October 1, 2021 Ms. Shira Perlmutter Register of Copyrights and

UNITED STATES DEPARTMENT OF COMMERCE

National Telecommunications and

Information Administration

Washington, D.C. 20230

October 1, 2021

Ms. Shira Perlmutter

Library of Congress

James Madison Memorial Building

Washington, DC 20540–3120

Re: Exemptions to Permit Circumvention of Access Controls on Copyrighted Works,

Docket No. 2020–11

Dear Ms. Perlmutter:

As Acting Assistant Secretary of Commerce for Communications and Information and

Acting Administrator of the National Telecommunications and Information Administration

(NTIA), I am pleased to submit our views on proposed exemptions from the Digital Millennium

1201(a)(1)(C) of the United States Code.

NTIA appreciates the opportunity to once again, as

contemplated by Congress,

contribute its subject matter expertise to the record in this

proceeding. NTIA is charged with promoting “the benefits of technological development in the

United States for all users of telecommunications and information facilities,”

and serves “as the

President’s principal advisor on telecommunications policies pertaining to the Nation’s economic

and technological advancement . . . .”

While our staffs have made immense efforts in each of the eight triennial rulemakings

that have taken place to date, I want to recognize at the outset the extraordinary challenges your

team has overcome during the current proceeding, which has been conducted entirely against the

17 U.S.C. § 1201(a)(1)(C) sets forth the required consultative process, which is that “during each

succeeding 3-year period, the Librarian of Congress, upon the recommendation of the Register of

Copyrights, who shall consult with the Assistant Secretary for Communications and Information of the

Department of Commerce and report and comment on his or her views in making such recommendation,

shall make the determination in a rulemaking proceeding….”

See, e.g., H.R. Rep. No. 105–551, pt. 2, at 23 (July 22, 1998) (noting NTIA’s “expertise in the area of

telecommunications and information services and technologies”); 144 Cong. Rec. E2136–02 (Oct. 12,

1998) (in which the Chair of the House Commerce Committee “consider[ed] it vital for the Register to

consult closely” with NTIA).

47 U.S.C. § 901(c)(l).

47 U.S.C. § 902(b)(2)(D).

backdrop of the COVID-19 pandemic. Despite the hardships and uncertainties of these times,

your staff has conducted this rulemaking with its usual high standard of professionalism, and has

facilitated a thorough and accessible process. As we will detail in our recommendations, we we

especially welcomed the introduction of remote participation in hearings during the rulemaking,

and hope this very successful measure—while clearly instituted out of necessity for this

particular rulemaking—will continue to be an option in the future.

As in prior triennial rulemakings, NTIA has prepared for you our detailed

recommendations on each of the proposed exemptions, rooted in our subject matter expertise and

with the statutory requirements in mind. We have organized our comments around the proposed

classes defined in the Notice of Proposed Rulemaking.

The enclosed document also includes

some broader observations about the process and substance of the Eighth Triennial Section 1201

Rulemaking, as well as some important recommendations for further building on the successful

reforms the Copyright Office has implemented in prior triennial rulemakings.

We appreciate the opportunity to express our views on the important questions raised in

this rulemaking. Past exemptions recommended by your office have helped to enable educators,

artists, technicians, persons with disabilities, and many others to innovate and engage in the

creative process by making noninfringing use of copyrighted works. We look forward to

continuing to work with you to facilitate these important outcomes.

Should you have any questions regarding our recommendations, please do not hesitate to

contact me or Marsha MacBride, Acting Deputy Associate Administrator, NTIA Office of Policy

Analysis and Development. Thank you again for your consideration of NTIA’s views on this

important matter.

Sincerely,

Evelyn L. Remaley

Enclosure

Exemptions to Permit Circumvention of Access Controls on Copyrighted Works, Notice of Proposed Rulemaking

(2020 NPRM), Docket No. 2020–11, 85 Fed. Reg. 65293 (Oct. 15, 2020) (to be codified at 37 C.F.R. 201),

https://www.govinfo.gov/content/pkg/FR-2020-10-15/pdf/2020-22893.pdf.

