Frequently Asked Questions About the Section 1201 Rulemaking
What is section 1201?
Section 1201 is a provision of the copyright law (title 17), that prohibits circumvention of technological protection measures employed by or on behalf of copyright owners to control access to their works. For example, section 1201 makes it illegal for a person to decrypt a DVD containing a copyrighted motion picture or to bypass a password control to access a subscription video streaming service. (Separate provisions of section 1201 address trafficking in devices designed for circumvention.) It was enacted in 1998 as part of the Digital Millennium Copyright Act (“DMCA”) and plays a critical role in fostering the dissemination and enjoyment of creative works online.
To ensure that section 1201 does not unnecessarily inhibit legitimate uses of copyrighted works, the statute directs the Librarian of Congress, upon the recommendation of the Register of Copyrights, to evaluate and, as appropriate, adopt limited temporary exemptions from the general prohibition against circumvention of access controls. The Librarian makes these determinations following a rulemaking proceeding administered by the Copyright Office every three years.
For more information on section 1201, see the Copyright Office’s background video.
How does the Librarian decide which exemptions to grant?
The Librarian grants exemptions based on the recommendations of the Copyright Office, which compiles an extensive public record over the course of the rulemaking. Members of the public petition for exemptions, and the Office receives public input on each proposal through multiple rounds of written comment and through public hearings. Per the statute, the Office also consults with the National Telecommunications and Information Administration of the U.S. Department of Commerce.
After receiving the evidence, the Register and the Librarian must determine whether the proposed exemptions meet the specific legal standards Congress established. The law does not authorize either the Register to recommend or the Librarian to grant exemptions where the required legal standards have not been met.
Where can I find information on legal standards, definitions, and other background information regarding the 1201 rulemaking?
At the beginning of the seventh triennial rulemaking, the Copyright Office provided tutorials on the background to section 1201, the rulemaking process, and the new streamlined renewals process. These tutorials, the public record, and the archive of previous triennial rulemakings can be found at https://copyright.gov/1201/.
How does the public participate in the rulemaking?
Public participation is an essential component of the triennial rulemaking. The Office commenced the most recent rulemaking by publishing a notice in the Federal Register on October 26, 2017, inviting interested parties to submit petitions for proposed exemptions, including renewals of existing exemptions. Following completion of the renewal process (discussed below), the Office grouped the petitions for new and expanded exemptions into twelve classes and initiated three rounds of written public comment. The Office received approximately two hundred comments in total. Subsequently, the Office held seven days of public hearings in Washington, D.C. and Los Angeles, during which it received testimony from over seventy participants.
Copies of the written comments, transcripts and video recordings of the hearings, and the Acting Register’s Recommendation are available at www.copyright.gov/1201/2018.
What was the “renewal” process for preexisting exemptions?
In response to stakeholder feedback, and following a comprehensive policy study, the Office introduced a new streamlined process to facilitate readoption of exemptions granted during the 2015 rulemaking. This streamlined process allowed members of the public to request to renew an exemption based on a finding 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 in the next three years.
The Office first solicited petitions summarizing the basis for claiming a continuing need and justification for the exemption, with a declaration from petitioners stating that, to the best of their personal knowledge, there was no material change in the facts, law, or other circumstances set forth in the prior rulemaking record. Next, the Office solicited comments to determine if there was any meaningful opposition to the renewal of the exemption. If so, the exemption would be treated as a petition for a new exemption through the normal rulemaking process. If not, and the record supported a finding that the prior evidence remained reliable, the Acting Register would recommend renewing the exemption.
This streamlined process received positive feedback from stakeholders. As detailed in the Recommendation, the Acting Register was able to recommend renewal of all exemptions granted in the 2015 rulemaking through this streamlined process.
What classes of works did the Acting Register recommend and the Librarian adopt in the 2018 rulemaking?
Based on the record of evidence in this proceeding, the Acting Register recommended that the Librarian renew, expand, or newly adopt a number of exemptions, as further and more specifically set forth in the Acting Register’s recommendation to the Librarian. The exemptions are:
- Excerpts of motion pictures (including television programs and videos) for criticism and comment:
- For educational uses,
- By college and university or K-12 faculty and students
- By faculty of massive open online courses (“MOOCs”)
- By educators and participants in digital and literacy programs offered by libraries, museums and other nonprofits
- For nonfiction multimedia e-books
- For uses in documentary films and other films where the use is in parody or for a biographical or historically significant nature
- For uses in noncommercial videos
- Motion pictures (including television programs and videos), for the provision of captioning and/or audio description by disability services offices or similar units at educational institutions for students with disabilities
- Literary works distributed electronically (i.e., e-books), for use with assistive technologies for persons who are blind, visually impaired or have print disabilities
- Literary works consisting of compilations of data generated by implanted medical devices and corresponding personal monitoring systems
- Computer programs that operate the following types of devices, to allow connection of a new or used device to an alternative wireless network (“unlocking”):
- Mobile hotspots
- Wearable devices (e.g., smartwatches)
- Computer programs that operate the following types of devices, to allow the device to interoperate with or to remove software applications (“jailbreaking”):
- Tablets and other all-purpose mobile computing devices
- Smart TVs
- Voice assistant devices
- Computer programs that control motorized land vehicles, including farm equipment, for purposes of diagnosis, repair, or modification of the vehicle, including to access diagnostic data
- Computer programs that control smartphones, home appliances, or home systems, for diagnosis, maintenance, or repair of the device or system
- Computer programs for purposes of good-faith security research
- Computer programs other than video games, for the preservation of computer programs and computer program-dependent materials by libraries, archives, and museums
- Video games for which outside server support has been discontinued, to allow individual play by gamers and preservation of games by libraries, archives, and museums (as well as necessary jailbreaking of console computer code for preservation uses only), and preservation of discontinued video games that never required server support
- Computer programs that operate 3D printers, to allow use of alternative feedstock
Were there any proposed classes of works that the Acting Register declined to recommend?
