal 
computers or consoles, and not through an online service or 
facility.
    (E) A library, archives, or museum is considered ``eligible'' 
when the collections of the library, archives, or museum are open to 
the public and/or are routinely made available to researchers who 
are not affiliated with the library, archives, or museum.
7. Proposed Class 10: Computer Programs--Security Research \56\
---------------------------------------------------------------------------

    \56\ The Acting Register's analysis and conclusions for this 
class, including citations to the record and relevant legal 
authority, can be found in the Recommendation at 284-315.
---------------------------------------------------------------------------

    The Office received multiple petitions to expand the existing 
exemption allowing circumvention for the purpose of conducting good-
faith security research on certain types of software-enabled devices 
and machines. Proponents argued that the current language contains 
limitations that unnecessarily restrict its scope, as well as 
ambiguities that chill legitimate research. These include: (1) A 
provision limiting the exemption to specified categories of devices 
(``Device Limitation''); (2) a requirement that a device be ``lawfully 
acquired'' (``Lawfully Acquired Limitation''); (3) a requirement that 
circumvention be ``solely'' for the purpose of good-faith security 
research, and the definition of such research as accessing a program 
``solely'' for purposes of good-faith testing, investigation, and/or 
correction (``Access Limitation''); (4) a requirement that the research 
be ``carried out in a controlled environment designed to avoid any harm 
to individuals or the public'' (``Controlled Environment Limitation''); 
(5) a requirement that ``the information derived from the activity [be] 
used primarily to promote the security or safety of the class of 
devices or machines . . . or those who use such devices or machines, 
and is not used or maintained in a manner that facilitates copyright 
infringement'' (``Use Limitation''); and (6) a requirement that the 
circumvention ``not violate any applicable law'' (``Other Laws 
Limitation''). Proponents maintained that the proposed activity is 
noninfringing on one or both grounds relied upon by the Register in 
2015--section 117 and fair use.
    Opponents objected to removal of each of these provisions, arguing 
that the current language appropriately balances the interests of 
security researchers, copyright owners, and the general public. In 
their view, the adverse effects asserted by proponents are unsupported 
by the record and are based on unreasonable readings of the relevant 
text. Opponents also variously argued that removing the limitations 
would render the class impermissibly broad, give rise to infringing 
uses, and jeopardize public safety and national security.
    Following the close of the public comment period and the completion 
of the public hearings, the Office received a letter concerning this 
class from CCIPS. The CCIPS letter stated that ``[m]any of the changes 
sought in the petition appear likely to promote productive 
cybersecurity research, and CCIPS supports them,'' subject to certain 
limitations. With respect to the Device Limitation, CCIPS advised that 
it would support eliminating the language confining the exemption to 
devices ``primarily designed for use by individual consumers.'' It 
recommended clarification of the Controlled Environment Limitation and 
said that it ``would not object to its removal.'' As to the Lawfully 
Acquired Limitation, CCIPS stated concluded that the current language 
is preferable to conditioning the exemption on ownership of a 
particular copy of software. CCIPS also addressed the Other Laws 
Limitation, stating that it would not object to removal of the phrase 
``any applicable law'' were it standing alone, but recommending 
retaining the express reference to the Computer Fraud and Abuse Act of 
1986.
    NTIA recommended granting the proposed expansion and proposed the 
same regulatory text it offered in 2015. That language would allow 
circumvention ``in order to conduct good faith security research'' on 
computer programs, ``regardless of the device on which they are run.'' 
NTIA further recommended that the Other Laws Limitation be replaced 
with a statement that the exemption ``does not obviate the need to 
comply with all other applicable laws and regulations.'' In addition, 
NTIA recommended removal of the Controlled Environment, Access, and Use 
Limitations, largely agreeing with proponents that those provisions may 
chill legitimate research.
    The Acting Register found that good-faith security research 
involving devices beyond those covered by the current exemption is 
likely to be a fair use. As the Register found in 2015, the Acting 
Register concluded that good-faith security research promotes several 
of the activities identified in section 107 as examples of favored 
purposes, including criticism, comment, teaching, scholarship, and 
research. In contrast to 2015, the current rulemaking record contained 
many additional examples of activities security researchers wished to 
engage in but for the Device Limitation. But the Acting Register did 
not find that section 117 provides an additional basis for finding such 
activity to be noninfringing. She found the record insufficient to 
support the conclusion that security researchers as a general matter 
are likely to own the copies of the device software, as is required 
under section 117.
    Ultimately, the Acting Register recommended that the exemption 
remove the Device Limitation, and include a provision allowing 
circumvention to be undertaken on a ``computer, computer system, or 
computer network on which the computer program operates.'' The latter 
provision is intended to address situations in which a researcher seeks

[[Page 54026]]

access to a structure, such as a building automation system, that 
cannot be ``acquired'' in the sense of obtaining physical possession of 
it, in contrast to instances where the researcher can lawfully acquire 
a device or machine. The exemption requires that circumvention in these 
circumstances be undertaken ``with the authorization of the owner or 
operator of such computer, computer system, or computer network.'' In 
addition, to address proponents' concerns over potential ambiguity in 
the Controlled Environment Limitation, the exemption removes the term 
``controlled,'' so that it simply would require the research to be 
``carried out in an environment designed to avoid any harm to 
individuals or the public.'' The Acting Register did not recommend 
removal of the other limitations challenged by proponents, finding that 
proponents had failed to demonstrate that those provisions are causing, 
or are likely to cause, any adverse effect on noninfringing security 
research.
    Accordingly, the Acting Register recommends that the Librarian 
adopt the following exemption:

    (i) Computer programs, where the circumvention is undertaken on 
a lawfully acquired device or machine on which the computer program 
operates, or is undertaken on a computer, computer system, or 
computer network on which the computer program operates with the 
authorization of the owner or operator of such computer, computer 
system, or computer network, 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.
    (ii) For purposes of this paragraph (b)(11), ``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 an 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.
8. Proposed Class 12: Computer Programs--3D Printing \57\
---------------------------------------------------------------------------

    \57\ The Acting Register's analysis and conclusions for this 
class, including citations to the record and relevant legal 
authority, can be found in the Recommendation at 319-31.
---------------------------------------------------------------------------

    3D printing--also known as ``additive'' manufacturing--is a 
technology that translates digital files into physical objects by 
adding successive layers of material. Some 3D printer manufacturers use 
TPMs to limit the types of material--or ``feedstock''--that can be used 
in their 3D printers to manufacturer-approved feedstock.
    Proponents sought to expand a current exemption that permits the 
circumvention of access controls on computer programs in 3D printers to 
enable the use of non- manufacturer-approved feedstock. Michael 
Weinberg filed a petition to eliminate the following language at the 
end of the exemption: ``provided, however, that the exemption shall not 
extend to any computer program on a 3D printer that produces goods or 
materials for use in commerce the physical production of which is 
subject to legal or regulatory oversight or a related certification 
process, or where the circumvention is otherwise unlawful.''
    Proponents put forth two arguments as to why the Acting Register 
should broaden the exemption by dropping this language: (1) The clause 
creates ambiguity such that the exemption itself cannot be applied or 
used in the majority of circumstances, and (2) the concerns that the 
clause seeks to address are more suitably addressed by other agencies. 
Stratasys, an opponent to the exemption, contended that this expanded 
range of activities is less likely to constitute fair use and should 
remain prohibited for reasons of public policy.
    NTIA supported renewing the exemption as well as expanding the 
exemption by removing the relevant limiting language. NTIA's proposed 
language differed from the current regulatory language in additional 
ways. For example, NTIA proposed incorporating the restriction that 
``circumvention is undertaken for the purpose of enabling 
interoperability of feedstock or filament with the device.'' NTIA, 
however, did not provide specific support for altering the regulatory 
text beyond removing the qualifying language.
    The 2015 rulemaking identified fair use as the noninfringing basis 
for this exemption, and the proposed expansion was evaluated on the 
same grounds. Because the record indicated that the state of the 3D 
printing market appears to be substantially the same as in 2015, and 
case law has not significantly altered the relevant fair use issues, 
the Acting Register concluded that the copying or modifying of printer 
software to accept non-manufacturer-approved feedstock is likely to be 
a fair use.
    Because the first four statutory factors do not fit neatly onto 
this situation, the Acting Register focused most of her analysis on the 
fifth factor to consider these related concerns. The Acting Register 
determined that the expanded record now shows that there are situations 
in which an individual may be complying with relevant law or 
regulations but still be at risk of violating section 1201 due to the 
exemption's qualifying language (e.g., individual sellers of homemade 
wares). The Acting Register concluded that the record established that 
the qualifying language in the existing exemption may be inhibiting 
otherwise beneficial or innovative uses of alternate feedstock, which 
is contrary to the intention of that exemption--and moreover, that 
there are safeguards outside of the current exemption addressing health 
and safety concerns associated with 3D printing.
    Accordingly, the Acting Register recommends that the Librarian 
adopt the following exemption:

    Computer programs that operate 3D printers that employ 
microchip-reliant technological measures to limit the use of 
feedstock, when circumvention is accomplished solely for the purpose 
of using alternative feedstock and not for the purpose of accessing 
design software, design files, or proprietary data.

C. Classes Considered but Not Recommended

    Based upon the record in this proceeding, the Acting Register of 
Copyrights recommended that the Librarian determine that the following 
classes of works shall not be exempt from the prohibition against 
circumvention of technological measures set forth in section 
1201(a)(1):
1. Proposed Class 3: Audiovisual Works--Space-Shifting \58\
---------------------------------------------------------------------------

    \58\ The Acting Register's analysis and conclusions for this 
class, including citations to the record and relevant legal 
authority, can be found in the Recommendation at 111-28.
---------------------------------------------------------------------------

    Proposed Class 3 would allow circumvention of technical measures 
protecting motion pictures and other audiovisual works to engage in 
``space-shifting.'' As the 2015 rulemaking described, the Copyright 
Office's understanding is that space-shifting occurs when a work is 
transferred from one storage medium to another, such as from a DVD to a 
computer hard drive. Chris De Pretis petitioned for an exemption to 
allow circumvention by individuals to create a personal digital backup 
of content for private use, a proposal similar to those sought and 
rejected in previous rulemakings. The Office also received a petition 
from OmniQ, a corporate entity, proposing an exemption to allow so-
called ``non-reproductive'' space-shifting, including for commercial 
uses. A third proponent, SolaByte Corporation, filed a one-page

[[Page 54027]]

comment in support of OmniQ and testified at the public hearing.
    OmniQ primarily argued that its proposed technology did not result 
in a reproduction of a copyrighted work, and thus fair use analysis was 
unnecessary. Proponents also argued that the overall availability of 
works for public use is shrinking because the hardware and software 
needed to play disc media are becoming less available in the 
marketplace. They argued that online content distribution platforms, 
taken in the aggregate, only offer a small and always-changing fraction 
of the titles historically available on DVD and Blu-ray disc, and that 
the costs of these services are unacceptable, especially when users 
already own the content in disc form.
    In response, opponents argued that OmniQ's technology would 
reproduce works because they would constitute entirely new things 
(i.e., a copy). Opponents also contended that recent case law 
developments further demonstrate that space-shifting is not a fair use. 
In addition, opponents provided evidence of alternatives to 
circumvention in the form of a substantial number of online 
distribution platforms for accessing copyrighted audiovisual works, the 
vast majority of which they claim exist as viable business models only 
because of the ability to employ TPMs to protect the content from 
unauthorized uses.
    Unlike in prior rulemakings where NTIA ``supported limited versions 
of a noncommercial space-shifting exemption . . . mainly in the 
interest of consumer protection,'' NTIA did not support an exemption 
for this class in the present rulemaking. NTIA acknowledged that the 
``legal status of the concept of space-shifting remains a matter of 
dispute among copyright experts'' and that it ``has not been explicitly 
established as non-infringing on the basis of the fair use doctrine.'' 
NTIA added that ``proponents ha[d] not established in this proceeding 
that their specific proposal would be non-infringing.'' Moreover, NTIA 
recognized that ``[p]roponents failed to demonstrate that the 
`prevalence of [encrypted digital content] is diminishing the ability 
of individuals to use these works in ways that are otherwise lawful.' 
''
    The Acting Register found that under current law, OmniQ's self-
described process is likely to result in an unauthorized reproduction 
in violation of section 106(1), and that, as in 2015, the case law 
maintains that transferring digital files from one location to another 
implicates the reproduction right and is therefore infringing, even 
where the original copy is contemporaneously or subsequently deleted. 
With regard to personal space-shifting, in light of the lack of record 
and in the absence of clear supporting precedent, the Acting Register 
found no basis to depart from the fair use analysis and ultimate 
conclusion reached in the 2015 proceeding, where the Register was 
unable to determine that the proposed uses were noninfringing. She 
noted that the commercial nature and potential market effects of the 
OmniQ and SolaByte business models complicate the fair use analysis, 
and not in their favor. For example, the record included substantial 
evidence of extensive markets for internet-based distribution services 
for copyrighted audiovisual works, including digital rentals, online 
streaming and over-the-top services, on-demand cable and satellite 
television offerings, disc-to-digital services, and digital locker 
services, which could be negatively impacted by the proposed exemption. 
These markets also served as sufficient alternatives to circumvention, 
as they demonstrated a wide availability of easily accessible 
copyrighted works that could potentially be negatively affected by an 
exemption that allowed unauthorized copies to compete with these 
authorized access models. Based on the record in this proceeding, the 
Acting Register did not find that the statutory factors supported the 
proposed exemption.
2. Proposed Class 4: Audiovisual Works--HDCP/HDMI \59\
---------------------------------------------------------------------------

    \59\ The Acting Register's analysis and conclusions for this 
class, including citations to the record and relevant legal 
authority, can be found in the Recommendation at 128- 45.
---------------------------------------------------------------------------

    Proposed Class 4 would allow circumvention ``to make noninfringing 
uses of audiovisual works that are subjected to High-bandwidth Digital 
Content Protection (HDCP).'' Petitioner Andrew ``bunnie'' Huang 
described HDCP as ``a protocol used to restrict content sent over High-
Definition Multimedia Interface (HDMI) cables,'' or ``a standard for 
video transport from one device to another.'' He explained that many 
devices that play video discs and video game software encode their 
output using HDCP, and that this interferes with capturing the output 
for subsequent noninfringing uses.
    Multiple participants opposed this exemption, arguing that section 
1201 does not permit such a broad exemption, noting that HDCP is the 
industry standard for protecting audiovisual works in transit to a 
display device and that past Registers have rejected exemptions for 
``all noninfringing uses.'' They characterized Huang's discussion of 
the proposed uses as ``cursory,'' and suggested it was not possible to 
evaluate the proposed uses under the exemption without further detail. 
Opponents also suggested that multiple proposed uses would actually be 
infringing, and highlighted what they see as a significant online 
infringement risk if the exemption permitted in-the-clear copies of 
entire works. In addition, opponents set forth a large number of 
concrete examples of potential alternatives to circumvention that the 
petitioner failed to meaningfully challenge. Finally, they asserted 
that ``HDCP is a critically important component of the secure ecosystem 
through which content is delivered for home entertainment'' and noted 
that section 1201 was intended to encourage copyright owners to make 
their works available digitally and foster new means of distribution by 
providing reasonable assurances against fears of piracy.
    NTIA recommended against this exemption, stating that 
``[p]roponents did not provide sufficient evidence on the record about 
the alleged non-infringing uses,'' and that ``[w]hile there are several 
examples of potential non-infringing uses that could serve as the basis 
for an exemption, the proponents [had] not developed the argument in 
the record . . . .'' NTIA also observed that the proposed exemption 
``appear[ed] to be for the HDCP TPM itself, which is not appropriate 
for this rulemaking process.''
    The Acting Register also recommended against the exemption, largely 
agreeing with many of the bases advanced by opponents. Specifically, 
the Acting Register concluded that the proposed exemption was overly 
broad, as HDCP is the industry standard for protecting audiovisual 
works in transit to a display device, and thus limiting the proposal 
this way did not very meaningfully focus the scope beyond the starting 
point of all audiovisual works. The Acting Register also determined 
that some of the proposed uses may potentially be fair use depending 
upon factual circumstances, but that the record lacked the requisite 
detail and legal support for the Acting Register to conclude that the 
proposed uses are or are not likely to be noninfringing. Based upon the 
record, the Acting Register could not conclude that the overall 
availability for use of copyrighted works has been diminished or is 
likely to be in the next three years absent an exemption, noting that 
the proposed activities may well have a negative effect on the market 
for or value of copyrighted works. Finally, she concluded that the 
request was an individual case of de minimis impact, as

[[Page 54028]]

it was largely made upon a single request of an individual who resides 
in Singapore for which there appeared to be myriad alternative ways to 
achieve the proposed uses.
3. Proposed Class 11: Computer Programs--Avionics \60\
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    \60\ The Acting Register's analysis and conclusions for this 
class, including citations to the record and relevant legal 
authority, can be found in the Recommendation at 315-19.
---------------------------------------------------------------------------

    Proposed Class 11 would permit circumvention of access controls on 
electronic systems used in aircraft, i.e., avionics, to enable access 
to aircraft flight, operations, maintenance and security bulk data 
collected by third parties upon authorization of the aircraft owner or 
operator in the course of complying with Federal Aviation 
Administration (``FAA'') standards, rules, and regulations. Due to 
reliance upon these electronic systems, proponents asserted that 
aircraft ``operators have faced a . . . rise in the complexity and 
scope of work needed to keep their fleet secure and operating 
efficiently,'' and that the FAA ``has mandated the review of the data, 
information, logs[,] and other information [by aircraft owners or 
operators] as a means to ensure safety, security[,] and regulatory 
compliance.''
    In NTIA's view, ``[p]roponents failed to demonstrate that the 
proposed class includes copyrighted works protected by TPMs.'' 
Moreover, NTIA continued, ``Air Informatics failed to identify clearly 
the proposed users of the exemption,'' suggesting that ``the 
prohibition on circumvention does not adversely affect and is not 
likely to adversely affect users.'' Lastly, NTIA maintained that 
``[r]easonable alternatives to circumvention seem to exist,'' noting 
that ``the two relevant parties can come to an agreement for access to 
and use of the data.''
    The Acting Register found that the record suggested that the data 
collected by aircrafts at issue consist of facts, which are not 
copyrightable. According to the petitioner, the information represents 
objective details about aircraft, such as flight operations and fuel 
economy. As Public Knowledge explained, the data inputs and outputs 
``are not classifiable as a `work' protected under Title 17'' and such 
``access does not implicate any colorable copyright concerns.'' The 
Acting Register also concluded that the collected information would not 
qualify as a copyrightable compilation, because it is formatted and 
compiled in accordance with an industry-wide standard. The Acting 
Register accordingly concluded that proponents have not alleged that 
the data or data compilations they are seeking to access are 
copyrightable, and thus subject to the prohibition on circumvention. 
Although petitioner raised some concerns regarding attempts by airplane 
manufacturers to control the aftermarket for the data in security 
research and analytics, the Acting Register determined that it was not 
clear that section 1201 is facilitating those actions, and noted that 
the security research exemption may potentially be utilized to cover 
such activities, to the extent applicable.

C. Conclusion

    Having considered the evidence in the record, the contentions of 
the commenting parties, and the statutory objectives, the Acting 
Register of Copyrights has recommended that the Librarian of Congress 
publish certain classes of works, as designated above, so that the 
prohibition against circumvention of technological measures that 
effectively control access to copyrighted works shall not apply to 
persons who engage in noninfringing uses of those particular classes of 
works.

    Dated: October 19, 2018.
Karyn A. Temple,
Acting Register of Copyrights and Director of the U.S. Copyright 
Office.

Determination of the Librarian of Congress

    Having duly considered and accepted the Recommendation of the 
Acting Register of Copyrights, which Recommendation is hereby 
incorporated by reference, the Librarian of Congress, pursuant to 17 
U.S.C. 1201(a)(1)(C) and (D), hereby publishes as a new rule the 
classes of copyrighted works that shall for a three-year period be 
subject to the exemption provided in 17 U.S.C. 1201(a)(1)(B) from the 
prohibition against circumvention of technological measures that 
effectively control access to copyrighted works set forth in 17 U.S.C. 
1201(a)(1)(A).

List of Subjects in 37 CFR Part 201

    Copyright, Exemptions to prohibition against circumvention.

Final Regulations

    For the reasons set forth in the preamble, 37 CFR part 201 is 
amended as follows:

PART 201--GENERAL PROVISIONS

0
1. The authority citation for part 201 continues to read as follows:

    Authority:  17 U.S.C. 702.

0
2. Section 201.40 is amended by revising paragraphs (b) and (c) to read 
as follows:


Sec.  201.40  Exemptions to prohibition against circumvention.

* * * * *
    (b) Classes of copyrighted works. Pursuant to the authority set 
forth in 17 U.S.C. 1201(a)(1)(C) and (D), and upon the recommendation 
of the Register of Copyrights, the Librarian has determined that the 
prohibition against circumvention of technological measures that 
effectively control access to copyrighted works set forth in 17 U.S.C. 
1201(a)(1)(A) shall not apply to persons who engage in noninfringing 
uses of the following classes of copyrighted works:
    (1) Motion pictures (including television shows and videos), as 
defined in 17 U.S.C. 101, where the motion picture is lawfully made and 
acquired on a DVD protected by the Content Scramble System, on a Blu-
ray disc protected by the Advanced Access Content System, or via a 
digital transmission protected by a technological measure, and the 
person engaging in circumvention under paragraph (b)(1)(i) and 
(b)(1)(ii)(A) and (B) of this section reasonably believes that non-
circumventing alternatives are unable to produce the required level of 
high-quality content, or the circumvention is undertaken using screen-
capture technology that appears to be offered to the public as enabling 
the reproduction of motion pictures after content has been lawfully 
acquired and decrypted, where circumvention is undertaken solely in 
order to make use of short portions of the motion pictures in the 
following instances:
    (i) For the purpose of criticism or comment:
    (A) For use in documentary filmmaking, or other films where the 
motion picture clip is used in parody or for its biographical or 
historically significant nature;
    (B) For use in noncommercial videos (including videos produced for 
a paid commission if the commissioning entity's use is noncommercial); 
or
    (C) For use in nonfiction multimedia e-books.
    (ii) For educational purposes:
    (A) By college and university faculty and students or kindergarten 
through twelfth-grade (K-12) educators and students (where the K-12 
student is circumventing under the direct supervision of an educator), 
including of accredited general educational development (GED) programs, 
for the purpose of criticism, comment, teaching, or scholarship;

[[Page 54029]]

