[Federal Register: October 27, 2000 (Volume 65, Number 209)]
[Rules and Regulations]
[Page 64555-64574]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 99-7D]
Exemption to Prohibition on Circumvention of Copyright Protection
Systems for Access Control Technologies
AGENCY: Copyright Office, Library of Congress.
ACTION: Final Rule.
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SUMMARY: This rule designates the classes of copyrighted works that the
Librarian of Congress has determined shall be subject to exemption from
the prohibition against circumvention of a technological measure that
effectively controls access to a work protected under title 17 of the
U.S. Code. In title I of the Digital Millennium Copyright Act, Congress
established that this prohibition against circumvention will become
effective October 28, 2000. The same legislation directed the Register
of Copyrights to conduct a rulemaking procedure and to make
recommendations to the Librarian as to whether any classes of works
should be subject to exemptions from the prohibition against
circumvention. The exemptions set forth in this rule will be in effect
until October 28, 2003.
EFFECTIVE DATE: October 28, 2000.
FOR FURTHER INFORMATION CONTACT: Charlotte Douglass or Robert Kasunic,
Office of the General Counsel, Copyright GC/I&R, P.O. Box 70400,
Southwest Station, Washington, DC 20024. Telephone (202) 707-8380;
telefax (202) 707-8366.
SUPPLEMENTARY INFORMATION:
Recommendation of the Register of Copyrights
I. Background
A. Legislative Requirements for Rulemaking Proceeding
The WIPO Copyright Treaty (WCT) and the WIPO Performances and
Phonograms Treaty (WPPT) require that Contracting Parties provide
adequate legal protection and effective legal remedies against the
circumvention of effective technological measures that authors or other
copyright owners (or, in the case of the WPPT, performers and producers
of phonograms) use in connection with the exercise of their rights and
that restrict acts which they have not authorized and are not permitted
by law. \1\
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\1\ The treaties were adopted on December 20, 1996 at a World
Intellectual Property Organization (WIPO) Diplomatic Conference on
Certain Copyright and Neighboring Rights Questions. The United
States ratified the treaties in September, 1999. The treaties will
go into effect after 30 instruments of ratification or accession by
States have been deposited with the Director General of WIPO.
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In fulfillment of these treaty obligations, on October 28, 1998,
the United States enacted the Digital Millennium Copyright Act
(``DMCA''), Pub. L. 105-304 (1998). Title I of the Act added a new
Chapter 12 to Title 17 U.S.C., which among other things prohibits
circumvention of access control technologies employed by or on behalf
of copyright owners to protect their works. Specifically, new
subsection 1201(a)(1)(A) provides, inter alia, that ``No person shall
circumvent a technological measure that effectively controls access to
a work protected under this title.'' Congress found it appropriate to
modify the prohibition to assure that the public will have continued
ability to engage in noninfringing uses of copyrighted works, such as
fair use. See the Report of the House Committee on Commerce on the
Digital Millennium Copyright Act of 1998, H.R. Rep. No. 105-551, pt. 2,
at 36 (1998) (hereinafter Commerce Comm. Report). Subparagraph (B)
limits this prohibition. It provides that the prohibition against
circumvention ``shall not apply to persons who are users of a
copyrighted work which is in a particular class of works, if such
persons are, or are likely to be in the succeeding 3-year period,
adversely affected by virtue of such prohibition in their ability to
make noninfringing uses of that particular class of works under this
title'' as determined in this rulemaking. This prohibition on
circumvention becomes effective on October 28, 2000, two years after
the date of enactment of the DMCA.
During the 2-year period between the enactment and the effective
date of the provision, the Librarian of Congress must make a
determination as to classes of works exempted from the prohibition.
This determination is to be made upon the recommendation of the
Register of Copyrights in a rulemaking proceeding. The determination
thus made will remain in effect during the succeeding three years. In
making her recommendation, the Register of Copyrights is to consult
with the Assistant Secretary for Communications and Information of the
Department of Commerce and report and comment on the Assistant
Secretary's views. 17 U.S.C. 1201(a)(1)(C).
A more complete explanation of the development of the legislative
requirements is set out in the Notice of Inquiry published on November
24, 1999, 64 FR 66139, and is also available on the Copyright Office's
website at : http://www.copyright.gov/1201/anticirc.html. See also
the discussion in section III.A. below.
B. Responsibilities of Register of Copyrights and Librarian of Congress
The prohibition against circumvention is subject to delayed
implementation in order to permit a determination whether users of
particular classes of copyrighted works are likely to be adversely
affected by the prohibition in their ability to make noninfringing
uses. By October 28, 2000, upon the recommendation of the Register of
Copyrights in a rulemaking proceeding, the Librarian of Congress must
determine whether to exempt certain classes of works (which he must
identify) from the application of the prohibition against circumvention
during the next three years because of such adverse effects.
The Register was directed to conduct a rulemaking proceeding,
soliciting public comment and consulting with the Assistant Secretary
of Commerce for Communications and Information, and then to make a
recommendation to the Librarian, who must make a determination whether
any classes of copyrighted works should be exempt from the statutory
prohibition against circumvention during the three years commencing on
that date.
The primary responsibility of the Register and the Librarian in
this respect is to assess whether the implementation of technological
protection measures that effectively control access to copyrighted
works (hereinafter ``access control measures'') is diminishing the
ability of individuals to use copyrighted works in ways that are
otherwise lawful. Commerce Comm. Report, at 37. As examples of
technological protection measures in effect today, the Commerce
Committee offered the use of ``password codes'' to control authorized
access to computer programs and encryption or scrambling of cable
programming, videocassettes, and CD-ROMs. Id.
The prohibition becomes effective on October 28, 2000, and any
exemptions to that prohibition must be in place by that time. Although
it is difficult to measure the effect of a future prohibition, Congress
intended that the Register solicit input that would enable
consideration of a broad range of current or likely future adverse
impacts. The
[[Page 64557]]
nature of the inquiry is delineated in the statutory areas to be
examined, as set forth 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.
II. Solicitation of Public Comments and Hearings
On November 24, 1999, the Office initiated the rulemaking procedure
with publication of a Notice of Inquiry. 64 FR 66139. The Notice of
Inquiry requested written comments from all interested parties,
including representatives of copyright owners, educational
institutions, libraries and archives, scholars, researchers and members
of the public. The Office devoted a great deal of attention in this
Notice to setting out the legislative parameters and developing
questions related to the criteria Congress had established. The Office
was determined to make the comments it received available immediately
in order to elicit a broad range of public comment; therefore, it
stated a preference for submission of comments in certain electronic
formats. Id. In response to some commenters' views that the formats
permitted were not sufficient, the Office expanded the list of formats
in which comments could be submitted. 65 FR 6573 (February 10, 2000).
In the same document, the Office extended the comment period: comments
would be due by February 17, 2000 and reply comments by March 20, 2000.
On March 17, the Office extended the reply comment period to March 31;
scheduled hearings to take place in Washington, DC on May 2-4 and in
Palo Alto, California, at Stanford University on May 18-19; and set a
June 23, 2000 deadline for submission of post-hearing comments. 65 FR
14505 (March 17, 2000). All of these notices were published not only in
the Federal Register, but also on the Office's website.
In response to the Notice of Inquiry, the Office received 235
initial comments and 129 reply comments. Thirty-four witnesses
representing over 50 groups testified at five days of hearings held in
either Washington, DC or Palo Alto, California. The Office placed all
initial comments, reply comments, optional written statements of the
witnesses and the transcripts of the two hearings on its website
shortly after their receipt. Following the hearings, the Office
received 28 post-hearing comments, which were also posted on the
website. All of these commenters and witnesses are identified in the
indexes that appear on the Office's website.
The comments received represent a broad perspective of views
ranging from representatives or individuals who urged there should be
broad exemptions to those who opposed any exemption; they also included
a number of comments about various other aspects of the Digital
Millennium Copyright Act. The Copyright Office has now exhaustively
reviewed and analyzed the entire record, including all of the comments
and the transcripts of the hearings in order to determine whether any
class of copyrighted works should be exempt from the prohibition
against circumvention during the next three years.\2\
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\2\ In referring to the comments and hearing materials, the
Office will use the following abbreviations: C-Comment, R-Reply
Comment, PH-Post Hearing Comments, T + speaker and date--Transcript
(ex. ``T Laura Gasaway, 5/18/00'') and WS + speaker--Written
statements (ex. ``WS Vaidhyanathan''). Citations to page numbers in
hearing transcripts are to the hard copy transcripts at the
Copyright Office. For the hearings in Washington, DC, the pagination
of those transcripts differs from the pagination of the versions of
the transcript available on the Copyright Office website.
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III. Discussion
A. The Purpose and Focus of the Rulemaking
1. Purpose of the Rulemaking
As originally reported out of the Senate Judiciary Committee on May
11, 1998, S. Rep. No. 105-190 (1998), and the House Judiciary Committee
on May 22, 1998, H.R. Rep. No. 105-551, pt. I (1998), section
1201(a)(1) consisted of only one sentence--what is now the first
sentence of section 1201(a)(1): ``No person shall circumvent a
technological measure that effectively controls access to a work
protected under this title.'' Section 1201(a)(2), like the provision
finally enacted, prohibited the manufacture, importation, offering to
the public, providing or otherwise trafficking in any technology,
product, service, device, or component to circumvent access control
measures. Section 1201(a) thus addressed ``access control'' measures,
prohibiting both the conduct of circumventing those measures and
devices that circumvent them. Thus, section 1201(a) prohibits both the
conduct of circumventing access control measures and trafficking in
products, services and devices that circumvent access control measures.
In addition to section 1201(a)(1)'s prohibition on circumvention of
access control measures, section 1201 also addressed circumvention of a
different type of technological measure. Section 1201(b), in the
versions originally reported by the House and Senate Judiciary
Committees and in the statute finally enacted, prohibited the
manufacture, importation, offering to the public, providing or
otherwise trafficking in any technology, product, service, device, or
component to circumvent protection afforded by a technological measure
that effectively protects a right of a copyright owner under title 17
in a copyrighted work. The type of technological measure addressed in
section 1201(b) includes copy-control measures and other measures that
control uses of works that would infringe the exclusive rights of the
copyright owner. They will frequently be referred to herein as copy
controls. But unlike section 1201(a), which prohibits both the conduct
of circumvention and devices that circumvent, section 1201(b) does not
prohibit the conduct of circumventing copy control measures. The
prohibition in section 1201(b) extends only to devices that circumvent
copy control measures. The decision not to prohibit the conduct of
circumventing copy controls was made, in part, because it would
penalize some noninfringing conduct such as fair use.
In the House of Representatives, the DMCA was sequentially referred
to the Committee on Commerce after it was reported out of the Judiciary
Committee. The Commerce Committee was concerned that section 1201, in
its original form, might undermine Congress' commitment to fair use.
Commerce Comm. Report, at 35. While acknowledging that the growth and
development of the Internet has had a significant positive impact on
the access of students, researchers, consumers, and the public at large
to information and that a ``plethora of information, most of it
embodied in materials subject to copyright protection, is available to
individuals, often for free, that just a few years ago could have been
located and acquired only through the expenditure of considerable time,
resources, and money,'' Id., the Committee was concerned that
``marketplace realities may someday dictate a different outcome,
resulting in less access, rather than more, to copyrighted materials
that are important to education, scholarship, and other socially vital
endeavors.'' Id. at 36. Possible measures that might lead to
[[Page 64558]]
such an outcome included the elimination of print or other hard-copy
versions, permanent encryption of all electronic copies and adoption of
business models that restrict distribution and availability of works.
The Committee concluded that ``[i]n this scenario, it could be
appropriate to modify the flat prohibition against the circumvention of
effective technological measures that control access to copyrighted
materials, in order to ensure that access for lawful purposes is not
unjustifiably diminished.'' Id.
In order to address such possible developments, the Commerce
Committee proposed a modification of section 1201 which it
characterized as a `` `fail-safe' mechanism.'' Id. As the Committee
Report describes it, ``This mechanism would monitor developments in the
marketplace for copyrighted materials, and allow the enforceability of
the prohibition against the act of circumvention to be selectively
waived, for limited time periods, if necessary to prevent a diminution
in the availability to individual users of a particular category of
copyrighted materials.'' Id.
The ``fail-safe'' mechanism is this rulemaking. In its final form
as enacted by Congress, slightly modified from the mechanism that
appeared in the version of the DMCA reported out of the Commerce
Committee, the Register is to conduct a rulemaking proceeding and,
after consulting with the Assistant Secretary for Communications and
Information of the Department of Commerce, recommend to the Librarian
whether he should conclude ``that persons who are users of a
copyrighted work are, or are likely to be in the succeeding 3-year
period, adversely affected by the prohibition under [section
1201(a)(1)(A)] in their ability to make noninfringing uses under [Title
17] of a particular class of copyrighted works.'' 17 U.S.C.
1201(a)(1)(C). ``The Librarian shall publish any class of copyrighted
works for which the Librarian has determined, pursuant to the
rulemaking conducted under subparagraph (C), that noninfringing uses by
persons who are users of a copyrighted work are, or are likely to be,
adversely affected, and the prohibition contained in subparagraph (A)
shall not apply to such users with respect to such class of works for
the ensuing 3-year period.'' 17 U.S.C. 1201(a)(1)(C).
The Commerce Committee offered additional guidance as to the task
of the Register and the Librarian in this rulemaking. ``The goal of the
proceeding is to assess whether the implementation of technological
protection measures that effectively control access to copyrighted
works is adversely affecting the ability of individual users to make
lawful uses of copyrighted works * * *. The primary goal of the
rulemaking proceeding is to assess whether the prevalence of these
technological protections, with respect to particular categories of
copyrighted materials, is diminishing the ability of individuals to use
these works in ways that are otherwise lawful.'' Commerce Comm. Report,
at 37. Accord: Staff of House Committee 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, (hereinafter House
Manager's Report) (Rep. Coble)(Comm. Print 1998), at 6. The Committee
observed that the effective date of section 1201(a)(1) was delayed for
two years in order ``to allow the development of a sufficient record as
to how the implementation of these technologies is affecting
availability of works in the marketplace for lawful uses.'' Commerce
Comm. Report, at 37.
