[Federal Register Volume 73, Number 249 (Monday, December 29, 2008)]
[Proposed Rules]
[Pages 79425-79428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30799]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 2008-8]
Exemption to Prohibition on Circumvention of Copyright Protection
Systems for Access Control Technologies
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Copyright Office of the Library of Congress is conducting
its triennial rulemaking proceeding in accordance with a provision of
the Copyright Act which was added by the Digital Millennium Copyright
Act and which provides that the Librarian of Congress may exempt
certain classes of works from the prohibition against circumvention of
technological measures that control access to copyrighted works. The
purpose of this rulemaking proceeding is to determine whether there are
particular classes of works as to which users are, or are likely to be,
adversely affected in their ability to make noninfringing uses due to
the prohibition on circumvention. This notice publishes the classes of
works that the Office will consider for exemption, which were proposed
in the comment period that ended on December 2, 2008. This Notice
further reiterates the previously published request for responsive
written comments from all interested parties, including representatives
of copyright owners, educational institutions, libraries and archives,
scholars, researchers and members of the public, in order to elicit
additional evidence either supporting or opposing the classes of works
proposed for exemption.
DATES: Comments addressing the proposed classes of works are due by
5:00 P.M. E.S.T., February 2, 2009.
ADDRESSES: All of the comments proposing classes of works for exemption
are available on the Copyright Office website at: http://www.copyright.gov/1201/2008/index.html and at the U.S. Copyright
Office, James Madison Memorial Building, Room LM-401, 101 Independence
Avenue, SE., Washington, DC. Electronic submissions must be made
through the Copyright Office website: http://www.copyright.gov/1201/comment_forms; see73 FR 58073, 58078 (October 6, 2008) (available at:
[[Page 79426]]
http://www.copyright.gov/fedreg/2008/73fr58073.pdf) for file formats
and other information about electronic and non-electronic filing
requirements. If hand-delivered by a private party, an original and
five copies of any comment to Room LM-401 of the James Madison Memorial
Building between 8:30 a.m. and 5 p.m. and the envelope should be
addressed as follows: Office of the General Counsel, U.S. Copyright
Office, James Madison Memorial Building, Room LM-401, 101 Independence
Avenue, SE., Washington, DC 20559-6000. If hand delivered by a
commercial courier, an original and five copies of any comment must be
delivered to the Congressional Courier Acceptance Site located at
Second and D Streets, NE., Washington, DC, between 8:30 a.m. and 4 p.m.
The envelope should be addressed as follows: Copyright Office General
Counsel, Room LM-403, James Madison Memorial Building, 101 Independence
Avenue, SE., Washington DC. If delivered by means of the United States
Postal Service (see73 FR 58073, 58078 (October 6, 2008), available at:
http://www.copyright.gov/fedreg/2008/73fr58073.pdf, about continuing
delays), comments should be addressed to Copyright GC/I&R, P.O. Box
70400, Washington, DC 20024-0400. Comments may not be delivered by
means of overnight delivery services such as Federal Express, United
Parcel Service, etc., due to delays in processing receipt of such
deliveries.
FOR FURTHER INFORMATION CONTACT: Rob Kasunic, Principal Legal Advisor,
Office of the General Counsel, Copyright GC/I&R, P.O. Box 70400,
Washington, DC 20024-0400. Telephone (202) 707-8380; telefax (202) 707-
8366.
SUPPLEMENTARY INFORMATION: On October 6, 2008, the Copyright Office
published a Notice of Inquiry in the Federal Register to initiate the
fourth triennial rulemaking proceeding required by Sec. 1201(a)(1)(C)
of the Copyright Act. That notice requested comments from interested
parties proposing classes of works that should be considered for
exemption for the next three-year period, from October 28, 2009, until
October 27, 2012. The Copyright Office received 19 comments, containing
25 classes of works proposed for exemption.\1\ On December 3, 2008, the
Copyright Office posted all of the comments received on its website,
including the description of the proposed classes and summaries of the
arguments supporting these proposed classes as provided by the
commenters. Seehttp://www.copyright.gov/1201/2008/index.html. In order
to provide additional notice to interested parties, the Copyright
Office is herein listing the proposed classes and the person and/or
entity that proposed the class. Where the summary of the argument and/
or the argument in the comment suggests additional refinement to an
otherwise broad designation of a class or category of works, additional
bracketed information has been added by the Copyright Office. The
Copyright Office is adding this information, in part, to make it clear
that the proposal, even if stated in broad terms, is limited generally
by the context in which it was raised. A responsive comment that seeks
to leverage an untailored, overly broad designation of a class into a
wholly new class of works will not have properly raised a new class in
this proceeding and such a new class will not be considered. After the
close of the comment period that ended on December 2, 2008, a new class
can be raised in this proceeding only through the process established
by the Office for untimely submissions of proposed classes based on
exceptional or unforeseen circumstances, see73 FR 58073, 58079 (October
6, 2008) (available at: http://www.copyright.gov/fedreg/2008/73fr58073.pdf. The forthcoming comment period allows the introduction
of additional factual information that would assist the Office in
assessing whether a proposed class is warranted for exemption and, if
it is, how such a class already proposed should be properly tailored.