    (B) By faculty of massive open online courses (MOOCs) offered by 
accredited nonprofit educational institutions to officially enrolled 
students through online platforms (which platforms themselves may be 
operated for profit), in film studies or other courses requiring close 
analysis of film and media excerpts, for the purpose of criticism or 
comment, where the MOOC provider through the online platform limits 
transmissions to the extent technologically feasible to such officially 
enrolled students, institutes copyright policies and provides copyright 
informational materials to faculty, students, and relevant staff 
members, and applies technological measures that reasonably prevent 
unauthorized further dissemination of a work in accessible form to 
others or retention of the work for longer than the course session by 
recipients of a transmission through the platform, as contemplated by 
17 U.S.C. 110(2); or
    (C) By educators and participants in nonprofit digital and media 
literacy programs offered by libraries, museums, and other nonprofit 
entities with an educational mission, in the course of face-to-face 
instructional activities, for the purpose of criticism or comment, 
except that such users may only circumvent using screen-capture 
technology that appears to be offered to the public as enabling the 
reproduction of motion pictures after content has been lawfully 
acquired and decrypted.
    (2)(i) Motion pictures (including television shows and videos), as 
defined in 17 U.S.C. 101, where the motion picture is lawfully acquired 
on a DVD protected by the Content Scramble System, on a Blu-ray disc 
protected by the Advanced Access Content System, or via a digital 
transmission protected by a technological measure, where:
    (A) Circumvention is undertaken by a disability services office or 
other unit of a kindergarten through twelfth-grade educational 
institution, college, or university engaged in and/or responsible for 
the provision of accessibility services to students, for the purpose of 
adding captions and/or audio description to a motion picture to create 
an accessible version as a necessary accommodation for a student or 
students with disabilities under an applicable disability law, such as 
the Americans With Disabilities Act, the Individuals with Disabilities 
Education Act, or Section 504 of the Rehabilitation Act;
    (B) The educational institution unit in paragraph (b)(2)(i)(A) of 
this section has, after a reasonable effort, determined that an 
accessible version cannot be obtained at a fair price or in a timely 
manner; and
    (C) The accessible versions are provided to students or educators 
and stored by the educational institution in a manner intended to 
reasonably prevent unauthorized further dissemination of a work.
    (ii) For purposes of this paragraph (b)(2), ``audio description'' 
means an oral narration that provides an accurate rendering of the 
motion picture.
    (3) Literary works, distributed electronically, that are protected 
by technological measures that either prevent the enabling of read-
aloud functionality or interfere with screen readers or other 
applications or assistive technologies:
    (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.
    (4) Literary works consisting of compilations of data generated by 
medical devices that are wholly or partially implanted in the body or 
by their corresponding personal monitoring systems, where such 
circumvention is undertaken by a patient for the sole purpose of 
lawfully accessing the data generated by his or her own device or 
monitoring system and does not constitute a violation of applicable 
law, including without limitation the Health Insurance Portability and 
Accountability Act of 1996, the Computer Fraud and Abuse Act of 1986 or 
regulations of the Food and Drug Administration, and is accomplished 
through the passive monitoring of wireless transmissions that are 
already being produced by such device or monitoring system.
    (5) Computer programs that enable the following types of lawfully 
acquired wireless devices to connect to a wireless telecommunications 
network, when circumvention is undertaken solely in order to connect to 
a wireless telecommunications network and such connection is authorized 
by the operator of such network:
    (i) Wireless telephone handsets (i.e., cellphones);
    (ii) All-purpose tablet computers;
    (iii) Portable mobile connectivity devices, such as mobile 
hotspots, removable wireless broadband modems, and similar devices; and
    (iv) Wearable wireless devices designed to be worn on the body, 
such as smartwatches or fitness devices.
    (6) Computer programs that enable smartphones and portable all-
purpose mobile computing devices to execute lawfully obtained software 
applications, where circumvention is accomplished for the sole purpose 
of enabling interoperability of such applications with computer 
programs on the smartphone or device, or to permit removal of software 
from the smartphone or device. For purposes of this paragraph (b)(6), a 
``portable all-purpose mobile computing device'' is a device that is 
primarily designed to run a wide variety of programs rather than for 
consumption of a particular type of media content, is equipped with an 
operating system primarily designed for mobile use, and is intended to 
be carried or worn by an individual.
    (7) Computer programs that enable smart televisions to execute 
lawfully obtained software applications, where circumvention is 
accomplished for the sole purpose of enabling interoperability of such 
applications with computer programs on the smart television.
    (8) Computer programs that enable voice assistant devices to 
execute lawfully obtained software applications, where circumvention is 
accomplished for the sole purpose of enabling interoperability of such 
applications with computer programs on the device, or to permit removal 
of software from the device, and is not accomplished for the purpose of 
gaining unauthorized access to other copyrighted works. For purposes of 
this paragraph (b)(8), a ``voice assistant device'' is a device that is 
primarily designed to run a wide variety of programs rather than for 
consumption of a particular type of media content, is designed to take 
user input primarily by voice, and is designed to be installed in a 
home or office.
    (9) Computer programs that are contained in and control the 
functioning of a lawfully acquired motorized land vehicle such as a 
personal automobile, commercial vehicle, or mechanized agricultural 
vehicle, except for programs accessed through a separate subscription 
service, when circumvention is a necessary step to allow the diagnosis, 
repair, or lawful modification of a vehicle function, where such 
circumvention does not constitute a violation of applicable law, 
including without limitation regulations promulgated by the Department 
of Transportation or the Environmental Protection Agency, and is not 
accomplished for the purpose of gaining

[[Page 54030]]

unauthorized access to other copyrighted works.
    (10) Computer programs that are contained in and control the 
functioning of a lawfully acquired smartphone or home appliance or home 
system, such as a refrigerator, thermostat, HVAC, or electrical system, 
when circumvention is a necessary step to allow the diagnosis, 
maintenance, or repair of such a device or system, and is not 
accomplished for the purpose of gaining access to other copyrighted 
works. For purposes of this paragraph (b)(10):
    (i) The ``maintenance'' of a device or system is the servicing of 
the device or system in order to make it work in accordance with its 
original specifications and any changes to those specifications 
authorized for that device or system; and
    (ii) The ``repair'' of a device or system is the restoring of the 
device or system to the state of working in accordance with its 
original specifications and any changes to those specifications 
authorized for that device or system.
    (11)(i) Computer programs, where the circumvention is undertaken on 
a lawfully acquired device or machine on which the computer program 
operates, or is undertaken on a computer, computer system, or computer 
network on which the computer program operates with the authorization 
of the owner or operator of such computer, computer system, or computer 
network, 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.
    (ii) For purposes of this paragraph (b)(11), ``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 an 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.
    (12)(i) Video games in the form of computer programs embodied in 
physical or downloaded formats that have been lawfully acquired as 
complete games, when the copyright owner or its authorized 
representative has ceased to provide access to an external computer 
server necessary to facilitate an authentication process to enable 
gameplay, solely for the purpose of:
    (A) Permitting access to the video game to allow copying and 
modification of the computer program to restore access to the game for 
personal, local gameplay on a personal computer or video game console; 
or
    (B) Permitting access to the video game to allow copying and 
modification of the computer program to restore access to the game on a 
personal computer or video game console when necessary to allow 
preservation of the game in a playable form by an eligible library, 
archives, or museum, where such activities are carried out without any 
purpose of direct or indirect commercial advantage and the video game 
is not distributed or made available outside of the physical premises 
of the eligible library, archives, or museum.
    (ii) Video games in the form of computer programs embodied in 
physical or downloaded formats that have been lawfully acquired as 
complete games, that do not require access to an external computer 
server for gameplay, and that are no longer reasonably available in the 
commercial marketplace, solely for the purpose of preservation of the 
game in a playable form by an eligible library, archives, or museum, 
where such activities are carried out without any purpose of direct or 
indirect commercial advantage and the video game is not distributed or 
made available outside of the physical premises of the eligible 
library, archives, or museum.
    (iii) Computer programs used to operate video game consoles solely 
to the extent necessary for an eligible library, archives, or museum to 
engage in the preservation activities described in paragraph 
(b)(12)(i)(B) or (b)(12)(ii) of this section.
    (iv) For purposes of this paragraph (b)(12), the following 
definitions shall apply:
    (A) For purposes of paragraph (b)(12)(i)(A) and (b)(12)(ii) of this 
section, ``complete games'' means video games that can be played by 
users without accessing or reproducing copyrightable content stored or 
previously stored on an external computer server.
    (B) For purposes of paragraph (b)(12)(i)(B) of this section, 
``complete games'' means video games that meet the definition in 
paragraph (b)(12)(iv)(A) of this section, or that consist of both a 
copy of a game intended for a personal computer or video game console 
and a copy of the game's code that was stored or previously stored on 
an external computer server.
    (C) ``Ceased to provide access'' means that the copyright owner or 
its authorized representative has either issued an affirmative 
statement indicating that external server support for the video game 
has ended and such support is in fact no longer available or, 
alternatively, server support has been discontinued for a period of at 
least six months; provided, however, that server support has not since 
been restored.
    (D) ``Local gameplay'' means gameplay conducted on a personal 
computer or video game console, or locally connected personal computers 
or consoles, and not through an online service or facility.
    (E) A library, archives, or museum is considered ``eligible'' when 
the collections of the library, archives, or museum are open to the 
public and/or are routinely made available to researchers who are not 
affiliated with the library, archives, or museum.
    (13)(i) Computer programs, except video games, that have been 
lawfully acquired and that are no longer reasonably available in the 
commercial marketplace, solely for the purpose of lawful preservation 
of a computer program, or of digital materials dependent upon a 
computer program as a condition of access, by an eligible library, 
archives, or museum, where such activities are carried out without any 
purpose of direct or indirect commercial advantage and the program is 
not distributed or made available outside of the physical premises of 
the eligible library, archives, or museum.
    (ii) For purposes of the exemption in paragraph (b)(13)(i) of this 
section, a library, archives, or museum is considered ``eligible'' if--
    (A) The collections of the library, archives, or museum are open to 
the public and/or are routinely made available to researchers who are 
not affiliated with the library, archives, or museum;
    (B) The library, archives, or museum has a public service mission;
    (C) The library, archives, or museum's trained staff or volunteers 
provide professional services normally associated with libraries, 
archives, or museums;
    (D) The collections of the library, archives, or museum are 
composed of lawfully acquired and/or licensed materials; and
    (E) The library, archives, or museum implements reasonable digital 
security measures as appropriate for the activities permitted by this 
paragraph (b)(13).
    (14) Computer programs that operate 3D printers that employ 
microchip-reliant technological measures to limit

[[Page 54031]]

the use of feedstock, when circumvention is accomplished solely for the 
purpose of using alternative feedstock and not for the purpose of 
accessing design software, design files, or proprietary data.
    (c) Persons who may initiate circumvention. To the extent 
authorized under paragraph (b) of this section, the circumvention of a 
technological measure that restricts wireless telephone handsets or 
other wireless devices from connecting to a wireless telecommunications 
network may be initiated by the owner of any such handset or other 
device, by another person at the direction of the owner, or by a 
provider of a commercial mobile radio service or a commercial mobile 
data service at the direction of such owner or other person, solely in 
order to enable such owner or a family member of such owner to connect 
to a wireless telecommunications network, when such connection is 
authorized by the operator of such network.


    Dated: October 19, 2018.
Carla D. Hayden,

Librarian of Congress.

[FR Doc. 2018-23241 Filed 10-25-18; 8:45 am]
 BILLING CODE 1410-30-P



                                             54010             Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations

                                                (8) Labeling must include:                           section 1201(a)(1) of title 17, United                 technological measure that ‘‘effectively
                                                (i) A summary of clinical testing                    States Code, has determined in this                    controls access to a work’’ is one that
                                             conducted with the device that includes                 seventh triennial rulemaking proceeding                ‘‘in the ordinary course of its operation,
                                             a summary of device-related                             that the prohibition against                           requires the application of information,
                                             complications and adverse events;                       circumvention of technological                         or a process or a treatment, with the
                                                (ii) Instructions for use;                           measures that effectively control access               authority of the copyright owner, to gain
                                                (iii) A surgical guide for implantation,             to copyrighted works shall not apply to                access to the work.’’ 4
                                             which includes instructions for imaging                 persons who engage in noninfringing                       Section 1201(a)(1) also includes what
                                             to assess bone dimensions;                              uses of certain classes of such works.                 Congress characterized as a ‘‘fail-safe’’
                                                (iv) A shelf life, for device                        This determination is based upon the                   mechanism,5 which requires the
                                             components provided sterile;                            Recommendation of the Acting Register                  Librarian of Congress, following a
                                                (v) A patient identification card; and               of Copyrights, which was transmitted to                rulemaking proceeding, to publish any
                                                (vi) A patient user manual.                          the Librarian on October 5, 2018.1                     class of copyrighted works as to which
                                                                                                       The below discussion summarizes the                  the Librarian has determined that
                                               Dated: October 22, 2018.
                                                                                                     rulemaking proceeding and Register’s                   noninfringing uses by persons who are
                                             Leslie Kux,
                                                                                                     Recommendation, announces the                          users of a copyrighted work are, or are
                                             Associate Commissioner for Policy.                      Librarian’s determination, and                         likely to be, adversely affected by the
                                             [FR Doc. 2018–23412 Filed 10–25–18; 8:45 am]            publishes the regulatory text specifying               prohibition against circumvention in the
                                             BILLING CODE 4164–01–P                                  the exempted classes of works. A more                  succeeding three-year period, thereby
                                                                                                     complete discussion of the rulemaking                  exempting that class from the
                                                                                                     process, the evidentiary record, and the               prohibition for that period.6 The
                                             LIBRARY OF CONGRESS                                     Acting Register’s analysis can be found                Librarian’s determination to grant an
                                                                                                     in the Acting Register’s                               exemption is based upon the
                                             U.S. Copyright Office                                   Recommendation, which is posted at                     recommendation of the Register of
                                                                                                     www.copyright.gov/1201/2018/.                          Copyrights, who conducts the
                                             37 CFR Part 201                                                                                                rulemaking proceeding.7 The Register,
                                                                                                     I. Background
                                             [Docket No. 2017–10]                                                                                           in turn, consults with the Assistant
                                                                                                     A. Statutory Requirements                              Secretary for Communications and
                                             Exemption to Prohibition on                                Congress enacted the DMCA in 1998                   Information of the Department of
                                             Circumvention of Copyright Protection                   to implement certain provisions of the                 Commerce, who oversees the National
                                             Systems for Access Control                              WIPO Copyright and WIPO                                Telecommunications and Information
                                             Technologies                                            Performances and Phonograms Treaties.                  Administration (‘‘NTIA’’), in the course
                                                                                                     Among other things, title I of the DMCA,               of formulating her recommendation.8
                                             AGENCY:  U.S. Copyright Office, Library                                                                           The primary responsibility of the
                                             of Congress.                                            which added a new chapter 12 to title
                                                                                                     17 of the U.S. Code, prohibits                         Register and the Librarian in the
                                             ACTION: Final rule.                                                                                            rulemaking proceeding is to assess
                                                                                                     circumvention of technological
                                                                                                     measures employed by or on behalf of                   whether the implementation of access
                                             SUMMARY:   In this final rule, the Librarian
                                                                                                     copyright owners to protect access to                  controls impairs the ability of
                                             of Congress adopts exemptions to the
                                                                                                     their works. In enacting this aspect of                individuals to make noninfringing uses
                                             provision of the Digital Millennium
                                                                                                     the law, Congress observed that                        of copyrighted works within the
                                             Copyright Act (‘‘DMCA’’) that prohibits
                                                                                                     technological protection measures                      meaning of section 1201(a)(1). To do
                                             circumvention of technological
                                                                                                     (‘‘TPMs’’) can ‘‘support new ways of                   this, the Register develops a
                                             measures that control access to
                                                                                                     disseminating copyrighted materials to                 comprehensive administrative record
                                             copyrighted works, codified in the
                                                                                                     users, and . . . safeguard the                         using information submitted by
                                             United States Code. As required under
                                                                                                     availability of legitimate uses of those               interested members of the public, and
                                             the statute, the Acting Register of
                                                                                                     materials by individuals.’’ 2                          makes recommendations to the
                                             Copyrights, following a public
                                                                                                        Section 1201(a)(1) provides in                      Librarian concerning whether
                                             proceeding, submitted a
                                                                                                     pertinent part that ‘‘[n]o person shall                exemptions are warranted based on that
                                             Recommendation concerning proposed
                                                                                                     circumvent a technological measure that                record.
                                             exemptions to the Librarian of Congress.
                                                                                                     effectively controls access to a work                     Under the statutory framework, the
                                             After careful consideration, the
                                                                                                     protected under [title 17].’’ Under the                Librarian, and thus the Register, must
                                             Librarian adopts final regulations based
                                                                                                     statute, to ‘‘circumvent a technological               consider ‘‘(i) the availability for use of
                                             upon the Acting Register’s
                                                                                                     measure’’ means ‘‘to descramble a                      copyrighted works; (ii) the availability
                                             Recommendation.
                                                                                                     scrambled work, to decrypt an                          for use of works for nonprofit archival,
                                             DATE:   Effective October 28, 2018.                     encrypted work, or otherwise to avoid,                 preservation, and educational purposes;
                                             FOR FURTHER INFORMATION CONTACT:                        bypass, remove, deactivate, or impair a                (iii) the impact that the prohibition on
                                             Regan A. Smith, General Counsel and                     technological measure, without the                     the circumvention of technological
                                             Associate Register of Copyrights, by                    authority of the copyright owner.’’ 3 A                measures applied to copyrighted works
                                             email at regans@copyright.gov, Anna                                                                            has on criticism, comment, news
                                             Chauvet, Assistant General Counsel, by                    1 Acting Register of Copyrights, Section 1201        reporting, teaching, scholarship, or
                                             email at achau@copyright.gov, or Kevin                  Rulemaking: Seventh Triennial Proceeding to            research; (iv) the effect of circumvention
                                                                                                     Determine Exemptions to the Prohibition on
khammond on DSK30JT082PROD with RULES




                                             Amer, Senior Counsel for Policy and                                                                            of technological measures on the market
                                                                                                     Circumvention, Recommendation of the Acting
                                             International Affairs, by email at                      Register of Copyrights (Oct. 2018) (‘‘Acting
                                                                                                                                                              4 Id.  at 1201(a)(3)(B).
                                             kamer@copyright.gov. Each can be                        Register’s Recommendation’’).
                                                                                                                                                              5 See   H.R. Rep. No. 105–551, pt. 2, at 36 (1998)
                                             contacted by telephone by calling (202)                   2 Staff of H. Comm. on the Judiciary, 105th Cong.,

                                                                                                     Section-by-Section Analysis of H.R. 2281 as Passed     (‘‘Commerce Comm. Report’’).
                                             707–8350.                                                                                                         6 See 17 U.S.C. 1201(a)(1).
                                                                                                     by the United States House of Representatives on
                                             SUPPLEMENTARY INFORMATION: The                          August 4, 1998, at 7 (Comm. Print 1998).                  7 Id. at 1201(a)(1)(C).

                                             Librarian of Congress, pursuant to                        3 17 U.S.C. 1201(a)(3)(A).                              8 Id.




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                                                                Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations                                                   54011

                                             for or value of copyrighted works; and                   testing’’ of computers and computer                     research; (iv) the effect of circumvention
                                             (v) such other factors as the Librarian                  systems.                                                of technological measures on the market
                                             considers appropriate.’’ 9                                                                                       for or value of copyrighted works; and
                                                                                                      C. Rulemaking Standards
                                                Significantly, exemptions adopted by                                                                          (v) such other factors as the Librarian
                                                                                                         In adopting the DMCA, Congress                       considers appropriate.’’ In some cases,
                                             rule under section 1201(a)(1) apply only
                                                                                                      imposed legal and evidentiary                           weighing these factors requires the
                                             to the conduct of circumventing a
                                                                                                      requirements for the section 1201                       consideration of the benefits that the
                                             technological measure that controls
                                                                                                      rulemaking proceeding, as discussed in                  technological measure brings with
                                             access to a copyrighted work. Other                      greater detail in the Acting Register’s
                                             parts of section 1201, by contrast,                                                                              respect to the overall creation and
                                                                                                      Recommendation and the Copyright                        dissemination of works in the
                                             address the manufacture and provision                    Office’s recent policy study on section
                                             of—or ‘‘trafficking’’ in—products and                                                                            marketplace, in addition to any negative
                                                                                                      1201.13 The Register will recommend                     impact.
                                             services designed for purposes of                        granting an exemption only ‘‘when the
                                             circumvention. Section 1201(a)(2) bars                                                                              Finally, when granting an exemption,
                                                                                                      preponderance of the evidence in the                    section 1201(a)(1) specifies that the
                                             trafficking in products and services that                record shows that the conditions for
                                             are used to circumvent technological                                                                             exemption adopted as part of this
                                                                                                      granting an exemption have been                         rulemaking must be defined based on ‘‘a
                                             measures that control access to                          met.’’ 14 ‘‘[I]t is the totality of the
                                             copyrighted works (for example, a                                                                                particular class of works.’’ 16 Among
                                                                                                      rulemaking record (i.e., the evidence                   other things, the determination of the
                                             password needed to open a media                          provided by commenters or
                                             file),10 while section 1201(b) bars                                                                              appropriate scope of a ‘‘class of works’’
                                                                                                      administratively noticed by the Office)                 recommended for exemption may also
                                             trafficking in products and services used                that must, on balance, reflect the need
                                             to circumvent technological measures                                                                             take into account the adverse effects an
                                                                                                      for an exemption by a preponderance of                  exemption may have on the market for
                                             that protect the exclusive rights of the                 the evidence. Such evidence must, on
                                             copyright owner in their works (for                                                                              or value of copyrighted works.
                                                                                                      the whole, show that it is more likely                  Accordingly, ‘‘it can be appropriate to
                                             example, technology that prevents the                    than not that users of a copyrighted
                                             work from being reproduced).11 The                                                                               refine a class by reference to the use or
                                                                                                      work will, in the succeeding three-year                 user in order to remedy the adverse
                                             Librarian of Congress has no authority                   period, be adversely affected by the
                                             to adopt exemptions for the anti-                                                                                effect of the prohibition and to limit the
                                                                                                      prohibition on circumvention in their                   adverse consequences of an
                                             trafficking prohibitions contained in                    ability to make noninfringing uses of a
                                             section 1201(a)(2) or (b).12 More                                                                                exemption.’’ 17
                                                                                                      particular class of copyrighted
                                             broadly, activities conducted under the                  works.’’ 15                                             D. Streamlined Renewal Process
                                             regulatory exemptions must still comply                     To establish a case for an exemption,                   Following a comprehensive policy
                                             with other applicable laws, including                    proponents must show at a minimum                       study, and in response to stakeholder
                                             non-copyright provisions.                                (1) that uses affected by the prohibition               feedback, for this seventh triennial
                                                Also significant is the fact that the                 on circumvention are or are likely to be                proceeding, the Office introduced a
                                             statute contains certain permanent                       noninfringing; and (2) that as a result of              streamlined process to renew section
                                             exemptions to permit specified uses.                     a technological measure controlling                     1201 exemptions adopted during the
                                             These include: Section 1201(d), which                    access to a copyrighted work, the                       2015 rulemaking.18 Previously, in
                                             exempts certain activities of nonprofit                  prohibition is causing, or in the next                  recognition of legislative history stating
                                             libraries, archives, and educational                     three years is likely to cause, an adverse              that the basis of an exemption should be
                                             institutions; section 1201(e), which                     impact on those uses. In addition, the                  established de novo in each triennial
                                             exempts ‘‘lawfully authorized                            Librarian must also examine the                         proceeding,19 the Office had required
                                             investigative, protective, information                   statutory factors listed in section                     the factual record be developed anew in
                                             security, or intelligence activity’’ of a                1201(a)(1)(C): ‘‘(i) The availability for               each rulemaking.20 In its Section 1201
                                             state or the federal government; section                 use of copyrighted works; (ii) the                      Report, the Office evaluated the
                                             1201(f), which exempts certain                           availability for use of works for                       possibility of a renewal process, noting
                                             ‘‘[r]everse engineering’’ activities to                  nonprofit archival, preservation, and                   a ‘‘broad consensus in favor of
                                             facilitate interoperability; section                     educational purposes; (iii) the impact                  streamlining the process for renewing
                                             1201(g), which exempts certain types of                  that the prohibition on the                             exemptions to which there is no
                                             research into encryption technologies;                   circumvention of technological                          meaningful opposition.’’ 21 As described
                                             section 1201(h), which exempts certain                   measures applied to copyrighted works                   in further detail in that report, the Office
                                             activities to prevent the ‘‘access of                    has on criticism, comment, news                         ultimately concluded that ‘‘the statutory
                                             minors to material on the internet’’;                    reporting, teaching, scholarship, or                    language appears to be broad enough to
                                             section 1201(i), which exempts certain                                                                           permit determinations to be based upon
                                                                                                         13 Acting Register’s Recommendation at 9–19;
                                             activities ‘‘solely for the purpose of                                                                           evidence drawn from prior proceedings,
                                                                                                      U.S. Copyright Office, Section 1201 of Title 17 105–
                                             preventing the collection or                             15 (2017), https://www.copyright.gov/policy/1201/       but only upon a conclusion that this
                                             dissemination of personally identifying                  section-1201-full-report.pdf (‘‘Section 1201            evidence remains reliable to support
                                             information’’; and section 1201(j),                      Report’’).                                              granting an exemption in the current
                                             which exempts certain acts of ‘‘security                    14 Section 1201 Report at 111; accord Register of

                                                                                                      Copyrights, Section 1201 Rulemaking: Sixth                16 17 U.S.C. 1201(a)(1)(B).
                                                                                                      Triennial Proceeding to Determine Exemptions to           17 2006
                                               9 Id.
                                                                                                      the Prohibition on Circumvention,                                  Recommendation at 19.
                                               10 Id.                                                                                                           18 Section 1201 Report at 127–28, 145–46.
                                                     at 1201(a)(2).
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                                                                                                      Recommendation of the Register of Copyrights 14
                                               11 Id.                                                                                                           19 See Commerce Comm. Report at 37 (explaining
                                                     at 1201(b).                                      (Oct. 2015). References to the Register’s
                                               12 See id. at 1201(a)(1)(E) (‘‘Neither the exception   Recommendations in prior rulemakings are cited by       that for every rulemaking, ‘‘the assessment of
                                             under subparagraph (B) from the applicability of the     the year of publication followed by                     adverse impacts on particular categories of works is
                                             prohibition contained in subparagraph (A), nor any       ‘‘Recommendation’’ (e.g., ‘‘2015                        to be determined de novo’’).
                                             determination made in a rulemaking conducted             Recommendation’’). Prior Recommendations are              20 Exemptions to Permit Circumvention of Access

                                             under subparagraph (C), may be used as a defense         available on the Copyright Office website at https://   Controls on Copyrighted Works, 82 FR 29804,
                                             in any action to enforce any provision of this title     www.copyright.gov/1201/.                                29805 (June 30, 2017) (‘‘NOI’’).
                                             other than this paragraph.’’).                              15 Section 1201 Report at 112.                         21 Section 1201 Report at vi.