Thus, the task of this rulemaking appears to be to determine
whether the availability and use of access control measures has already
diminished or is about to diminish the ability of the public to engage
in the lawful uses of copyrighted works that the public had
traditionally been able to make prior to the enactment of the DMCA. As
the Commerce Committee Report stated, in examining the factors set
forth in section 1201(a)(1)(C), the focus must be on ``whether the
implementation of technological protection measures (such as encryption
or scrambling) has caused adverse impact on the ability of users to
make lawful uses.'' Id.
2. The Necessary Showing
The language of section 1201(a)(1) does not offer much guidance as
to the respective burdens of proponents and opponents of any classes of
works to be exempted from the prohibition on circumvention. Of course,
it is a general rule of statutory construction that exemptions must be
construed narrowly in order to preserve the purpose of a statutory
provision, and that rule is applied in interpreting the copyright law.
Tasini v. New York Times Co., 206 F.3d 161, 168 (2d Cir. 2000).
Moreover, the burden is on the proponent of the exemption to make the
case for exempting any particular class of works from the operation of
section 1201(a)(1). See 73 Am. Jur. 2d 313 (1991) (``[s]tatutes
granting exemptions from their general operation [to] be strictly
construed, and any doubt must be resolved against the one asserting the
exemption.'') Indeed, the House Commerce Committee stated that ``The
regulatory prohibition is presumed to apply to any and all kinds of
works, including those as to which a waiver of applicability was
previously in effect, unless, and until, the Secretary makes a new
determination that the adverse impact criteria have been met with
respect to a particular class and therefore issues a new waiver.''
Commerce Comm. Report, at 37 (emphasis added).\3\
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\3\ The Commerce Committee proposal would have placed
responsibility for the rulemaking in the hands of the Secretary of
Commerce. As finally enacted, the DMCA shifted that responsibility
to the Librarian, upon the recommendation of the Register.
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The legislative history makes clear that a determination to exempt
a class of works from the prohibition on circumvention must be based on
a determination that the prohibition has a substantial adverse effect
on noninfringing use of that particular class of works. The Commerce
Committee noted that the rulemaking proceeding is to focus on
``distinct, verifiable, and measurable impacts, and should not be based
upon de minimis impacts.'' Commerce Comm. Report, at 37. ``If the
rulemaking has produced insufficient evidence to determine whether
there have been adverse impacts with respect to particular classes of
copyrighted works, the circumvention prohibition should go into effect
with respect to those classes.'' Id. at 38. Similarly, the House
Manager's Report stated that ``[t]he focus of the rulemaking proceeding
must remain on whether the prohibition on circumvention of
technological protection measures (such as encryption or scrambling)
has caused any substantial adverse impact on the ability of users to
make non-infringing uses,'' and suggested that ``mere inconveniences,
or individual cases * * * do not rise to the level of a substantial
adverse impact.'' House Manager's Report, at 6.\4\ See also Connecticut
Department of Public Utility Control v. Federal Communications
Commission, 78 F.3d 842, 851 (2d Cir. 1996) (``It is reasonable
[[Page 64559]]
to characterize as `substantial' the burden faced by a party seeking an
exemption from a general statutory rule'').
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\4\ Some commenters have suggested that the House Manager's
Report is entitled to little deference as legislative history. See,
e.g., PH18, p. 3. However, because that report is consistent with
the Commerce Committee Report, there is no need in this rulemaking
to determine whether the Manager's Report is entitled to less weight
than the Commerce Committee Report. Some critics of the Manager's
Report have objected to its statement that the focus of this
proceeding should be on whether there is a ``substantial adverse
impact'' on noninfringing uses. However, they have failed to explain
how this statement is anything other than another way of saying what
the Commerce Committee said when it said the determination should be
based on ``distinct, verifiable, and measurable impacts, and should
not be based upon de minimis impacts.''
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Although future adverse impacts may also be considered, the
Manager's Report states that ``the determination should be based upon
anticipated, rather than actual, adverse impacts only in extraordinary
circumstances in which the evidence of likelihood of future adverse
impact during that time period is highly specific, strong and
persuasive. Otherwise, the prohibition would be unduly undermined.''
Id. Although the Commerce Committee Report does not state how future
adverse impacts are to be evaluated (apart from a single reference
stating that in categories where adverse impacts have occurred or ``are
likely to occur,'' an exemption should be made, Commerce Comm. Report
at 38), the Committee's discussion of ``distinct, verifiable and
measurable impacts'' suggests that it would require a similar showing
with respect to future adverse impact.
The legislative history also requires the Register and Librarian to
disregard any adverse effects that are caused by factors other than the
prohibition against circumvention. The House Manager's Report is
instructive:
The focus of the rulemaking proceeding must remain on whether
the prohibition on circumvention of technological protection
measures (such as encryption or scrambling) has caused any
substantial adverse impact on the ability of users to make non-
infringing uses. Adverse impacts that flow from other sources * * *
or that are not clearly attributable to such a prohibition, are
outside the scope of the rulemaking.
House Manager's Report, at 6. The House Commerce Committee came to a
similar conclusion, using similar language. Commerce Comm. Report, at
37.
In fact, some technological protection measures may mitigate
adverse effects. The House Manager's Report notes that:
In assessing the impact of the implementation of technological
measures, and of the law against their circumvention, the rule-
making proceedings should consider the positive as well as the
adverse effects of these technologies on the availability of
copyrighted materials. The technological measures--such as
encryption, scrambling, and electronic envelopes--that this bill
protects can be deployed, not only to prevent piracy and other
economically harmful unauthorized uses of copyrighted materials, but
also to support new ways of disseminating copyrighted materials to
users, and to safeguard the availability of legitimate uses of those
materials by individuals.
House Manager's Report, at 6.
Another mitigating factor may arise when a work as to which the
copyright owner has instituted a technological control is also
available in formats that are not subject to technological protections.
For example, a work may be available in electronic format only in
encrypted form, but may also be available in traditional hard copy
format which has no such technological restrictions on access. The
availability without restriction in the latter format may alleviate any
adverse effect that would otherwise result from the technological
controls utilized in the electronic format. The availability of works
in such other formats is to be considered when exemptions are
fashioned. Id. at 7.
3. Determination of ``Class of Works''
One of the key issues discussed in comments and testimony was how a
``class'' of works is to be defined. The Office's initial notice of
inquiry highlighted this issue, asking for comments from the public on
the criteria to be used in determining what a ``class of works'' is and
on whether works could be classified in part based on the way in which
they are being used. See questions 16, 17 and 23, 64 FR at 66143. A
joint submission by a number of library associations took the position
that the Librarian should adopt a ``'function-based'' definition of
classes of works.'' C162, p. 32. The same submission stated that ``the
class of works should be defined, in part, according to the ways they
are being used because that is precisely how the limitations on the
otherwise exclusive rights of copyright holders are phrased,'' Id., p.
36, and concluded that ``all categories of copyrighted works should be
covered by this rulemaking.'' Id., p. 38. In contrast, a coalition of
organizations representing copyright owners argued for a narrower
approach, rejecting a focus on particular types of uses of works or on
particular access control technologies. R112, p. 10. One association of
copyright owners argued that a ``class'' should not be defined by
reference to any particular medium (such as digital versatile discs, or
DVD's), but rather by reference to ``a type or types of works.'' R59,
p. 8. Many representatives of copyright owners repeated the legislative
history that ``the `particular class of copyrighted works' be a narrow
and focused subset of the broad categories of works of authorship than
is [sic] identified in section 102 of the Copyright Act (17 U.S.C.
102).'' See, e.g., Id., (quoting Commerce Comm. Report, at 38). A
representative of a major copyright owner took the position that
``defining `classes' of works is neither feasible nor appropriate'' and
that ``[b]efore there is any movement in the direction of exempting
certain works or `classes' of works from the prohibition against
circumvention, those who support such exemption should come forward
with proof that users who desire to make non-infringing uses or avail
themselves of the fair use defense are prevented from doing so by the
technological protections.'' C43, p.6.
Based on a review of the statutory language and the legislative
history, the view that a ``class'' of works can be defined in terms of
the status of the user or the nature of the intended use appears to be
untenable. Section 1201(a)(1)(B) refers to ``a copyrighted work which
is in a particular class of works.'' Section 1201(a)(1)(C) refers to
``a particular class of copyrighted works.'' Section 1201(a)(1)(D)
``any class of copyrighted works.'' This statutory language appears to
require that the Librarian identify a ``class of works'' based upon
attributes of the works themselves, and not by reference to some
external criteria such as the intended use or users of the works. The
dictionary defines ``class'' as ``a group, set or kind sharing common
attributes.'' Webster's New Collegiate Dictionary 211 (1995).
Moreover, the phrase ``class of works'' connotes that the common
attributes relate to the nature of authorship in the works. Although
the Copyright Act does not define ``work,'' the term is used throughout
the copyright law to refer to a work of authorship, rather than to a
material object on which the work appears or to the readers or users of
the work. See, e.g., 17 U.S.C. 102(a) (``Copyright protection subsists,
in accordance with this title, in original works of authorship fixed in
any tangible medium of expression, * * *) (emphasis added) and the
catalog of the types of works protected by copyright set forth in
section 102(a)(1)-(8) (``literary works,'' ``musical works,''
``dramatic works,'' etc.).
Nevertheless, the statutory language is arguably ambiguous, and one
could imagine an interpretation of section 1201(a)(1) that permitted a
class of works to be defined in terms of criteria having nothing to do
with the intrinsic qualities of the works. In such a case, resort to
legislative history might clarify the meaning of the statute. In this
case, the legislative history appears to leave no other alternative
than to interpret the statute as requiring a ``class'' to be defined
primarily, if not exclusively, by reference to attributes of the works
themselves.
The Commerce Committee Report addressed the issue of determining a
class of works:
[[Page 64560]]
The issue of defining the scope or boundaries of a ``particular
class'' of copyrighted works as to which the implementation of
technological protection measures has been shown to have had an
adverse impact is an important one to be determined during the
rulemaking proceedings. In assessing whether users of copyrighted
works have been, or are likely to be adversely affected, the
Secretary shall assess users' ability to make lawful uses of works
``within each particular class of copyrighted works specified in the
rulemaking.'' The Committee intends that the ``particular class of
copyrighted works'' be a narrow and focused subset of the broad
categories of works of authorship than [sic] is identified in
section 102 of the Copyright Act (17 U.S.C. 102).
Commerce Comm. Report, at 38.\5\
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\5\ A leading treatise draws the following conclusion from this
language:
It would seem, therefore, that the language should be applied to
discrete subgroups. If users of physics textbooks or listeners to
Baroque concerti, for example, find themselves constricted in the
new Internet environment, then some relief will lie. If, on the
other hand, the only unifying feature shared by numerous disgruntled
users is that each is having trouble accessing copyrighted works,
albeit of different genres, then no relief is warranted. 1 Nimmer on
Copyright Sec. 12A.03[A][[2][b] (Copyright Protection Systems
Special Pamphlet).
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A ``narrow and focused subset of the broad categories of works of
authorship * * * identified in section 102'' presumably must use, as
its starting point, the categories of authorship set forth in section
102: literary works; musical works; dramatic works; pantomimes and
choreographic works; pictorial, graphic, and sculptural works; motion
pictures and other audiovisual works; sound recordings; and
architectural works.
Moreover, the Commerce Committee Report states that the task in
this rulemaking proceeding is to determine whether the prevalence of
access control measures, ``with respect to particular categories of
copyrighted materials, is diminishing the ability of individuals to use
these works in ways that are otherwise lawful.'' Commerce Comm. Report,
at 37 (emphasis added). In fact, the Report refers repeatedly to
``categories'' of works in connection with the findings to be made in
this rulemaking. See Id., at 36 (``individual users of a particular
category of copyrighted materials'') (``whether enforcement of the
regulation should be temporarily waived with regard to particular
categories of works'') (``any particular category of copyrighted
materials'') (``assessment of adverse impacts on particular categories
of works''), and 38 (``Only in categories as to which the Secretary
finds that adverse impacts have occurred''). Because the term
``category'' of works has a well-understood meaning in the copyright
law, referring to the categories set forth in section 102, the
conclusion is inescapable that the starting point for any definition of
a ``particular class'' of works in this rulemaking must be one of the
section 102 categories.\6\
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\6\ The legislative history of the Copyright Act of 1976
supports the conclusion that there is a close relation between the
section 102 categories and a ``class'' of work. The authoritative
report of the House Judiciary Committee, in discussing the section
102 categories of works, used the term ``class'' as a synonym for
``category.'' See H.R. Rep. No. 94-1476, at 53 (1976).
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The views of the Judiciary Committee are in accord with those
expressed in the Commerce Committee Report. The House Manager's Report
uses very similar words to describe how a ``class of works'' is to be
determined:
Deciding the scope or boundaries of a ``particular class'' of
copyrighted works as to which the prohibition contained in section
1201(a)(1) has been shown to have had an adverse impact is an
important issue to be determined during the rulemaking proceedings.
The illustrative list of categories appearing in section 102 of
Title 17 is only a starting point for this decision. For example,
the category of ``literary works'' (17 USC 102(a)(1)) embraces both
prose creations such as journals, periodicals or books, and computer
programs of all kinds. It is exceedingly unlikely that the impact of
the prohibition on circumvention of access control technologies will
be the same for scientific journals as it is for computer operating
systems; thus, these two categories of works, while both ``literary
works,'' do not constitute a single ``particular class'' for
purposes of this legislation. Even within the category of computer
programs, the availability for fair use purposes of PC-based
business productivity applications is unlikely to be affected by
laws against circumvention of technological protection measures in
the same way as the availability for those purposes of videogames
distributed in formats playable only on dedicated platforms, so it
is probably appropriate to recognize different ``classes'' here as
well.