Eighth Triennial Section 1201 Rulemaking

Recommendations of the

National Telecommunications and Information Administration

to the Register of Copyrights

Table of Contents

I. Broad Observations ................................................................................................................. 1

Rulemaking Process Reforms ..................................................................................................... 1

Regulatory Language Improvements .......................................................................................... 2

Exemption Policy Considerations ............................................................................................... 4

II. Renewal of Existing Exemptions ............................................................................................ 6

III. Proposed, Additional, and Expanded Exemptions .................................................................. 7

Class 1 – Audiovisual Works – Criticism and Comment ........................................................... 7

New Users................................................................................................................................ 7

Online Educators ..................................................................................................................... 9

College and University Employees ....................................................................................... 13

Language Changes ................................................................................................................. 18

Full Length ............................................................................................................................ 20

Class 2 – Audiovisual Works – Texting.................................................................................... 27

Class 3 – Audiovisual Works – Accessibility ........................................................................... 28

Class 4 – Audiovisual Works – Livestream Recording ............................................................ 34

Class 5 - Audiovisual Works - Preservation ............................................................................. 36

Class 6 – Audiovisual Works – Space-Shifting ........................................................................ 47

Class 7 – Class 7(a) (Motion Pictures – Text and Data Mining) and 7(b) (Literary Works –

Text and Data Mining) .............................................................................................................. 48

Class 8 – Audiovisual Works – Accessibility (e-books) ........................................................... 59

Class 9 – Literary Works – Medical Device Data ..................................................................... 61

Class 10 – Computer Programs – Unlocking ............................................................................ 67

Class 11 – Computer Programs – Jailbreaking ......................................................................... 70

Class 12 – Computer Programs – Repair .................................................................................. 74

Class 13 – Computer Programs – Security Research ................................................................ 84

Class 14 – Class 14(a) (Computer Programs – Preservation) and 14(b) (Video Games –

Preservation)............................................................................................................................ 111

Class 15 – Computer Programs – 3D Printing ........................................................................ 125

Class 16 – Computer Programs – Copyright License Investigation ....................................... 130

Class 17 – All Works – Accessibility Uses ............................................................................. 134

Pursuant to the consultative process set out in Title 17, Section 1201(a)(1)(C) of the

United States Code, the Acting Assistant Secretary for Communications and Information in the

Department of Commerce, and Acting Administrator of the National Telecommunications and

Information Administration (NTIA), respectfully submits the following recommendations in

response to the Notice of Proposed Rulemaking (NPRM) issued by the Copyright Office.

I. Broad Observations

Prior to our discussion of specific proposed exemptions, NTIA offers three general observations

related to the Eighth Triennial Section 1201 Rulemaking.

Rulemaking Process Reforms

NTIA strongly supports the Copyright Office’s ongoing efforts to improve the Section

1201 rulemaking process, which have continued unabated with each subsequent triennial

rulemaking. Some of the most important improvements have included instituting the streamlined

renewal process, soliciting three rounds of comments with each comment directed at one

particular proposed exemption, and posting online video tutorials to educate interested parties

about the rulemaking process.

During the current rulemaking, in light of the COVID-19 pandemic, the Copyright Office

for the first time conducted hearings remotely, enabling parties to make their voices heard

without needing to travel to hearings in either Washington, D.C. or Los Angeles. While this

measure was necessary to ensure the safety of all participants, NTIA found the virtual format to

be highly successful. Participants were able to engage with Copyright Office and NTIA staff and

participate in highly productive discussions that helped to build out the record—much as they

could in person in previous rulemakings. Moreover, by enabling parties to participate remotely,

the Copyright Office made the hearings more accessible to those who do not live near one of the

usual hearing sites and may have been unable to afford the expense or time necessary to travel.

We think the positive experience with remote participation during the Eighth Triennial

Rulemaking suggests that, consistent with NTIA’s recommendation three years ago, the

forward.

Separately, in its NPRM, the Copyright Office addresses eight comments submitted

during the streamlined exemption renewal process that “raised discrete concerns with specific

petitions, [though] none opposed the verbatim readoption of an existing regulatory exemption.”

In responding to these comments, the Office rightfully explains that “to the extent a commenter

Exemptions to Permit Circumvention of Access Controls on Copyrighted Works, Docket No. 2020–11,

Notice of Proposed Rulemaking (2020 NPRM), 85 Fed. Reg. 65293 (Oct. 15, 2020) (to be codified at 37

C.F.R. 201), https://www.govinfo.gov/content/pkg/FR-2020-10-15/pdf/2020-22893.pdf

Seventh Triennial Section 1201 Rulemaking, Recommendations of the National Telecommunications and

Information Administration to the Register of Copyrights (2018 NTIA Letter), Docket No. 2017-10, at 2,

https://www.ntia.doc.gov/files/ntia/publications/ntia_dmca_consultation_09252018.pdf

2020 NPRM, 85 Fed. Reg. 65293, 65295.

questions whether there is a continued need for a specific exempted use or otherwise believes

that the scope of an exemption should be narrowed, that commenter should come forward and

oppose the exemption.”