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                                             54012             Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations

                                             proceeding.’’ 22 The Office concluded                   appropriateness of renewing an                        renewal, and outlined the proposed
                                             that renewal may be sought only for                     exemption is meaningfully contested,                  classes for new exemptions (including
                                             exemptions in their current form,                       that exemption would be fully noticed                 proposed expansions of previously-
                                             without modification, and that the                      for written comment and public hearing                adopted exemptions) for which three
                                             Register ‘‘must apply the same                          to generate an updated administrative                 rounds of public comments were
                                             evidentiary standards in recommending                   record for the Register to evaluate                   initiated.33 Those classes were
                                             the renewal of exemptions as for first-                 whether to recommend readoption,                      organized into twelve classes of works.
                                             time exemption requests.’’ 23                           modification, or elimination of that                  Seven of the twelve proposed
                                                The Office detailed the renewal                      exemption to the Librarian.29                         exemptions seek expansions of existing
                                             process in its notices for this                            The streamlined renewal process                    exemptions, while five propose new
                                             proceeding.24 Streamlined renewal is                    elicited favorable responses during the               exemptions. The Office received 181
                                             based upon a determination that, due to                 2018 rulemaking hearings. As detailed                 total submissions in response to the
                                             a lack of legal, marketplace, or                        below, as a result of this new process,               NPRM, substantially less than the
                                             technological changes, the factors that                 the Acting Register was able to                       approximately 40,000 submissions
                                             led the Register to recommend adoption                  recommend renewal of all exemptions                   received in the last rulemaking.
                                             of the exemption in the prior                           adopted in the 2015 rulemaking, and                      After analyzing the written comments,
                                             rulemaking are expected to continue                     subsequently consider whether some of                 the Office held seven days of hearings
                                             into the forthcoming triennial period.25                them should be modified to                            in Washington, DC (April 10–13) and
                                             That is, the same material facts and                    accommodate additional new uses                       Los Angeles, California (April 23–25).
                                             circumstances underlying the                            through the development of an                         For the first time, the roundtables at
                                             previously-adopted regulatory                           expanded administrative record.                       both locations held audience
                                             exemption may be relied on to renew                                                                           participation panels and were live
                                             the exemption.26 Because the statute                    II. History of the Seventh Triennial                  streamed online. Video recordings for
                                             itself requires that exemptions must be                 Proceeding                                            these roundtables are available through
                                             adopted upon a fresh determination                         In this rulemaking, the Copyright                  the Office’s website and YouTube
                                             concerning the next three-year period,                  Office used the phased comment                        pages.34 In total, the Office heard
                                             the fact that the Librarian previously                  structure introduced in the last                      testimony from seventy-seven
                                             adopted an exemption creates no                         proceeding, to best facilitate a clear and            individuals. After the hearings, the
                                             presumption that readoption is                          thorough record. As promised in its                   Office issued questions to hearing
                                             appropriate. Instead, the Office first                  Section 1201 Report,30 the Office also                participants in four proposed classes
                                             solicited petitions summarizing the                     created video tutorials explaining the                and received eighteen responses.35
                                             continuing need and justification for the               rulemaking process, issued the Notice of              Subsequently, the Office received an
                                             exemption, and petitioners signed a                     Proposed Rulemaking (‘‘NPRM’’) earlier                unsolicited letter from the Computer
                                             declaration stating that, ‘‘to the best of              to give parties more time to participate,             Crime and Intellectual Property Section
                                             their personal knowledge, there has not                 and offered increased opportunities for               of the Criminal Division of the United
                                             been any material change in the facts,                  participant input, including through an               States Department of Justice (‘‘CCIPS’’)
                                             law, or other circumstances set forth in                established procedure for transparent ex              regarding Proposed Class 10, and the
                                             the prior rulemaking record such that                   parte meetings.                                       Office solicited comment from Class 10
                                             renewal of the exemption would not be                      The Office initiated the seventh                   participants in response.36
                                             justified.’’ 27 Next, the Office solicited              triennial rulemaking proceeding                          As noted in its NPRM, the Office
                                             comments from participants opposing                     through a Notice of Inquiry (‘‘NOI’’) on              determined that further informal
                                             the readoption of the exemption.                        June 30, 2017.31 The NOI requested                    communications with non-
                                             Opponents were required to provide                      petitions for renewals, petitions in                  governmental participants might be
                                             evidence that would allow the Acting                    opposition to renewal, and any petitions              beneficial in limited circumstances.37
                                             Register to reasonably conclude that the                for new exemptions. In response, the                  The Office thus established guidelines
                                             prior rulemaking record and any further                 Office received thirty-nine renewal                   for ex parte meetings, noting that the
                                             information provided in the petitions                   petitions, five comments regarding the                Office will not consider or accept any
                                             are insufficient for her to recommend                   scope of the renewal petitions, and one               new documentary materials at these
                                             renewal without the benefit of a further                comment in opposition to renewal of a                   33 NPRM,     82 FR at 49550, 49553–63.
                                             developed record. For example, ‘‘a                      current exemption.32 The Office also                    34 Video   recordings of the roundtables are
                                             change in case law might affect whether                 received twenty-three petitions for new               available at https://www.copyright.gov/1201/2018/
                                             a particular use is noninfringing, new                  exemptions, including seventeen                       and https://www.youtube.com/uscopyrightoffice/.
                                             technological developments might affect                 seeking to expand certain current                        35 Participant’s post-hearing letter responses are

                                             the availability for use of copyrighted                 exemptions, and six petitions for new                 available on the Office’s website. Responses to Post-
                                                                                                                                                           Hearing Questions, U.S. Copyright Office, (last
                                             works, or new business models might                     exemptions.                                           visited Oct 2, 2018), https://www.copyright.gov/
                                             affect the market for or value of                          Next, on October 26, 2017, the Office              1201/2018/post-hearing/answers/.
                                             copyrighted works.’’ 28 If the                          issued its NPRM identifying the existing                 36 Letter from John T. Lynch, Jr., Chief, Comput.

                                                                                                     exemptions for which the Acting                       Crime & Intellectual Prop. Section, Criminal Div.,
                                               22 Id. at 143.                                        Register intended to recommend                        U.S. Dep’t of Justice, to Regan A. Smith, Gen.
                                               23 Id.                                                                                                      Counsel & Assoc. Register of Copyrights, U.S.
                                                      at 142, 145.
                                                24 NOI, 82 FR at 29805–07; Exemptions to Permit
                                                                                                                                                           Copyright Office (June 28, 2018), https://
                                                                                                       29 See NPRM, 82 FR at 49554 (stating that if a
                                                                                                                                                           www.copyright.gov/1201/2018/USCO-letters/
                                             Circumvention of Access Controls on Copyrighted         renewal petition is meaningfully opposed, ‘‘the
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                                                                                                                                                           USDOJ_Letter_to_USCO.pdf; Letter from to Regan
                                             Works, 82 FR 49550, 49552 (Oct. 26, 2017)               exemption would be considered pursuant to the         A. Smith, Gen. Counsel & Assoc. Register of
                                             (‘‘NPRM’’).                                             more comprehensive rulemaking process (i.e., three    Copyrights, U.S. Copyright Office, to Class 10
                                                25 NOI, 82 FR at 29805–06; NPRM, 82 FR at            rounds of written comment, followed by public         Participants (June 29, 2018), https://
                                             49552.                                                  hearings)’’).                                         www.copyright.gov/1201/2018/additional-
                                                26 Section 1201 Report at 143–44; NOI, 82 FR at        30 Section 1201 Report at 149–51.
                                                                                                                                                           correspondence/Proposed_Class_10_Letter.pdf.
                                             29806; NPRM, 82 FR at 49552.                              31 NOI, 82 FR at 29804.                                37 NPRM, 82 FR at 49563; see Section 1201 Report
                                                27 NPRM, 82 FR at 49552.                               32 Comments received in this rulemaking are         at 150–51 (documenting stakeholder desire for such
                                                28 Section 1201 Report at 145.                       available at http://copyright.gov/1201/2018.          further communication).



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                                                               Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations                                           54013

                                             meetings, and requiring participants to                 1. Literary Works Distributed                           Accordingly, the Acting Register
                                             provide a letter summarizing the                        Electronically—Assistive Technologies                 recommends renewal of the following
                                             meeting for the Office to include in the                                                                      exemption:
                                             rulemaking record.38 The Office held                      Multiple organizations petitioned to
                                                                                                                                                             Literary works consisting of compilations
                                             nine ex parte meetings with participants                renew the exemption for literary works
                                                                                                                                                           of data generated by medical devices that are
                                             concerning five proposed classes.39                     distributed electronically (i.e., e-books),           wholly or partially implanted in the body or
                                                                                                     for use with assistive technologies for               by their corresponding personal monitoring
                                               As required by section 1201(a)(1), the                persons who are blind, visually                       systems, where such circumvention is
                                             Acting Register consulted with NTIA                     impaired, or have print disabilities. No              undertaken by a patient for the sole purpose
                                             during this rulemaking. NTIA provided                   oppositions were filed against                        of lawfully accessing the data generated by
                                             input at various stages and participated                readoption of this exemption. The                     his or her own device or monitoring system
                                             in the public hearings held in                          petitions demonstrated the continuing                 and does not constitute a violation of
                                             Washington, DC and Los Angeles. NTIA                    need and justification for the                        applicable law, including without limitation
                                             formally communicated its views on                                                                            the Health Insurance Portability and
                                                                                                     exemption, stating that individuals who
                                             each of the proposed exemptions to the                                                                        Accountability Act of 1996, the Computer
                                                                                                     are blind, visually impaired, or print                Fraud and Abuse Act of 1986 or regulations
                                             Acting Register on September 25,                        disabled are significantly disadvantaged              of the Food and Drug Administration, and is
                                             2018.40                                                 with respect to obtaining accessible                  accomplished through the passive
                                             III. Summary of Register’s                              e-book content because TPMs interfere                 monitoring of wireless transmissions that are
                                             Recommendation                                          with the use of assistive technologies                already being produced by such device or
                                                                                                     such as screen readers and refreshable                monitoring system.
                                             A. Renewal Recommendations                              Braille displays. In addition, the                    3. Computer Programs—‘‘Unlocking’’ of
                                                                                                     petitioners demonstrated personal                     Cellphones, Tablets, Mobile Hotspots, or
                                                As set forth in the NPRM, the Acting                 knowledge and experience with regard
                                             Register received petitions to renew                                                                          Wearable Devices
                                                                                                     to the assistive technology exemption;
                                             every one of the exemptions adopted                     they are all organizations that advocate                 Multiple organizations petitioned to
                                             pursuant to the sixth triennial                         for the blind, visually impaired, and                 renew the exemption for computer
                                             rulemaking. To the extent any renewal                   print disabled.                                       programs that operate cellphones,
                                             petition proposed uses beyond the                                                                             tablets, mobile hotspots, or wearable
                                             current exemption, the Office                             Accordingly, the Acting Register                    devices (e.g., smartwatches), to allow
                                             disregarded those portions of the                       recommends renewal of the following                   connection of a used device to an
                                             petition for purposes of considering the                exemption:                                            alternative wireless network
                                             renewal of the exemption, and instead                      Literary works, distributed electronically,        (‘‘unlocking’’). No oppositions were
                                             focused on whether it provided                          that are protected by technological measures          filed against the petitions seeking to
                                             sufficient information to warrant                       that either prevent the enabling of read-aloud        renew this exemption. The petitions
                                             readoption of the exemption in its                      functionality or interfere with screen readers        demonstrated the continuing need and
                                                                                                     or other applications or assistive                    justification for the exemption, stating
                                             current form.41 While a single party
                                                                                                     technologies:
                                             filed an opposition to renewal, the                                                                           that consumers of the enumerated
                                                                                                        (i) When a copy of such a work is lawfully
                                             Acting Register concluded that its                      obtained by a blind or other person with a            products continue to need to be able to
                                             opposition was not sufficiently material                disability, as such a person is defined in 17         unlock the devices so they can switch
                                             to undermine the conclusion that the                    U.S.C. 121; provided, however, that the rights        network providers. For example, the
                                             record and legal reasoning from the                     owner is remunerated, as appropriate, for the         Institute of Scrap Recycling Industries,
                                             prior rulemaking supported renewal.42                   price of the mainstream copy of the work as           Inc. (‘‘ISRI’’) stated that its members
                                             Finding the renewal petitions sufficient                made available to the general public through          continue to purchase or acquire donated
                                             under the guidelines outlined above, the                customary channels; or                                cell phones and tablets, and try to reuse
                                             Acting Register thus recommended                           (ii) When such work is a nondramatic               them, but that wireless carriers still lock
                                                                                                     literary work, lawfully obtained and used by          devices to prevent them from being used
                                             renewal of each of the existing
                                                                                                     an authorized entity pursuant to 17 U.S.C.            on other carriers. In addition, the
                                             exemptions.43 The existing exemptions,                  121.
                                             and the bases for the recommendation to                                                                       petitioners demonstrated personal
                                             readopt each exemption in accordance                    2. Literary Works—Compilations of Data                knowledge and experience with regard
                                             with the streamlined renewal process,                   Generated by Implanted Medical                        to this exemption: Competitive Carriers
                                             are summarized below. Where noted,                      Devices—To Access Personal Data                       Association, Owners’ Rights Initiative
                                             these exemptions served as a baseline                                                                         (‘‘ORI’’), and ISRI represent companies
                                             for the Acting Register in considering                     Hugo Campos, member of the                         that rely on the ability to unlock
                                             subsequent requests for expansion.                      Coalition of Medical Device Patients                  cellphones.
                                                                                                     and Researchers, and represented by the                  Accordingly, the Acting Register
                                               38 NPRM, 82 FR at 49563; Ex Parte
                                                                                                     Harvard Law School Cyberlaw Clinic,                   recommends renewal of this exemption
                                             Communications, U.S. Copyright Office (last visited     petitioned to renew the exemption                     and will consider proposed expansions
                                             Oct. 2, 2018), https://www.copyright.gov/1201/          covering access to patient data on                    below in the discussion on Proposed
                                             2018/ex-parte-communications.html.                      networked medical devices. No                         Class 5.
                                               39 See Ex Parte Communications, U.S. Copyright
                                                                                                     oppositions were filed against the
                                             Office, https://www.copyright.gov/1201/2018/ex-
                                                                                                     petition to renew this exemption. Mr.                 4. Computer Programs—‘‘Jailbreaking’’
                                             parte-communications.html (last visited Oct. 2,                                                               of Smartphones, Smart TVs, Tablets, or
                                             2018).                                                  Campos’s petition demonstrated the
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                                               40 NTIA’s recommendations can be viewed at            continuing need and justification for the             Other All-Purpose Mobile Computing
                                             https://www.copyright.gov/1201/2018/2018_NTIA_          exemption, stating that patients                      Devices
                                             Letter.pdf.                                             continue to need access to data output                   Multiple organizations petitioned to
                                               41 See, e.g., NPRM, 82 FR at 49554.
                                               42 Id.
                                                                                                     from their medical devices to manage                  renew the exemptions for computer
                                               43 The Acting Register’s analysis and conclusions     their health. Mr. Campos himself is a                 programs that operate smartphones,
                                             regarding streamlined renewals can be found in the      patient needing access to the data                    smart TVs, tablets, or other all-purpose
                                             NPRM. See id. at 49552–58.                              output from his medical device.                       mobile computing devices, to allow the


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                                             54014             Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations

                                             device to interoperate with or to remove                5. Computer Programs—Diagnosis,                       to improve the security of their voting
                                             software applications (‘‘jailbreaking’’).               Repair, and Lawful Modification of                    systems.
                                             The petitions demonstrate the                           Motorized Land Vehicles                                 Accordingly, the Acting Register
                                             continuing need and justification for the                                                                     recommends renewal of this exemption
                                             exemptions, and that petitioners had                       Multiple organizations petitioned to               and will consider proposed expansions
                                             personal knowledge and experience                       renew the exemption for computer                      below in the discussion on Proposed
                                             with regard to these exemptions.                        programs that control motorized land                  Class 10.
                                             Specifically, the petitions state that,                 vehicles, including farm equipment, for
                                                                                                     purposes of diagnosis, repair, and                    7. Computer Programs—3D Printers
                                             absent the exemptions, TPMs applied to
                                             the enumerated products would have an                   modification of the vehicle. The                         Michael Weinberg and ORI jointly
                                             adverse effect on noninfringing uses,                   petitions demonstrated the continuing                 petitioned to renew the exemption for
                                             such as being able to install third-party               need and justification for the exemption              computer programs that operate 3D
                                             applications on a smartphone or to                      to prevent owners of motorized land                   printers to allow use of alternative
                                             download third-party software on a                      vehicles from being adversely impacted                feedstock. No oppositions were filed
                                             smart TV to enable interoperability. For                in their ability to diagnose, repair, and             against readoption of this exemption.
                                                                                                     modify their vehicles as a result of                  The petition demonstrated the
                                             example, the Electronic Frontier
                                                                                                     TPMs that protect the copyrighted                     continuing need and justification for the
                                             Foundation’s (‘‘EFF’s’’) petition
                                                                                                     computer programs on the electronic                   exemption, and the petitioners
                                             outlined its declarant’s experience
                                                                                                     control units (‘‘ECUs’’) that control the             demonstrated personal knowledge and
                                             searching current mobile computing
                                                                                                     functioning of the vehicles. Indeed, the              experience, in particular, through Mr.
                                             device markets and technologies,
                                                                                                     Motor & Equipment Manufacturers                       Weinberg’s experience petitioning for
                                             working as a software engineer, and
                                                                                                     Association, which during the sixth                   the exemption adopted in 2015. In
                                             participating in four prior 1201
                                                                                                     triennial rulemaking initially opposed                addition, the petition states that printers
                                             rulemakings. Similarly, the Libiquity
                                                                                                     any exemption that would impact the                   continue to restrict the use of third-
                                             petition was submitted by a person who
                                                                                                     software and TPMs in vehicles, now                    party feedstock, thereby requiring
                                             ‘‘work[s] with the operating system and
                                                                                                     supports the exemption as striking an                 renewal of the exemption.
                                             many of the system libraries that lie at                appropriate balance between                              Accordingly, the Acting Register
                                             the core of the firmware systems of a                   encouraging marketplace competition                   recommends renewal of this exemption
                                             large majority of smartphones, portable                 and innovation while mitigating the                   and will consider proposed expansions
                                             all-purpose mobile computing devices,                   impact on safety, regulatory, and                     below in the discussion on Proposed
                                             and smart televisions.’’ In a brief two-                environmental compliance. The                         Class 12.
                                             page comment, BSA √ The Software                        petitioners demonstrated personal
                                             Alliance (‘‘BSA’’) opposed the                                                                                8. Video Games Requiring Server
                                                                                                     knowledge and experience with regard                  Communication—for Continued
                                             readoption of this exemption, asserting                 to this exemption; each either represents
                                             that ‘‘alternatives to circumvention                                                                          Individual Play and Preservation of
                                                                                                     or gathered information from                          Games by Libraries, Archives, and
                                             exist,’’ and that ‘‘jailbreaking can                    individuals conducting repairs or
                                             undermine the integrity and security of                                                                       Museums
                                                                                                     businesses that manufacture, distribute,
                                             a platform’s operating system in a                      and sell motor vehicle parts, and                        Multiple organizations petitioned to
                                             manner that facilitates copyright                       perform vehicle service and repair.                   renew the exemption for video games
                                             infringement and exposes users to                                                                             for which outside server support has
                                             heightened risks of privacy violations.’’                  Accordingly, the Acting Register
                                                                                                                                                           been discontinued. The petitions stated
                                                                                                     recommends renewal of this exemption
                                                In the NPRM, the Office concluded                                                                          that individuals still need the
                                                                                                     and will consider proposed expansions
                                             that BSA’s opposition was not sufficient                                                                      exemption to engage in continued play
                                                                                                     below in the discussion on Proposed
                                             to draw the conclusion that the past                                                                          and libraries and museums continue to
                                                                                                     Class 7.
                                             rulemaking record is no longer reliable,                                                                      need the exemption to preserve and
                                             or that the reasoning adopted in the                    6. Computer Programs—Security                         curate video games in playable form. In
                                             Register’s 2015 Recommendation cannot                   Research                                              addition, the petitioners demonstrated
                                             be relied upon for the next three-year                                                                        personal knowledge and experience
                                                                                                       Multiple organizations and security                 with regard to this exemption through
                                             period. Specifically, the Office stated                 researchers petitioned to renew the
                                             that BSA’s comment largely re-                                                                                past participation in the 1201 triennial
                                                                                                     exemption for purposes of good-faith                  rulemaking relating to access controls
                                             articulated a general opposition to a                   security research. The petitioners
                                             jailbreaking exemption, and noted that                                                                        on video games and consoles, and/or
                                                                                                     demonstrated the continuing need and                  representing major library associations
                                             the past three rulemakings have adopted                 justification for the exemption, and
                                             some form of an exemption for                                                                                 with members that have relied on this
                                                                                                     personal knowledge and experience                     exemption.
                                             jailbreaking certain types of mobile                    with regard to this exemption. For                       Accordingly, the Acting Register
                                             computing devices. The Office also                      example, Professors Bellovin, Blaze, and              recommends renewal of this exemption
                                             noted that BSA had failed to identify                   Heninger stated that they have                        and will consider proposed expansions
                                             any specific circumvention alternatives,                conducted their own security research                 below in the discussion on Proposed
                                             changes in case law, new technological                  in reliance on the existing exemption,                Class 8.
                                             developments, or new issues that had                    and that they ‘‘regularly engage’’ with
                                             not already been considered and                         other security researchers who have                   9. Audiovisual Uses—Educational and
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                                             evaluated in granting the exemption                     similarly relied on the exemption. They               Derivative Uses
                                             previously.                                             provided an example of a recent                          Multiple individuals and
                                                Accordingly, the Acting Register                     computer security conference in which                 organizations petitioned to renew the
                                             recommends renewal of this exemption                    thousands of participants relied on the               exemption consisting of multiple
                                             and will consider proposed expansions                   existing exemption to examine and test                subparts covering use of short portions
                                             below in the discussion on Proposed                     electronic voting devices—the results of              of motions pictures for various
                                             Class 6.                                                which were reported to election officials             educational and derivative uses. No


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                                                               Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations                                        54015