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\1\ This is an approximation based on the manner in which the
proposed classes were articulated. In some cases, the proposed class
involved multiple categories of works within the class that could
have been articulated as multiple classes. In other cases, there
were multiple proposals that were variations on the same theme that
could have been expressed as one class. In addition, a number of the
proposals by different commenters proposed similar classes. The
Office has chosen to group related classes in this Notice in order
to help focus the issues raised by the commenters.
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The comments received by the Copyright Office propose the following
classes:
1. ``Literary works'' [distributed in ebook format when all
existing ebook editions of the work (including digital text editions
made available by authorized entities) contain access controls that
prevent the enabling either of the book's read-aloud function or of
screen readers that render the text into a specialized format].
Proponent: The American Foundation for the Blind.
2.``Subscription based services that offer DRM-protected streaming
video where the provider has only made available players for a limited
number of platforms, effectively creating an access control that
requires a specific operating system version and/or set of hardware to
view purchased material.'' Proponent: Megan Carney.
3.``Motion pictures protected by anti-access measures, such that
access to the motion picture content requires use of a certain
platform.'' Proponent: Mark Rizik.
4A.``Commercially produced DVDs used in face-to-face classroom
teaching by college and university faculty, regardless of discipline or
subject taught, as well as by teachers in K-12 classrooms.'' Proponent:
Gary Handman, Media Resources Center, UC Berkeley.
4B. ``Audiovisual works used by instructors at accredited colleges
or universities to create compilations of short portions of motion
pictures for use in the course of face-to-face teaching activities.''
Proponent: Kevin L. Smith, Duke University.
4C. ``Audiovisual works that illustrate and/or relate to
contemporary social issues used for the purpose of teaching the process
of accessing, analyzing, evaluating, and communicating messages in
different forms of media.'' Proponent: Renee Hobbs.
4D. ``Audiovisual works that illustrate and/or relate to
contemporary social issues used for the purpose of studying the process
of accessing, analyzing, evaluating and communicating messages in
different forms of media, and that are of particular relevance to a
specific educational assignment, when such uses are made with the prior
approval of the instructor.'' Proponent: Renee Hobbs.
4E. ``Audiovisual works contained in a college or university
library, when circumvention is accomplished for the purpose of making
compilations of portions of those works for educational use in the
classroom by media studies or film professors.'' Proponent: Peter
DeCherney, University of Pennsylvania.
4F. ``Audiovisual works contained in a college or university
library, when circumvention is accomplished for the purpose of making
compilations of portions of those works for coursework by media studies
or film students.'' Proponent: Peter DeCherney, University of
Pennsylvania.
4G. ``Audiovisual works included in a library of a college or
university, when circumvention is accomplished for the purpose of
making compilations of portions of those works for educational use in
the classroom by professors.'' Proponents: Library Copyright Alliance
and the Music Library Association.
4H. ``All audiovisual works and sound recordings `used in face-to-
face classroom teaching by college and university faculty, regardless
of
[[Page 79427]]
discipline or subject taught' and regardless of the source of the
legally acquired item.'' Proponent: Gail Fedak.
5A. ``Computer programs that enable wireless telephone handsets 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 telephone handset.''
Proponents: Fred von Lohmann and Jennifer S. Granick, Electronic
Frontier Foundation.
5B. ``Computer programs that operate wireless telecommunications
handsets when circumvention is accomplished for the sole purpose of
enabling wireless telephones to connect to a wireless telephone
communication network.'' Proponent: MetroPCS Communications, Inc.
5C. ``Computer programs in the form of firmware or software that
enable mobile communication handsets to connect to a wireless
communication network, when circumvention is accomplished for the sole
purpose of lawfully connecting to a wireless communication network.''
Proponent: Paul Posner, Youghiogheny Communications, Inc. D B A Pocket
Communications, Inc.
5D. ``Computer programs in the form of firmware that enable
wireless telephone handsets to connect to a wireless telephone
communication network, when circumvention is accomplished for the sole
purpose of lawfully connecting to a wireless telephone communication
network, regardless of commercial motive.'' Proponent: Jonathan Newman,
Wireless Alliance, LLC.
6.``Computer programs protected by dongles that prevent access due
to malfunction or damage or hardware or software incompatibilities or
require obsolete systems or obsolete hardware as a condition of
access.'' Proponent: Joseph V. Montoro, Jr.