NTIA strongly supports the streamlined renewal process as it is

currently constructed. The purpose of this vital reform is to ease the burden on parties where

there is general agreement that the facts that led to initially grant the exemption have not

meaningfully changed in the last three years. Should the Office consider future tweaks to this

process, we urge continued adherence to this principle, and resistance to any calls to increase the

difficulty of petitioning for streamlined renewal of an existing exemption.

Regulatory Language Improvements

While continuing to build on its success in improving the process of the Section 1201

rulemaking, NTIA recommends that the Copyright Office also consider ways to make the

resulting regulatory text more accessible by potential exemption users and more conducive to

clear discussion and debate in future rulemakings. In 2018, we urged the Office and the

Librarian “to consider adopting a more structured format for each individual exemption” on the

theory that “such an approach would likely improve readability, and might make it easier to

manage requests to expand or modify existing exemptions in future rulemaking cycles.”

In the

Eighth Triennial Rulemaking, some parties have suggested implementing this recommendation

in their comments, and even submitted proposed exemption text in such a format.

NTIA

continues to believe that implementing a structured format for exemption text would be highly

beneficial to advocates, exemption users, and even the Copyright Office itself.

There are many possible variations on a structured format for exemptions that would

benefit users. Yet NTIA contemplates such a format would break out each exemption into three

essential parts, including 1) the class of work at issue; 2) a description of the covered users who

Id.

For example, the Office states that it “may consider whether to include a mechanism for petitioners to

disclaim types of uses or other aspects of an exemption if they believe only partial renewal is

appropriate.” Id. While it may be advantageous for all parties involved to be able to focus any opposition

to presumptive renewal on particular aspects of an exemption, NTIA believes that even partial opposition

should include evidence of substantive changes in circumstance, law, or other facts in order to trigger the

requirement to build a new evidentiary record during the main part of the rulemaking.

2018 NTIA Letter, at 4.

See, e.g., Class 13 Initial Comments of J. Alex Halderman, Center for Democracy & Technology, and

U.S. Technology Policy Committee of the Association for Computing Machinery (Halderman Class 13

Initial Comments), Docket No. 2020-11, at 6–7,

https://www.copyright.gov/1201/2021/comments/Class%2013_InitialComments_J.%20Alex%20Halderm

an,%20Center%20for%20Democracy%20&%20Technology,%20and%20U.S.%20Technology%20Policy

%20Committee%20of%20the%20Association%20for%20Computing%20Machinery.pdf; Class 8 Initial

Comments of American Council of the Blind, American Foundation for the Blind, National Federation of

the Blind, Association for Education and Rehabilitation of the Blind and Visually Impaired, Library

(Accessibility Petitioners II Class 8 Initial Comments), Docket No. 2020-11, at 10,

https://www.copyright.gov/1201/2021/comments/Class%2008_InitialComments_Accessibility%20Petitio

ners%20II.pdf.

may circumvent access controls on the class of work (if narrower than all users of the class of

work); and 3) the covered purposes allowed by the exemption (if narrower than all noninfringing

uses). Without respect to the exact format, a move to standardize the text of exemptions would

have two main advantages. First, a structured format has the potential to make the regulatory

text easier for exemption users to parse and apply in their own work. The record in this

proceeding includes examples of parties reporting substantial confusion over the scope of

noninfringing activities covered by existing exemptions, and even discussion over the extent to

which exemption users should obtain legal counsel prior to engaging in circumvention.

NTIA

strongly believes that the text of granted exemptions should be as accessible as possible by the

full spectrum of potential users, including artists, librarians, teachers, mechanics, and anyone

else interested in making noninfringing use of a copyrighted work protected by an access control.

While there may always be complex situations in which it is prudent to seek the advice of an

attorney, the Copyright Office and the Librarian should seek to make those situations as rare as

possible through the use of plain language and clear structure in exemption text.

Second, NTIA believes that implementing a standardized structure would ease the burden

on parties and help to better focus debate around any future modifications to existing

exemptions. In this proceeding, the records for some proposed classes have included very

specific discussions of particular words to add or remove from an exemption.

Others, however,

have revolved primarily around higher-level concepts.