                                             oppositions were filed. Petitions to                    participation in the section 1201                     protection measures. In addition, the
                                             renew the various subparts of the                       triennial rulemaking.                                 petitioners demonstrated personal
                                             exemption are discussed below.                                                                                knowledge through Professor Buster’s
                                                                                                     9c. Audiovisual Uses—Educational
                                                                                                                                                           continued work on an e-book series
                                             9a. Audiovisual Uses—Educational                        Uses—Massive Open Online Courses
                                                                                                                                                           based on her lecture series,
                                             Uses—Colleges and Universities                          (‘‘MOOCs’’).
                                                                                                                                                           ‘‘Deconstructing Master Filmmakers:
                                                Multiple individuals and                                Professors Decherney, Sender, and                  The Uses of Cinematic Enchantment,’’
                                             organizations petitioned to renew the                   Carpini, DCSUM, ICA, SCMS, and LCA                    and Authors Alliance’s feedback that its
                                             exemption’s subpart covering use of                     petitioned to renew the exemption’s                   members continue to desire authoring
                                             motion picture clips for educational                    subpart covering use of motion picture                e-books that incorporate film for the
                                             uses by college and university                          clips for educational uses in MOOCs.                  purpose of analysis.
                                             instructors and students (codified at 37                No oppositions were filed against
                                             CFR 201.40(b)(1)(iv) (2016)). No                        readoption. The petition demonstrated                 9f. Audiovisual Uses—Derivative
                                             oppositions were filed against                          the continuing need and justification for             Uses—Documentary Filmmaking
                                             readoption. The petitions demonstrated                  the exemption, stating that instructors                  Multiple organizations petitioned to
                                             the continuing need and justification for               continue to rely on the exemption to                  renew the subpart of the exemption
                                             the exemption, and personal knowledge                   develop, provide, and improve MOOCs,                  covering the use of motion picture clips
                                             and experience with regard to the                       as well as increase the number of (and                for uses in documentary films. No
                                             exempted use. For example, Professors                   therefore access to) MOOCs in the field               oppositions were filed against
                                             Decherney, Sender, and Carpini, the                     of film and media studies. For example,               readoption. The petitions summarized
                                             Department of Communications at the                     the declarant, Professor Decherney,                   the continuing need and justification for
                                             University of Michigan (‘‘DCSUM’’), the                 demonstrated personal knowledge by                    the exemption, and the petitioners
                                             International Communication                             describing his reliance on the                        demonstrated personal knowledge and
                                             Association (‘‘ICA’’), the Society for                  exemption to teach MOOCs on film and                  experience with regard to the exempted
                                             Cinema and Media Studies (‘‘SCMS’’),                    media studies.                                        use. For example, Film Independent
                                             the American Association of University                                                                        (‘‘FI’’), the International Documentary
                                                                                                     9d. Audiovisual Uses—Educational
                                             Professors (‘‘AAUP’’), and the Library                                                                        Association (‘‘IDA’’), Kartemquin
                                                                                                     Uses—Educational Programs Operated
                                             Copyright Alliance (‘‘LCA’’) stated that                                                                      Educational Films, Inc. (‘‘KEF’’), the
                                                                                                     by Libraries, Museums, and Other
                                             courses on video essays (or multimedia                                                                        Center for Independent Documentary
                                                                                                     Nonprofits
                                             or videographer criticism), now taught                                                                        (‘‘CID’’), and Women in Film and Video
                                             at many universities, would not be able                   Multiple organizations petitioned to                (‘‘WIFV’’) stated that TPMs such as
                                             to exist without relying on this                        renew the subpart of the exemption                    encryption continue to prevent
                                             exemption. Similarly, Professor Hobbs,                  covering use of motion picture clips for              filmmakers from accessing needed
                                             who represents more than 17,000 digital                 educational uses in digital and literacy              material in a sufficiently high quality to
                                             and media literacy educators, and the                   programs offered by libraries, museums,               satisfy demands of distributors and
                                             National Association for Media Literacy                 and other nonprofits. No oppositions                  viewers. Petitioners state that they
                                             Education (‘‘NAMLE’’), an organization                  were filed against readoption. The                    personally know many filmmakers who
                                             devoted to media literacy with more                     petitions demonstrated the continuing                 have found it necessary to rely on this
                                             than 3,500 members, stated that teachers                need and justification for the                        exemption, and will continue to do so.
                                             must sometimes circumvent a DVD                         exemption, and demonstrated personal
                                                                                                     knowledge and experience with regard                  9g. Audiovisual Uses—Derivative
                                             protected by the Content Scramble
                                                                                                     to the exempted use. For example, LCA                 Uses—Noncommercial Remix Videos
                                             System (‘‘CSS’’) when screen-capture
                                             software or other non-circumventing                     stated that librarians across the country                Two organizations petitioned to
                                             alternatives are unable to produce the                  have relied on the current exemption                  renew the subpart of the exemption
                                             required level of high-quality content.                 and will continue to do so for their                  covering the use of motion picture clips
                                                                                                     digital and literacy programs. In                     for uses in noncommercial videos. No
                                             9b. Audiovisual Uses—Educational                                                                              oppositions were filed against
                                                                                                     addition, Professor Hobbs and NAMLE
                                             Uses—Primary and Secondary Schools                                                                            readoption. The petitions demonstrated
                                                                                                     stated that librarians will continue to
                                             (K–12)                                                                                                        the continuing need and justification for
                                                                                                     rely on the exemption for their digital
                                               Multiple organizations petitioned to                  and literacy programs, and to advance                 the exemption, and the petitioners
                                             renew the exemption’s subparts                          the digital media knowledge of their                  demonstrated personal knowledge and
                                             covering use of motion picture clips for                patrons.                                              experience with regard to the exempted
                                             educational uses by K–12 instructors                                                                          use. For example, the Organization for
                                             and students. No oppositions were filed                 9e. Audiovisual Uses—Derivative                       Transformative Works (‘‘OTW’’) has
                                             against readoption. The petitions                       Uses—Multimedia E-Books Offering                      advocated for the noncommercial video
                                             demonstrated the continuing need and                    Film Analysis                                         exemption in past triennial
                                             justification for the exemption, stating                  A professor and two organizations                   rulemakings, and has heard from a
                                             that K–12 instructors and students                      collectively petitioned to renew the                  number of noncommercial remix artists
                                             continue to rely on excerpts from digital               subpart of the exemption covering the                 who have used the exemption and
                                             media for class presentations and                       use of motion picture clips for                       anticipate needing to use it in the
                                             coursework, and must sometimes use                      multimedia e-books offering film                      future. Similarly, New Media Rights
                                             screen-capture technology. In addition,                 analysis. No oppositions were filed                   (‘‘NMR’’) stated that it has spoken to a
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                                             the petitioners demonstrated personal                   against readoption. The petition                      number of noncommercial video
                                             knowledge and experience with regard                    demonstrated the continuing need and                  creators who have relied on this
                                             to this exemption through                               justification for the exemption, attesting            exemption, and intend to do so in the
                                             representation of thousands of digital                  that the availability of video necessary              future.
                                             and literacy educators and/or members                   for authors to undertake film analysis in                Accordingly, the Acting Register
                                             supporting K–12 instructors and                         e-books continues to be limited to                    recommends renewal of this exemption,
                                             students, combined with past                            formats encumbered by technological                   including all of its subparts, and will


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                                             54016              Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations

                                             consider proposed expansions below in                   and also allows circumvention only                    a. Single Overarching Exemption for
                                             the discussion on Proposed Class 1.                     where the user ‘‘reasonably believes that             Purposes of Comment and Criticism
                                             B. New or Expanded Designations of                      screen-capture software or other non-                    EFF, NMR, and OTW proposed
                                             Classes                                                 circumventing alternatives are unable to              permitting circumvention to make use
                                                                                                     produce the required level of high-                   of motion picture excerpts so long as the
                                               Based upon the record in this                         quality content.’’ Here, proponents                   purpose is for criticism and comment.
                                             proceeding regarding proposed
                                                                                                     sought to remove references to screen-                They did not provide specific examples
                                             expansions to existing exemptions or
                                                                                                     capture technology, arguing that it is not            of proposed noninfringing uses or
                                             newly proposed exemptions, the Acting
                                                                                                     a viable alternative because it does not              analyze such proposed uses under the
                                             Register recommends that the Librarian
                                                                                                     permit the proposed uses, or else results             1201 statutory factors, but rather
                                             determine that the following classes of
                                                                                                     in degraded-quality (and thus unusable)               focused on ‘‘the value of adopting a
                                             works be exempt from the prohibition
                                                                                                     content. Others contended that the dual               simple overarching exemption that
                                             against circumvention of technological
                                                                                                     references to screen-capture technology               would embrace multiple audiovisual
                                             measures set forth in section 1201(a)(1):
                                                                                                     are confusing. In response, opponents                 classes’’ for purposes of criticism and
                                             1. Proposed Class 1: Audiovisual                        argued that screen-capture technology                 comment. EFF, NMR, and OTW asserted
                                             Works—Criticism and Comment 44                          remains an adequate alternative to                    that the existing language is ‘‘practically
                                                Several petitions sought expansion of                                                                      unreadable’’ due to their complexities,
                                                                                                     circumvention.
                                             the existing exemption for                                                                                    and ‘‘a challenge for clients and
                                                                                                       In the 2015 rulemaking, the Register                attorneys alike to apply in practice.’’
                                             circumvention of access controls
                                                                                                     concluded that certain uses of motion                    Opponents contended that the
                                             protecting ‘‘short portions’’ of motion
                                             pictures on DVDs, Blu-Ray discs, and                    picture clips for criticism and comment               petition to create a single overarching
                                             digitally transmitted video for purposes                do not require access to higher-quality               exemption overstates the complexity of
                                             of criticism and comment by various                     content, and that screen-capture                      the existing exemption, and that the
                                             users, including creators of                            technology may be an alternative to                   proposed expansion would eliminate
                                             noncommercial videos, college and                       circumvention—but that it can be                      carefully drawn distinctions among
                                             university faculty and students, faculty                unclear to users as to whether screen-                potential users of motion picture
                                             of MOOCs, documentary filmmakers,                       capture technology may in fact involve                content. Opponents also asserted that to
                                             and for nonfiction multimedia e-books                   circumvention. Accordingly, in this                   be appropriately narrow, exemptions
                                             offering film analysis. With the                        rulemaking the Acting Register                        should identify the specific persons
                                             exception of one petition, proponents                   recommended retaining a screen-                       who will be adversely affected in their
                                             sought to keep the limitation to                                                                              abilities to make noninfringing uses by
                                                                                                     capture provision for these categories to
                                             circumvention for uses of ‘‘short                                                                             the section 1201 prohibition.
                                                                                                     address the possibility of circumvention                 NTIA opposed the removal of all
                                             portions’’ of motion pictures, which the                when using this technology. In addition,
                                             Register has previously found to be                                                                           limitations on the types of user or use,
                                                                                                     the Acting Register found it appropriate              concluding that ‘‘eliminating all of the
                                             ‘‘integral’’ in recommending the current                to continue to distinguish between
                                             exemption. The proposed expansions                                                                            categories of specific users . . . would
                                                                                                     purposes requiring high-quality motion                stray too far from the statutory
                                             implicate the same types of TPMs                        picture clips and more general purposes
                                             regardless of proposed noninfringing                                                                          requirement of specificity.’’
                                                                                                     that do not.                                             The Acting Register declined to
                                             use, namely CSS-protected DVDs,
                                                                                                                                                           recommend adopting EFF, NMR, and
                                             AACS-protected Blu-ray discs, and                       AACS2 Technology                                      OTW’s proposed language, finding it
                                             various TPMs applicable to online
                                                                                                       Opponents argued that the exemption                 overly broad for purposes of section
                                             distribution services. Because the new
                                                                                                     should not be expanded to include                     1201, and inconsistent with the
                                             proposals raised some shared concerns,
                                                                                                     AACS2 technology, which is employed                   rulemaking record upon which the
                                             including the impact of TPMs on the
                                                                                                                                                           current exemption has been adopted.
                                             alleged noninfringing uses of motion                    to protect ultra-high-definition or ‘‘4K’’
                                                                                                                                                           She noted that courts evaluate fair use
                                             pictures and whether alternative                        content distributed on Ultra HD Blu-ray
                                                                                                                                                           claims on a case-by-case basis, and the
                                             methods of accessing the content could                  discs. Opponents maintained that none                 context in which use of the work is
                                             alleviate potential adverse impacts, the                of the petitions expressly sought                     being made is part of that inquiry (e.g.,
                                             Office grouped these petitions into one                 extension to AACS2, and that the                      commercial versus noncommercial use).
                                             class. This approach also accounted for                 current exemption does not extend to                  She found that the proposed language
                                             a petition which proposed an                            AACS2 on Ultra HD Blu-ray discs, as                   would eliminate these legally important
                                             ‘‘overarching exemption that would                      that technology did not exist at the time             distinctions.
                                             embrace multiple audiovisual classes’’                  of the 2015 rulemaking. In response,
                                             and collapse (essentially) all of the                   proponents asserted that the Acting                   b. Universities and K–12 Educational
                                             subparts in the existing exemption to                                                                         Institutions
                                                                                                     Register should extend the proposed
                                             eliminate limitations on the types of                                                                            BYU filed a petition to create a single
                                                                                                     exemption to AACS2 technology
                                             user or use—and instead allow                                                                                 consolidated exemption that would
                                                                                                     because although AACS2 is different in
                                             circumvention so long as the purpose is                                                                       permit circumvention for nonprofit
                                             for criticism and comment.                              form, it is fundamentally the same in
                                                                                                     function.                                             educational purposes in accordance
                                             Screen-Capture Technology                                                                                     with sections 110(1) and 110(2) of the
                                                                                                       The Acting Register found the record                Copyright Act. BYU proposed
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                                               For several of the activities it covers,              insufficient to support extending the                 eliminating the ‘‘criticism and
                                             the current exemption expressly permits                 proposed class to AACS2. Her analysis                 comment’’ limitation, references to
                                             the use of screen-capture technology                    of this proposed exemption thus                       screen-capture technology, and
                                                                                                     addressed only TPMs employed on                       distinctions based on education level
                                               44 The Acting Register’s analysis and conclusions

                                             for this class, including citations to the record and
                                                                                                     DVDs and Blu-ray discs, and by various                and type of educational course.
                                             relevant legal authority, can be found in the           online streaming services to protect                     Opponents argued that although
                                             Recommendation at 31–89.                                motion pictures.                                      section 110(1) allows certain public


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                                                               Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations                                        54017

                                             performances of complete motion                         market for works in those formats. She                  The Acting Register concluded that
                                             pictures in classrooms without                          noted that, although institutions may                 the record lacked examples sufficient to
                                             obtaining licenses, it does not allow                   incur a cost in re-purchasing digital                 evaluate or recommend expansion to
                                             those performances to be made from                      versions of audiovisual works, the                    for-profit or unaccredited educational
                                             unauthorized copies. Opponents also                     section 1201 exemption process is not                 institutions, and did not demonstrate
                                             noted that sections 110(1) and 110(2)                   meant to guarantee consumers the                      that section 1201 is inhibiting the use of
                                             provide exceptions only to the public                   ability to access content through their               motion pictures in online education
                                             performance and display rights, not to                  preferred method or format.                           offered by for-profit and/or unaccredited
                                             the rights of reproduction or                             Ultimately, the Acting Register                     educational institutions. The Acting
                                             distribution, and that therefore they                   recommended an expansion that allows                  Register also found that proponents’
                                             would not fully cover the proposed                      K–12 and university faculty and                       broadly framed proposal seeking to
                                             uses, which involve making and                          students to engage with motion picture                encompass ‘‘all online courses’’ would
                                             ‘‘librarying’’ copies of full-length films.             excerpts of high quality in contexts                  seemingly encompass any online video
                                                NTIA recommended allowing                            other than courses requiring close                    that could be characterized as an
                                             circumvention for colleges and                          analysis of film excerpts, as well as for             educational experience. The Register
                                             universities to make use of entire                      teaching or scholarship more generally.               therefore recommended that the MOOCs
                                             motion pictures. In its view, the storage               Based upon additional examples                        language from the existing exemption be
                                             of a copy ‘‘in a central secured server                 provided in this rulemaking cycle, the                readopted without substantive changes.
                                             available only for transmission to the                  Acting Register recommended that the
                                             institution’s classrooms’’ is ‘‘not                     exemption retain the requirement that a               d. Filmmaking
                                             fundamentally different from the uses                   person must reasonably believe that                      FI, IDA, and KEF sought expansion of
                                             allowed by the existing exemption’’ for                 non-circumventing alternatives are                    the current exemption to permit
                                             purposes of analyzing whether the                       unworkable, but remove the references                 circumvention for use of motion picture
                                             activity is a fair use.                                 to ‘‘film studies or other courses                    clips in all types of films (i.e., remove
                                                The Acting Register concluded that                   requiring close analysis’’ and eliminate              the ‘‘documentary’’ limitation), a
                                             section 110 cannot, by itself, establish                distinctions between K–12 and                         request rejected by the Register in 2015.
                                             that BYU’s proposed activities are                      universities and colleges, as well as                 Proponents argued that the exemption
                                             noninfringing because any performances                  between faculty and students. The                     should be expanded because defining a
                                             of motion pictures under sections 110(1)                Acting Register recommended, however,                 ‘‘documentary’’ film is difficult, as
                                             and 110(2) must originate from lawfully                 that the exemption require K–12                       many films that are not traditionally
                                             acquired copies. The Acting Register                    students to act under the direct                      classified as a ‘‘documentary’’ use
                                             thus evaluated whether the copies made                  supervision of K–12 educators.                        motion picture excerpts to engage in
                                             and used to facilitate the proposed                                                                           educational and social commentary.
                                             motion picture performances were                        c. Massively Open Online Courses                      Proponents also asserted that many
                                             themselves noninfringing under section                  (‘‘MOOCs’’)                                           filmmakers do not know whether they
                                             112(f) and/or the fair use doctrine. The                   Professors Decherney, Sender,                      are permitted to use the exemption.
                                             Acting Register determined that on its                  Carpini, and DCSUM requested an                          The 2015 rulemaking identified fair
                                             face, section 112(f) does not permit                    expansion to allow faculty of MOOCs to                use as the noninfringing basis for this
                                             nonprofit educational institutions to                   circumvent for ‘‘all online courses’’ (i.e.,          exemption, and the Acting Register
                                             make copies to facilitate performances                  remove the limitation to ‘‘film studies or            evaluated the proposed expansion on
                                             under section 110(1). She found,                        other courses requiring close analysis of             the same grounds. Proponents provided
                                             however, that section 112(f) does                       film and media excerpts’’), and for                   multiple examples of non-documentary
                                             support a conclusion that making and                    MOOCs offered by unaccredited and for-                films using short motion picture clips
                                             temporarily storing digital copies of                   profit educational institutions. They                 for parody or for the clip’s biographical
                                             motion pictures to perform ‘‘reasonable                 maintained that without expanding the                 or historical significance, ostensibly to
                                             and limited portions’’ in distance                      exempted use of MOOCs, there would                    provide criticism or commentary.
                                             teaching would be noninfringing,                        be no ability for unaccredited, for-profit,           Proponents also disputed that either
                                             assuming the other requirements of                      or for-credit online educational offerings            clips created using non-circumventing
                                             section 110(2) are met. But she                         to use motion picture clips in MOOCs                  screen capture technology, or clips
                                             determined that such activity appears to                without licensing. They also argued that              obtained via licensing are viable
                                             be already covered by the existing                      because the motion picture clips in this              alternatives for the proposed uses, and
                                             exemption.                                              context would be used exclusively for                 argued that expansion of the exemption
                                                Regarding the use of short motion                    educational purposes, such use would                  to non-documentaries would not affect
                                             picture clips in face-to-face teaching, the             be unlikely to harm the market for                    the market for motion pictures.
                                             Acting Register concluded that the                      motion pictures.                                         Opponents maintained that
                                             record demonstrates that a significant                     Opponents argued that proponents                   proponents failed to develop a record of
                                             number of the proposed uses are likely                  failed to support their assertion that                likely noninfringing uses to support
                                             to be fair, such as using short film clips              including for-profit and unaccredited                 extension of the exemption to non-
                                             to create compilations from foreign                     educational institutions likely                       documentary films. Opponents also
                                             language films with and without                         constitutes fair use, and that the record             argued that the proposed uses would
                                             subtitles. By contrast, based on the                    lacked any examples of for-profit or                  negatively impact the clip licensing
                                             relevant case law, the Acting Register                  unaccredited educational institutions                 market for motion pictures, and that
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                                             could not conclude as a general matter                  wanting, but unable, to offer MOOCs,                  licenses are readily available for using
                                             that the contemplated uses of full-length               suggesting the expansion would cover                  short portions of motion pictures.
                                             motion pictures are likely to be fair. She              only speculative uses.                                Opponents further contended that
                                             found that DVD and Blu-ray players are                     Based on its review of the record,                 screen-capture technologies serve as
                                             still widely available on the market and                NTIA recommended expansion to for-                    valid alternatives to circumvention.
                                             that extending the exemption to such                    profit educational institutions, but not                 NTIA concluded that the existing
                                             uses could undermine the value of the                   to unaccredited educational institutions.             exemption should be expanded to all


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                                             54018             Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations

                                             films. It maintained that the record                    of a motion picture clip in a fictional e-            used in parody or for its biographical or
                                             supports a finding that in many                         book or in an ‘‘other nonfiction’’ e-book,            historically significant nature;
                                             instances the use of short portions of                  and that in the absence of actual use,                   (B) For use in noncommercial videos
                                                                                                                                                           (including videos produced for a paid
                                             motion pictures is likely a noninfringing               evaluating the proposal is all but
                                                                                                                                                           commission if the commissioning entity’s use
                                             fair use and that opponents failed to                   impossible. Regarding nonfictional uses,              is noncommercial); or
                                             demonstrate the expansion to non-                       opponents asserted that many of the                      (C) For use in nonfiction multimedia e-
                                             documentaries would cause market                        alleged additional uses would qualify                 books.
                                             harm.                                                   under the current ‘‘film analysis’’                      (ii) For educational purposes:
                                                Based on the extensive record, the                   limitation. As to fictional uses,                        (A) By college and university faculty and
                                             Acting Register recommended that the                    opponents maintained that the creation                students or kindergarten through twelfth-
                                             existing exemption for documentary                      of fan fiction multimedia                             grade (K–12) educators and students (where
                                             films be expanded to include a subset of                                                                      the K–12 student is circumventing under the
                                                                                                     e-books would frequently infringe the
                                             fictional (e.g., narrative) films for                                                                         direct supervision of an educator), including
                                                                                                     right to prepare derivative works.                    of accredited general educational
                                             purposes of criticism and comment,                      Opponents also asserted that as with the              development (GED) programs, for the
                                             where the clip is used for parody or its                proposed filmmaking expansion, there                  purpose of criticism, comment, teaching, or
                                             biographical or historically significant                will be harm to the clip licensing market             scholarship;
                                             nature. She concluded this limitation                   if the proposed e-books uses are                         (B) By faculty of massive open online
                                             would best reflect the examples in the                  exempted.                                             courses (MOOCs) offered by accredited
                                             record, many of which appear to involve                    NTIA recommended expanding the                     nonprofit educational institutions to
                                             the use of clips for purposes of criticism              exempted use to include all nonfiction                officially enrolled students through online
                                             and comment, while preserving the                                                                             platforms (which platforms themselves may
                                                                                                     multimedia e-books (i.e., eliminating the
                                             requirement that filmmakers continue to                                                                       be operated for profit), in film studies or
                                                                                                     ‘‘offering film analysis’’ limitation), but           other courses requiring close analysis of film
                                             seek authorization before using excerpts                did not recommend expansion to                        and media excerpts, for the purpose of
                                             for general storytelling uses. The Acting               fictional multimedia e-books.                         criticism or comment, where the MOOC
                                             Register found that the use of small                       The Acting Register found that the                 provider through the online platform limits
                                             portions of films for these purposes is                 record failed to establish that the                   transmissions to the extent technologically
                                             consistent with principles of fair use                  proposed uses in fictional                            feasible to such officially enrolled students,
                                             and is unlikely to supplant the market                  e-books would likely be noninfringing,                institutes copyright policies and provides
                                             for motion pictures, but cautioned that                 and thus she did not recommend                        copyright informational materials to faculty,
                                             filmmakers would continue to need to                    expanding the exemption to such works.                students, and relevant staff members, and
                                             obtain authorization for uses of clips                                                                        applies technological measures that
                                                                                                     She did find, however, that the record                reasonably prevent unauthorized further
                                             outside of these uses.                                  supported expansion to all nonfiction                 dissemination of a work in accessible form to
                                             e. Multimedia E-Books                                   multimedia e-books. Such an expansion,                others or retention of the work for longer
                                                                                                     she concluded, is unlikely to harm, and               than the course session by recipients of a
                                                The Authors Alliance, AAUP, OTW,                     may increase, the availability of                     transmission through the platform, as
                                             the Interactive Fiction Technology                      copyrighted works. In addition, the                   contemplated by 17 U.S.C. 110(2); or
                                             Foundation, and Professor Buster                        Acting Register found that the proposed                  (C) By educators and participants in
                                             (collectively, ‘‘Authors Alliance et al.’’)             uses will facilitate criticism, comment,              nonprofit digital and media literacy programs
                                             sought expansion of the current                                                                               offered by libraries, museums, and other
                                                                                                     teaching and/or scholarship, and that
                                             exemption to permit circumvention for                                                                         nonprofit entities with an educational
                                                                                                     they are unlikely to substitute for the               mission, in the course of face-to-face
                                             use of motion picture clips in all
                                                                                                     original work in the marketplace.                     instructional activities, for the purpose of
                                             nonfiction multimedia e-books by
                                             removing the ‘‘offering film analysis’’                 f. Conclusion for Class 1                             criticism or comment, except that such users
                                             limitation. Authors Alliance et al. also                                                                      may only circumvent using screen-capture
                                                                                                        Accordingly, the Acting Register                   technology that appears to be offered to the
                                             sought expansion to fictional                           recommends that the Librarian adopt                   public as enabling the reproduction of
                                             multimedia e-books and removal of                       the following exemption:                              motion pictures after content has been
                                             references to screen-capture technology.                                                                      lawfully acquired and decrypted.
                                                The 2015 rulemaking identified fair                    Motion pictures (including television
                                                                                                     shows and videos), as defined in 17 U.S.C.
                                             use as the noninfringing basis for this                 101, where the motion picture is lawfully             2. Proposed Class 2: Audiovisual
                                             exemption, and the proposed expansion                   made and acquired on a DVD protected by               Works—Accessibility 45
                                             was evaluated on the same grounds.                      the Content Scramble System, on a Blu-ray                Proposed Class 2 would allow
                                             Proponents asserted that the uses of                    disc protected by the Advanced Access
                                                                                                     Content System, or via a digital transmission         circumvention of technological
                                             clips for comment or criticism in
                                                                                                     protected by a technological measure, and             measures protecting motion pictures
                                             nonfiction multimedia e-books beyond
                                                                                                     the person engaging in circumvention under            (including television shows and videos)
                                             those offering film analysis, as well as
                                                                                                     paragraph (b)(1)(i) and (b)(1)(ii)(A) and (B) of      on DVDs, Blu-ray discs, and via digital
                                             fictional multimedia e-books, are
                                                                                                     this section reasonably believes that non-            transmissions, for disability services
                                             transformative and thus fair. Proponents                circumventing alternatives are unable to              professionals at educational institutions
                                             also argued that expansion will not                     produce the required level of high-quality            to create accessible versions for students
                                             negatively impact the market for or                     content, or the circumvention is undertaken           with disabilities by adding captions
                                             value of copyrighted works. Proponents                  using screen-capture technology that appears
                                                                                                     to be offered to the public as enabling the           and/or audio description.46 Proponents
                                             asserted that screen capture is an
                                             inadequate alternative to circumvention                 reproduction of motion pictures after content
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                                                                                                                                                             45 The Acting Register’s analysis and conclusions
                                             and that licensing remains an                           has been lawfully acquired and decrypted,
                                                                                                                                                           for this class, including citations to the record and
                                                                                                     where circumvention is undertaken solely in
                                             unworkable alternative due to high fees,                                                                      relevant legal authority, can be found in the
                                                                                                     order to make use of short portions of the            Recommendation at 89–111.
                                             difficulties in locating the rightsholders,             motion pictures in the following instances:             46 ‘‘Captioning’’ is ‘‘the process of converting the
                                             and the delays caused by protracted                       (i) For the purpose of criticism or                 audio content’’ of audiovisual material, such as a
                                             negotiations.                                           comment:                                              motion picture, ‘‘into text and displaying the text
                                                In response, opponents argued that                     (A) For use in documentary filmmaking, or           on a screen, monitor, or other visual display
                                             the record lacked evidence of actual use                other films where the motion picture clip is          system.’’ Nat’l Ass’n of the Deaf, What is