House Manager's Report, at 7.
The House Manager's Report continues:
At the same time, the Secretary should not draw the boundaries
of ``particular classes'' too narrowly. For instance, the section
102 category ``motion pictures and other audiovisual works'' may
appropriately be subdivided, for purposes of the rulemaking, into
classes such as ``motion pictures,'' ``television programs,'' and
other rubrics of similar breadth. However, it would be
inappropriate, for example, to subdivide overly narrowly into
particular genres of motion pictures, such as Westerns, comedies, or
live action dramas. Singling out specific types of works by creating
in the rulemaking process ``particular classes'' that are too narrow
would be inconsistent with the intent of this bill.
Id.
The conclusion to be drawn from the legislative history is that the
section 102 categories of works are, at the very least, the starting
point for any determination of what a ``particular class of work''
might be. That is not to say that a ``class'' of works must be
identical to a ``category.'' In fact, that usually will not be the
case. A ``class'' of works might include works from more than one
category of works; one could imagine a ``class'' of works consisting of
certain sound recordings and musical compositions, for example. More
frequently, a ``class'' would constitute some subset of a section 102
category, such as the Judiciary Committee's example of ``television
programs.''
A rigid adherence to defining ``class'' solely by reference to
section 102 categories or even to inherent attributes of the works
themselves might lead to unjust results in light of the fact that the
entire ``class'' must be exempted from section 1201(a)(1)'s
anticircumvention provision if the required adverse impact is
demonstrated. For example, if a showing had been made that users of
motion pictures released on DVD's are adversely affected in their
ability to make noninfringing uses of those works, it would be
unfortunate if the Librarian's only choice were to exempt motion
pictures. Limiting the class to ``motion pictures distributed on
DVD's,'' or more narrowly to ``motion pictures distributed on DVD's
using the content scrambling system of access control'' would be a more
just `` and permissible `` classification. Such a classification would
begin by reference to attributes of the works themselves, but could
then be narrowed by reference to the medium on which the works are
distributed, or even to the access control measures applied to them.
But classifying a work solely by reference to the medium on which the
work appears, or the access control measures applied to the work, seems
to be beyond the scope of what ``particular class of work'' is intended
to be. And classifying a work by reference to the type of user or use
(e.g., libraries, or scholarly research) seems totally impermissible
when administering a statute that requires the Librarian to create
exemptions based on a ``particular class of works.'' If Congress had
wished to provide for exemptions based on the status of the user or the
nature of the use--criteria that would be very sensible--Congress could
have said so clearly. The fact that the issue of noninfringing uses was
before Congress and the fact that Congress clearly was seeking, in
section 1201, to create exemptions that would permit noninfringing
uses, make it clear that
[[Page 64561]]
Congress had every opportunity and motive to clarify that such uses
could be ingredients of the definition of ``class'' if that was what
Congress intended. Yet the fact that Congress selected language in the
statute and legislative history that avoided suggesting that classes of
works could be defined by reference to users or uses is strong evidence
that such classification was not within Congress' contemplation.
In this rulemaking, exemptions for two classes of works are
recommended. The first class, ``Compilations consisting of lists of
websites blocked by filtering software applications,'' fits comfortably
within the approach to classification outlined herein. The second
class, ``Literary works, including computer programs and databases,
protected by access control mechanisms that fail to permit access
because of malfunction, damage or obsoleteness,'' is a somewhat less
comfortable fit. It includes all literary works (a section 102
category) and specifically mentions two subclasses of literary works,
but narrows the exemption by reference to attributes of the
technological measures that control access to the works. Such
classification probably reaches the outer limits of a permissible
definition of ``class'' under the approach adopted herein.
B. Consultation With Assistant Secretary of Commerce for Communications
and Information
As is required by section 1201(a)(1)(C), the Register has consulted
with the Assistant Secretary for Communications and Information in the
Department of Commerce. The Assistant Secretary is the Administrator of
the National Telecommunciations and Information Administration (NTIA).
Discussions with the Assistant Secretary and the NTIA staff have taken
place throughout this rulemaking process. In furtherance of the
consultative process, on September 29, 2000, the Assistant Secretary
presented a letter to the Register detailing his views. That letter has
been forwarded to the Librarian. After full and thorough consideration
of and discussions with the Assistant Secretary's office on these
views, the Register includes the following report and comment on the
Assistant Secretary's perspective in this recommendation to the
Librarian.
The Assistant Secretary stated that his principal concern is to
ensure that the Librarian will preserve fair use principles in this new
digital age. The concerns expressed in his letter quoted from and
restated many of the concerns that were presented in the House Commerce
Committee Report. The Assistant Secretary noted that the Commerce
Committee was concerned that the anticircumvention prohibition of
section 1201(a)(1) might have adverse consequences on fair uses of
copyrighted works protected by technological protection measures,
particularly by librarians and educators. He echoed the fears of the
Commerce Committee that a legal framework may be developing that would
``inexorably create a pay-per-use society.'' He stated that the
``right'' to prohibit circumvention should be qualified in order to
maintain a balance between the interests of content creators and
information users, by means of carefully drawn exemptions from the
anticircumvention provision.
Since fair use, as codified in 17 U.S.C. 107, is not a defense to
the cause of action created by the anticircumvention prohibition of
section 1201, the Assistant Secretary urges the Register to follow the
House Commerce Committee's intent to provide for exemptions analogous
to fair use. He advises the Register to preserve fair use principles by
crafting exemptions that are grounded in these principles in order to
promote inclusion of all parts of society in the digital economy and
prevent a situation in which information crucial to supporting
scholarship, research, comment, criticism, news reporting, life-long
learning, and other related lawful uses of copyrighted information is
available only to those with the ability to pay or the expertise to
negotiate advantageous licensing terms.
The Assistant Secretary expresses support for commenters in this
proceeding who believed that the term ``class'' should not be
interpreted as ``coextensive'' with categories of original works of
authorship, as that term is used in section 102(a) of the Copyright
Act. He states that since the statute and legislative history provide
little guidance on the meaning of the term ``class of works'' and since
section 1201(a)(1)(C) instructs the Librarian to examine considerations
of use that are similar to fair use analysis, the classes of exempted
works should be fashioned based on a factual examination of the uses to
which copyrighted materials are put.
In order to craft an exemption that will preserve fair uses, he
concludes that the determination of exempted classes of works should
include a factual examination of the uses to which copyrighted
materials are put. With this in mind, he endorses, ``as a starting
point, the exception proposed by the library and academic
communities.'' In particular, he would support the crafting of the
following exemption: ``Works embodied in copies that have been lawfully
acquired by users or their institutions who subsequently seek to make
noninfringing uses thereof.''
The Register has subsequently sought and received clarification of
some of the points made in the Assistant Secretary's letter. In
particular, the Register has asked (1) for the Assistant Secretary's
views on whether a ``class of works'' can be defined or determined by
reference to the uses of the works in that class, rather than by
reference to attributes of the works themselves, and (2) that the
Assistant Secretary identify any comments or testimony in the record of
this rulemaking proceeding that he believes presented any evidence that
technological measures that control access to copyrighted works
actually have caused or in the next three years will cause substantial
adverse impacts on the ability of users to make noninfringing uses of
works in the proposed class of works that he has endorsed.
With respect to how a ``class of works'' is to be defined or
determined, NTIA responded by stating that fair use has to be a part of
any discussion focusing on exemptions to the DMCA's anticircumvention
prohibition, and that because the principle of fair use is grounded in
a factual examination of the use to which copyrighted materials are
put, it would be reasonable to include a similar examination in
fashioning a class of excepted works under 1201(a)(1)(C).
In response to the request to identify comments and testimony that
present evidence of substantial adverse impacts on the ability of users
to make noninfringing uses of ``works embodied in copies that have been
lawfully acquired by users or their institutions who subsequently seek
to make noninfringing uses thereof,'' NTIA cited one comment and the
testimony of several witnesses. NTIA also questioned whether a showing
of ``substantial'' adverse impact is required, observing that ``Nowhere
in section 1201(a)(1)(C) does the word ``substantial'' appear'' and
asserting that a showing of ``reasonably anticipated impacts'' should
be sufficient.
The views of the Assistant Secretary have been seriously considered
in the preparation of these recommendations to the Librarian. Because
the exemption endorsed by the Assistant Secretary (see discussion
above) is not supported in this recommendation, an explanation of the
reasons is in order.
At the outset of these comments on the Assistant Secretary's views,
it should be understood that there is no
[[Page 64562]]
disagreement with the Assistant Secretary or the Commerce Committee on
the need to preserve the principles of fair use and other noninfringing
uses in the digital age. The Register's disagreement with the Assistant
Secretary's proposals arises from the interpretation of both the
statutory language of section 1201(a)(1)(C) and a review of the record
in this proceeding.
First, the Assistant Secretary's proposals are based on--and
necessarily require adoption of--an interpretation of the statutory
phrase ``particular class of copyrighted works'' that the Register
cannot support. As stated above in section III.A.3, a ``particular
class of copyrighted works'' must relate primarily to attributes of the
copyrighted works themselves and not to factors that are external to
the works, e.g., the material objects on which they are fixed or the
particular technology employed on the works. Similarly, neither the
language of the statute nor the legislative history provide a basis for
an interpretation of an exemption of a class of works that is ``use-
oriented.'' While the Register was required to ``examine'' the present
or likely adverse effects on uses, and in particular noninfringing
uses, that inquiry had the express goal of designating exemptions that
were based on classes of copyrighted works. The only examples cited and
guidance provided in the legislative history lead the Register to
conclude that a class must be defined primarily by reference to
attributes of the works themselves, typically based upon the categories
set forth in section 102(a) or some subset thereof, e.g., motion
pictures or video games.
As NTIA observes, it is appropriate to examine the impact of access
control measures on fair use in determining what classes of works, if
any, should be subject to an exemption. But the Assistant Secretary has
not explained how a ``class of works'' can be defined or determined
without any reference whatsoever to attributes of the works themselves,
and solely by reference to the status of the persons who acquire copies
of those works. While fair use is relevant in determining what classes
should be exempted, its relevance relates to the inquiry whether users
of a particular class of works (as defined above, in section III.A.3.)
are adversely affected in their ability to make noninfringing uses
(such as fair use) of works in that class.
The specific exemption endorsed by the Assistant Secretary, and the
reasons why that exemption cannot be adopted, are discussed below. See
section III.E.9. Those reasons will not be repeated at length here. As
already noted, the proposal does not constitute a ``particular class of
copyrighted work'' as required by the statute. Moreover, the record
does not reveal that there have been adverse effects on noninfringing
uses that such an exemption would remedy. Finally, this approach would,
in effect, revive a version of section 1201(a)(1) focusing on persons
who have gained initial lawful access that was initially enacted by the
House of Representatives but ultimately rejected by Congress.
NTIA's observation that the word ``substantial'' does not appear in
section 1201(a)(1)(C) does not require the conclusion, suggested by
NTIA, that a showing of substantial harm is not required. As noted
above (section III.A.2) the House Manager's Report states that the
focus of this rulemaking should be on whether the prohibition on
circumvention of technological protection measures has had a
substantial adverse impact on the ability of users to make non-
infringing uses. Although the Commerce Committee Report does not use
the word substantial, its direction to make exemptions based upon
``distinct, verifiable, and measurable impacts, and * * * not * * *
upon de minimis impacts' requires a similar showing. Moreover, while
NTIA asserts that an exemption may be made based on a finding of
``likely adverse effects'' or ``reasonably anticipated impacts,'' it
appears that a similar showing of substantial likelihood is required
with respect to such future harm. See section III.A.2 above.
``Likely''--the term used in section 1201 to describe the showing of
future harm that must be made--means ``probable,'' ``in all
probability,'' or ``having a better chance of existing or occurring
than not.'' Black's Law Dictionary 638 (Abridged 6th ed. 1991).
The comments and testimony identified by NTIA in support of the
exemption are discussed below in section III.E.9.
For the foregoing reasons, the Assistant Secretary, in supporting
this exemption proposed by libraries and educators, endorses an
exemption that is beyond the scope of the Librarian's authority. While
the proposed exemption addresses important concerns, it is a proposal
that would be more appropriately suited for legislative action rather
than for the regulatory process set forth in section 1201(a)(1)(C) and
(D). In the absence of clarification by Congress, a ``particular class
of works'' cannot be interpreted so expansively.
Some of the issues raised by the Assistant Secretary are also
likely to be addressed in a joint study by the Assistant Secretary and
the Register pursuant to section 104 of the DMCA. See 65 FR 35673 (June
5, 2000). It is possible that this study will result in legislative
recommendations that might more appropriately resolve the issues raised
by the Assistant Secretary.
C. Conclusions Regarding This Rulemaking and Summary of Recommendations
After reviewing all of the comments and the testimony of the
witnesses who appeared at the hearings, the Register concludes that a
case has been made for exemptions relating to two classes of works:
(1) Compilations consisting of lists of websites blocked by
filtering software applications; and
(2) Literary works, including computer programs and databases,
protected by access control mechanisms that fail to permit access
because of malfunction, damage or obsoleteness.
These recommendations may seem modest in light of the sweeping
exemptions proposed by many commenters and witnesses, but they are
based on a careful review of the record and an application of the
standards governing this rulemaking procedure. While many commenters
and witnesses made eloquent policy arguments in support of exemptions
for certain types of works or certain uses of works, such arguments in
most cases are more appropriately directed to the legislator rather
than to the regulator who is operating under the constraints imposed by
section 1201(a)(1).
Many of the proposed classes do not qualify for exemption because
they are not true ``classes of works'' as described above in section
III.A.3. The proposed exemptions discussed below in section III.E.2, 5,
6, 7, 8, and 9 all suffer from that frailty to varying degrees. In many
cases, proponents attempted to define classes of works by reference to
the intended uses to be made of the works, or the intended user. These
criteria do not define a ``particular class of copyrighted work.''