This leaves the Copyright Office to

reconcile any proposals it accepts with existing exemption text that has been recommended for

renewal in the streamlined process. A structured format could prompt more focus on the

addition, removal, or modification of particular words in existing regulatory text, encouraging

parties to engage on specific proposals for altering the scope of the class of works, covered users

of such works, and/or enabled purposes. This would help to ensure discussions on the record

remain relevant to the statutory task of determining which “users of a copyrighted work which is

See, e.g., Transcript, Hearing on Exemptions to the Prohibition on Circumvention of Copyright

Protection Systems for Access Control Technologies, Section 1201 – Digital Millennium Copyright Act,

Remarks of J. Alex Halderman, at 441–443, Blake Reid, at 455–456, and J. Matthew Williams, at 461–

462 (April 8, 2021) (April 8 Hearing Transcript),

https://www.copyright.gov/1201/2021/hearing-

transcripts/210408-Section-1201-Public-Hearing-Class-13-9-Audience-Participation.pdf.

The record around potential modifications to the security research exemption, known as Class 13 in the

Eighth Triennial Rulemaking, has largely focused on whether to remove a number of different restrictive

clauses or even individual words. See, e.g., Class 13 Petition of J. Alex Halderman, Center for

Democracy & Technology, and U.S. Technology Policy Committee of the Association for Computing

Machinery (Halderman Class 13 Petition), Docket No. 2020-11, at 3,

https://www.copyright.gov/1201/2021/petitions/proposed/New%20Pet.%20-

%20J.%20Alex%20Halderman%20et%20al.pdf.

Parts of proposed Class 12 would expand on existing exemptions enabling repair, with specific

language proposals varying significantly across proponents (including some who provide detailed

evidence and analysis but do not propose specific regulatory text). See, e.g., Class 12 Initial Comments of

Electronic Frontier Foundation (EFF Class 12 Initial Comments), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/comments/Class%2012_InitialComments_Electronic%20Frontier

%20Foundation.pdf.

in a particular class of works” are, or are likely to be, “adversely affected by virtue of” the

prohibition against circumvention.

Exemption Policy Considerations

The COVID-19 pandemic required many Americans to adapt quickly to changing

conditions for work, school, and other facets of daily life. At a time when it’s not always

possible or advisable to gather in libraries, studios, classrooms, and other settings, adverse

effects from the prohibition against circumvention are, perhaps more than ever, on full display.

Participants in this rulemaking have noted the barriers faced by educators attempting to make use

of motion pictures in virtual classrooms,

researchers who require access to rare or fragile works

undergoing preservation,

and even individuals trying to save money by using third party ink

cartridges when printing documents at home.

In order to maximize the relief to Americans

attempting to engage in these and other noninfringing activities, NTIA urges the Copyright

Office and the Librarian to adopt exemptions that fully address the adverse impacts of the

prohibition against circumvention without introducing unnecessary restrictions on these users.

NTIA has discussed some of these restrictions during previous rulemakings, and our

views remain generally unchanged. For example, we continue to believe the most “practical and

efficient way to ensure that consumers are adequately protected from any harm caused by the

prohibition against circumvention is to avoid unnecessarily constraining exempted classes based

on the specific types of devices on which works are contained.”

Rather than continuing to add

to ever-growing lists of specific types of computers and media that quickly become outdated, the

minimizing the use of different types of media or devices to narrow exemptions, NTIA notes that

the Eighth Triennial Rulemaking has highlighted the need to avoid conditioning exemptions on a

particular type of access control. For example, in arguing to remove the phrase “microchip-

reliant” that describes applicable access controls in the current exemption for 3D printing, one

proponent expresses concern that a potential shift towards the use of optical sensors to verify the

manufacturer of printer materials could make it unclear whether the current exemption covers

17 U.S.C. § 1201(a)(1)(B).

Class 1 Initial Comments of Brigham Young University (BYU Class 1 Initial Comments), Docket No.

2020-11, at 25,

https://www.copyright.gov/1201/2021/comments/Class%2001_InitialComments_Brigham%20Young%2

0University.pdf.

Class 14 Initial Comments of Software Preservation Network and Library Copyright Alliance (SPN

Class 14 Initial Comments), Docket No. 2020-11, at 13–14,

https://www.copyright.gov/1201/2021/comments/Class%2014a%20and%2014b_InitialComments_Softw

are%20Preservation%20Network%20and%20Library%20Copyright%20Alliance.pdf.

EFF Class 12 Initial Comments at 28.