7. ``Computer programs'' [for forensic analysis]. Proponent: Gary
Handman, Media Resources Center, UC Berkeley.
8A. ``Literary works, sound recordings, and audiovisual works
accessible on personal computers and protected by technological
protection measures that control access to lawfully obtained works and
create or exploit security flaws or vulnerabilities that compromise the
security of personal computers, when circumvention is accomplished
solely for the purpose of good faith testing, investigating, or
correcting such security flaws or vulnerabilities.'' Proponent: Alex
Halderman, University of Michigan.
8B.``Video games accessible on personal computers and protected by
technological protection measures that control access to lawfully
obtained works and create or exploit security flaws or vulnerabilities
that compromise the security of personal computers, when circumvention
is accomplished solely for the purpose of good faith testing,
investigating, or correcting such security flaws or vulnerabilities.''
Proponent: Alex Halderman, University of Michigan.
9A. ``Audiovisual works delivered by digital television (``DTV'')
transmission intended for free, over-the-air reception by anyone, which
are marked with a ``broadcast flag'' indicator that prevents,
restricts, or inhibits the ability of recipients to access the work at
a time of the recipient's choosing and subsequent to the time of
transmission, or using a machine owned by the recipient but which is
not the same machine that originally acquired the transmission.''
Proponent: Matt Perkins.
9B.``Audiovisual works embedded in a physical medium (such as Blu-
Ray discs) which are marked for `down-conversion' or `down-
resolutioning' (such as by the presence of an Image Constraint Token
``ICT'') when the work is to be conveyed through any of a playback
machine's existing audio or visual output connectors, and therefore
restricts the literal quantity of the embedded work available to the
user (measured by visual resolution, temporal resolution, and color
fidelity).'' Proponent: Matt Perkins.
10A. ``Lawfully purchased sound recordings, audiovisual works, and
software programs distributed commercially in digital format by online
music and media stores and protected by technological measures that
depend on the continued availability of authenticating servers, when
such authenticating servers cease functioning because the store fails
or for other reasons.'' Proponent: Christopher Soghoian, Berkman Center
for Internet & Society.
10B. ``Lawfully purchased sound recordings, audiovisual works, and
software programs distributed commercially in digital format by online
music and media stores and protected by technological measures that
depend on the continued availability of authenticating servers prior to
the failure of [authenticating] servers for technologists and
researchers studying and documenting how the authenticating servers
that effectuate the technological measures function.'' Proponent:
Christopher Soghoian, Berkman Center for Internet & Society.
11A. ``Audiovisual works released on DVD, where circumvention is
undertaken solely for the purpose of extracting clips for inclusion in
noncommercial videos that do not infringe copyright.'' Proponents: Fred
von Lohmann and Jennifer S. Granick, Electronic Frontier Foundation.
11B. ``Motion pictures and other audiovisual works in the form of
Digital Versatile Discs (DVDs) that are not generally available
commercially to the public in a DVD form not protected by Content
Scramble System technology when a documentary filmmaker, who is a
member of an organization of filmmakers, or is enrolled in a film
program or film production course at a post-secondary educational
institution, is accessing material for use in a specific documentary
film for which substantial production has commenced, where the material
is in the public domain or will be used in compliance with the doctrine
of fair use as defined by federal case law and 17 U.S.C. Sec. 107.''
Proponents: Kartemquin Educational Films, Inc. and the International
Documentary Association.
These proposed classes represent a starting point for further
consideration in this rulemaking proceeding. This Notice does not
represent that any particular class proposed for exemption will
ultimately be recommended for exemption by the Register of Copyrights
to the Librarian of Congress. Moreover, the delineation of any class as
proposed by a commenter will be considered in relation to the facts
presented in the entire rulemaking process. To the extent that an
exemption is deemed warranted by the evidence, a proposed class listed
herein may be developed and/or refined by the Register in her final
recommendation to the Librarian.
As stated in the Copyright Office's Notice of Inquiry published in
the Federal Register on October 6, 2008, comments in support or in
opposition to the classes proposed may be submitted during the 30-day
period proceeding February 2, 2009. A comment form will be posted on
the Copyright Office's website on January 2, 2009, to facilitate the
submission of electronic comments responsive to class or classes of
works proposed for exemption.See 73 FR 58073, 58078 (October 6, 2008)
(available at: http://www.copyright.gov/fedreg/2008/73fr58073.pdf) for
additional information about electronic and non-electronic filing
requirements.
Persons submitting comments should thoroughly review the October 6
Notice of Inquiry to familiarize themselves with the substantive and
formal requirements for comments. To be persuasive, a comment should
comply
[[Page 79428]]
with the guidelines set forth in Section 3 of the Notice of Inquiry.
Tanya Sandros,
General Counsel.
[FR Doc. E8-30799 Filed 12-24-04; 8:45 am]
BILLING CODE 1410-30-S