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                                                                Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations                                                54019

                                             explained that nearly all educational                    pictures, including ‘‘through the                       (A) Circumvention is undertaken by a
                                             institutions are subject to disability laws              provision of closed and open captions                disability services office or other unit of a
                                             such as the Americans With Disabilities                  and audio description.’’ In agreement                kindergarten through twelfth-grade
                                             Act (‘‘ADA’’), section 504 of the                        with the Acting Register, NTIA believes              educational institution, college, or university
                                                                                                                                                           engaged in and/or responsible for the
                                             Rehabilitation Act (‘‘Section 504’’), and                that the exemption should apply                      provision of accessibility services to
                                             the Individuals With Disabilities                        ‘‘regardless of grade level’’ of the                 students, for the purpose of adding captions
                                             Education Act (‘‘IDEA’’), which require                  student, and apply to both nonprofit                 and/or audio description to a motion picture
                                             accommodations for students with                         and for-profit educational institutions              to create an accessible version as a necessary
                                             disabilities. Proponents maintained that                 required to make motion pictures                     accommodation for a student or students
                                             creating accessible versions by adding                   accessible to students under disability              with disabilities under an applicable
                                             captions and/or audio description is                     laws.                                                disability law, such as the Americans With
                                             necessary because inaccessible motion                                                                         Disabilities Act, the Individuals with
                                                                                                         The Acting Register concluded that an             Disabilities Education Act, or Section 504 of
                                             pictures remain prevalent in the video                   exemption should be granted, with a
                                             industry, and copyright owners fail to                                                                        the Rehabilitation Act;
                                                                                                      few adjustments to the language                         (B) The educational institution unit in
                                             retroactively make motion pictures                       outlined in the petition. She                        paragraph (b)(2)(i)(A) of this section has, after
                                             accessible or grant permission to                        recommended that the exemption                       a reasonable effort, determined that an
                                             disability services offices to make those                permit circumvention where the                       accessible version cannot be obtained at a fair
                                             works accessible, even when contacted                    accessible version is created as a                   price or in a timely manner; and
                                             directly.                                                necessary accommodation for a student                   (C) The accessible versions are provided to
                                                Proponents asserted that adding                                                                            students or educators and stored by the
                                                                                                      or students with disabilities under a                educational institution in a manner intended
                                             captions and/or audio description to
                                                                                                      federal or state disability law, such as             to reasonably prevent unauthorized further
                                             motion pictures for the purpose of
                                                                                                      the ADA, IDEA, or Section 504. In                    dissemination of a work.
                                             making them accessible to students with
                                                                                                      addition, the Acting Register                           (ii) For purposes of this paragraph (b)(2),
                                             disabilities constitutes fair use based on
                                                                                                      recommended that the exemption apply                 ‘‘audio description’’ means an oral narration
                                             the legislative history of section 107.                                                                       that provides an accurate rendering of the
                                                                                                      to for-profit and nonprofit educational
                                             Proponents also argued that viable                                                                            motion picture.
                                                                                                      institutions, as well as to K–12
                                             alternatives to circumvention do not
                                                                                                      institutions, colleges, and universities,            3. Proposed Class 5: Computer
                                             exist, and that not allowing
                                                                                                      because they are subject to such                     Programs—Unlocking 47
                                             circumvention will negatively affect the
                                                                                                      disability laws. The Acting Register also
                                             market for the copyrighted motion                                                                               Proposed Class 5 would expand an
                                                                                                      recommended that the exemption allow
                                             pictures because educational                                                                                  existing exemption for activity known
                                                                                                      circumvention only after the
                                             institutions will not use content that                                                                        as ‘‘unlocking,’’ that is, circumvention
                                                                                                      educational institution has conducted a
                                             they cannot easily convert into an                                                                            of access controls on computer
                                                                                                      reasonable market check and
                                             accessible format.                                                                                            programs for the purpose of enabling a
                                                In response, opponents noted that                     determined that an accessible version is
                                                                                                      not available, not available at a fair               wireless device to connect to a different
                                             while accessibility is an important                                                                           mobile network provider. The Copyright
                                             issue, the proposed class was too broad                  price, or not available in a timely way.
                                                                                                      The record suggested that these searches             Office has received petitions to permit
                                             because it did not take into account the                                                                      the unlocking of cellphones since 2006.
                                             extent to which DVDs and Blu-ray discs                   are already occurring, and that
                                                                                                      regardless of whether a decision is made             In 2015, as directed by the Unlocking
                                             already include closed captions and                                                                           Consumer Choice and Wireless
                                             audio description. They argued that the                  to create an accessible version,
                                                                                                      outsource the creation of an accessible              Competition Act (‘‘Unlocking Act’’),48
                                             result of altering a motion picture—such                                                                      the Register considered whether to
                                             as by adding captioning and/or audio                     version, or purchase an accessible
                                                                                                      version, the educational institution                 expand the exemption to additional
                                             description—is likely a derivative work                                                                       categories of wireless devices. Based on
                                             that involves a creative interpretation of               would incur a cost. In this way, the
                                                                                                      market check requirement seeks to                    the record in that proceeding, the
                                             the underlying work. Opponents                                                                                Register recommended, and the
                                             generally contended that the wide                        prevent copies being made of works
                                                                                                      already available in accessible formats,             Librarian granted, an exemption
                                             availability of versions with captioning                                                                      covering cellphones, all-purpose tablet
                                             and/or audio description already in the                  while encouraging the motion picture
                                                                                                      industry to further expand the                       computers, portable mobile connectivity
                                             market constitutes a viable alternative to                                                                    devices such as mobile hotspots, and
                                             circumvention.                                           availability of accessible versions in the
                                                                                                      marketplace. Finally, the recommended                wearable devices such as smartwatches
                                                NTIA recommended that the                                                                                  or fitness devices.
                                             proposed exemption allow ‘‘disability                    exemption requires the accessible
                                                                                                      versions to be provided to students and                The current exemption also is limited
                                             services offices and equivalent units’’ to                                                                    to used devices, i.e. those previously
                                             ‘‘circumvent TPMs on audiovisual                         stored by the educational institution in
                                                                                                      a manner that reasonably prevents                    activated on a wireless carrier. First
                                             works in educational settings to add                                                                          adopted in 2010, this limitation was
                                             accessibility features’’ to motion                       unauthorized further dissemination of
                                                                                                      the work.                                            implemented in response to concerns
                                                                                                                                                           raised by wireless carriers engaged in
                                             Captioning?, NAD.ORG, https://www.nad.org/                  Accordingly, the Acting Register                  the business of selling cellphones at
                                             resources/technology/captioning-for-access/what-is-      recommends that the Librarian adopt
                                             captioning/ (last visited Oct. 2, 2018). By contrast,                                                         substantially discounted prices and
                                             ‘‘audio description’’ is a narration added to the
                                                                                                      the following exemption:                             recouping that investment through the
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                                             soundtrack of audiovisual material, such as a              (i) Motion pictures (including television          sale of prepaid wireless service. These
                                             motion picture, to describe significant visual details   shows and videos), as defined in 17 U.S.C.
                                             (e.g., descriptions of new scenes, settings, costumes,
                                                                                                                                                           companies feared that including new
                                                                                                      101, where the motion picture is lawfully
                                             body language) for individuals with sight
                                             impairments. Am. Council of the Blind, The Audio
                                                                                                      acquired on a DVD protected by the Content             47 The Register’s analysis and conclusions for this

                                             Description Project, ACB.ORG, http://www.acb.org/        Scramble System, on a Blu-ray disc protected         class, including citations to the record and relevant
                                             adp/ad.html (last visited Oct. 2, 2018). Audio           by the Advanced Access Content System, or            legal authority, can be found in the
                                             description may also be referred to as ‘‘video           via a digital transmission protected by a            Recommendation at 145–63.
                                             description’’ or ‘‘descriptive narration.’’ Id.          technological measure, where:                          48 Public Law 113–144, 128 Stat. 1751 (2014).




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                                             54020               Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations

                                             phones in the class could foster illegal                 Recommendation with respect to used                    to unlock these types of devices.
                                             trafficking activity, which involves ‘‘the               devices. She further found that                        Proponents did not demonstrate that it
                                             bulk purchase of unused handsets that                    unlocking such devices is likely a fair                would be possible to connect these
                                             have been offered for sale at subsidized                 use, regardless of whether the devices                 devices to an alternate wireless network
                                             prices . . . and then unlocking and                      are new or used. With respect to                       even if an exemption were granted. The
                                             reselling those unlocked handsets for a                  potential cellphone trafficking, the                   Acting Register thus found that they
                                             profit.’’ 49                                             Acting Register found that although                    failed to carry their burden to show
                                                In this proceeding, ISRI petitioned for               such activity limits the network                       actual or likely adverse effects resulting
                                             expansions that would (1) remove the                     provider’s ability to sell devices at a                from the bar on circumvention. She
                                             enumerated device categories and                         discount, there were no allegations                    therefore declined to recommend
                                             instead permit circumvention to unlock                   relating to trafficking raised in this                 removal of the exemption’s enumerated
                                             ‘‘any wireless device’’; and (2) eliminate               proceeding, and it is not clear that the               device categories.
                                             the requirement that a wireless device                   economic harm caused by that activity                     Accordingly, the Acting Register
                                             be ‘‘used.’’ As to the limitation on                     affects the value of the computer                      recommends that the Librarian adopt
                                             devices, proponents argued that the                      programs allowing devices to connect to                the following exemption:
                                             owner of any connected device should                     wireless networks. She further noted                      Computer programs that enable the
                                             be able to transfer it to the carrier of his             that other causes of action, such as                   following types of lawfully acquired wireless
                                             or her choice. Proponents warned that                    unfair competition or unjust                           devices to connect to a wireless
                                             the rapid pace of innovation within the                  enrichment, may be available to address                telecommunications network, when
                                             Internet of Things industry makes it                     injury to non-copyright interests. In                  circumvention is undertaken solely in order
                                             impossible to predict the specific                       addition, the Acting Register concluded                to connect to a wireless telecommunications
                                             categories of wireless devices that                      that absent an exemption, users are                    network and such connection is authorized
                                             consumers may need to unlock.                            likely to be adversely affected in their               by the operator of such network:
                                             Regarding the ‘‘used’’ limitation,                       ability to unlock unused devices of                       (i) Wireless telephone handsets (i.e.,
                                             proponents argued that illegal                                                                                  cellphones);
                                                                                                      these types. She found that extending
                                                                                                                                                                (ii) All-purpose tablet computers;
                                             trafficking does not implicate copyright                 the exemption to such devices will                        (iii) Portable mobile connectivity devices,
                                             interests and that concerns about such                   increase the availability of the software              such as mobile hotspots, removable wireless
                                             activity therefore are outside the proper                within them and that the record lacked                 broadband modems, and similar devices; and
                                             scope of this rulemaking. Proponents                     evidence that doing so would harm the                     (iv) Wearable wireless devices designed to
                                             further suggested that, in contrast to                   market for copyrighted works.                          be worn on the body, such as smartwatches
                                             2015, there now exists a need to unlock                     The Acting Register therefore                       or fitness devices.
                                             unused devices, offering examples of                     recommended removal of the provision
                                             corporations acquiring excess devices                    in the current exemption requiring that                4. Proposed Class 6: Computer
                                             that are never activated but that they                   a covered device be ‘‘used.’’ Consistent               Programs—Jailbreaking 51
                                             later seek to recycle. The Office received               with NTIA’s recommendation, she                          Proposed Class 6 would expand an
                                             no comments opposing either of these                     proposed adding language requiring that                existing exemption for activity known
                                             requested expansions.                                    such a device be ‘‘lawfully acquired.’’                as ‘‘jailbreaking’’—that is, the process of
                                                NTIA recommended granting both                        Because the regulations implementing                   gaining access to the operating system of
                                             aspects of the petition. As it did in 2015,              the Unlocking Act already require that                 a computing device to install and
                                             NTIA concluded that ‘‘proponents have                    circumvention under this exemption be                  execute software that could not
                                             provided sufficient evidence to                          initiated by the ‘‘owner’’ of the relevant             otherwise be installed or run on that
                                             demonstrate that circumvention of                        device or by a person or service                       device, or to remove pre-installed
                                             TPMs on all lawfully acquired wireless                   provider at the direction of the owner,                software that could not otherwise be
                                             devices is a noninfringing use.’’ In its                 the Acting Register views this as a                    uninstalled. An existing exemption
                                             view, the statutory prohibition ‘‘limits                 technical, rather than a substantive,                  permits the jailbreaking of smartphones
                                             consumer choice of wireless network                      change.50                                              and portable all-purpose mobile
                                             providers, limits recyclers’ ability to                     The Acting Register determined,
                                                                                                                                                             computing devices. In this proceeding,
                                             recycle or resell wireless devices, and                  however, that the record was
                                                                                                                                                             EFF filed a petition seeking to expand
                                             limits competition between wireless                      insufficient to support expanding the
                                                                                                                                                             the current exemption by: (1) Adding
                                             network providers.’’ NTIA also                           exemption to additional types of
                                                                                                                                                             voice assistant devices, such as the
                                             concluded that proponents met their                      wireless devices. As in 2015, she found
                                                                                                                                                             Amazon Echo and Google Home, to the
                                             burden with respect to unused devices,                   the record too sparse to support a
                                             pointing to evidence that since 2015,                    finding that unlocking wireless devices                categories of devices covered by the
                                             ‘‘business practices have changed,                       of all types is likely to be a fair use.               exemption; and (2) allowing jailbreaking
                                             resulting in a need for bulk and                         Proponents did provide evidence                        not only to install, run, or remove
                                             individual unlocking of new wireless                     regarding three specific categories of                 software, but also for the purpose of
                                             devices.’’ NTIA proposes replacing the                   devices: Home security devices,                        enabling or disabling hardware features
                                             term ‘‘used’’ in the exemption with the                  agricultural equipment, and vehicle GPS                of the relevant device.
                                                                                                      trackers. Based on the record, the Acting                In proponents’ view, the fair use
                                             phrase ‘‘lawfully acquired.’’
                                                The Acting Register recommended                       Register concluded that these devices                  analysis relied upon by the Register in
                                             expanding the exemption to unused                        are similar to those covered by the                    recommending the previous jailbreaking
                                             devices falling within the categories                    current exemption in relevant respects,                exemptions is equally applicable in the
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                                             listed in the current exemption. She                     and that unlocking them therefore is                   context of voice assistant devices.
                                             concluded that unlocking such devices                    likely to be a fair use. But she concluded             Moreover, regarding the 1201 statutory
                                             is likely noninfringing under section                    that proponents failed to establish that               factors, proponents argued that a
                                             117(a) of the Copyright Act for the same                 they are, or are likely to be, adversely                 51 The Acting Register’s analysis and conclusions
                                             reasons noted in the 2015                                affected by section 1201 in their ability              for this class, including citations to the record and
                                                                                                                                                             relevant legal authority, can be found in the
                                               49 2015   Recommendation at 145.                         50 37   CFR 201.40(c) (2016).                        Recommendation at 163–85.



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                                                               Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations                                            54021

                                             jailbreaking exemption will have either                 streaming services typically control                   including appliances, computers, toys, and
                                             no effect or a positive effect on the                   access to their content with TPMs                      other Internet of Things devices;
                                             availability of copyrighted firmware and                separate from those protecting the                       (3) extending the exemption to allow
                                             application software.                                   firmware. The Acting Register thus                     circumvention by third-party service
                                                Opponents principally argued that                                                                           providers, and in particular, independent
                                                                                                     recommended adoption of an exemption                   vehicle repair shops, for purposes of
                                             jailbreaking is likely to enable voice                  authorizing the jailbreaking of voice                  diagnosis, repair, and lawful modification;
                                             assistant devices to access pirated                     assistant devices, which must be                       and
                                             content. Opponents asserted that piracy                 ‘‘designed to take user input primarily                  (4) allowing the acquisition, use, and
                                             concerns are greater in the context of                  by voice.’’ The recommended                            dissemination of circumvention tools in
                                             voice assistant devices than in that of                 exemption excludes video game                          furtherance of diagnosis, repair, and
                                             other devices, as the former are                        consoles, set-top boxes, DVD and Blu-                  modification.
                                             relatively simple devices that do not                   Ray players, and similar devices that                     The Acting Register first considered
                                             incorporate the same ‘‘hardware and                     typically are operated using buttons. To               proposed expansions within the context
                                             software complexity’’ that exists in                    address opponents’ serious concerns                    of motorized land vehicles, and then
                                             personal computers, and therefore they                  over the potential use of jailbroken                   addressed expansion of the exemption
                                             provide more limited security options.                  devices as platforms for unauthorized                  to other types of devices.
                                             Opponents further suggested that                        content, the Acting Register                              Regarding motorized land vehicles,
                                             jailbreaking would facilitate the                       recommended including language                         proponents asserted that diagnosis,
                                             installation of counterfeit apps and apps               expressly excluding circumvention                      repair, and lawful modification of
                                             that enable unauthorized access to                      undertaken for purpose of accessing                    vehicle telematics and entertainment
                                             copyrighted content. Opponents                          such material.                                         systems are fair uses and noninfringing
                                             challenged the contention that                             Accordingly, the Acting Register
                                                                                                                                                            under section 117. Proponents
                                             jailbreaking is necessary to promote the                recommends that the Librarian adopt
                                                                                                                                                            contended that, because these systems
                                             development of new applications.                        the following exemption:
                                                NTIA recommended granting the                                                                               are increasingly integrated with
                                                                                                        Computer programs that enable voice                 functional vehicle firmware, access is
                                             exemption in the form requested by                      assistant devices to execute lawfully obtained
                                             proponents.                                                                                                    necessary to engage in diagnosis, repair,
                                                                                                     software applications, where circumvention
                                                It agreed that jailbreaking voice                                                                           and lawful modification of vehicle
                                                                                                     is accomplished for the sole purpose of
                                             assistant devices is unlikely to harm the               enabling interoperability of such applications         functions—activities the Register found
                                             market for copyrighted works, noting                    with computer programs on the device, or to            to be likely noninfringing in
                                             that there is no evidence of market harm                permit removal of software from the device,            recommending the existing exemption.
                                             for the devices covered by the current                  and is not accomplished for the purpose of             Proponents sought access to telematics
                                                                                                     gaining unauthorized access to other                   systems in order to obtain diagnostic
                                             exemption. NTIA rejected opponents’
                                                                                                     copyrighted works. For purposes of this                data for the same purposes. Proponents
                                             argument about unauthorized access to                   paragraph (b)(8), a ‘‘voice assistant device’’ is
                                             entertainment content on the ground                                                                            asserted that vehicle firmware is
                                                                                                     a device that is primarily designed to run a
                                             that it ‘‘fail[s] to explain why                        wide variety of programs rather than for               ‘‘effectively useless’’ outside of the
                                             infringement is more likely on voice                    consumption of a particular type of media              vehicle, with essentially no separate
                                             assistant platforms than on                             content, is designed to take user input                market for the software apart from the
                                             smartphones, tablets, and other devices                 primarily by voice, and is designed to be              vehicles. In addition, proponents
                                             already subject to the exemption.’’ NTIA                installed in a home or office.                         suggested users should be permitted to
                                             further concluded that proponents had                                                                          access ‘‘storage capacity’’ in vehicle
                                             demonstrated that users in this class are               5. Proposed Class 7: Computer                          entertainment systems, and to repair
                                             adversely affected by the statutory                     Programs—Repair 52                                     infotainment/entertainment modules.
                                             prohibition.                                               Several organizations petitioned to                    In response, opponents contended
                                                The Acting Register found that                       expand the current exemption allowing                  that the proposed activities are not
                                             proponents met their burden of showing                  for circumvention of access controls                   favored under fair use because access to
                                             that jailbreaking voice assistant devices               controlling the functioning of motorized               entertainment and telematics systems
                                             within the meaning of the current                       land vehicles for purposes of diagnosis,               could allow unauthorized access to
                                             exemption is likely to be a fair use. She               repair, or lawful modification of a                    expressive content. Opponents asserted
                                             concluded that the record failed to show                vehicle function to allow an additional                that telematics and entertainment
                                             that the prior jailbreaking exemptions                  range of activities. The Office                        firmware have value apart from a
                                             have harmed the market for firmware in                  synthesized these suggestions into                     vehicle, and may be paid for on a
                                             smartphones or all-purpose mobile                       Proposed Class 7. Although the                         continuing basis separate from the
                                             devices, and that nothing in the record                 commenters’ proposals varied in scope,                 vehicle purchase. Opponents also
                                             suggests that a different conclusion is                 and there was no singular unified                      argued that circumvention of telematics
                                             warranted for voice assistant devices.                  proposed exemption, the Acting                         is unnecessary because diagnostic data
                                             Additionally, the Acting Register found                 Register grouped them into the                         is still available through the onboard
                                             the record insufficient to establish that               following four categories:                             diagnostics port and, further, a
                                             an expanded exemption is likely to                        (1) Removing the current limitation                  nationwide Memorandum of
                                             harm the market for copyrighted works                   prohibiting circumvention of TPMs to access            Understanding requires manufacturers
                                             streamed to voice assistant devices.                    computer programs primarily designed for               to make this data available to vehicle
                                             While acknowledging that piracy of                      the control of vehicle telematics and                  owners and independent repair shops.
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                                             streamed content is a highly significant                entertainment systems;                                    Commenters seeking to expand the
                                             concern, the evidence was insufficient                    (2) expanding the exemption to apply to              exemption to allow diagnosis, repair,
                                             to conclude that allowing jailbreaking of               other types of software-enabled devices,               and modification of other software-
                                             voice assistant devices created a greater                 52 The Acting Register’s analysis and conclusions
                                                                                                                                                            enabled devices likewise asserted that
                                             risk of unauthorized access to streaming                for these classes, including citations to the record
                                                                                                                                                            these activities are noninfringing under
                                             content than exists with respect to other               and relevant legal authority, can be found in the      the fair use doctrine and section 117.
                                             devices, and suggested that subscription                Recommendation at 185–231.                             The Acting Register considered these