Sixth Triennial Section 1201 Rulemaking, Recommendations of the National Telecommunications and

Information Administration to the Register of Copyrights (2015 NTIA Letter), at 9,

https://www.ntia.gov/files/ntia/publications/2015_ntia_dmca_section_1201_consultation.pdf

such mechanisms.

their access control measures on a regular basis. Such changes in access controls employed need

not correspond with changes in the class of work being protected nor the noninfringing uses

hindered by the prohibition against circumvention.

NTIA has also previously recommended that the Copyright Office resist calls from some

parties to consider matters unrelated to copyright protection in its deliberations.

As in previous

triennial rulemakings, we wish to reiterate that Section 1201 of the DMCA is not the appropriate

venue to address concerns about product safety, environmental regulations, the contours of other

laws, or even the desire of some companies to protect anti-competitive business models. To that

end, we are encouraged by the then-Acting Register’s statement in 2018 that “while the Acting

best addressed through other legal frameworks and by agencies with expertise in those areas.”

The Eighth Triennial Rulemaking includes a number of opportunities for the Office to implement

this principle in its recommendations, which we will highlight as applicable in the proposed

classes below.

Finally, one policy concern NTIA has not previously addressed is the challenge of

identifying whether particular technologies presenting barriers to noninfringing use qualify as

technological protection measures under Section 1201. While there have been a few instances in

past rulemakings in which the applicability of the prohibition against circumvention was

considered, we have more often observed some uncertainty around the contours of what

constitutes an access control in this proceeding.

In the Eighth Triennial Rulemaking, for

example, we are left wondering to what extent the optical scanner technologies used in some

printers or firmware that is compressed in a non-standard fashion (but not encrypted) constitute

technological measures that effectively control access to copyrighted works.

In those

particular cases, other similarly situated works within each class are protected by technologies

that more clearly seem to fit the statutory definition of access control, but even in those cases, it

Class 15 Initial Comments of Michael Weinberg (Michael Weinberg Class 15 Initial Comments),

Docket No. 2020-11, at 4,

https://www.copyright.gov/1201/2021/comments/Class%2015_Initial%20Comments_Michael%20Weinb

erg.pdf.

See, e.g., 2018 NTIA Letter, at 2–3.

Section 1201 Rulemaking: Seventh Triennial Proceeding to Determine Exemption to the Prohibition on

Circumvention, Introduction and Recommended Regulatory Language, Introduction and Recommended

Regulatory Language (2018 DMCA Introduction) (October 2018) at 5,

https://cdn.loc.gov/copyright/1201/2018/2018_Section_1201_Introduction_and_Recommended_Regulato

ry_Language.pdf.

For example, in 2012 NTIA analyzed the Secure Boot feature of the Unified Extensive Firmware

Interface (UEFI) found on many modern PCs and found that “neither the purpose nor the function of

Secure Boot is to control access to a copyrighted work.” In other words, circumventing Secure Boot in

order to run a non-vendor approved operating system does not constitute circumvention of an access

control under Section 1201. Letter from Lawrence E. Strickling, Assistant Secretary of Communications

and Information, to Maria Pallante, Register of Copyrights (September 21, 2012) at 8–9,

https://www.ntia.gov/files/ntia/publications/ntia_2012_dmca_letter_final.pdf

See Michael Weinberg Class 15 Initial Comments, at 4; see also EFF Class 12 Initial Comments, at 6.

is important for advocates on both sides and potential exemption users to have a clear

understanding of when the prohibition against circumvention does and does not apply.

Unfortunately, experience suggests that neither proponents nor opponents necessarily have an

interest in exploring the distinction between access controls under the statute and other

technologies that may pose a technical (but not necessarily legal) hurdle to noninfringing uses.

Proponents, for example, may be focused on immunizing their constituencies from the risk of

legal action to the greatest extent possible (regardless of whether they think a particular

technology should be viewed as triggering Section 1201). Opponents may be hesitant to limit

their clients’ potential recourse by stipulating that a given technology is not an access control. In

the interest of bringing clarity to those seeking to make noninfringing use of copyrighted works,

it may then fall to the Copyright Office to seek more information on these issues in future

rulemakings. NTIA stands ready to offer its expertise in navigating these potentially highly

complex technical topics.

II. Renewal of Existing Exemptions

NTIA agrees with the Register that, consistent with the terms of the streamlined

exemption renewal process, the Librarian received sufficient information to renew each of the

existing exemptions. Indeed the Copyright Office received thirty-two petitions to renew existing

exemptions, including at least one for each of the current exemptions. While the Office received

fifteen comments on these petitions, it properly found that these comments did not contain any

“meaningful opposition” to such renewal.