For almost all of the proposed classes, the proponents failed to
demonstrate that there have been or are about to be adverse effects on
noninfringing uses that have ``distinct, verifiable, and measurable
impacts.'' See Commerce Comm. Report, at 37. In most cases, those
proponents who presented actual examples or experiences with access
control measures presented, at best, cases of ``mere inconveniences, or
individual cases, that do not rise to the level of a substantial
adverse impact.'' See House Manager's Report, at 6. As one leading
proponent of exemptions
[[Page 64563]]
admitted, the inquiry into whether users of copyrighted works are
likely to be adversely effected by the full implementation of section
1201(a)(1) is necessarily ``speculative since it entails a prediction
about the future.'' T Jaszi, 5/2/00, pp. 11-12.
It should come as no surprise that the record supports so few
exemptions. The prohibition on circumventing access control measures is
not yet even in effect. Witnesses who asserted the need to circumvent
access control measures were unable to cite any actual cases in which
they or others had circumvented access controls despite the fact that
such circumvention will not be unlawful until October 28, 2000. T Neal,
5/4/00, p. 103; T Cohen, 5/4/00, pp. 100-01. \7\
---------------------------------------------------------------------------
\7\ One witness testified that ``there have been times that
we've had to circumvent,'' but on examination, it appears that the
example the witness gave would not constitute circumvention of an
access control measure. See T Gasaway, 5/18/00, pp. 49-50.
---------------------------------------------------------------------------
The legislative history reveals that Congress anticipated that
exemptions would be made only in exceptional cases. See House Manager's
Report, at 8 (it is ``not required to make a determination under the
statute with respect to any class of copyrighted works. In any
particular 3-year period, it may be determined that the conditions for
the exemption do not exist. Such an outcome would reflect that the
digital information marketplace is developing in the manner which is
most likely to occur, with the availability of copyrighted materials
for lawful uses being enhanced, not diminished, by the implementation
of technological measures and the establishment of carefully targeted
legal prohibitions against acts of circumvention.''); Commerce Comm.
Report, at 36 (``Still, the Committee is concerned that marketplace
realities may someday dictate a different outcome, resulting in less
access * * *. In this scenario, it could be appropriate to modify the
flat prohibition against the circumvention of effective technological
measures that control access to copyrighted materials * * *.''; ``a
``fail-safe mechanism'' is required'; ``This mechanism would * * *
allow the enforceability of the prohibition against the act of
circumvention to be selectively waived, for limited time periods, if
necessary to prevent a diminution in the availability to individual
users of a particular category of copyrighted materials.'') (emphasis
added).
The two recommended exemptions do constitute ``particular classes
of copyrighted works,'' and genuine harm to the ability to engage in
noninfringing activity has been demonstrated. These exemptions will
remain in effect for three years. In the next rulemaking, they will be
examined de novo, as will any other proposed exemption including
exemptions that were rejected in this proceeding. If, in the next three
years, copyright owners impose access controls in unreasonable ways
that adversely affect the ability of users to engage in noninfringing
uses, it is likely that the next rulemaking will result in more
substantial exemptions.
Ultimately, the task in this rulemaking proceeding is to balance
the benefits of technological measures that control access to
copyrighted works against the harm caused to users of those works, and
to determine, with respect to any particular class of works, whether an
exemption is warranted because users of that class of works have
suffered significant harm in their ability to engage in noninfringing
uses. See House Managers Report at 7 (decision ``should give
appropriate weight to the deployment of such technologies in evaluating
whether, on balance, the prohibition against circumvention of
technological measures has caused an adverse impact on the specified
categories of users of any particular class of copyrighted
materials''). The four factors specified in section 1201(a)(1)(C)
reflect some of the significant considerations that must be balanced:
Are access control measures increasing or restricting the availability
of works to the public in general? What impact are they having on the
nonprofit archival, preservation, and educational activities? What
impact are they having on the ability to engage in fair use? To what
extent is circumvention of access controls affecting the market for and
value of copyrighted works?
The information submitted in this, the first rulemaking proceeding
under section 1201(a)(1), indicates that in most cases thus far the use
of access control measures has sometimes enhanced the availability of
copyrighted works and has rarely impeded the ability of users of
particular classes of works to make noninfringing uses. With the
exception of the two classes recommended for exemption, the balance of
all relevant considerations favors permitting the prohibition against
circumvention to go into effect as scheduled.
Licensing
Many of the complaints aired in this rulemaking actually related
primarily to licensing practices rather than technological measures
that control access to works. Some witnesses expressed concerns about
overly restrictive licenses, unwieldy licensing terms, restrictions
against use by unauthorized users, undesirable terms and prices, and
other licensing restrictions enforced by technological protection
measures. See, e.g., T Gasaway, 5/18/00; T Coyle, 5/18/00; T
Weingarten, 5/19/00. One of these witnesses admitted that ``some of the
concerns today are just pure licensing concerns.'' T Gasaway, 5/18/00,
p. 65.
It appears that in those cases, the licensees often had the choice
of negotiating licenses for broader use, but did not choose to do so.
See T. Clark, 5/3/00, p. 99, T Neal, 5/4/00, p. 133, T Gasaway, 5/18/
00, p. 38. Commenters and witnesses who complained about licensing
terms did not demonstrate that negotiating less restrictive licenses
that would accommodate their needs has been or will be prohibitively
expensive or burdensome. Nor has there been a showing that unserved
persons not permitted to gain access under a particular license (e.g.,
a member of the public wishing to gain access to material at a
university library when the library's license restricts access to
students and faculty) could not obtain access to the restricted
material in some other way or place.
It is appropriate to consider harm emanating from licensing in
determining whether users of works have been adversely affected by the
prohibition on circumvention in their ability to make noninfringing
uses. This triennial rulemaking is to ``monitor developments in the
marketplace for copyrighted materials,'' Commerce Comm. Report, at 36,
and developments in licensing practices are certainly relevant to that
inquiry. If, for example, licensing practices with respect to
particular classes of works make it prohibitively burdensome or
expensive for users, such as libraries and educational institutions, to
negotiate terms that will permit the noninfringing uses, and if the
effect of such practices is to diminish unjustifiably access for lawful
purposes, see Commerce Comm. Report, at 36, exemptions for such classes
may be justified. If copyright owners flatly refuse to negotiate
licensing terms that users need in order to engage in noninfringing
uses, an exemption may be justified. But such a case has not been made
in this proceeding.
Many commenters expressed concerns that, in the words of one
witness, we are ``on the brink of a pay-per-use universe.'' T Jaszi, 5/
2/00, p. 70. The Assistant Secretary for Communications and Information
shares that concern, observing that the Commerce Committee Report had
warned against the development of a
[[Page 64564]]
``legal framework that would inexorably create a `pay-per-use'
society.'' See Commerce Comm. Report, at 26.
However, a ``pay-per-use'' business model may be, in the words of
the House Manager's Report, ``use-facilitating.'' House Manager's
Report, at 7. The Manager's Report refers to access control
technologies that are ``designed to allow access during a limited time
period, such as during a period of library borrowing'' or that allow
``a consumer to purchase a copy of a single article from an electronic
database, rather than having to pay more for a subscription to a
journal containing many articles the consumer does not want.'' Id. For
example, if consumers are given a choice between paying $100 for
permanent access to a work or $2 for each individual occasion on which
they access the work, many will probably find it advantageous to elect
the ``pay-per-use'' option, which may make access to the work much more
widely available than it would be in the absence of such an option. The
comments and testimony of SilverPlatter Information Inc., demonstrate
that the flexibility offered by such ``persistent'' access controls can
actually enhance use. Of course, one can imagine pay-per-use scenarios
that are likely to make works less widely available as well.
The record in this proceeding does not reveal that ``pay-per-use''
business models have, thus far, created the adverse impacts on the
ability of users to make noninfringing uses of copyrighted works that
would justify any exemptions from the prohibition on circumvention. If
such adverse impacts occur in the future, they can be addressed in a
future rulemaking proceeding.
D. The Two Exemptions
1. Compilations Consisting of Lists of Websites Blocked by Filtering
Software Applications
Certain software products, often known as ``filtering software'' or
``blocking software,'' restrict users from visiting certain internet
websites. These software products include compilations consisting of
lists of websites to which the software will deny access. Schools,
libraries, and parents may choose to use such software for the purpose
of preventing juveniles' access to pornography or other explicit or
inappropriate materials on their computers. R56. At least one court
that has addressed the use of such software has concluded that
requiring use of the software in public libraries offends the First
Amendment. See, e.g., Mainstream Loudoun v. Board of Trustees of the
Loudoun County Library, 24 F. Supp. 2d 552 (E.D. Va. 1998). See also
Tenn. Op. Atty. Gen. No. 00-030 (2000). On the other hand, the Supreme
Court has suggested that availability of such software for use by
parents to prevent their children from gaining access to objectionable
websites is a positive development. Reno v. American Civil Liberties
Union, 521 U.S. 844, 876-77 (1997); United States v. Playboy
Entertainment Group, Inc., 120 S.Ct. 1878, 1887 (2000).
Critics charge that some filtering programs unfairly block sites
that do not contain undesirable material and therefore should not be
filtered. One commenter alleged that such programs have an error rate
of 76%. R56 at 6. Another commenter described the ``long history of
errors in blocking sites,'' and asserted that the software
manufacturers have not responded appropriately. R26. The names of
blocked websites are compiled into lists which are protected by
copyright as compilations. Several commenters assert that manufacturers
of filtering software encrypt the lists naming the targeted sites and
that they are not made available to others, including the operators of
the targeted sites themselves. R56. These commenters assert that they
have no alternative but to decrypt the encrypted lists in order to
learn what websites are included in those lists. Persons have already
decrypted the lists for the purpose of commenting on or criticizing
them. R56. One commenter cites an injunction against authors of a
program decrypting the list of blocked websites. R26. See Microsystems
Software, Inc. v. Scandinavia Online AB, No. 00-1503 (1st Cir. Sept.
27, 2000). Such acts of decryption would appear to violate 1201(a)(1)
if it took effect without an exemption for these activities.
This does appear to present a problem for users who want to make
noninfringing uses of such compilations, because reproduction or
display of the lists for the purpose of criticizing them could
constitute fair use. The interest in accessing the lists in order to
critique them is demonstrated by court cases, websites devoted to the
issue, and a fair number of commenters. See generally R73 (Computer
Professionals for Social Responsibility); R38; PH20; and PH5
(California Association of Library Trustees and Commissioners, reverse
filtering); WS Vaidhyanathan. There is uncontroverted evidence in this
record that the lists are not available elsewhere. No evidence has been
presented that there is not a problem with respect to lists of websites
blocked by filtering software, or that permitting circumvention of
technological measures that control access to such lists would have a
negative impact on any of the factors set forth in section
1201(A)(1)(C). The commenters assert that there is no other legitimate
way to obtain access to this information. No one else on the record has
asserted otherwise.
A review of the factors listed in 1201(a)(1)(C) supports the
creation of this exemption. Although one can speculate that the
availability of technological protection measures that deny access to
the lists of blocked websites might be of benefit to the proprietors of
filtering software, and might even increase the willingness of those
proprietors to make the software available for use by the public, no
commenters or witnesses came forward to make such an assertion. No
information was presented relating to the use of either the filtering
software or the lists of blocked websites for nonprofit archival,
preservation and educational purposes. Nor was any information
presented relating to whether the circumvention of technological
measures preventing access to the lists has had an impact on the market
for or value of filtering software or the compilations of objectionable
websites contained therein. However, a persuasive case was made that
the existence of access control measures has had an adverse effect on
criticism and comment, and most likely news reporting, and that the
prohibition on circumvention of access control measures will have an
adverse effect.
Thus, it appears that the prohibition on circumvention of
technological measures that control access to these lists of blocked
sites will cause an adverse effect on noninfringing users since persons
who wish to criticize and comment on them cannot ascertain which sites
are contained in the lists unless they circumvent. The case has been
made for an exemption for compilations consisting of lists of websites
blocked by filtering software applications.
2. Literary Works, Including Computer Programs and Databases, Protected
by Access Control Mechanisms That Fail to Permit Access Because of
Malfunction, Damage or Obsoleteness
This designation of class of works is intended to exempt users of
software, databases and other literary works in digital formats who are
prevented from accessing such works because the access control
protections are not functioning in the way that they were intended. In
the course of this rulemaking
[[Page 64565]]
proceeding, a number of users, and in particular consumers of software
and users of compilations, expressed concerns about works which they
could not access even though they were authorized users, due to the
failure of access control mechanisms to function properly.
Substantial evidence was presented on this issue, in particular
relating to the use of ``dongles,'' hardware locks attached to a
computer that interact with software programs to prevent unauthorized
access to that software. C199. One commenter attached numerous letters
and news articles to his submission and testimony, documenting the
experience of users whose dongles become damaged or malfunction. It
appears that in such instances, the vendors of the software may be
nonresponsive to requests to replace or repair the dongle, or may
require the user to purchase either a new dongle or an entirely new
software package, usually at a substantial cost. In some cases, the
vendors have gone out of business, and the user has had no recourse for
repair or replacement of the dongle.
Libraries and educational institutions also stated that they have
experienced instances where materials they obtained were protected by
access controls that subsequently malfunctioned, and they could not
obtain timely relief from the copyright owner. R34, R75 (National
Library of Medicine), R111 (National Agricultural Library). Similarly,
libraries stated that there have been instances where material has been
protected by technological access protections that are obsolete or are
no longer supported by the copyright owner. Id.
No evidence has been presented to contradict the evidence of
problems with malfunctioning, damaged or obsolete technological
measures. Nor has evidence been presented that the marketplace is
likely to correct this problem in the next three years.