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                                             54022             Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations

                                             arguments for those types of devices                    systems, NTIA ‘‘continue[d] to have                   expressive works through subscription
                                             cognizably reflected in the record,                     reservations about the strength of [the]              services unrelated to vehicle
                                             namely home appliances, smartphones,                    record and the potential for                          functioning, and accordingly the
                                             video game consoles, computers and                      infringement’’ and did not recommend                  recommended exemption specifically
                                             ancillary or peripheral computing                       an expansion to permit access for the                 excludes access to ‘‘programs accessed
                                             devices, and consumables, plus a few                    proposed uses, including ‘‘storage                    through a separate subscription
                                             examples of specific additional devices.                capacity.’’                                           service.’’ While the broadened
                                                Opponents maintained that repair of                     NTIA further recommended removing                  exemption permits incidental access to
                                             these devices is not a transformative use               the current exemption’s reference to                  a vehicle infotainment system, it
                                             because it merely causes a device to be                 ‘‘the authorized owner of the vehicle’’—              provides that such access is allowed
                                             used for the same purpose for which it                  a change that it characterizes as                     only to the extent it is ‘‘a necessary step
                                             was originally intended. In some cases,                 ‘‘extending the current exemption to                  to allow the diagnosis, repair or lawful
                                             opponents also suggested that once the                  allow third-party service providers to                modification of a vehicle function’’ and
                                             firmware on some devices is accessed,                   diagnose, repair and modify software-                 includes the additional requirement that
                                             even for repair, it is compromised such                 enabled vehicles on behalf of owners.’’               circumvention may not be
                                             that it can no longer prevent piracy; and               But NTIA recommended denying the                      ‘‘accomplished for the purpose of
                                             consequently, these uses diminish the                   proposals to ‘‘permit third-party                     gaining unauthorized access to other
                                             value of and market for the devices and                 commercialization of software repair                  copyrighted works.’’ Because the Acting
                                             other creative works. Regarding repair of               tools for vehicles in this class,’’                   Register found the record insufficient to
                                             video game consoles specifically,                       concluding that such activity is ‘‘likely             support expanding the exemption to
                                             opponents expressed concern that                        to constitute trafficking.’’                          permit diagnosis, repair, or lawful
                                             circumvention of TPMs creates the risk                     The Acting Register recommended                    modification of the telematics and
                                             of unauthorized access to content and                   expanding the current exemption in                    infotainment systems themselves, the
                                             piracy.                                                 areas where there was sufficient record               regulatory language does not extend to
                                                Concerning third-party assistance,                   support for such a change, while                      those activities.
                                             several proponents requested that the                   retaining language to ensure that both                   In addition, the Acting Register
                                             exemption specifically permit third                     the class of works and the permitted                  recommended a new exemption
                                             parties, such as repair services, to assist             uses are appropriately defined. As a                  allowing for the circumvention of TPMs
                                             owners in carrying out the authorized                   result, the Acting Register                           restricting access to firmware that
                                             activities. Alternatively, proponents                   recommended two separate exemptions,                  controls smartphones and home
                                             suggested removing the current                          one relating to motorized land vehicles,              appliances and home systems for the
                                             exemption language requiring that                       and one related to the repair and                     purposes of diagnosis, maintenance, or
                                             circumvention be ‘‘undertaken by the                    maintenance of additional categories of               repair. In doing so, the Acting Register
                                             authorized owner’’ of the vehicle.                      devices.                                              adopted the definitions of
                                             Regarding circumvention tools,                             Regarding motor vehicles, the
                                                                                                                                                           ‘‘maintenance’’ and ‘‘repair’’ in section
                                             proponents asked the Office to                          recommended exemption removes the
                                                                                                                                                           117(d). Here again, the recommended
                                             recommend language that would allow                     requirement that circumvention be
                                                                                                                                                           text includes the condition that
                                             exemption beneficiaries, including third                ‘‘undertaken by the authorized owner’’
                                                                                                                                                           circumvention not be ‘‘accomplished for
                                             parties, to not only make, use, and                     of the vehicle, instead providing that it
                                                                                                                                                           the purpose of gaining unauthorized
                                             acquire tools, but also to distribute                   apply where such items are ‘‘lawfully
                                                                                                                                                           access to other copyrighted works.’’ The
                                             them. Opponents contended that the                      acquired.’’ This change responds to
                                                                                                                                                           Acting Register did not recommend
                                             proposals concerning third-party                        proponents’ concerns that the language
                                                                                                                                                           extending this exemption to
                                             assistance and circumvention tools                      of the existing exemption improperly
                                                                                                     excludes other users with a legitimate                circumvention for purposes of
                                             would impermissibly expand the
                                                                                                     interest in engaging in noninfringing                 modifying a device function, concluding
                                             exemption to activity that would
                                                                                                     diagnosis, repair, or modification                    that ‘‘modification’’ was not defined
                                             constitute unlawful trafficking in
                                                                                                     activities. The Acting Register expressed             with sufficient precision to conclude as
                                             violation of sections 1201(a)(2) and (b).
                                                NTIA supported expanding the                         no view on whether particular types of                a general category it is likely to be
                                             exemption to a ‘‘new definable sub-                     third-party assistance may or may not                 noninfringing.
                                                                                                                                                              Accordingly, the Acting Register
                                             class’’ of home appliances and mobile                   implicate the anti-trafficking provisions.
                                                                                                                                                           recommends that the Librarian adopt
                                             handsets (such as cell phones) ‘‘when                   Those provisions, found in section
                                             circumvention is a necessary step to                    1201(a)(2) and (b), are unchanged and                 the following exemptions:
                                             allow the diagnosis, repair, or lawful                  must be separately analyzed to                          (1) Computer programs that are contained
                                             modification of a device function.’’                    determine whether third-party                         in and control the functioning of a lawfully
                                             NTIA concluded that these are                           assistance would be permissible.                      acquired motorized land vehicle such as a
                                                                                                        The Acting Register also                           personal automobile, commercial vehicle or
                                             noninfringing fair uses, in part because                                                                      mechanized agricultural vehicle, except for
                                             ‘‘diagnosis is a critical component of                  recommended removing the language                     programs accessed through a separate
                                             repairing a device’’ and subsequent                     excluding access to computer programs                 subscription service, when circumvention is
                                             modification of devices is                              designed for the control of telematics or             a necessary step to allow the diagnosis, repair
                                             transformative. With respect to vehicles,               entertainment systems. The Acting                     or lawful modification of a vehicle function,
                                             NTIA supported expanding the existing                   Register was persuaded that, due to                   where such circumvention does not
                                             exemption to allow ‘‘use of telematics                  increasing integration of vehicle                     constitute a violation of applicable law,
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                                             data for diagnostic purposes.’’ It                      computer systems since the 2015                       including without limitation regulations
                                             recommended, however, ‘‘limiting use                    rulemaking, retaining this limitation                 promulgated by the Department of
                                                                                                                                                           Transportation or the Environmental
                                             to obtaining the diagnostic data from the               may impede noninfringing uses that can                Protection Agency, and is not accomplished
                                             telematics module for purposes of repair                only be accomplished by incidentally                  for the purpose of gaining unauthorized
                                             and modification of the vehicle, and not                accessing these systems. Nonetheless,                 access to other copyrighted works.
                                             repair or modification to the module                    the Acting Register credited opponents’                 (2) Computer programs that are contained
                                             itself.’’ As to vehicle entertainment                   concerns about unauthorized access to                 in and control the functioning of a lawfully



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                                                                 Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations                                                  54023

                                             acquired smartphone or home appliance or                    Opponents contended that the                        dependent materials’’ as a defined term,
                                             home system, such as a refrigerator,                     proposal is overbroad because (1) the                  the recommended exemption simply
                                             thermostat, HVAC or electrical system, when              exemption would improperly allow                       provide that circumvention is permitted
                                             circumvention is a necessary step to allow               circumvention for activities beyond                    for the purpose of ‘‘lawful preservation
                                             the diagnosis, maintenance or repair of such
                                             a device or system, and is not accomplished
                                                                                                      those provided for in the section 108                  . . . of digital materials dependent upon
                                             for the purpose of gaining access to other               exceptions for libraries and archives; (2)             a computer program as a condition of
                                             copyrighted works. For purposes of this                  the term ‘‘computer program-dependent                  access.’’ Finally, in response to concerns
                                             paragraph (b)(10):                                       materials’’ might be read to sweep in                  over having video game preservation
                                               (i) The ‘‘maintenance’’ of a device or                 any category of copyrightable work; and                governed by two separate exemptions,
                                             system is the servicing of the device or                 (3) the term ‘‘other cultural heritage                 the Acting Register recommended that
                                             system in order to make it work in                       institutions’’ within the class of                     the portion of this class pertaining to
                                             accordance with its original specifications              beneficiaries is undefined. Although                   video games be codified in the existing
                                             and any changes to those specifications                  opponents did not directly contest                     video game preservation exemption.
                                             authorized for that device or system; and                proponents’ fair use arguments, they did               Thus, the recommended exemption for
                                               (ii) The ‘‘repair’’ of a device or system is
                                             the restoring of the device or system to the
                                                                                                      assert that section 117(a)(2) does not                 Class 9 will cover computer programs
                                             state of working in accordance with its                  protect proponents’ activities.                        other than video games, while an
                                             original specifications and any changes to                  NTIA supported adopting the                         addition to the prior exemption for
                                             those specifications authorized for that                 proposed exemption. In its view, the                   video games will provide for
                                             device or system.                                        class was appropriately defined because                preservation of the video games
                                                                                                      it was limited to ‘‘computer programs,                 addressed by this class (i.e., those that
                                             6. Proposed Class 9: Computer                            to preservation uses, and to                           do not require an external server for
                                             Programs—Software Preservation 53                        preservation-oriented institutional                    gameplay). Preservation of server-based
                                                                                                      users.’’ It agreed with proponents that                games will continue to be governed by
                                                Proposed Class 9 seeks to address                     the exemption should expressly refer to
                                             concerns that TPMs applied to                                                                                   the recommended exemption for
                                                                                                      preservation of ‘‘computer program-                    Class 8.
                                             computer programs can interfere with                     dependent materials,’’ concluding that                    Accordingly, the Acting Register
                                             legitimate preservation activities. The                  ‘‘a user would not be able to access                   recommends that the Librarian adopt
                                             Software Preservation Network (‘‘SPN’’)                  those materials without preserving the                 the following exemption:
                                             and the LCA filed a petition that would                  software protected by a TPM.’’ It also
                                             allow ‘‘libraries, archives, museums,                                                                              (i) Computer programs, except video
                                                                                                      agreed that the exemption should                       games, that have been lawfully acquired and
                                             and other cultural heritage institutions’’               include video games, noting that                       that are no longer reasonably available in the
                                             to circumvent TPMs on ‘‘lawfully                         proponents provided specific examples                  commercial marketplace, solely for the
                                             acquired software for the purposes of                    of games that may not be covered by the                purpose of lawful preservation of a computer
                                             preserving software and software-                        current preservation exemption. In                     program, or of digital materials dependent
                                             dependent materials.’’ SPN and LCA                       addition, it found that there were no                  upon a computer program as a condition of
                                             explained that the proposed exemption                    reasonable alternatives to
                                                                                                                                                             access, by an eligible library, archives, or
                                             is intended to enable cultural heritage                                                                         museum, where such activities are carried
                                                                                                      circumvention, as the use of software                  out without any purpose of direct or indirect
                                             institutions to preserve both TPM-                       with backwards compatibility ‘‘is
                                             protected computer programs, as well as                                                                         commercial advantage and the program is not
                                                                                                      inadequate and can distort the original                distributed or made available outside of the
                                             ‘‘dependent’’ materials—‘‘writings,                      work.’’                                                physical premises of the eligible library,
                                             calculations, software programs, etc.’’                     The Acting Register recommended                     archives, or museum.
                                             stored in digital formats that are                       granting an exemption that incorporates                   (ii) For purposes of the exemption in
                                             inaccessible without running the                         most of the substance of proponents’                   paragraph (b)(13)(i) of this section, a library,
                                             underlying program. Although proposed                                                                           archives, or museum is considered ‘‘eligible’’
                                                                                                      request, with certain changes to address               if—
                                             Class 9 constitutes a new exemption,                     opponents’ concerns. First, the
                                             proponents noted that the Register                                                                                 (A) The collections of the library, archives,
                                                                                                      recommended language limits the                        or museum are open to the public and/or are
                                             recommended, and the Librarian                           eligible users to libraries, archives, and             routinely made available to researchers who
                                             granted, exemptions for software                         museums, as defined according to the                   are not affiliated with the library, archives or
                                             preservation in 2003 and 2006, which                     criteria proposed in the Office’s recent               museum;
                                             allowed circumvention of access                          Section 108 Discussion Document.54                        (B) The library, archives, or museum has a
                                             controls on computer programs and                                                                               public service mission;
                                                                                                      The Acting Register declined to
                                             video games distributed in formats that                                                                            (C) The library, archives, or museum’s
                                                                                                      recommend including ‘‘other cultural                   trained staff or volunteers provide
                                             have become obsolete and that require                    heritage institutions’’ within the class of            professional services normally associated
                                             the original media or hardware as a                      beneficiaries, finding that term to be                 with libraries, archives, or museums;
                                             condition of access. Proponents                          undefined and potentially far-reaching.                   (D) The collections of the library, archives,
                                             advanced three bases for finding their                   In addition, the Acting Register                       or museum are composed of lawfully
                                             proposed activities to be noninfringing:                 recommended that the exemption                         acquired and/or licensed materials; and
                                             (1) The fair use doctrine, (2) the section               incorporate proponents’ suggestion that                   (E) The library, archives, or museum
                                             108(c) exception for library and archival                                                                       implements reasonable digital security
                                                                                                      the class be defined as computer                       measures as appropriate for the activities
                                             replacement copies, and (3) the section                  programs ‘‘that have been lawfully
                                             117(a) exception for archival copies of                                                                         permitted by this paragraph (b)(13).
                                                                                                      acquired and that are no longer
                                             computer programs.                                       reasonably available in the commercial                 8. Proposed Class 8: Computer
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                                                                                                      marketplace.’’ The Acting Register also                Programs—Video Game Preservation 55
                                                53 Because the issues in this class are relevant to
                                                                                                      recommended that in lieu of including                     Class 8 proponents sought expansion
                                             the analysis in Proposed Class 8, which pertains
                                             specifically to video games, the Acting Register         the phrase ‘‘computer program-                         of the provisions in the existing
                                             addresses this class first. The Acting Register’s
                                             analysis and conclusions for this class, including         54 See U.S. Copyright Office, Section 108 of Title     55 The Acting Register’s analysis and conclusions

                                             citations to the record and relevant legal authority,    17 51 (2017), https://www.copyright.gov/policy/        for this class, including citations to the record and
                                             can be found in the Recommendation at 231–56.            section108/discussion-document.pdf.                                                                Continued




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                                             54024              Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations

                                             exemption that allows eligible                          opponents contend that the proposed                   collections, but instead appear to
                                             institutions to circumvent access                       uses are infringing. Opponents also                   involve something more akin to
                                             controls to preserve video games for                    objected to the use of affiliate archivists,          reconstructing the remote server. She
                                             which external server support has been                  contending that there is a heightened                 found that this activity distinguishes
                                             discontinued. As explained in the 2015                  risk of market harm if the public can                 proponents’ request from the
                                             rulemaking, some video games require a                  circumvent access controls on video                   preservation activity at issue in the case
                                             network connection to a remote server                   games in their own homes.                             law upon which they relied. Moreover,
                                             operated by the game’s developer before                    NTIA supported the adoption of an                  she noted, the reconstruction of a work
                                             the video game can be accessed and                      expanded exemption, but one narrower                  implicates copyright owners’ exclusive
                                             played. When the developer takes such                   than that requested by proponents. It                 right to prepare derivative works.
                                             a server offline, a game can be rendered                proposed an expansion to allow                           Additionally, the Acting Register
                                             unplayable or limited to certain                        preservation ‘‘where the user uses the                concluded that the record did not
                                             functions, such as single-player play or                server component—while still not                      support the addition of an ‘‘affiliate
                                             multiplayer play on a local network.                    providing any substantial expressive                  archivist’’ user class to the exemption,
                                             The current exemption allows an                         content—for administrative tasks                      finding such activity unlikely to
                                             eligible library, archives, or museum to                beyond authentication, including                      constitute fair use. She noted that both
                                             circumvent this type of authentication                  command and control functions such as                 the proposed exemption language and
                                             mechanism to preserve lawfully                          tracking player progress, facilitating                the proponents’ institutions’ practices
                                             acquired games in ‘‘complete’’ form, i.e.,              communications between players, or                    seemed to lack appropriate protective
                                             those that can be played without                        storing high scores.’’ To accommodate                 guidelines to govern such volunteers’
                                             accessing or reproducing copyrightable                  these uses, it recommended regulatory                 use of copyrighted materials.
                                             content stored or previously stored on                  language that would apply in situations                  In light of the foregoing, the Acting
                                             an external computer server. The                        where ‘‘all or nearly all of the                      Register recommended an exemption for
                                             exemption requires that such games not                  audiovisual content and gameplay                      ‘‘server-dependent games,’’ defined as
                                             be distributed or made available outside                mechanics reside on the player or                     video games that can be played by users
                                             of the physical premises of the eligible                institution’s lawfully acquired local                 who lawfully possess both a copy of a
                                             institution.                                            copy of the game.’’ NTIA did not,                     game intended for a personal computer
                                                The Museum of Art and Digital                        however, support adding an ‘‘affiliate                or video game console and a copy of the
                                             Entertainment (‘‘MADE’’) filed a                        archivist’’ user class, concluding that               game’s code that is stored or was
                                             petition seeking to expand the                          adding such a provision risks                         previously stored on an external
                                             exemption to allow for circumvention of                 ‘‘introducing confusing language or                   computer server. The Acting Register
                                             access controls on video games that                     suggesting that any such                              continues to recommend an exemption
                                             need to access creative content stored                  preservationists may not need to be                   for ‘‘complete games,’’ but proposed
                                             on a remote server, which MADE refers                   answerable to the institutions for which              revising the exemption language to
                                             to as ‘‘online’’ games. MADE contended                  they are volunteering.’’                              reflect that the exemption for ‘‘complete
                                             that the current exemption, while                          The Acting Register found that the
                                                                                                                                                           games’’ applies to both gamers and
                                             helpful, does not allow it to preserve the              record supported granting an expansion
                                                                                                                                                           preservation uses, but the exemption for
                                             growing number of online video games                    in the relatively discrete circumstances
                                                                                                                                                           ‘‘server dependent games’’ applies only
                                             for future generations to study.                        where a preservation institution legally
                                                                                                                                                           to preservation uses. In addition, for the
                                             Proponents explained that libraries,                    possesses a copy of a video game’s
                                                                                                                                                           reasons explained above in the
                                             archives, and museums cannot engage                     server code and the game’s local code.
                                                                                                                                                           discussion of Proposed Class 9, the
                                             in certain preservation activities                      She concluded that in such
                                                                                                     circumstances, the preservation                       Acting Register recommended adding a
                                             involving online games without either
                                                                                                     activities described by proponents are                paragraph to the exemption in this class
                                             copying the game’s server code or
                                                                                                     likely to be fair uses. She further found             to accommodate preservation of non-
                                             reconstructing that server’s
                                                                                                     that proponents demonstrated that such                server-based video games.
                                             functionality, which would also require
                                                                                                     uses would be adversely affected by the                  Accordingly, the Acting Register
                                             an exemption to circumvent TPMs on
                                                                                                     statutory prohibition absent an                       recommends that the Librarian adopt
                                             these works. MADE also sought to
                                                                                                     exemption. The record indicated that an               the following exemption:
                                             broaden the class of users of the
                                             exemption to include volunteer                          exemption would enable future                            (i) Video games in the form of computer
                                             ‘‘affiliate archivists,’’ who wish to                   scholarship by enabling researchers to                programs embodied in physical or
                                                                                                     experience games as they were                         downloaded formats that have been lawfully
                                             circumvent access controls off-premises,
                                                                                                     originally played and thereby better                  acquired as complete games, when the
                                             but under the supervision of                                                                                  copyright owner or its authorized
                                             preservation entities.                                  understand their design or construction.
                                                                                                                                                           representative has ceased to provide access to
                                                Opponents objected to the proposed                   The Acting Register additionally found                an external computer server necessary to
                                             expansions, arguing that proponents’                    such activity unlikely to harm the                    facilitate an authentication process to enable
                                             intended use of the video games is not                  market for video games.                               gameplay, solely for the purpose of:
                                             a true preservation use. Instead,                          The Acting Register did not, however,                 (A) Permitting access to the video game to
                                             opponents contended that proponents                     recommend an exemption to allow for                   allow copying and modification of the
                                             wish to engage in recreational play that                instances where the preservation                      computer program to restore access to the
                                             could function as a market substitute. In               institution lacks lawful possession of                game for personal, local gameplay on a
                                                                                                     the server software. She found the                    personal computer or video game console; or
                                             addition, the Entertainment Software
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                                                                                                     record insufficient to support a finding                 (B) Permitting access to the video game to
                                             Association expressed concern that the                                                                        allow copying and modification of the
                                             server copy proponents wish to recreate                 that the recreation of video game server
                                                                                                                                                           computer program to restore access to the
                                             is an unpublished work that has never                   software as described by proponents is                game on a personal computer or video game
                                             been distributed to the public. Overall,                likely to be a fair use. A number of                  console when necessary to allow
                                                                                                     scenarios described by proponents do                  preservation of the game in a playable form
                                             relevant legal authority, can be found in the           not involve preserving server software                by an eligible library, archives, or museum,
                                             Recommendation at 256–84.                               that is already in an institution’s                   where such activities are carried out without



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                                                                Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations                                        54025