Yes. The Acting Register did not recommend, and the Librarian declined to adopt, exemptions with respect to the following proposed categories:
- Audiovisual works, for broad-based space-shifting and format-shifting (declined due to lack of legal and factual support for exemption)
- Audiovisual works protected by HDCP/HDMI, for non-infringing uses (declined due to lack of legal and factual support for exemption)
- Access to avionics data (declined due to lack of factual support that access controls were protecting copyrighted works)
Why does the exemption for uses of motion pictures excerpts in commentary and criticism look so different? Is there anything new I need to know about?
While the Acting Register declines to recommend a single, overarching exemption for the use of motion picture excerpts, the updated exemption restructures the components in a manner intended to be more reader-friendly. Specifically, it provides prefatory language setting forth generally applicable requirements and then groups the various provisions into two subcategories addressing (1) criticism and comment and (2) educational uses. It expands the 2015 exemption by (1) permitting lawful educational uses of motion picture clips by K-12 and university faculty and students for purposes of criticism and comment, regardless of whether the use is for film studies or other courses requiring close analysis; (2) permitting the use of motion picture clips in non-documentary films for purposes of criticism or comment where the clip is used in parody or for its biographical or historically significant nature, not just in documentary films; and (3) permitting the use of clips in nonfiction multimedia e-books for the purpose of criticism or comment, not just in e-books offering film analysis. Other exempted uses, such as for non-commercial remix videos, for uses in digital and media literacy programs, or for use in massive open online courses (MOOCs) remain the same. The scope of this exemption continues to be limited to motion pictures acquired on a DVD, a Blu-ray disc, or via a digital transmission protected by a technological measure, or motion pictures where the circumvention is undertaken using a technology that is advertised as non-circumventing.
How has the exemption for diagnosis, repair, and lawful modification of motorized land vehicles been expanded, and what does that mean for third-party assistance?
In 2015, the Acting Librarian granted an exemption allowing motor vehicle owners to circumvent technological measures protecting in-vehicle computer programs in order to engage in diagnosis, repair, or lawful modification of a vehicle function. Eligibility for the exemption was limited to the “authorized owner” of such a vehicle.
The newly adopted exemption removes this limitation. As discussed in the Acting Register’s Recommendation, the record in this proceeding indicated that diagnosis, repair, and lawful modification activities engaged in by third parties is likely to be noninfringing in many circumstances. To be clear, however, circumvention engaged in by a third party on behalf of another person may run afoul of the prohibition on trafficking in circumvention services under section 1201(a)(2) and (b). The Librarian is not authorized to adopt exemptions to those provisions. Therefore, any third party seeking to exercise this exemption must consider whether its activities separately could give rise to liability under the anti-trafficking provisions. The Acting Register expresses no view on whether any particular forms of third-party assistance may or may not implicate those provisions.
How has the exemption for good-faith security research been expanded?
In 2015, the Acting Librarian granted an exemption allowing circumvention to access computer programs in certain devices and machines for purposes of good-faith security research. The exemption was limited to devices or machines primarily designed for use by individual consumers (including voting machines), motorized land vehicles, and medical devices designed for whole or partial implantation in patients, along with corresponding personal monitoring systems. The exemption also provided several safeguards to protect against infringement and to accommodate public safety concerns. It was limited to research on lawfully acquired devices and applied only to circumvention done solely for the purpose of good-faith security research. It also required that the research be carried out in a controlled environment designed to avoid harm to individuals or the public, that the information derived from the research be used primarily to promote the security or safety of the devices or their users, and that the circumvention not violate any applicable law, including the Computer Fraud and Abuse Act of 1986.
In this proceeding, the record indicated that security researchers have a legitimate interest in conducting good-faith research on devices and systems beyond those enumerated in the 2015 exemption. The amended exemption therefore removes the limitation to specific devices, and additionally allows security research on a computer, computer system, or computer network with the authorization of the relevant owner or operator. The record also indicated that the term “controlled environment” may have been read to suggest that the exemption was limited to research in a lab-like setting. The amended exemption therefore removes the word “controlled,” but still provides accommodation for public safety by requiring that the research be carried out “in an environment designed to avoid any harm to individuals or the public.”
The exemption retains the other safeguards from the 2015 exemption, notably the limitation to good-faith security research, the requirement that the device be lawfully obtained, and the requirement that the circumvention not violate other laws.
When do the exemptions become effective?
The exemptions adopted in this rulemaking are effective October 28, 2018, and remain effective until the completion of the next rulemaking in 2021.