This appears to be a genuine problem that the market has not
adequately addressed, either because companies go out of business or
because they have insufficient incentive to support access controls on
their products at some point after the initial sale or license. In
cases where legitimate users are unable to access works because of
damaged, malfunctioning or obsolete access controls, the access
controls are not furthering the purpose of protecting the work from
unauthorized users. Rather, they are preventing authorized users from
getting the access to which they are entitled. This prevents them from
making the noninfringing uses they could otherwise make. This situation
is particularly troubling in the context of libraries and educational
institutions, who may be prevented from engaging in noninfringing uses
of archiving and preservation of works protected by access controls
that are obsolete or malfunctioning. In effect, it puts such users in a
position where they cannot obtain access; nor, under 1201(a)(1), would
they be permitted to circumvent the access controls to make non-
infringing uses of the work unless they fall within an exemption.
Not only does such a result have an adverse impact on noninfringing
uses, but it also does not serve the interests of copyright owners that
1201(a)(1) was meant to protect. In almost all cases where this
exemption will apply, the copyright owner will already have been
compensated for access to the work. It is only when the access controls
malfunction that the exemption will come into effect. This does not
cause significant harm to the copyright owner. Moreover, authorized
users of such works are unlikely to circumvent the access controls
unless they have first sought but failed to receive assistance from the
copyright owner, since circumvention is likely to be more difficult and
time-consuming than obtaining assistance from a copyright owner who is
responsive to the needs of customers. Only as a fallback will most
users attempt to circumvent the access controls themselves.
Although it might be tempting to describe this class as ``works
protected by access control mechanisms that fail to permit access
because of malfunction, damage or obsoleteness,'' that would not appear
to be a legitimate class under section 1201 because it would be defined
only by reference to the technological measures that are applied to the
works, and not by reference to any intrinsic qualities of the works
themselves. See the discussion of ``works'' above in section III.A.3.
The evidence in this rulemaking of malfunctioning, damaged or obsolete
technological protection measures has related to software (dongles)
and, in the cases raised by representatives of libraries, to
compilations of literary works and databases. Therefore, this class of
works is defined primarily in terms of such literary works, and
secondarily by reference to the faulty technological protection
measures.
Although this exemption fits within the parameters of the term
``class of works'' as described by Congress, it probably reaches the
limits of those parameters. The definition of the class does start with
a section 102 category of works--literary works. It then narrows that
definition by reference to attributes of access controls that sometimes
protect those works--i.e., the failure of those access controls to
function as intended. But in reality, this exemption addresses a
problem that could be experienced by users in accessing all classes of
copyrighted works. This subject matter is probably more suitable for a
legislative exemption, and the Register recommends that Congress
consider amending section 1201 to provide a statutory exemption for all
works, regardless of what class of work is involved, that are protected
by access control mechanisms that fail to permit access because of
malfunction, damage or obsoleteness. Meanwhile, because genuine harm
has been demonstrated in this rulemaking proceeding and because it is
possible to define a class of works that fits within the framework of
section 1201(a)(1)(B), (C) and (D), the Register recommends that the
Librarian exempt this class of works during the first three years in
which section 1201(a)(1) is in effect. But the fact that sufficient
harm has been found to justify this exemption for this three-year
period will not automatically justify a similar exemption in the next
triennial rulemaking. In fact, if there were a showing in the next
rulemaking proceeding that faulty access controls create adverse
impacts on noninfringing uses of all categories of works, such a
showing could, parodoxically, result in the conclusion that the problem
is not one that can be resolved pursuant to section 1201(a)(1)(C) and
(D), which anticipates exemptions only for ``a particular class of
works.'' A legislative resolution of this problem is preferable to a
repetition of the somewhat ill-fitting regulatory approach adopted
herein.
The class of works covers literary works--and is applicable in
particular to computer programs, databases and other compilations--
protected by access controls that fail to permit access because of
damage, malfunction or obsoleteness. The terms ``damage'' and
``malfunction'' are fairly self-explanatory, and would apply to any
situation in which the access control mechanism does not function in
the way in which it was intended to function. For definition of the
term ``obsolete,'' it is instructive to look to section 108(c), which
also addresses the issue of obsoleteness. For the purposes of section
108, ``a format shall be considered obsolete if the machine or device
necessary to render perceptible a work stored in that format is no
longer manufactured or is no longer reasonably available in the
commercial marketplace.'' In the context of this
[[Page 64566]]
rulemaking, an access control should be considered obsolete in
analogous circumstances.
An exemption for this class, however, would not cover several other
types of problems that commenters presented. For example, a commenter
describing the problems experienced by users of damaged or
malfunctioning dongles noted that similar problems occur when dongles
become lost or are stolen. C199. That is, vendors of the software are
often reluctant to replace the dongle, or insist that the user purchase
a new dongle at a high cost. While this may be a problem, exempting
works in this situation could unfairly prejudice the interests of
copyright owners, who have no way of ascertaining whether the dongle
was in fact lost or stolen, or whether it has been passed on to another
user along with an unauthorized copy of the software, while the
original user obtains a replacement by claiming the original dongle was
lost. This exemption also would not cover situations such as those
described by certain libraries, who expressed the fear that they would
be prevented by 1201(a)(1) from reformatting materials that are in
obsolete formats. If the materials did not contain access control
protections, but were merely in an obsolete format, 1201(a)(1) would
not be implicated. To the extent that technological protections
prevented the library from converting the format, those protections
would seem to be copy controls, the act of circumvention of which is
not prohibited by section 1201.
The factors listed in 1201(a)(1)(C) support the creation of this
exemption. In cases such as those described above, access controls
actually decrease the availibility of works for any use, since works
that were intended to be available become unavailable due to damage,
malfunction or obsoleteness. This decrease in availability is felt
particularly by the library and educational communities, who have been
prevented from making non-infringing uses, including archiving and
preservation, by malfunctioning or obsolete access controls.
Circumvention of access controls in these instances should not have a
significant effect on the market for or value of the works, since
copyright owners typically will already have been compensated for the
use of the work.
E. Other Exemptions Considered, But Not Recommended
A number of other proposed exemptions were considered, but for the
reasons set forth below the Register does not recommend that any of
them be adopted.
1. ``Thin Copyright'' Works
Many commenters have urged the exemption of a class of works
consisting of what they term ``thin copyright works.'' These are works
consisting primarily (but not entirely) of matter unprotected by
copyright, such as U.S. government works or works whose term of
copyright protection has expired, or works for which copyright
protection is ``thin,'' such as factual works. As one proponent, the
Association of American Universities, described the class, it includes
``works such as scholarly journals, databases, maps, and newspapers
[which] are primarily valuable for the information they contain,
information that is not protected by copyright under Section 102(b) of
the Copyright Act.'' C161. Most often this argument is made in the
context of databases that contain a significant amount of
uncopyrightable material. These databases may nonetheless be covered by
copyright protection by virtue of the selection, coordination and
arrangement of the materials. They may also incorporate copyrightable
works or elements, such as a search engine, headnotes, explanatory
texts or other contributions that represent original, creative
authorship. While this proposal is frequently made with reference to
databases, it is not limited to them, and would apply to any works that
contain a mixture of copyrightable and uncopyrightable elements.
Proponents of such an exemption make two related arguments. First,
some commenters argue that using Section 1201(a)(1) to prohibit
circumvention of access controls on works that are primarily factual,
or in the public domain, bootstraps protection for material that
otherwise would be outside the scope of protection. It would, in
effect, create legal protection for even the uncopyrightable elements
of the database, and go beyond the scope of what Section 1201(a)(1) was
meant to cover. An exemption for these kinds of works, proponents
argue, is necessary to preserve an essential element of the copyright
balance `` that copyright does not protect facts, U.S. government
works, or other works in the public domain. Without such an exemption,
users will be legally prevented from circumventing access controls to,
and subsequently making noninfringing uses of, material unprotected by
copyright.
A related worry of commenters is that, in practice, section
1201(a)(1) will be used to ``lock up'' works unprotected by copyright.
They predict that compilers of factual databases will have an incentive
to impose a thin veneer of copyright on a database, by adding, for
example, some graphics or an introduction, and thus take unfair
advantage of the protection afforded by Section 1201. In addition, they
fear that access to works such as databases, encyclopedias, and
statistical reports, which are a mainstay of the educational and
library communities, will become increasingly and prohibitively
expensive.
On the record developed in this proceeding, the need for such an
exemption has not been demonstrated. First, although proponents argue
that 1201(a)(1)(A) bootstraps protection for uncopyrightable elements
in copyrightable databases, the copyrightable elements in databases and
compilations usually create significant added value. Indeed, in most
cases the uncopyrightable material is available elsewhere in ``raw''
form, but it is the inclusion of that material in a copyrightable
database that renders it easier to use. Search engines, headnotes,
selection, and arrangement, far from being a thin addition to the
database, are often precisely the elements that database users utilize,
and which make the database the preferred means to access and use the
uncopyrightable material it contains. Because it is the utility of
those added features that most users wish to access, it is appropriate
to protect them under Section 1201(a)(1)(A). Moreover, all
copyrightable works are likely to contain some uncopyrightable
elements, factual or otherwise. This does not undermine their
protection under copyright or under 1201(a)(1)(A).\8\
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\8\ One commenter suggested an exemption for ``compilations and
other works that incorporate works in the public domain, unless the
compilation or work was marked in such a way as to allow
identification of public domain elements and separate circumvention
of the technological measures that controlled access to those
elements.'' PH4 (Ginsburg). While this approach could address some
of the concerns raised by proponents, it is unclear whether it would
be technologically feasible for copyright owners to implement.
Furthermore, as discussed below, the Register has not yet been
presented with evidence that there have been or are likely to be
adverse impacts in this area.
---------------------------------------------------------------------------
Second, the fear that 1201(a)(1)(A) will disadvantage users by
``locking up'' uncopyrightable material, while understandable, does not
seem to be borne out in the record of this proceeding. Commenters have
not provided evidence that uncopyrightable material is becoming more
expensive or difficult to access since the enactment of Section 1201,
nor have they shown that works of minimal copyright authorship
[[Page 64567]]
are being attached to otherwise unprotectible material to take
advantage of the 1201 prohibitions. The examples presented in this
rulemaking proceeding of databases that mix copyrightable and
uncopyrightable elements seem to be operating in a way that minimizes
the impact on noninfringing uses, such as the LEXIS/NEXIS database and
databases produced by a witness in the Washington DC hearings,
SilverPlatter Information Inc. These databases provide business models
that allow users to pay for different levels of access, and to choose
different payment schedules depending on the way they would like to use
the database. Finally, although the fear that material will be ``locked
up'' is most compelling with respect to works that are the ``sole
source'' of uncopyrightable material, most of the uncopyrightable
material in these databases can be found elsewhere, albeit not with the
access and use-enhancing features provided by the copyrightable
contributions. Where users can reasonably find these materials in other
places, their fears that it will be ``locked up'' are unwarranted.
In applying the four factors in Section (a)(1)(C), the impact of
access control technologies on the availability of works in general,
and their impact on the library and educational communities in
particular, must be evaluated. In general, it appears that the advent
of access control protections has increased the availability of
databases and compilations. Access controls provide an increased
incentive for database producers to create and maintain databases.
Often, the most valuable commodity of a database producer is access to
the database itself. If a database producer could not control access,
it would be difficult to profit from exploitation of the database.
Fewer databases would be created, resulting in diminished availability
for use. If there were evidence that technological access protections
made access to these works prohibitively expensive or burdensome, it
would weigh against increased availability. However, as discussed
above, such evidence has not been presented in this proceeding. Nor has
there been a showing of any significant adverse impact thus far on
nonprofit archival, preservation and educational activities or on
criticism, comment, news reporting, teaching, scholarship or research.
There is no evidence that the use of technological measures that
control access to ``thin copyright'' works has made those works less
accessible for such purposes than they were prior to the introduction
of such measures. Finally, in assessing the effect of circumvention on
the market for or value of the works, it appears likely that if
circumvention were permitted, the ability of database producers to
protect their investment would be seriously undermined and the market
would be harmed.
2. Sole Source Works
A number of commenters proposed an exemption for a class of ``sole
source works,'' that is, works that are available from a single source,
which makes the works available only in a form protected by access
controls.\9\ C162 (American Library Association et al.); C213; C234.
Proponents fear that works will increasingly become available only in
digital form, which will be subject to access controls that prohibit
users who want to make noninfringing uses from accessing the work,
either because access will be too costly or will be refused. In such
cases, where there is no other way to get access to the work, all
noninfringing uses of the work will be adversely impacted.
---------------------------------------------------------------------------
\9\ This subject has been discussed briefly above, in reference
to databases that contain uncopyrightable material not available
elsewhere. This section, however, refers mainly to copyrightable
sole source works.
---------------------------------------------------------------------------
Again, it is questionable whether proponents of an exemption have
identified a genuine ``class'' of works. The only thing the works in
this proposed class have in common is that each is available from a
single source. Moreover, the case has not been made for an exemption
for this proposed class.
Commenters submitted different examples of works that were
available only in digital form. These included a number of databases
and indexes. C162 (ALA). In addition, several commenters noted that
digital versions of works, such as motion pictures in DVD format, often
contain material, such as interviews, film clips or search engines, not
found in the analog versions of the same works. C162, C234.\10\
---------------------------------------------------------------------------
\10\ The DVD issue is addressed below, Section III.E.3.
---------------------------------------------------------------------------
The concerns of proponents of this type of exemption are
understandable. However, there has been no evidence submitted in this
rulemaking that access to works available only in a secured format is
being denied or has become prohibitively difficult. Even considering
the examples presented by various commenters, they merely establish
that there are works that exist only in digital form. They have not
established that access controls on those works have adversely impacted
their ability to make noninfringing uses, or, indeed, that access
controls impede their use of those works at all. In the case of
databases and indexes, the Register heard no evidence that licenses to
those works were not available or were available only on unreasonable
and burdensome terms. For example, in the case of motion pictures on
DVDs, anyone with the proper equipment can access (view) the work. If
there were evidence that technological access controls were being used
to lock up material in such a way that there was effectively no means
for a user wanting to make a noninfringing use to get access, it could
have a substantial adverse impact on users.\11\ No such evidence has
been presented in this proceeding. If such evidence is presented in a
subsequent proceeding, the case for an exemption may be made.