                                             any purpose of direct or indirect commercial            allowing circumvention for the purpose                ‘‘primarily designed for use by
                                             advantage and the video game is not                     of conducting good-faith security                     individual consumers.’’ It recommended
                                             distributed or made available outside of the            research on certain types of software-                clarification of the Controlled
                                             physical premises of the eligible library,
                                                                                                     enabled devices and machines.                         Environment Limitation and said that it
                                             archives, or museum.
                                                (ii) Video games in the form of computer             Proponents argued that the current                    ‘‘would not object to its removal.’’ As to
                                             programs embodied in physical or                        language contains limitations that                    the Lawfully Acquired Limitation,
                                             downloaded formats that have been lawfully              unnecessarily restrict its scope, as well             CCIPS stated concluded that the current
                                             acquired as complete games, that do not                 as ambiguities that chill legitimate                  language is preferable to conditioning
                                             require access to an external computer server           research. These include: (1) A provision              the exemption on ownership of a
                                             for gameplay, and that are no longer                    limiting the exemption to specified                   particular copy of software. CCIPS also
                                             reasonably available in the commercial                  categories of devices (‘‘Device                       addressed the Other Laws Limitation,
                                             marketplace, solely for the purpose of                  Limitation’’); (2) a requirement that a               stating that it would not object to
                                             preservation of the game in a playable form
                                                                                                     device be ‘‘lawfully acquired’’                       removal of the phrase ‘‘any applicable
                                             by an eligible library, archives, or museum,
                                             where such activities are carried out without           (‘‘Lawfully Acquired Limitation’’); (3) a             law’’ were it standing alone, but
                                             any purpose of direct or indirect commercial            requirement that circumvention be                     recommending retaining the express
                                             advantage and the video game is not                     ‘‘solely’’ for the purpose of good-faith              reference to the Computer Fraud and
                                             distributed or made available outside of the            security research, and the definition of              Abuse Act of 1986.
                                             physical premises of the eligible library,              such research as accessing a program                     NTIA recommended granting the
                                             archives, or museum.                                    ‘‘solely’’ for purposes of good-faith                 proposed expansion and proposed the
                                                (iii) Computer programs used to operate              testing, investigation, and/or correction             same regulatory text it offered in 2015.
                                             video game consoles solely to the extent                (‘‘Access Limitation’’); (4) a requirement            That language would allow
                                             necessary for an eligible library, archives, or                                                               circumvention ‘‘in order to conduct
                                                                                                     that the research be ‘‘carried out in a
                                             museum to engage in the preservation
                                             activities described in paragraph (b)(12)(i)(B)         controlled environment designed to                    good faith security research’’ on
                                             or (b)(12)(ii) of this section.                         avoid any harm to individuals or the                  computer programs, ‘‘regardless of the
                                                (iv) For purposes of this paragraph (b)(12),         public’’ (‘‘Controlled Environment                    device on which they are run.’’ NTIA
                                             the following definitions shall apply:                  Limitation’’); (5) a requirement that ‘‘the           further recommended that the Other
                                                (A) For purposes of paragraph (b)(12)(i)(A)          information derived from the activity                 Laws Limitation be replaced with a
                                             and (b)(12)(ii) of this section, ‘‘complete             [be] used primarily to promote the                    statement that the exemption ‘‘does not
                                             games’’ means video games that can be                   security or safety of the class of devices            obviate the need to comply with all
                                             played by users without accessing or                    or machines . . . or those who use such               other applicable laws and regulations.’’
                                             reproducing copyrightable content stored or                                                                   In addition, NTIA recommended
                                             previously stored on an external computer
                                                                                                     devices or machines, and is not used or
                                             server.                                                 maintained in a manner that facilitates               removal of the Controlled Environment,
                                                (B) For purposes of paragraph (b)(12)(i)(B)          copyright infringement’’ (‘‘Use                       Access, and Use Limitations, largely
                                             of this section, ‘‘complete games’’ means               Limitation’’); and (6) a requirement that             agreeing with proponents that those
                                             video games that meet the definition in                 the circumvention ‘‘not violate any                   provisions may chill legitimate research.
                                             paragraph (b)(12)(iv)(A) of this section, or            applicable law’’ (‘‘Other Laws                           The Acting Register found that good-
                                             that consist of both a copy of a game                   Limitation’’). Proponents maintained                  faith security research involving devices
                                             intended for a personal computer or video               that the proposed activity is                         beyond those covered by the current
                                             game console and a copy of the game’s code              noninfringing on one or both grounds                  exemption is likely to be a fair use. As
                                             that was stored or previously stored on an              relied upon by the Register in 2015—                  the Register found in 2015, the Acting
                                             external computer server.                                                                                     Register concluded that good-faith
                                                (C) ‘‘Ceased to provide access’’ means that
                                                                                                     section 117 and fair use.
                                                                                                        Opponents objected to removal of                   security research promotes several of
                                             the copyright owner or its authorized
                                             representative has either issued an                     each of these provisions, arguing that                the activities identified in section 107 as
                                             affirmative statement indicating that external          the current language appropriately                    examples of favored purposes, including
                                             server support for the video game has ended             balances the interests of security                    criticism, comment, teaching,
                                             and such support is in fact no longer                   researchers, copyright owners, and the                scholarship, and research. In contrast to
                                             available or, alternatively, server support has         general public. In their view, the                    2015, the current rulemaking record
                                             been discontinued for a period of at least six          adverse effects asserted by proponents                contained many additional examples of
                                             months; provided, however, that server                  are unsupported by the record and are                 activities security researchers wished to
                                             support has not since been restored.                    based on unreasonable readings of the                 engage in but for the Device Limitation.
                                                (D) ‘‘Local gameplay’’ means gameplay                                                                      But the Acting Register did not find that
                                                                                                     relevant text. Opponents also variously
                                             conducted on a personal computer or video
                                                                                                     argued that removing the limitations                  section 117 provides an additional basis
                                             game console, or locally connected personal
                                             computers or consoles, and not through an               would render the class impermissibly                  for finding such activity to be
                                             online service or facility.                             broad, give rise to infringing uses, and              noninfringing. She found the record
                                                (E) A library, archives, or museum is                jeopardize public safety and national                 insufficient to support the conclusion
                                             considered ‘‘eligible’’ when the collections of         security.                                             that security researchers as a general
                                             the library, archives, or museum are open to               Following the close of the public                  matter are likely to own the copies of
                                             the public and/or are routinely made                    comment period and the completion of                  the device software, as is required under
                                             available to researchers who are not affiliated         the public hearings, the Office received              section 117.
                                             with the library, archives, or museum.                  a letter concerning this class from                      Ultimately, the Acting Register
                                             7. Proposed Class 10: Computer                          CCIPS. The CCIPS letter stated that                   recommended that the exemption
                                             Programs—Security Research 56                           ‘‘[m]any of the changes sought in the                 remove the Device Limitation, and
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                                                                                                     petition appear likely to promote                     include a provision allowing
                                                The Office received multiple petitions               productive cybersecurity research, and                circumvention to be undertaken on a
                                             to expand the existing exemption                        CCIPS supports them,’’ subject to                     ‘‘computer, computer system, or
                                               56 The Acting Register’s analysis and conclusions
                                                                                                     certain limitations. With respect to the              computer network on which the
                                             for this class, including citations to the record and
                                                                                                     Device Limitation, CCIPS advised that it              computer program operates.’’ The latter
                                             relevant legal authority, can be found in the           would support eliminating the language                provision is intended to address
                                             Recommendation at 284–315.                              confining the exemption to devices                    situations in which a researcher seeks


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                                             54026              Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations

                                             access to a structure, such as a building               the types of material—or ‘‘feedstock’’—               record now shows that there are
                                             automation system, that cannot be                       that can be used in their 3D printers to              situations in which an individual may
                                             ‘‘acquired’’ in the sense of obtaining                  manufacturer-approved feedstock.                      be complying with relevant law or
                                             physical possession of it, in contrast to                  Proponents sought to expand a                      regulations but still be at risk of
                                             instances where the researcher can                      current exemption that permits the                    violating section 1201 due to the
                                             lawfully acquire a device or machine.                   circumvention of access controls on                   exemption’s qualifying language (e.g.,
                                             The exemption requires that                             computer programs in 3D printers to                   individual sellers of homemade wares).
                                             circumvention in these circumstances                    enable the use of non- manufacturer-                  The Acting Register concluded that the
                                             be undertaken ‘‘with the authorization                  approved feedstock. Michael Weinberg                  record established that the qualifying
                                             of the owner or operator of such                        filed a petition to eliminate the                     language in the existing exemption may
                                             computer, computer system, or                           following language at the end of the                  be inhibiting otherwise beneficial or
                                             computer network.’’ In addition, to                     exemption: ‘‘provided, however, that                  innovative uses of alternate feedstock,
                                             address proponents’ concerns over                       the exemption shall not extend to any                 which is contrary to the intention of that
                                             potential ambiguity in the Controlled                   computer program on a 3D printer that                 exemption—and moreover, that there
                                             Environment Limitation, the exemption                   produces goods or materials for use in                are safeguards outside of the current
                                             removes the term ‘‘controlled,’’ so that                commerce the physical production of                   exemption addressing health and safety
                                             it simply would require the research to                 which is subject to legal or regulatory               concerns associated with 3D printing.
                                             be ‘‘carried out in an environment                      oversight or a related certification                     Accordingly, the Acting Register
                                             designed to avoid any harm to                           process, or where the circumvention is                recommends that the Librarian adopt
                                             individuals or the public.’’ The Acting                 otherwise unlawful.’’                                 the following exemption:
                                             Register did not recommend removal of                      Proponents put forth two arguments
                                                                                                     as to why the Acting Register should                     Computer programs that operate 3D
                                             the other limitations challenged by                                                                           printers that employ microchip-reliant
                                             proponents, finding that proponents had                 broaden the exemption by dropping this
                                                                                                                                                           technological measures to limit the use of
                                             failed to demonstrate that those                        language: (1) The clause creates
                                                                                                                                                           feedstock, when circumvention is
                                             provisions are causing, or are likely to                ambiguity such that the exemption itself              accomplished solely for the purpose of using
                                             cause, any adverse effect on                            cannot be applied or used in the                      alternative feedstock and not for the purpose
                                             noninfringing security research.                        majority of circumstances, and (2) the                of accessing design software, design files, or
                                                Accordingly, the Acting Register                     concerns that the clause seeks to                     proprietary data.
                                             recommends that the Librarian adopt                     address are more suitably addressed by
                                                                                                     other agencies. Stratasys, an opponent                C. Classes Considered but Not
                                             the following exemption:                                                                                      Recommended
                                                                                                     to the exemption, contended that this
                                                (i) Computer programs, where the                     expanded range of activities is less
                                             circumvention is undertaken on a lawfully                                                                        Based upon the record in this
                                             acquired device or machine on which the
                                                                                                     likely to constitute fair use and should              proceeding, the Acting Register of
                                             computer program operates, or is undertaken             remain prohibited for reasons of public               Copyrights recommended that the
                                             on a computer, computer system, or                      policy.                                               Librarian determine that the following
                                             computer network on which the computer                     NTIA supported renewing the                        classes of works shall not be exempt
                                             program operates with the authorization of              exemption as well as expanding the                    from the prohibition against
                                             the owner or operator of such computer,                 exemption by removing the relevant                    circumvention of technological
                                             computer system, or computer network,                   limiting language. NTIA’s proposed
                                             solely for the purpose of good-faith security
                                                                                                                                                           measures set forth in section 1201(a)(1):
                                                                                                     language differed from the current
                                             research and does not violate any applicable            regulatory language in additional ways.               1. Proposed Class 3: Audiovisual
                                             law, including without limitation the                                                                         Works—Space-Shifting 58
                                             Computer Fraud and Abuse Act of 1986.                   For example, NTIA proposed
                                                (ii) For purposes of this paragraph (b)(11),         incorporating the restriction that                       Proposed Class 3 would allow
                                             ‘‘good-faith security research’’ means                  ‘‘circumvention is undertaken for the                 circumvention of technical measures
                                             accessing a computer program solely for                 purpose of enabling interoperability of               protecting motion pictures and other
                                             purposes of good-faith testing, investigation,          feedstock or filament with the device.’’              audiovisual works to engage in ‘‘space-
                                             and/or correction of a security flaw or                 NTIA, however, did not provide specific
                                             vulnerability, where such activity is carried                                                                 shifting.’’ As the 2015 rulemaking
                                                                                                     support for altering the regulatory text              described, the Copyright Office’s
                                             out in an environment designed to avoid any
                                                                                                     beyond removing the qualifying                        understanding is that space-shifting
                                             harm to individuals or the public, and where
                                             the information derived from the activity is            language.                                             occurs when a work is transferred from
                                             used primarily to promote the security or                  The 2015 rulemaking identified fair                one storage medium to another, such as
                                             safety of the class of devices or machines on           use as the noninfringing basis for this               from a DVD to a computer hard drive.
                                             which the computer program operates, or                 exemption, and the proposed expansion                 Chris De Pretis petitioned for an
                                             those who use such devices or machines, and             was evaluated on the same grounds.                    exemption to allow circumvention by
                                             is not used or maintained in a manner that              Because the record indicated that the
                                             facilitates copyright infringement.                                                                           individuals to create a personal digital
                                                                                                     state of the 3D printing market appears               backup of content for private use, a
                                             8. Proposed Class 12: Computer                          to be substantially the same as in 2015,              proposal similar to those sought and
                                             Programs—3D Printing 57                                 and case law has not significantly                    rejected in previous rulemakings. The
                                                                                                     altered the relevant fair use issues, the             Office also received a petition from
                                                3D printing—also known as                            Acting Register concluded that the
                                             ‘‘additive’’ manufacturing—is a                                                                               OmniQ, a corporate entity, proposing an
                                                                                                     copying or modifying of printer software              exemption to allow so-called ‘‘non-
                                             technology that translates digital files                to accept non-manufacturer-approved                   reproductive’’ space-shifting, including
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                                             into physical objects by adding                         feedstock is likely to be a fair use.
                                             successive layers of material. Some 3D                                                                        for commercial uses. A third proponent,
                                                                                                        Because the first four statutory factors
                                             printer manufacturers use TPMs to limit                                                                       SolaByte Corporation, filed a one-page
                                                                                                     do not fit neatly onto this situation, the
                                               57 The Acting Register’s analysis and conclusions
                                                                                                     Acting Register focused most of her                     58 The Acting Register’s analysis and conclusions

                                             for this class, including citations to the record and
                                                                                                     analysis on the fifth factor to consider              for this class, including citations to the record and
                                             relevant legal authority, can be found in the           these related concerns. The Acting                    relevant legal authority, can be found in the
                                             Recommendation at 319–31.                               Register determined that the expanded                 Recommendation at 111–28.



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                                                               Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations                                           54027

                                             comment in support of OmniQ and                         subsequently deleted. With regard to                    Huang’s discussion of the proposed uses
                                             testified at the public hearing.                        personal space-shifting, in light of the                as ‘‘cursory,’’ and suggested it was not
                                                OmniQ primarily argued that its                      lack of record and in the absence of                    possible to evaluate the proposed uses
                                             proposed technology did not result in a                 clear supporting precedent, the Acting                  under the exemption without further
                                             reproduction of a copyrighted work, and                 Register found no basis to depart from                  detail. Opponents also suggested that
                                             thus fair use analysis was unnecessary.                 the fair use analysis and ultimate                      multiple proposed uses would actually
                                             Proponents also argued that the overall                 conclusion reached in the 2015                          be infringing, and highlighted what they
                                             availability of works for public use is                 proceeding, where the Register was                      see as a significant online infringement
                                             shrinking because the hardware and                      unable to determine that the proposed                   risk if the exemption permitted in-the-
                                             software needed to play disc media are                  uses were noninfringing. She noted that                 clear copies of entire works. In addition,
                                             becoming less available in the                          the commercial nature and potential                     opponents set forth a large number of
                                             marketplace. They argued that online                    market effects of the OmniQ and                         concrete examples of potential
                                             content distribution platforms, taken in                SolaByte business models complicate                     alternatives to circumvention that the
                                             the aggregate, only offer a small and                   the fair use analysis, and not in their                 petitioner failed to meaningfully
                                             always-changing fraction of the titles                  favor. For example, the record included                 challenge. Finally, they asserted that
                                             historically available on DVD and Blu-                  substantial evidence of extensive                       ‘‘HDCP is a critically important
                                             ray disc, and that the costs of these                   markets for internet-based distribution                 component of the secure ecosystem
                                             services are unacceptable, especially                   services for copyrighted audiovisual                    through which content is delivered for
                                             when users already own the content in                   works, including digital rentals, online                home entertainment’’ and noted that
                                             disc form.                                              streaming and over-the-top services, on-                section 1201 was intended to encourage
                                                In response, opponents argued that                   demand cable and satellite television                   copyright owners to make their works
                                             OmniQ’s technology would reproduce                      offerings, disc-to-digital services, and                available digitally and foster new means
                                             works because they would constitute                     digital locker services, which could be                 of distribution by providing reasonable
                                             entirely new things (i.e., a copy).                     negatively impacted by the proposed                     assurances against fears of piracy.
                                             Opponents also contended that recent                    exemption. These markets also served as                    NTIA recommended against this
                                             case law developments further                           sufficient alternatives to circumvention,               exemption, stating that ‘‘[p]roponents
                                             demonstrate that space-shifting is not a                as they demonstrated a wide availability                did not provide sufficient evidence on
                                             fair use. In addition, opponents                        of easily accessible copyrighted works                  the record about the alleged non-
                                             provided evidence of alternatives to                    that could potentially be negatively                    infringing uses,’’ and that ‘‘[w]hile there
                                             circumvention in the form of a                          affected by an exemption that allowed                   are several examples of potential non-
                                             substantial number of online                            unauthorized copies to compete with                     infringing uses that could serve as the
                                             distribution platforms for accessing                    these authorized access models. Based                   basis for an exemption, the proponents
                                             copyrighted audiovisual works, the vast                                                                         [had] not developed the argument in the
                                                                                                     on the record in this proceeding, the
                                             majority of which they claim exist as                                                                           record . . . .’’ NTIA also observed that
                                                                                                     Acting Register did not find that the
                                             viable business models only because of                                                                          the proposed exemption ‘‘appear[ed] to
                                                                                                     statutory factors supported the proposed
                                             the ability to employ TPMs to protect                                                                           be for the HDCP TPM itself, which is
                                                                                                     exemption.
                                             the content from unauthorized uses.                                                                             not appropriate for this rulemaking
                                                Unlike in prior rulemakings where                    2. Proposed Class 4: Audiovisual                        process.’’
                                             NTIA ‘‘supported limited versions of a                  Works—HDCP/HDMI 59                                         The Acting Register also
                                             noncommercial space-shifting                                                                                    recommended against the exemption,
                                                                                                        Proposed Class 4 would allow
                                             exemption . . . mainly in the interest of                                                                       largely agreeing with many of the bases
                                                                                                     circumvention ‘‘to make noninfringing
                                             consumer protection,’’ NTIA did not                                                                             advanced by opponents. Specifically,
                                                                                                     uses of audiovisual works that are
                                             support an exemption for this class in                                                                          the Acting Register concluded that the
                                                                                                     subjected to High-bandwidth Digital
                                             the present rulemaking. NTIA                                                                                    proposed exemption was overly broad,
                                             acknowledged that the ‘‘legal status of                 Content Protection (HDCP).’’ Petitioner
                                                                                                                                                             as HDCP is the industry standard for
                                             the concept of space-shifting remains a                 Andrew ‘‘bunnie’’ Huang described
                                                                                                                                                             protecting audiovisual works in transit
                                             matter of dispute among copyright                       HDCP as ‘‘a protocol used to restrict
                                                                                                                                                             to a display device, and thus limiting
                                             experts’’ and that it ‘‘has not been                    content sent over High-Definition
                                                                                                                                                             the proposal this way did not very
                                             explicitly established as non-infringing                Multimedia Interface (HDMI) cables,’’ or
                                                                                                                                                             meaningfully focus the scope beyond
                                             on the basis of the fair use doctrine.’’                ‘‘a standard for video transport from one
                                                                                                                                                             the starting point of all audiovisual
                                             NTIA added that ‘‘proponents ha[d] not                  device to another.’’ He explained that
                                                                                                                                                             works. The Acting Register also
                                             established in this proceeding that their               many devices that play video discs and                  determined that some of the proposed
                                             specific proposal would be non-                         video game software encode their                        uses may potentially be fair use
                                             infringing.’’ Moreover, NTIA recognized                 output using HDCP, and that this                        depending upon factual circumstances,
                                             that ‘‘[p]roponents failed to demonstrate               interferes with capturing the output for                but that the record lacked the requisite
                                             that the ‘prevalence of [encrypted digital              subsequent noninfringing uses.                          detail and legal support for the Acting
                                             content] is diminishing the ability of                     Multiple participants opposed this                   Register to conclude that the proposed
                                             individuals to use these works in ways                  exemption, arguing that section 1201                    uses are or are not likely to be
                                             that are otherwise lawful.’ ’’                          does not permit such a broad                            noninfringing. Based upon the record,
                                                The Acting Register found that under                 exemption, noting that HDCP is the                      the Acting Register could not conclude
                                             current law, OmniQ’s self-described                     industry standard for protecting                        that the overall availability for use of
                                             process is likely to result in an                       audiovisual works in transit to a display               copyrighted works has been diminished
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                                             unauthorized reproduction in violation                  device and that past Registers have                     or is likely to be in the next three years
                                             of section 106(1), and that, as in 2015,                rejected exemptions for ‘‘all                           absent an exemption, noting that the
                                             the case law maintains that transferring                noninfringing uses.’’ They characterized                proposed activities may well have a
                                             digital files from one location to another                59 The Acting Register’s analysis and conclusions
                                                                                                                                                             negative effect on the market for or
                                             implicates the reproduction right and is                for this class, including citations to the record and
                                                                                                                                                             value of copyrighted works. Finally, she
                                             therefore infringing, even where the                    relevant legal authority, can be found in the           concluded that the request was an
                                             original copy is contemporaneously or                   Recommendation at 128– 45.                              individual case of de minimis impact, as


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                                             54028              Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations

                                             it was largely made upon a single                       accordingly concluded that proponents                 ■ 2. Section 201.40 is amended by
                                             request of an individual who resides in                 have not alleged that the data or data                revising paragraphs (b) and (c) to read
                                             Singapore for which there appeared to                   compilations they are seeking to access               as follows:
                                             be myriad alternative ways to achieve                   are copyrightable, and thus subject to
                                             the proposed uses.                                      the prohibition on circumvention.                     § 201.40 Exemptions to prohibition against
                                                                                                                                                           circumvention.
                                                                                                     Although petitioner raised some
                                             3. Proposed Class 11: Computer                                                                                *       *    *     *    *
                                                                                                     concerns regarding attempts by airplane
                                             Programs—Avionics 60                                                                                             (b) Classes of copyrighted works.
                                                                                                     manufacturers to control the aftermarket
                                                Proposed Class 11 would permit                       for the data in security research and                 Pursuant to the authority set forth in 17
                                             circumvention of access controls on                     analytics, the Acting Register                        U.S.C. 1201(a)(1)(C) and (D), and upon
                                             electronic systems used in aircraft, i.e.,              determined that it was not clear that                 the recommendation of the Register of
                                             avionics, to enable access to aircraft                  section 1201 is facilitating those actions,           Copyrights, the Librarian has
                                             flight, operations, maintenance and                     and noted that the security research                  determined that the prohibition against
                                             security bulk data collected by third                   exemption may potentially be utilized                 circumvention of technological
                                             parties upon authorization of the aircraft              to cover such activities, to the extent               measures that effectively control access
                                             owner or operator in the course of                      applicable.                                           to copyrighted works set forth in 17
                                             complying with Federal Aviation                                                                               U.S.C. 1201(a)(1)(A) shall not apply to
                                             Administration (‘‘FAA’’) standards,                     C. Conclusion                                         persons who engage in noninfringing
                                             rules, and regulations. Due to reliance                   Having considered the evidence in the               uses of the following classes of
                                             upon these electronic systems,                          record, the contentions of the                        copyrighted works:
                                             proponents asserted that aircraft                       commenting parties, and the statutory                    (1) Motion pictures (including
                                             ‘‘operators have faced a . . . rise in the              objectives, the Acting Register of                    television shows and videos), as defined
                                             complexity and scope of work needed to                  Copyrights has recommended that the                   in 17 U.S.C. 101, where the motion
                                             keep their fleet secure and operating                   Librarian of Congress publish certain                 picture is lawfully made and acquired
                                             efficiently,’’ and that the FAA ‘‘has                   classes of works, as designated above, so             on a DVD protected by the Content
                                             mandated the review of the data,                        that the prohibition against                          Scramble System, on a Blu-ray disc
                                             information, logs[,] and other                          circumvention of technological                        protected by the Advanced Access
                                             information [by aircraft owners or                      measures that effectively control access              Content System, or via a digital
                                             operators] as a means to ensure safety,                 to copyrighted works shall not apply to               transmission protected by a
                                             security[,] and regulatory compliance.’’                persons who engage in noninfringing                   technological measure, and the person
                                                In NTIA’s view, ‘‘[p]roponents failed                uses of those particular classes of works.            engaging in circumvention under
                                             to demonstrate that the proposed class                                                                        paragraph (b)(1)(i) and (b)(1)(ii)(A) and
                                                                                                        Dated: October 19, 2018.                           (B) of this section reasonably believes
                                             includes copyrighted works protected
                                                                                                     Karyn A. Temple,                                      that non-circumventing alternatives are
                                             by TPMs.’’ Moreover, NTIA continued,
                                                                                                     Acting Register of Copyrights and Director            unable to produce the required level of
                                             ‘‘Air Informatics failed to identify
                                                                                                     of the U.S. Copyright Office.                         high-quality content, or the
                                             clearly the proposed users of the
                                             exemption,’’ suggesting that ‘‘the                      Determination of the Librarian of                     circumvention is undertaken using
                                             prohibition on circumvention does not                   Congress                                              screen-capture technology that appears
                                             adversely affect and is not likely to                                                                         to be offered to the public as enabling
                                                                                                       Having duly considered and accepted                 the reproduction of motion pictures
                                             adversely affect users.’’ Lastly, NTIA                  the Recommendation of the Acting
                                             maintained that ‘‘[r]easonable                                                                                after content has been lawfully acquired
                                                                                                     Register of Copyrights, which                         and decrypted, where circumvention is
                                             alternatives to circumvention seem to                   Recommendation is hereby incorporated
                                             exist,’’ noting that ‘‘the two relevant                                                                       undertaken solely in order to make use
                                                                                                     by reference, the Librarian of Congress,              of short portions of the motion pictures
                                             parties can come to an agreement for                    pursuant to 17 U.S.C. 1201(a)(1)(C) and
                                             access to and use of the data.’’                                                                              in the following instances:
                                                                                                     (D), hereby publishes as a new rule the                  (i) For the purpose of criticism or
                                                The Acting Register found that the                   classes of copyrighted works that shall
                                             record suggested that the data collected                                                                      comment:
                                                                                                     for a three-year period be subject to the                (A) For use in documentary
                                             by aircrafts at issue consist of facts,                 exemption provided in 17 U.S.C.                       filmmaking, or other films where the
                                             which are not copyrightable. According                  1201(a)(1)(B) from the prohibition                    motion picture clip is used in parody or
                                             to the petitioner, the information                      against circumvention of technological                for its biographical or historically
                                             represents objective details about                      measures that effectively control access              significant nature;
                                             aircraft, such as flight operations and                 to copyrighted works set forth in 17                     (B) For use in noncommercial videos
                                             fuel economy. As Public Knowledge                       U.S.C. 1201(a)(1)(A).                                 (including videos produced for a paid
                                             explained, the data inputs and outputs
                                                                                                     List of Subjects in 37 CFR Part 201                   commission if the commissioning
                                             ‘‘are not classifiable as a ‘work’
                                                                                                                                                           entity’s use is noncommercial); or
                                             protected under Title 17’’ and such                       Copyright, Exemptions to prohibition                   (C) For use in nonfiction multimedia
                                             ‘‘access does not implicate any colorable               against circumvention.                                e-books.
                                             copyright concerns.’’ The Acting                                                                                 (ii) For educational purposes:
                                             Register also concluded that the                        Final Regulations                                        (A) By college and university faculty
                                             collected information would not qualify                   For the reasons set forth in the                    and students or kindergarten through
                                             as a copyrightable compilation, because                 preamble, 37 CFR part 201 is amended                  twelfth-grade (K–12) educators and
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                                             it is formatted and compiled in                         as follows:                                           students (where the K–12 student is
                                             accordance with an industry-wide                                                                              circumventing under the direct
                                             standard. The Acting Register                           PART 201—GENERAL PROVISIONS                           supervision of an educator), including
                                                                                                                                                           of accredited general educational
                                               60 The Acting Register’s analysis and conclusions
                                                                                                     ■ 1. The authority citation for part 201              development (GED) programs, for the
                                             for this class, including citations to the record and   continues to read as follows:
                                             relevant legal authority, can be found in the                                                                 purpose of criticism, comment,
                                             Recommendation at 315–19.                                   Authority: 17 U.S.C. 702.                         teaching, or scholarship;


