Statement of the Librarian of Congress Relating to Section 1201 Rulemaking

In accordance with section 1201(a)(1) of the copyright law, I am issuing a final rule that sets out six classes of works that will be subject to exemptions for the next three years from the statute’s prohibition against circumvention of technology that effectively controls access to a copyrighted work. This is the third time that I have issued such a rule, which the Digital Millennium Copyright Act (DMCA) requires that I do every three years. These exemptions expire after three years, unless proponents prove their case once again.

As required by the DMCA, the Register of Copyrights has conducted a rulemaking and made a recommendation to me on this matter. I have accepted the Register’s recommendation and determined that for the next three years, persons who engage in noninfringing uses of copyrighted works in these six classes will not be subject to the statutory prohibition against circumvention of access controls.

It is important to understand the purposes of this rulemaking, as stated in the law, and the role I have in it. This is not a broad evaluation of the successes or failures of the DMCA. The purpose of the proceeding is to determine whether current technologies that control access to copyrighted works are diminishing the ability of individuals to use works in lawful, noninfringing ways. The DMCA does not forbid the act of circumventing copy controls, and therefore this rulemaking proceeding is not about technologies that control copying. Nor is this rulemaking about the ability to make or distribute products or services used for purposes of circumventing access controls, which are governed by a different part of section 1201.

In this rulemaking, 74 individuals or organizations proposed classes of works for exemption (many of them duplicative) and 35 submitted comments on those proposals. The Copyright Office conducted four days of public hearings in March and April: three in Washington and one in Palo Alto, California. Transcripts of the hearings, copies of all of the comments and reply comments, and copies of other information received by the Copyright Office have been posted on the Office's website.

The Register of Copyrights and her staff have conducted a careful and extensive evaluation of the entire record in the proceeding and determined that proponents of exemptions have demonstrated that the prohibition on circumventing access controls has had a substantial adverse effect on the ability of people to make noninfringing uses of six particular classes of copyrighted works. The Register has given me her analysis and recommendation, and today I have signed a document providing that persons making noninfringing uses of these six classes of works will not be subject to the prohibition against circumventing access controls during the next three years. The six classes of works are:

1. Audiovisual works included in the educational library of a college or university’s film or media studies department, 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.

2. 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, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

3. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace.

4. 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.

5. 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.

6. Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures that control access to lawfully purchased 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.

Three of these classes of works are very similar to the classes of works that were exempted three years ago, but with modifications to take into account the somewhat different cases that were presented to the Register this year. The new classes of works will enable film and media studies professors to make compilations of film clips for classroom instruction, make it easier for owners of wireless telephone handsets to continue to use those handsets when they switch to new wireless carriers, and permit the testing, investigation and correction of security vulnerabilities on compact discs that are distributed with access control technology that compromises the security of personal computers.