---------------------------------------------------------------------------
\11\ Nonetheless, that evidence would have to be balanced
against an author's right to grant access to a work. By definition,
any unpublished creative work is almost certain to be available only
from a single source--the author. Historically, there has never been
a right to access an unpublished work, and the law has guarded an
author's right to control first publication. Even when material has
already been published, there is no absolute right of access. Even
with nondigital formats, one must either purchase a copy of the work
or go to someone who has purchased a copy (e.g., a library) in order
to obtain access to it.
---------------------------------------------------------------------------
With respect to this proposed class, little evidence has been
presented relating to any of the factors set forth in Section
1201(a)(1)(C). However, a review of those factors confirms that no
exemption is justified in this case. If, as the proponents of this
exemption assert, there are works that are available only in digital
form and only with access control protections, many if not most of
those works presumably would not have been made available at all if
access control measures had not been available. Indeed, it appears that
many of the ``sole source'' works identified by the American Library
Association are works that most likely did not exist in the predigital
era. See C162, p. 24. As with ``thin copyright'' works, no showing has
been made of an adverse impact on the purposes set forth in
1201(a)(1)(C)(ii) and (iii).
3. Audiovisual Works on Digital Versatile Discs (DVDs)
More comments and testimony were submitted on the subject of motion
pictures on digital versatile discs (DVDs) and the technological
measures employed on DVDs, primarily Content Scrambling System
(``CSS''), than on any other subject in this rulemaking. DVDs are
digital media, similar to compact discs but with greater capacity, on
which motion pictures and other audiovisual and other works may be
stored. DVDs have recently become a
[[Page 64568]]
major medium, although not yet the predominant medium, for the
distribution of motion pictures in the ``home video'' market. CSS is an
encryption system used on most commercially distributed DVDs of motion
pictures. DVDs with CSS may be viewed only on equipment licensed by the
DVD Copy Control Association (DVD CCA). PH25. The terms of the DVD CCA
license permits licensed devices to decrypt and play--but not to copy--
the films. For a more complete discussion of DVDs and CSS, see
Universal City Studios, Inc. v. Reimerdes, 111 F. Supp.2d 294 (S.D.N.Y.
2000), 55 U.S.P.Q.2d 1873 (S.D.N.Y. 2000).
Proponents of an exemption for motion pictures on DVDs raised four
general arguments. First, they asserted that CSS represents a merger of
access and use controls,\12\ such that one of those two control
functions of the technology cannot be circumvented without also
circumventing the other. PH11. Since Congress prohibited only the
conduct of circumventing access measures and declined to enact a
comparable prohibition against circumvention of measures that protect
the rights of the copyright owner under Sec. 1201(b), they argued that
a merger of controls exceeds the scope of the congressional grant. In
this view, the merger of access and use controls would effectively
bootstrap the legal prohibition against circumvention of access
controls to include copy controls and thereby prevents a user from
making otherwise noninfringing uses of lawfully acquired copies, such
as excerpting parts of the material on a DVD for a film class, which
might be a fair use.
---------------------------------------------------------------------------
\12\ In this discussion, the term ``use controls'' is used as a
shorthand term for technological measures that effectively protect
rights of copyright owners under title 17 (e.g., copy controls)--the
controls that are the subject of the prohibition against certain
technologies, products, services, devices and components found in
section 1201(b)(1).
---------------------------------------------------------------------------
While this is a significant concern, there are a number of
considerations to be balanced. From the comments and testimony
presented, it is clear that, at present, most works available in DVD
format are also available in analog format (VHS tape) as well. R123, T
Marks, 5/19/00, p. 301. When distributed in analog formats--formats in
which distribution is likely to continue for the foreseeable future--
these works are not protected by any technological measures controlling
access. WS Sorkin, p. 5. Therefore, any harm caused by the existence of
access control measures used in DVDs can be avoided by obtaining a copy
of the work in analog format. See House Manager's Report, at 7 (``in
assessing the impact of the prohibition on the ability to make
noninfringing uses, the Secretary should take into consideration the
availability of works in the particular class in other formats that are
not subject to technological protections.'').\13\
---------------------------------------------------------------------------
\13\ Perhaps the best case for actual harm in this context was
made with respect to matter that is available along with the motion
picture in DVD format but not available in videotape format, such as
outtakes, interviews with actors and directors, additional language
features, etc. See C204, p. 4. However, this ancillary material
traditionally has not been available in copies for distribution to
the general public, and it appears that it is only with the advent
of the DVD format that motion picture producers have been willing or
able to include such material along with copies of the motion
pictures themselves. Because of this and because motion picture
producers are generally unwilling to release their works in DVD
format unless they are protected by access control measures, it
cannot be said that enforcing section 1201(a)(1) would, in the words
of the Commerce Committee, result ``in less access, rather than
more, to copyrighted materials that are important to education,
scholarship, and other socially vital endeavors.'' See Commerce
Comm. Report, at 35. Thus, it appears that the availability of
access control measures has resulted in greater availability of
these materials.
---------------------------------------------------------------------------
Thus far, no proponents of this argument for an exemption have come
forward with evidence of any substantial or concrete harm. Aside from
broad concerns, there have been very few specific problems alleged. The
allegations of harm raised were generally hypothetical in nature,
involved relatively insignificant uses, or involved circumstances in
which the noninfringing nature of the desired use was questionable
(e.g., backup copies of the DVD) or unclear. T Robin Gross, 5/19/00,
pp. 314-15. This failure to demonstrate actual harm in the years since
the implementation of the CSS measures tends to undermine the fears of
proponents of an exemption.
Similarly, in all of the comments and testimony on this issue, no
explanation has been offered of the technological necessity for
circumventing the access controls associated with DVDs in order to
circumvent the copy controls. If the copy control aspects of CSS may be
circumvented without circumventing its access controls, this is clearly
not a violation of Section 1201(a)(1)(A). There was no showing that
copy or use controls could not be circumvented without violating
Section 1201(a)(1). In contrast, there was specific testimony that an
analog output copy control on DVD players, Macrovision, could be
circumvented by an individual without circumventing the CSS protection
measures and without violating section 1201(a)(1). T Marks, 5/19/00,
pp.345-46. It would appear that circumvention of the Macrovision
control, conduct not prohibited by any of the provisions of section
1201, would enable many of the noninfringing uses alleged to be
prevented. If in a subsequent rulemaking proceeding one could show that
a particular ``copy'' or ``use'' control could not in fact be
circumvented on a legitimately acquired copy without also circumventing
the access measure, one might meet the required burden on this issue.
The merger of technological measures that protect access and
copying does not appear to have been anticipated by Congress.\14\
Congress did create a distinction between the conduct of circumvention
of access controls and the conduct of circumvention of use controls by
prohibiting the former while permitting the latter, but neither the
language of section 1201 nor the legislative history addresses the
possibility of access controls that also restrict use. It is unclear
how a court might address this issue. It would be helpful if Congress
were to clarify its intent, since the implementation of merged
technological measures arguably would undermine Congress's decision to
offer disparate treatment for access controls and use controls in
section 1201.
---------------------------------------------------------------------------
\14\ However, CSS was already in development in 1998 when the
DMCA was enacted. It cannot be presumed that the drafters of section
1201(a) were unaware of CSS. If CSS does involve a merger of access
controls and copy controls, it is conceivable that the drafters of
section 1201(a)(1) were aware of that. And it is quite possible that
they anticipated that CSS would be a ``technological measure that
effectively controls access to a work.''
---------------------------------------------------------------------------
At present, on the current record, it would be imprudent to venture
too far on this issue in the absence of congressional guidance. The
issue of merged access and use measures may become a significant
problem. The Copyright Office intends to monitor this issue during the
next three years and hopes to have the benefit of a clearer record and
guidance from Congress at the time of the next rulemaking proceeding.
Another argument raised in the comments and testimony regarding
DVDs is that users of Linux and other operating systems who own
computers with DVD drives and who purchase legitimate copies of
audiovisual works on DVDs should be able to view these works. Many
Linux users have complained that they are unable to view the works on
their computers because a licensed player has not yet been developed
for the Linux OS platform. R56, PH11, PH3. While this situation created
frustration for legitimate users,
[[Page 64569]]
the problem requires balancing of other considerations.
The reasonable availability of alternate operating systems (dual
bootable) or dedicated players for televisions suggests that the
problem is one of preference and inconvenience, and leads to the
conclusion that an exemption is not warranted. T Metalitz, 5/19/00, pp.
298-99. Moreover, with the rapidly growing market of Linux users, it is
commercially viable to create a player for this particular operating
system. T Metalitz, 5/19/00, pp. 297-98. DVD CSS has expressed its
willingness to license such players, and in fact has licensed such
players. PH25. There is evidence that Linux players are currently being
developed (Sigma Designs and Intervideo) and should be available in the
near future. It appears likely that the market place will soon resolve
this particular concern. PH123 (MPAA).
While it does not appear that Congress anticipated that persons who
legitimately acquired copies of works should be denied the ability to
access these works, there is no unqualified right to access works on
any particular machine or device of the user's choosing. There are also
commercially available options for owners of DVD ROM drives and
legitimate DVD discs. Given the market alternatives, an exemption to
benefit individuals who wish to play their DVDs on computers using the
Linux operating system does not appear to be warranted.
It appears from the comments and testimony presented in this
proceeding that the motion picture industry relied on CSS in order to
make motion pictures available in digital format. R123. An exemption
for motion pictures on DVDs would lead to a decreased incentive to
distribute these works on this very popular new medium. It appears that
technological measures on DVDs have increased the availability of
audiovisual works to the general public, even though some portions of
the public have been inconvenienced.
A third argument raised relating to DVDs was the asserted need to
reverse engineer DVDs in order to allow them to be interoperable with
other devices or operating systems. C10, C18, C221. While there has
been limited judicial recognition of a right to reverse engineer for
purposes of interoperability of computer programs in the video game
industry, see Sega Enterprises, Inc. v. Accolade, Inc., 977 F.2d 1510
(9th Cir. 1992); Sony Computer Entertainment, Inc. v. Connectix, 203
F.3d 596 (9th Cir. 2000), this rulemaking proceeding is not an
appropriate forum in which to extend the recognition of such a right
beyond the scope recognized thus far by the courts or by Congress in
section 1201(f). In section 1201 itself, Congress addressed the issue
of reverse engineering with respect to computer programs that are
reverse engineered for the purpose of interoperability under certain
circumstances to the ``extent any such acts of identification and
analysis do not constitute infringement under this title.'' One court
has rejected the applicability of section 1201(f) to reverse
engineering of DVDs. Universal City Studios, Inc. v. Reimerdes, 82
F.Supp.2d 211, 217-18 (S.D.N.Y. 2000); see also Universal City Studios,
Inc. v. Reimerdes, 111 F. Supp.2d 294 (S.D.N.Y. 2000), 55 U.S.P.Q.2d
1873 (S.D.N.Y. 2000). That decision is on appeal. If subsequent
developments in that case or future cases lead to judicial recognition
that section 1201(f) does apply to a case such as this, then presumably
there would be no need to fashion an exemption pursuant to section
1201(a)(1)(C). If, as the Reimerdes court has held, section 1201(f)
does not apply in such a situation, an agency fashioning exemptions
pursuant to section 1201(a)(1)(C) should proceed with caution before
creating an exemption to accommodate reverse engineering that goes
beyond the scope of a related exemption enacted by Congress expressly
for the purpose of reverse engineering in another subsection of the
same section of the DMCA. In any event, a more compelling case must be
made before an exemption for reverse engineering of DVDs could be
justified pursuant to section 1201(a)(1)(C).
The final argument in support of an exemption for audiovisual works
on DVDs was based on the motion picture industry's use of region coding
as an access control measure. Proponents of an exemption argued that
region coding prevents legitimate users from playing foreign films on
DVDs which were purchased abroad on their machines that are encoded to
play only DVDs with region coding for the region that includes the
United States. C133, C231, C234, R92, PH11. There was also some showing
that foreign releases of American and foreign motion pictures may
contain content that is not available on the American releases and that
circumvention may be necessary in order to access this material. T
Gross, 5/19/00, p. 314.
While the use of region coding may restrict unqualified access to
all movies, the comments and testimony presented on this issue did not
demonstrate that this restriction rises to the level of a substantial
adverse effect. The problem appears to be confined to a relatively
small number of users. The region coding also seems to result in
inconvenience rather than actual or likely harm, because there are
numerous options available to individuals seeking access to this
foreign content (PAL converters to view foreign videotapes, limited
reset of region code option on DVD players, or purchase of players set
to different codes). Since the region coding of audiovisual works on
DVDs serves legitimate purposes as an access control,\15\ and since
this coding encourages the distribution and availability of digital
audiovisual works, on balance, the benefit to the public exceeds the de
minimis harm alleged at this time. If, at some time in the future,
material is available only in digital format protected by region codes
and the availability of alternative players is restricted, a more
compelling case for an exemption might be made.
---------------------------------------------------------------------------
\15\ Among other purposes, it prevents the marketing of DVDs of
a motion picture in a region of the world where the motion picture
has not yet been released in theatres, or is still being exhibited
in theatres. See PH12, pp. 3-4.