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                                                               Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations                                         54029

                                                (B) By faculty of massive open online                   (C) The accessible versions are                       (iv) Wearable wireless devices
                                             courses (MOOCs) offered by accredited                   provided to students or educators and                 designed to be worn on the body, such
                                             nonprofit educational institutions to                   stored by the educational institution in              as smartwatches or fitness devices.
                                             officially enrolled students through                    a manner intended to reasonably                          (6) Computer programs that enable
                                             online platforms (which platforms                       prevent unauthorized further                          smartphones and portable all-purpose
                                             themselves may be operated for profit),                 dissemination of a work.                              mobile computing devices to execute
                                             in film studies or other courses                           (ii) For purposes of this paragraph                lawfully obtained software applications,
                                             requiring close analysis of film and                    (b)(2), ‘‘audio description’’ means an                where circumvention is accomplished
                                             media excerpts, for the purpose of                      oral narration that provides an accurate              for the sole purpose of enabling
                                             criticism or comment, where the MOOC                    rendering of the motion picture.                      interoperability of such applications
                                             provider through the online platform                       (3) Literary works, distributed                    with computer programs on the
                                             limits transmissions to the extent                      electronically, that are protected by                 smartphone or device, or to permit
                                             technologically feasible to such                        technological measures that either                    removal of software from the
                                             officially enrolled students, institutes                prevent the enabling of read-aloud                    smartphone or device. For purposes of
                                             copyright policies and provides                         functionality or interfere with screen                this paragraph (b)(6), a ‘‘portable all-
                                             copyright informational materials to                    readers or other applications or assistive            purpose mobile computing device’’ is a
                                             faculty, students, and relevant staff                   technologies:                                         device that is primarily designed to run
                                             members, and applies technological                         (i) When a copy of such a work is                  a wide variety of programs rather than
                                             measures that reasonably prevent                        lawfully obtained by a blind or other                 for consumption of a particular type of
                                             unauthorized further dissemination of a                 person with a disability, as such a                   media content, is equipped with an
                                             work in accessible form to others or                    person is defined in 17 U.S.C. 121;                   operating system primarily designed for
                                             retention of the work for longer than the               provided, however, that the rights                    mobile use, and is intended to be
                                             course session by recipients of a                       owner is remunerated, as appropriate,                 carried or worn by an individual.
                                             transmission through the platform, as                   for the price of the mainstream copy of                  (7) Computer programs that enable
                                             contemplated by 17 U.S.C. 110(2); or                    the work as made available to the                     smart televisions to execute lawfully
                                                (C) By educators and participants in                 general public through customary                      obtained software applications, where
                                             nonprofit digital and media literacy                    channels; or                                          circumvention is accomplished for the
                                             programs offered by libraries, museums,                    (ii) When such work is a nondramatic               sole purpose of enabling interoperability
                                             and other nonprofit entities with an                    literary work, lawfully obtained and                  of such applications with computer
                                             educational mission, in the course of                                                                         programs on the smart television.
                                                                                                     used by an authorized entity pursuant to
                                             face-to-face instructional activities, for
                                                                                                     17 U.S.C. 121.                                           (8) Computer programs that enable
                                             the purpose of criticism or comment,
                                                                                                        (4) Literary works consisting of                   voice assistant devices to execute
                                             except that such users may only
                                                                                                     compilations of data generated by                     lawfully obtained software applications,
                                             circumvent using screen-capture
                                                                                                     medical devices that are wholly or                    where circumvention is accomplished
                                             technology that appears to be offered to
                                                                                                     partially implanted in the body or by                 for the sole purpose of enabling
                                             the public as enabling the reproduction
                                                                                                     their corresponding personal monitoring               interoperability of such applications
                                             of motion pictures after content has
                                             been lawfully acquired and decrypted.                   systems, where such circumvention is                  with computer programs on the device,
                                                (2)(i) Motion pictures (including                    undertaken by a patient for the sole                  or to permit removal of software from
                                             television shows and videos), as defined                purpose of lawfully accessing the data                the device, and is not accomplished for
                                             in 17 U.S.C. 101, where the motion                      generated by his or her own device or                 the purpose of gaining unauthorized
                                             picture is lawfully acquired on a DVD                   monitoring system and does not                        access to other copyrighted works. For
                                             protected by the Content Scramble                       constitute a violation of applicable law,             purposes of this paragraph (b)(8), a
                                             System, on a Blu-ray disc protected by                  including without limitation the Health               ‘‘voice assistant device’’ is a device that
                                             the Advanced Access Content System,                     Insurance Portability and                             is primarily designed to run a wide
                                             or via a digital transmission protected                 Accountability Act of 1996, the                       variety of programs rather than for
                                             by a technological measure, where:                      Computer Fraud and Abuse Act of 1986                  consumption of a particular type of
                                                (A) Circumvention is undertaken by a                 or regulations of the Food and Drug                   media content, is designed to take user
                                             disability services office or other unit of             Administration, and is accomplished                   input primarily by voice, and is
                                             a kindergarten through twelfth-grade                    through the passive monitoring of                     designed to be installed in a home or
                                             educational institution, college, or                    wireless transmissions that are already               office.
                                             university engaged in and/or                            being produced by such device or                         (9) Computer programs that are
                                             responsible for the provision of                        monitoring system.                                    contained in and control the functioning
                                             accessibility services to students, for the                (5) Computer programs that enable the              of a lawfully acquired motorized land
                                             purpose of adding captions and/or                       following types of lawfully acquired                  vehicle such as a personal automobile,
                                             audio description to a motion picture to                wireless devices to connect to a wireless             commercial vehicle, or mechanized
                                             create an accessible version as a                       telecommunications network, when                      agricultural vehicle, except for programs
                                             necessary accommodation for a student                   circumvention is undertaken solely in                 accessed through a separate
                                             or students with disabilities under an                  order to connect to a wireless                        subscription service, when
                                             applicable disability law, such as the                  telecommunications network and such                   circumvention is a necessary step to
                                             Americans With Disabilities Act, the                    connection is authorized by the operator              allow the diagnosis, repair, or lawful
                                             Individuals with Disabilities Education                 of such network:                                      modification of a vehicle function,
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                                             Act, or Section 504 of the Rehabilitation                  (i) Wireless telephone handsets (i.e.,             where such circumvention does not
                                             Act;                                                    cellphones);                                          constitute a violation of applicable law,
                                                (B) The educational institution unit in                 (ii) All-purpose tablet computers;                 including without limitation regulations
                                             paragraph (b)(2)(i)(A) of this section has,                (iii) Portable mobile connectivity                 promulgated by the Department of
                                             after a reasonable effort, determined that              devices, such as mobile hotspots,                     Transportation or the Environmental
                                             an accessible version cannot be obtained                removable wireless broadband modems,                  Protection Agency, and is not
                                             at a fair price or in a timely manner; and              and similar devices; and                              accomplished for the purpose of gaining


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                                             54030             Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations

                                             unauthorized access to other                            enable gameplay, solely for the purpose                  (C) ‘‘Ceased to provide access’’ means
                                             copyrighted works.                                      of:                                                   that the copyright owner or its
                                                (10) Computer programs that are                         (A) Permitting access to the video                 authorized representative has either
                                             contained in and control the functioning                game to allow copying and modification                issued an affirmative statement
                                             of a lawfully acquired smartphone or                    of the computer program to restore                    indicating that external server support
                                             home appliance or home system, such                     access to the game for personal, local                for the video game has ended and such
                                             as a refrigerator, thermostat, HVAC, or                 gameplay on a personal computer or                    support is in fact no longer available or,
                                             electrical system, when circumvention                   video game console; or                                alternatively, server support has been
                                             is a necessary step to allow the                           (B) Permitting access to the video                 discontinued for a period of at least six
                                             diagnosis, maintenance, or repair of                    game to allow copying and modification                months; provided, however, that server
                                             such a device or system, and is not                     of the computer program to restore                    support has not since been restored.
                                             accomplished for the purpose of gaining                 access to the game on a personal                         (D) ‘‘Local gameplay’’ means
                                             access to other copyrighted works. For                  computer or video game console when                   gameplay conducted on a personal
                                             purposes of this paragraph (b)(10):                     necessary to allow preservation of the                computer or video game console, or
                                                (i) The ‘‘maintenance’’ of a device or               game in a playable form by an eligible                locally connected personal computers or
                                             system is the servicing of the device or                library, archives, or museum, where                   consoles, and not through an online
                                             system in order to make it work in                      such activities are carried out without               service or facility.
                                             accordance with its original                            any purpose of direct or indirect                        (E) A library, archives, or museum is
                                             specifications and any changes to those                 commercial advantage and the video                    considered ‘‘eligible’’ when the
                                             specifications authorized for that device               game is not distributed or made                       collections of the library, archives, or
                                             or system; and                                          available outside of the physical                     museum are open to the public and/or
                                                                                                     premises of the eligible library, archives,           are routinely made available to
                                                (ii) The ‘‘repair’’ of a device or system
                                                                                                     or museum.                                            researchers who are not affiliated with
                                             is the restoring of the device or system                   (ii) Video games in the form of
                                             to the state of working in accordance                                                                         the library, archives, or museum.
                                                                                                     computer programs embodied in                            (13)(i) Computer programs, except
                                             with its original specifications and any                physical or downloaded formats that
                                             changes to those specifications                                                                               video games, that have been lawfully
                                                                                                     have been lawfully acquired as                        acquired and that are no longer
                                             authorized for that device or system.                   complete games, that do not require
                                                (11)(i) Computer programs, where the                                                                       reasonably available in the commercial
                                                                                                     access to an external computer server                 marketplace, solely for the purpose of
                                             circumvention is undertaken on a                        for gameplay, and that are no longer
                                             lawfully acquired device or machine on                                                                        lawful preservation of a computer
                                                                                                     reasonably available in the commercial                program, or of digital materials
                                             which the computer program operates,                    marketplace, solely for the purpose of
                                             or is undertaken on a computer,                                                                               dependent upon a computer program as
                                                                                                     preservation of the game in a playable                a condition of access, by an eligible
                                             computer system, or computer network                    form by an eligible library, archives, or
                                             on which the computer program                                                                                 library, archives, or museum, where
                                                                                                     museum, where such activities are                     such activities are carried out without
                                             operates with the authorization of the                  carried out without any purpose of
                                             owner or operator of such computer,                                                                           any purpose of direct or indirect
                                                                                                     direct or indirect commercial advantage               commercial advantage and the program
                                             computer system, or computer network,                   and the video game is not distributed or
                                             solely for the purpose of good-faith                                                                          is not distributed or made available
                                                                                                     made available outside of the physical                outside of the physical premises of the
                                             security research and does not violate                  premises of the eligible library, archives,
                                             any applicable law, including without                                                                         eligible library, archives, or museum.
                                                                                                     or museum.                                               (ii) For purposes of the exemption in
                                             limitation the Computer Fraud and                          (iii) Computer programs used to                    paragraph (b)(13)(i) of this section, a
                                             Abuse Act of 1986.                                      operate video game consoles solely to                 library, archives, or museum is
                                                (ii) For purposes of this paragraph                  the extent necessary for an eligible                  considered ‘‘eligible’’ if—
                                             (b)(11), ‘‘good-faith security research’’               library, archives, or museum to engage                   (A) The collections of the library,
                                             means accessing a computer program                      in the preservation activities described              archives, or museum are open to the
                                             solely for purposes of good-faith testing,              in paragraph (b)(12)(i)(B) or (b)(12)(ii) of          public and/or are routinely made
                                             investigation, and/or correction of a                   this section.                                         available to researchers who are not
                                             security flaw or vulnerability, where                      (iv) For purposes of this paragraph                affiliated with the library, archives, or
                                             such activity is carried out in an                      (b)(12), the following definitions shall              museum;
                                             environment designed to avoid any                       apply:                                                   (B) The library, archives, or museum
                                             harm to individuals or the public, and                     (A) For purposes of paragraph                      has a public service mission;
                                             where the information derived from the                  (b)(12)(i)(A) and (b)(12)(ii) of this                    (C) The library, archives, or museum’s
                                             activity is used primarily to promote the               section, ‘‘complete games’’ means video               trained staff or volunteers provide
                                             security or safety of the class of devices              games that can be played by users                     professional services normally
                                             or machines on which the computer                       without accessing or reproducing                      associated with libraries, archives, or
                                             program operates, or those who use                      copyrightable content stored or                       museums;
                                             such devices or machines, and is not                    previously stored on an external                         (D) The collections of the library,
                                             used or maintained in a manner that                     computer server.                                      archives, or museum are composed of
                                             facilitates copyright infringement.                        (B) For purposes of paragraph                      lawfully acquired and/or licensed
                                                (12)(i) Video games in the form of                   (b)(12)(i)(B) of this section, ‘‘complete             materials; and
                                             computer programs embodied in                           games’’ means video games that meet                      (E) The library, archives, or museum
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                                             physical or downloaded formats that                     the definition in paragraph (b)(12)(iv)(A)            implements reasonable digital security
                                             have been lawfully acquired as                          of this section, or that consist of both a            measures as appropriate for the
                                             complete games, when the copyright                      copy of a game intended for a personal                activities permitted by this paragraph
                                             owner or its authorized representative                  computer or video game console and a                  (b)(13).
                                             has ceased to provide access to an                      copy of the game’s code that was stored                  (14) Computer programs that operate
                                             external computer server necessary to                   or previously stored on an external                   3D printers that employ microchip-
                                             facilitate an authentication process to                 computer server.                                      reliant technological measures to limit


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                                                               Federal Register / Vol. 83, No. 208 / Friday, October 26, 2018 / Rules and Regulations                                      54031

                                             the use of feedstock, when                              DATES:  The direct final rule published at            covering these 19 chemical substances.
                                             circumvention is accomplished solely                    83 FR 43538 on August 27, 2018, is                    EPA will address all adverse public
                                             for the purpose of using alternative                    withdrawn effective October 26, 2018.                 comments in a subsequent final rule,
                                             feedstock and not for the purpose of                    ADDRESSES: The docket for this action,                based on the proposed rule.
                                             accessing design software, design files,                identified by docket identification (ID)              III. Good Cause Finding
                                             or proprietary data.                                    number EPA–HQ–OPPT–2017–0464 is
                                                (c) Persons who may initiate                         available at http://www.regulations.gov                  EPA determined that this document is
                                             circumvention. To the extent authorized                 or at the Office of Pollution Prevention              not subject to the 30-day delay of
                                             under paragraph (b) of this section, the                and Toxics Docket (OPPT Docket),                      effective date generally required by the
                                             circumvention of a technological                        Environmental Protection Agency                       Administrative Procedure Act (APA) (5
                                             measure that restricts wireless                         Docket Center (EPA/DC), West William                  U.S.C. 553(d)) because of the time
                                             telephone handsets or other wireless                    Jefferson Clinton Bldg., Rm. 3334, 1301               limitations for publication in the
                                             devices from connecting to a wireless                   Constitution Ave. NW, Washington, DC.                 Federal Register. This document must
                                             telecommunications network may be                       The Public Reading Room is open from                  publish on or before the effective date
                                             initiated by the owner of any such                      8:30 a.m. to 4:30 p.m., Monday through                of the direct final rule containing the
                                             handset or other device, by another                     Friday, excluding legal holidays. The                 direct final SNURs being withdrawn.
                                             person at the direction of the owner, or                telephone number for the Public
                                             by a provider of a commercial mobile                                                                          IV. Statutory and Executive Order
                                                                                                     Reading Room is (202) 566–1744, and
                                             radio service or a commercial mobile                                                                          Reviews
                                                                                                     the telephone number for the OPPT
                                             data service at the direction of such                   Docket is (202) 566–0280. Please review                  This action withdraws regulatory
                                             owner or other person, solely in order                  the visitor instructions and additional               requirements that have not gone into
                                             to enable such owner or a family                        information about the docket available                effect and which contain no new or
                                             member of such owner to connect to a                    at http://www.epa.gov/dockets.                        amended requirements and reopens a
                                             wireless telecommunications network,                    FOR FURTHER INFORMATION CONTACT: For                  comment period. As such, the Agency
                                             when such connection is authorized by                   technical information contact: Kenneth                has determined that this action will not
                                             the operator of such network.                           Moss, Chemical Control Division                       have any adverse impacts, economic or
                                               Dated: October 19, 2018.
                                                                                                     (7405M), Office of Pollution Prevention               otherwise. The statutory and Executive
                                                                                                     and Toxics, Environmental Protection                  Order review requirements applicable to
                                             Carla D. Hayden,
                                                                                                     Agency, 1200 Pennsylvania Ave. NW,                    the direct final rules were discussed in
                                             Librarian of Congress                                   Washington, DC 20460–0001; telephone                  the August 27, 2018 Federal Register
                                             [FR Doc. 2018–23241 Filed 10–25–18; 8:45 am]            number: (202) 564–9232; email address:                (83 FR 43538). Those review
                                             BILLING CODE 1410–30–P
                                                                                                     moss.kenneth@epa.gov.                                 requirements do not apply to this action
                                                                                                        For general information contact: The               because it is a withdrawal and does not
                                                                                                     TSCA-Hotline, ABVI-Goodwill, 422                      contain any new or amended
                                                                                                     South Clinton Ave., Rochester, NY                     requirements.
                                             ENVIRONMENTAL PROTECTION                                14620; telephone number: (202) 554–
                                             AGENCY                                                  1404; email address: TSCA-Hotline@                    V. Congressional Review Act (CRA)
                                                                                                     epa.gov.                                                 Pursuant to the Congressional Review
                                             40 CFR Parts 9 and 721                                                                                        Act (5 U.S.C. 801 et seq.), EPA will
                                                                                                     SUPPLEMENTARY INFORMATION:
                                                                                                                                                           submit a report containing this rule and
                                             [EPA–HQ–OPPT–2017–0464; FRL–9985–55]                    I. Does this action apply to me?                      other required information to the U.S.
                                                                                                        A list of potentially affected entities is         Senate, the U.S. House of
                                             RIN 2070–AB27
                                                                                                     provided in the Federal Register of                   Representatives, and the Comptroller
                                             Significant New Use Rules on Certain                    August 27, 2018 (83 FR 43538) (FRL–                   General of the United States prior to
                                             Chemical Substances; Withdrawal                         9982–24). If you have questions                       publication of the rule in the Federal
                                                                                                     regarding the applicability of this action            Register. This action is not a ‘‘major
                                             AGENCY: Environmental Protection                        to a particular entity, consult the                   rule’’ as defined by 5 U.S.C. 804(2).
                                             Agency (EPA).                                           technical person listed under FOR                     Section 808 of the CRA allows the
                                             ACTION: Withdrawal of direct final rule.                FURTHER INFORMATION CONTACT.                          issuing agency to make a rule effective
                                                                                                     II. What direct final SNURs are being                 sooner than otherwise provided by CRA
                                             SUMMARY:   EPA is withdrawing                                                                                 if the agency makes a good cause
                                             significant new use rules (SNURs)                       withdrawn?
                                                                                                                                                           finding that notice and public procedure
                                             promulgated under the Toxic                                In the Federal Register of August 27,              is impracticable, unnecessary, or
                                             Substances Control Act (TSCA) for 19                    2018 (83 FR 43538) (FRL–9982–24),                     contrary to the public interest. As
                                             chemical substances, which were the                     EPA issued direct final SNURs for 19                  required by 5 U.S.C. 808(2), this
                                             subject of premanufacture notices                       chemical substances that are identified               determination is supported by a brief
                                             (PMNs). EPA published these SNURs                       in that document. Because the Agency                  statement in Unit III.
                                             using direct final rulemaking                           received adverse comments and a
                                             procedures, which requires EPA to take                  request to extend the comment period                  List of Subjects
                                             certain actions if an adverse comment is                regarding the SNURs identified in the                 40 CFR Part 9
                                             received. EPA received adverse                          document, EPA is withdrawing the
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                                             comments and a request to extend the                    direct final SNURS issued for these 19                  Environmental protection, Reporting
                                             comment period regarding the SNURs                      chemical substances, which were the                   and recordkeeping requirements.
                                             identified in the direct final rule.                    subject of PMNs. In addition to the                   40 CFR Part 721
                                             Therefore, the Agency is withdrawing                    Direct Final SNURs, elsewhere in the
                                             the direct final rule SNURs identified in               same issue of the Federal Register of                   Environmental protection, Chemicals,
                                             this document, as required under the                    August 27, 2018 (83 FR 43538) (FRL–                   Hazardous substances, Reporting and
                                             direct final rulemaking procedures.                     9982–24), EPA issued proposed SNURs                   recordkeeping requirements.


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Document Created: 2018-10-26 02:29:55
Document Modified: 2018-10-26 02:29:55
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesEffective October 28, 2018.
ContactRegan A. Smith, General Counsel and Associate Register of Copyrights, by email at [email protected], Anna Chauvet, Assistant General Counsel, by email at [email protected], or Kevin Amer, Senior Counsel for Policy and International Affairs, by email at [email protected] Each can be contacted by telephone by calling (202) 707-8350.
FR Citation83 FR 54010 
CFR AssociatedCopyright and Exemptions to Prohibition Against Circumvention

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