---------------------------------------------------------------------------
Consideration of the factors enumerated in subsection 1201(a)(1)(C)
supports the conclusion that no exemption is warranted for this
proposed class. The release of audiovisual works on DVDs was predicated
on the ability to limit piracy through the use of technological access
control measures. R123. These works are widely available in digital
format and are also readily available in analog format. R123 and WS
Sorkin, p. 5. The digital release of motion pictures has benefitted the
public by providing better quality and enhanced features on DVDs. While
Linux users represent a significant and growing segment of the
population and while these users have experienced inconveniences, the
market is likely to remedy this problem soon. PH25. See the discussion
of the Linux players being developed by Sigma Designs and Intervideo,
above. Moreover, there are commercially reasonable alternatives
available to these users. R123. The restrictions on DVDs are presently
offset by the overall benefit to the public resulting from digital
release of audiovisual works. Therefore, at present the existence of
technological measures that control access to motion pictures on DVDs
has not had a significant adverse impact on the availability of those
works to the public at large.
On the question of the availability for use of works for nonprofit
archival, preservation, and educational purposes, there was minimal
evidence presented that these uses have been or are likely to be
adversely affected during the
[[Page 64570]]
ensuing three year period. As stated above, facts relating to the issue
of the existence of merged access and use controls may be presented in
the next triennial rulemaking proceeding to determine whether the
prohibition on circumvention of access controls is being employed in
such a manner that it also restricts noninfringing uses.
The impact that the prohibition on the circumvention of
technological measures applied to copyrighted works has had or is
likely to have on criticism, comment news reporting, teaching,
scholarship, or research is uncertain. At present, the concerns
expressed were speculative and the examples of the prohibition's likely
adverse effects were minimal. At this time it appears likely that these
concerns will be tempered by the market. If the market does not
effectively resolve problems and sufficient evidence of substantial
adverse effects are presented in the next triennial rulemaking
proceeding, the Register will re-assess the need for an exemption.
At this time it appears clear from the evidence that the
circumvention of technological protection measures would be likely to
have an adverse effect on the availability of digital works on DVDs to
the public. The music industry's reluctance to distribute works on DVDs
as a consequence of circumvention of CSS is a specific example of the
potential effect on availability: ``In fact, it was the very hack of
CSS that caused a delay in introduction of DVD audio into the
marketplace.'' T Sherman, 5/3/2000, p. 18. Since the circumvention of
technological access control measures will delay the availability of
``use-facilitating'' digital formats that will benefit the public and
that are proving to be popular with the public, the promulgation of an
exemption must be carefully considered after a balancing of all the
foregoing considerations. At present, the evidence weighs against an
exemption for audiovisual works on DVDs.
4. Video Games in Formats Playable Only on Dedicated Platforms
A number of comments and one witness at the hearings sought an
exemption for video games that are playable only on proprietary
players. T Hangartner, 5/17/00, p. 247, R73, R109. The arguments in
support of an exemption for video games included three issues: reverse
engineering of the games for interoperability to other platforms,
merger of access and use controls, and region coding of the games.
The existence of video games playable on dedicated platforms is not
a new phenomenon in the marketplace. The Computer Software Rental
Amendments Act of 1990 expressly provides for different treatment of
video games sold only for use with proprietary platforms and those
licensed for use on a computer capable of reproduction, recognizing the
lower risk that the former will be copied to the detriment of the
copyright owner. 17 U.S.C. 109(b)(1)(B)(ii). In the few comments
addressing the need for interoperability of video games, there was very
little evidentiary support for this alleged need. In fact, the
testimony on behalf of Bleem, Inc. demonstrated that in cases involving
interoperability of video games, courts have held either that section
1201 is inapplicable or that the exemption in 1201(f) shields this
activity for purposes of discovering functional elements necessary for
interoperability. T Hangartner, 5/19/00, p. 250; T Russell, 5/19/00, p.
332. Since the Basic Input Output System (BIOS) in these dedicated
platforms is a computer program, section 1201(f) would appear to
address the problem. To the extent that an identifiable problem exists
that is outside the scope of section 1201(f), and therefore potentially
within the scope of this rulemaking, its existence has not been
sufficiently articulated to support the recommendation for an
exemption. See also the discussion of reverse engineering below in
Section III.E.5.
The claim that the technological measures protecting access to
video games also restrict noninfringing uses of the games also has not
been supported by any verifiable evidence. For example, while the
backup of such a work may be a noninfringing use, no evidence has been
presented that access control measures, as distinguished from copy
control measures, have caused an inability to make a backup, and the
latter is the more likely cause. Nor has there been any showing that
any copy or use control has been merged with an access control, such
that the former cannot be circumvented without the latter.
The paucity of evidence supporting an exemption on the basis of
region coding similarly precludes a recommendation for an exemption.
The few comments that mentioned this issue do not rise to the level of
substantial adverse affect that would warrant an exemption for video
games.
The factors set forth in section 1201(a)(1)(C) do not support an
exemption. There is no reason to believe that there has been any
reduction in the availability of video games for use despite the fact
that video games have incorporated access controls and dedicated
platforms for many years. To the extent there has been a need for
interoperability, it appears that section 1201(f) will allow functional
features to be determined as the courts have allowed in the past. There
has been insufficient evidence presented to indicate that video games
have or will become less available after Sec. 1201(a)(1) goes into
effect. There was no evidence offered that the prohibition on
circumvention will adversely effect nonprofit archival, preservation,
or educational uses of these works. There was also no evidence
presented that the prohibition would have an adverse effect on
criticism, comment, news reporting, teaching, scholarship, or research.
On the other hand, there was little evidence that circumvention would
have a negative impact on the market for or value of these copyrighted
works, but this is of little consequence given the de minimis showing
of any adverse impact access control measures have had on availability
of the works for noninfringing uses.
5. Computer Programs and Other Digital Works for Purposes of Reverse
Engineering
A number of commenters asserted that reverse engineering is a
noninfringing use that should be exempted for all classes of digital
works. C143, R82. As already noted, reverse engineering was also raised
as a basis for an exemption in relation to audiovisual works on DVDs
and video games. C221. The arguments raised in support of a reverse
engineering exemption for such works are addressed above. To the extent
that reverse engineering is proposed for all classes of digital works,
it does not meet the criteria of a class. A ``class of works'' cannot
be defined simply in terms of the purpose for which circumvention is
desired. See the discussion above, Section III.A.3.
Moreover, to the extent that commenters seek an exemption to permit
reverse engineering of computer programs, the case has not been made
even if it is permissible to designate a class of ``computer programs
for the purpose of reverse engineering.'' When it enacted section 1201,
Congress carved out a specific exemption for reverse engineering of
computer programs, section 1201(f). That exemption permits
circumvention of an access control measure in order to engage in
reverse engineering of a computer program with the purpose of achieving
interoperability of an independently created computer program with
other
[[Page 64571]]
programs, under certain circumstances set forth in the statute. When
Congress has specifically addressed the issue by creating a statutory
exemption for reverse engineering in the same legislation that
established this rulemaking process, the Librarian should proceed
cautiously before, in effect, expanding the section 1201(f) statutory
exemption by creating a broader exemption pursuant to section
1201(a)(1)(C).
The proponents of an exemption for reverse engineering have
expressed their dissatisfaction with the limited circumstances under
which section 1201(f) permits reverse engineering (C13, C30), but the
case they have made is for the legislator rather than for the
Librarian. If, in the next three years, there is evidence that access
control measures are actually impeding noninfringing uses of works that
should be permitted, that evidence can be presented in the next
triennial rulemaking proceeding. Such evidence was not presented in the
current proceeding.
To the extent that commenters have sought an exemption to permit
reverse engineering for purposes of making digitally formatted works
other than computer programs interoperable (i.e., accessible on a
device other than the device selected by the copyright owner), it seems
likely that the work will incorporate a computer program or reside on a
medium along with a computer program and that it will be the computer
program that must be reverse engineered in order to make the work
interoperable. In such cases, section 1201(f) would appear to resolve
the issue. To the extent that reverse engineering of something other
than a computer program may be necessary, proponents of a reverse
engineering exemption would be asking the Librarian to do what no court
has ever done: to find that reverse engineering of something other than
a computer program constitutes fair use or some other noninfringing
use. It is conceivable that the courts may address that issue one day,
but it is not appropriate to address that issue of first impression in
this rulemaking proceeding without the benefit of judicial or statutory
guidance.
The factors set forth in section 1201(a)(1)(C) have already been
discussed in the context of audiovisual works on DVDs and video games,
the two specific classes of works for which a reverse engineering
exemption has been sought. Those factors do not support an exemption
for reverse engineering.
6. Encryption Research Purposes
A number of commenters urged that a broader encryption research
exemption is needed than is contained in section 1201(g). See, e.g.,
C185, C30, R55, R70. Dissatisfaction was expressed with the
restrictiveness of the requirement to attempt to secure the copyright
owner's permission before circumventing. C153. See 17 U.S.C.
1201(g)(2)(C). Most of the references to statutory deficiencies
regarding encryption research, however, merely state that the
provisions are too narrow. See, e.g., PH20.
As with reverse engineering, proponents of an exemption for
encryption research are asking the Librarian to give them a broader
exemption than Congress was willing to enact. But they have not carried
their burden of demonstrating that the limitations of section 1201(g)
have prevented them or are likely in the next three years to prevent
them from engaging in noninfringing uses. With respect to encryption
research, the DMCA required the Copyright Office and the National
Telecommunications and Information Administration of the Department of
Commerce to submit a joint report to Congress on the effect the
exemption in section 1201(g) has had on encryption research and the
development of encryption technology, the adequacy and effectiveness of
technological measures designed to protect copyrighted works; and
protection of copyright owners against the unauthorized access to their
encrypted copyrighted works. The Copyright Office and NTIA submitted
that report in May, 2000. Report to Congress: Joint Study of Section
1201(g) of The Digital Millennium Copyright Act (posted at http://
www.copyright.gov/reports/studies/dmca_report.html and http://
www.ntia.doc.gov/reports/dmca). In that report, NTIA and the Copyright
Office concluded that ``[o]f the 13 comments received in response to
the Copyright Office's and NTIA's solicitation, not one identified a
current, discernable impact on encryption research and the development
of encryption technology; the adequacy and effectiveness of
technological protection for copyrighted works; or protection of
copyright owners against the unauthorized access to their encrypted
copyrighted works, engendered by Section 1201(g).'' That conclusion is
equally applicable to the comments on encryption research submitted in
this proceeding.
Moreover, an exemption for encryption research is not focused on a
class of works. See discussion above, Section III.A.3.
7. ``Fair Use'' Works
A large number of commenters urged the Register to recommend an
exemption to circumvent access control measures for fair use purposes.
Responding to the statutory requirement of designating a ``particular
classes of works,'' the Higher Education Associations (the Association
of American Universities, the National Association of State
Universities and Land Grant Colleges, and the American Council on
Education) put forth within a broad class of ``fair use works'' the
specific classes that are most likely to be used by libraries and
educational institutions for purposes of fair use. PH24. The classes
are scientific and social databases, textbooks, scholarly journals,
academic monographs and treatises, law reports and educational audio/
visual works. A witness testifying on behalf of the Higher Education
Associations explained that these works should be exempted where the
purpose of using the works is fair use. T Gasaway, 5/18/00, p. 74. The
Higher Education Associations also suggested that the exemption could
be further limited to specific classes of persons who were likely to be
fair users. PH24, at 12.
To the extent that proponents of such an exemption seek to limit
its applicability to certain classes of users or uses, or to certain
purposes, such limitations are beyond the scope of this rulemaking. It
is the Librarian's task to determine whether to exempt any ``particular
class of works.'' 17 U.S.C. 1201(a)(1)(B), (C) (emphasis added). See
the discussion above, Section III.A.3.
The merits of an exemption for scientific and social databases have
already been discussed to some extent in the treatment of ``thin
copyright'' works and sole source works. To the extent that these works
are not in these previously addressed classes, even though scientific
and social databases can be seen to present an appropriate class, the
case for an exemption has not been presented. No evidence was submitted
that specific works in these named classes have been or are likely to
be inaccessible because educational institutions or libraries have been
prevented from circumventing them. Although the proponents of this
exemption allege that if they are prevented from circumventing these
particular classes of works, they and those they represent will not be
able to exercise fair use as to this class of works, they have not
demonstrated that
[[Page 64572]]
they have been unable to engage in such uses because of access control
measures.
Many of the concerns raised by proponents of such an exemption are
actually related to copy control measures rather than access control
measures. See, e.g., R75 (National Library of Medicine). If a library
or higher education institution has access to a work, section 1201 does
not prevent the conduct of circumventing technological measures that
prevent the copying of the work.
Although textbooks, scholarly journals, academic monographs and
treatises, law reports and educational audiovisual works have been
mentioned as candidates for this proposed class of ``fair use'' works,
proponents have failed to demonstrate how technological measures that
control access to such works are preventing noninfringing uses or will
in the next three years prevent such uses. In fact, it is not even
clear whether technological measures that control access are actually
used with respect to some of these types of works, e.g., textbooks.
While it is easy to agree that if access control measures were creating
serious difficulties in making lawful uses of these works, an exemption
would be justified, the case has not been made that this is a problem
or is about to be a problem.
Application of the factors set forth in section 1201(a)(1)(C) to
this proposed class of works is identical to the analysis of those
factors with respect to ``thin copyright'' works discussed above
(Section III.E.1) and will not be repeated here.
8. Material that Cannot be Archived or Preserved
A number of library associations expressed concern about the
general impact of the prohibition against circumvention on the future
of archiving and preservation. See, e.g., C175, R75, R80, C162, p.26-
29, 31-32; R83, p. 2-4; PH18, p.5. To some extent, these concerns may
be addressed in the second of the two recommended exemptions, to the
degree that faulty or obsolete access control measures may be
preventing libraries and others from gaining authorized access to works
in order to archive them. But more generally, libraries expressed
concerns that digital works for which there are no established non-
digital alternatives may not be archived. C162, p.26-29.
Because materials that libraries and others desire to archive or
preserve cut across all classes of works, these works do not constitute
a particular class.\16\ See the discussion above, Section III.A.3. The
Office is limited to recommending only particular classes, and then
only when it has been established that actual harm has occurred, or
that harm will likely occur. Such a showing of adverse effect on all
materials that may need to be archived or preserved has not been made.
Demonstration of the inability to archive or preserve materials tied to
a more particular class of works would be needed to establish an
adverse effect in this rulemaking. Application of the relevant factors
cannot take place in gross, without reference to a specified class of
works.
---------------------------------------------------------------------------
\16\ The National Digital Library and the Motion Picture
Broadcasting and Recorded Sound Division of the Library of Congress
addressed the class of audiovisual works when it stated that, to
carry out their mission, they may need to circumvent access controls
to preserve these materials for the long term. However, they did not
state that they have thus far had such a need or that they are aware
of circumstances likely to require them to engage in such
circumvention in the next three years.
---------------------------------------------------------------------------
Even if such materials were to constitute a particular class, and
harm were shown, adverse causes other than circumvention must be
discounted in balancing the relevant factors. House Manager's Report,
at 6. The libraries and Higher Education Associations provided examples
of problems due to numerous other factors--licensing restrictions,
cost, lack of technological storage space, and uncertainty whether
publishers will preserve their own materials. These are adverse effects
caused by something other than the prohibition on circumvention of
access control measures.
The Higher Education Associations cite the frequent phenomenon of
``disappearing'' works--those appearing online or on disk today that
may be gone tomorrow, e.g., because they may be removed from an online
database or because the library or institution has access to them only
during the term of its license to use the work. See T Gasaway, 5/18/00,
p. 38. This rulemaking proceeding cannot force copyright owners to
archive their own works. Moreover, assuming that libraries and other
institutions are unable to engage in such archiving themselves today,
they have not explained how technological measures that control access
to those works are preventing them from doing so. Rather, it would
appear that restrictions on copying are more likely to be responsible
for the problem. See R75 (National Library of Medicine's inability to
preserve Online Journal of Current Clinical Trials and videotapes,
apparently because of restrictions on copying); C162, pp. 25-29
(American Library Association et al.). Section 1201 does not prohibit
libraries and archives from the conduct of circumventing copy controls.
Therefore, it is difficult to understand how an exemption from the
prohibition on circumvention of access controls would resolve this
problem.
Some commenters have also complained that licensing terms have
required them to return CD-ROMs to vendors in order to obtain updated
versions, thereby losing the ability to retain the exchanged CD-ROM as
an archival copy. See, e.g., C162, p. 27. But they have failed to
explain how technological measures that control access to the works on
the CD-ROMS play any role in their inability to archive something that
they have returned to the vendor.\17\ In a future rulemaking
proceeding, libraries and archives may be able to identify particular
classes of works that they are unable to archive or preserve because of
access control measures, and thereby establish the requisite harm.
---------------------------------------------------------------------------
\17\ A related issue, CD-ROMS with faulty access controls that
erroneously exclude authorized users from access, is addressed in
the second exemption recommended by the Register.
---------------------------------------------------------------------------
Because this proposed exemption does not really address a
particular class of works, application of the factors set forth in
section 1201(a)(1)(C) is difficult. If particular classes of works were
in danger of disappearing due to access control measures, then
presumably all of the factors (with the possible exception of the
factor relating to the effect of circumvention on the market for or
value of the copyrighted works) would favor such an exemption. But the
current record does not support an exemption.
9. Works Embodied in Copies Which Have Been Lawfully Acquired by Users
Who Subsequently Seek to Make Non-infringing Uses Thereof
An exemption for ``works embodied in copies which have been
lawfully acquired by users who subsequently seek to make non-infringing
uses thereof'' was put forward by Peter Jaszi, a witness representing
the Digital Future Coalition, and was subsequently endorsed by many
members of the academic and library communities. T Peter Jaszi, 5/3/00;
T Julie Cohen, 5/4/00, PH22, T Diana Vogelsong, 5/3/00. In addition, it
was endorsed by the comments of the Assistant Secretary of Commerce for
Communications and Information. See discussion above, Section III.B.
Similar exemptions were independently proposed by other commenters.
PH24 (AAU); PH18 (ALA), PH21. These proposed exemptions focus on
allowing circumvention by users for
[[Page 64573]]
noninfringing purposes after they have gained initial lawful access,
although the Association of American Universities' proposal would limit
the ability to circumvent after the period of lawful access to users
possessing a physical copy of the work.
The proponents for this exemption fear that pay-per-use business
models (using what are sometimes called ``persistent access controls'')
will be used to lock up works, forcing payment for each time the work
is accessed. In addition, they fear that persistent access controls
will be used to constrain the ability of users, subsequent to initial
access, to make uses that would otherwise be permissible, including
fair uses. Without this exemption, they assert, the traditional balance
of copyright would be upset, tipping it drastically in favor of the
copyright owners and making it more difficult and/or expensive for
users to engage in uses that are permitted today.
Therefore, these commenters propose an exemption for a class of
``works embodied in copies which have been lawfully acquired by users
who subsequently seek to make non-infringing uses thereof.'' In
substance, the proposal would exempt all users who wish to make
noninfringing uses, regardless of the type of work, provided that they
either lawfully acquire a copy or, in some versions of the proposal,
lawfully acquire access privileges. This exemption, commenters argue,
will equitably maintain the copyright balance. It would allow copyright
owners to control the distribution of, and initial authorization of
access to, copies of their works, while allowing users to circumvent
those access controls for noninfringing uses after they have lawfully
accessed or acquired them.
However, for several reasons, the ``class'' they propose is not
within the scope of this rulemaking. First, none of the proposals
adequately define a ``class'' of the type this rulemaking allows the
Librarian to exempt. As discussed above in Section III.A.3, ``a
particular class of work'' must be determined primarily by reference to
qualities of the work itself. It cannot be defined by reference to the
class of users or uses of the work, as these proposals suggest. Second,
although the commenters have persuasively articulated their fears about
how these business models will develop and affect their ability to
engage in noninfringing uses, they have not made the case that these
fears are now being realized, or that they are likely be realized in
the next three years.
The Assistant Secretary for Communications and Information has
endorsed this proposed exemption. In support of this proposal, NTIA
made only general references to one comment, RC113, and to the
testimony of Julie Cohen, Siva Vaidyanathan, Sarah Wiant, James Neal,
Frederick Weingarten, and the Consortiums of College and University
Media Centers (CCUMC). NTIA did not specifically identify what evidence
these witnesses and commenters had provided, apart from noting that
they provided ``numerous examples regarding the manner in which
persistent access controls restrict the flow of information'' and
testimony about ``impediments to archiving and preservation of digital
works, teaching, and digital divide concerns.'' The latter concern is
addressed in Section III.E.8.
The one comment cited by NTIA related to medical records that are
stored in proprietary formats. RC113. It does not appear from that
single comment--the only comment or testimony submitted on the issue--
that the problem identified by the commenter related to technological
measures that control access to copyrighted works. The commenter raised
legitimate concerns about difficulties in converting data from one
format to another. One can speculate that in the future, access control
measures might be applied to medical data and prevent health care
workers from obtaining needed access, but the commenter did not make
the case that this is happening or is likely to happen in the next
three years.
The testimony cited by NTIA relating to access controls that
restrict the flow of information raised many fears and concerns but
minimal distinct, verifiable, or measurable impacts. Of course, it is a
tautology that any measure that controls access to a work will, by
definition, at least to some degree restrict the flow of the
information in the work. But although many of the witnesses complained
about ``persistent access controls,'' they did not present specific
examples of any evidence of present or likely nontrivial adverse
effects causally related to such controls.\18\ The testimony relating
to noninfringing uses that could be adversely affected has not been
specifically shown to be caused by access controls as opposed to other
technological or licensing measures. There appears to be no support in
the record for a finding that the cited testimony rises to the level of
distinct, verifiable and measurable impacts justifying an exemption at
this time.
---------------------------------------------------------------------------
\18\ In fact, one of those witnesses admitted that ``the law has
caused little harm yet'' and that ``my fears are speculative and
alarmist.'' T Vaidyanathan, 5/18/00, p. 11. Another of the witnesses
admitted that librarians have not yet experienced the ``persistent
access controls'' feared by proponents of this exemption. T Neal, 5/
4/00, p. 42.
---------------------------------------------------------------------------
Finally, the proposed exemption parallels elements of an approach
that was considered, and ultimately rejected, by Congress during the
drafting of the law. The version of the DMCA that was passed by the
House of Representatives on August 4, 1998, contained a provision that
required a rulemaking proceeding that would determine classes of works
for which, inter alia, users ``who have gained lawful initial access to
a copyrighted work'' would be adversely affected in their ability to
make noninfringing uses. HR 2281 EH, Section 1201(a)(1)(B):
The prohibition contained in subparagraph (A) shall not apply to
persons with respect to a copyrighted work which is in a particular
class of works and to which such persons have gained initial lawful
access, if such persons are, or are likely to be in the succeeding
3-year period, adversely affected by virtue of such prohibition in
their ability to make noninfringing uses of that particular class of
works under this title, as determined under subparagraph (C).''
See also section 1201(a)(1)(D).
Thus, when it first passed the DMCA the House of Representatives
appears to have agreed with much of the approach taken by the
proponents of this exemption. But the fact that Congress ultimately
rejected this approach when it enacted the DMCA and, instead, deleted
the provision that had limited the applicability of the exemptions to
persons who have gained initial lawful access, is clear indication that
the Librarian does not have the power to fashion a class of works based
upon such a limitation. Such an exemption is more properly a subject of
legislation, rather than of a rulemaking the object of which is to
determine what classes of works are to be exempted from the prohibition
on circumvention of access controls.
10. Exemption for Public Broadcasting Entities
The Public Broadcasting Service, National Public Radio, and the
Association of America's Public Television Stations described the
public broadcasting entities' need to use sound recordings, published
musical works and published pictorial, graphic and sculptural works in
accordance with exemptions and statutory licenses under section 114(b)
and 118(d) of the Copyright Act. R106. They observe that if copyright
owners encrypted these classes of works, they would not be able
[[Page 64574]]
to make noninfringing uses of them pursuant to the statute. But their
submission addressed potential adverse effects of the prohibition on
circumvention, not current or even likely adverse effects. There has
been no allegation that public broadcasters have encountered or are
about to encounter technological protection measures that prevent them
from exercising their rights pursuant to sections 114 and 118.
If public broadcasting entities were able to demonstrate such
adverse impact, a strong case might be made for an exemption for sound
recordings, published musical works and published pictorial, graphic
and sculptural works. In part for that very reason, public broadcasters
may not experience serious adverse impacts on their ability to use such
works pursuant to the compulsory licenses, because copyright owners
will have every incentive to facilitate those permitted uses. Indeed,
the public broadcasters stated that they ``believe that the developing
methods of technological protection will be deployed ``to support new
ways of disseminating copyrighted materials to users, and to safeguard
the availability of ``works to the public.'' Id.
In any event, there is no need at present for an exemption to
accommodate the needs of public broadcasters.
IV. Conclusion
Pursuant to the mandate of 17 U.S.C. 1201 (b) and having considered
the evidence in the record, the contentions of the parties, and the
statutory objectives, the Register of Copyrights recommends that the
Librarian of Congress publish two classes of copyrighted works where
the Register has found that noninfringing uses by users of such
copyrighted works are, or are likely to be, adversely affected, and the
prohibition found in 17 U.S.C. 1201 (a) should not apply to such users
with respect to such class of work for the ensuing 3-year period. The
classes of work so identified are:
1. Compilations consisting of lists of websites blocked by
filtering software applications; and
2. Literary works, including computer programs and databases,
protected by access control mechanisms that fail to permit access
because of malfunction, damage or obsoleteness.
The Register notes that any exemption of classes of copyrighted
works published by the Librarian will be effective only until October
28, 2003. Before that period expires, the Register will initiate a new
rulemaking to consider de novo what classes of copyrighted works, if
any, should be exempt from Sec. 1201(a)(1)(A) commencing October 28,
2003.
Marybeth Peters,
Register of Copyrights.
Determination of the Librarian of Congress
Having duly considered and accepted the recommendation of the
Register of Copyrights concerning what classes of copyrighted works
should be exempt from 17 U.S.C. 1201(a)(1)(A), the Librarian of
Congress is exercising his authority under 17 U.S.C. 1201(a)(1)(C) and
(D) and is publishing as a new rule the two classes of copyrighted
works that shall be subject to the exemption found 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) for the period from October
28, 2000 to October 28, 2003. The classes are:
1. Compilations consisting of lists of websites blocked by
filtering software applications; and
2. Literary works, including computer programs and databases,
protected by access control mechanisms that fail to permit access
because of malfunction, damage or obsoleteness.
List of Subjects in 37 CFR Part 201
Copyright, Exemptions to prohibition against circumvention.
For the reasons set forth in the preamble, the Library amends 37
CFR part 201 as follows:
PART 201--GENERAL PROVISIONS
1. The authority citation for part 201 continues to read as
follows:
Authority: 17 U.S.C. 702.
2. A new Sec. 201.40 is added to read as follows:
Sec. 201.40 Exemption to prohibition against circumvention.
(a) General. This section prescribes the classes of copyrighted
works for which the Librarian of Congress has determined, pursuant to
17 U.S.C. 1201(a)(1)(C) and (D), that noninfringing uses by persons who
are users of such works are, or are likely to be, adversely affected.
The prohibition against circumvention of technological measures that
control access to copyrighted works set forth in 17 U.S.C.
1201(a)(1)(A) shall not apply to such users of the prescribed classes
of copyrighted works.
(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 two
classes of copyrighted works shall be subject to the exemption found 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) for the period from October
28, 2000 to October 28, 2003. The exempted classes of works are:
(1) Compilations consisting of lists of websites blocked by
filtering software applications; and
(2) Literary works, including computer programs and databases,
protected by access control mechanisms that fail to permit access
because of malfunction, damage or obsoleteness.
Dated: October 23, 2000.
James H. Billington,
The Librarian of Congress
[FR Doc. 00-27714 Filed 10-26-00; 8:45 am]
BILLING CODE 1410-30-P