As each current exemption received a petition for

renewal and expansion, NTIA will express specific views on each class’s renewal and expansion

in turn below.

Additionally, NTIA notes its agreement with keeping the petitions simple and succinct

and avoiding the need to prove each use for each possible user in this short renewal petition.

Further, NTIA concurs that if an entity wishes to question the continued need for an exemption,

under the current streamlined process, then they must explicitly oppose the exemption.

For

example, the Copyright Office took this position with respect to the comments filed by the DVD

CCA and AACS LA in which they do not object to the renewal of the exemption, but asked that

of the exemption for certain groups such as K-12 schools. The Copyright Office correctly

pushed these concerns aside because the DVD CCA and AACS LA expressly stated that they did

not oppose renewal and therefore their concerns did not rise to the level of “meaningful

opposition.” To emphasize the point, the Copyright Office continued by stating that the

“petitioners need not address every possible use covered by an exemption when seeking to renew

an exemption, and the Office has concluded that the petition was submitted in a sufficient

manner.”

NTIA concurs that this is and should be the standard by which to judge requests for

renewals of current exemptions.

2020 NPRM.

NTIA may voice its support for particular circumstances discussed here in discussions below.

2020 NPRM, 85 Fed. Reg. 65293, 65296.

III. Proposed, Additional, and Expanded Exemptions

Class 1 – Audiovisual Works – Criticism and Comment

Renewals of the current exemptions that comprise this class were unopposed and will be

recommended by the Copyright Office.

NTIA supports renewal of the current exemptions.

In this proceeding, three petitions also seek to expand the existing exemptions for circumvention

of access controls protecting audiovisual works contained on DVDs, Blu-ray discs and digitally

transmitted (streamed) content for specific purposes related to criticism and comment or

education.

The Copyright Office grouped these three petitions together as they proposed, in

some cases similar changes, and in others potentially overlapping changes to parts of the larger

exemption that exists today. NTIA will examine each proposed change below: user expansions,

screen capture, use of full length works, and language modifications.

New Users

There are two proposed expansions for new groups of users for this exemption. First,

Joint Educators propose to expand the short portions used for educational purposes in online

learning currently limited to non-profit, accredited educational institutions to include online

learning platforms that offer supplement education, upskilling, retraining, recharging, and

lifelong learning regardless of their status as a for-profit or educational accreditation such as

Khan Academy, LinkedIn Learning and Osmosis.org.

Second, Brigham Young University

2020 NPRM, 85 Fed. Reg. 65293, 65296.

U.S. Copyright Office, Exemption to Prohibition on Circumvention of Copyright Protection Systems for

Access Control Technologies, Docket No. 2017-10, Final Rule, 83 Fed. Reg. 54010, 54018 (Oct. 26,

2018) (2018 Final Rule), https://www.govinfo.gov/content/pkg/FR-2018-10-26/pdf/2018-23241.pdf

Class 1 Petition for New Exemption of Brigham Young University (BYU Class 1 Petition), Docket No.

2020-11,

https://www.copyright.gov/1201/2021/petitions/proposed/New%20Pet.%20-

%20Brigham%20Young%20University.pdf (This petition is submitted by both Brigham Young

University and Brigham Young University – Idaho); Class 1 Petition for New Exemption of Joint

Educators (Joint Educators Class 1 Petition), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/petitions/proposed/New%20Pet.%20-

%20Joint%20Educators%20et%20al.pdf (Joint Creators include the following Peter Decherney,

Professor of Cinema and Media Studies and English at the University of Pennsylvania on behalf of

himself and Professor Katherine Sender, Department of Communication, Cornell University; John

Jackson, Professor and Dean, Annenberg School for Communication, University of Pennsylvania;

Rebecca Stein, PhD, Executive Director, Online Learning Initiative, University of Pennsylvania; the

International Communication Association (ICA); the Society for Cinema and Media Studies (SCMS);

Console-ing Passions; the Library Copyright Alliance (LCA), Shiv Gaglani, CEO and Co-Founder,

Osmosis.org; Stefan Wisbauer, Managing Director, Lecturio; Andrew Berg, MD, Co-Founder,

SketchyMedical; Saud Siddiqui, MD, Co-founder, SketchyMedical; and Ken Robertson, COO, Picmonic

Inc.); Class 1 Petition for New Exemption of Organization for Transformative Works, (OTW Class 1

Petition), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/petitions/proposed/New%20Pet.%20-

%20Organization%20for%20Transformative%20Works.pdf.

Class 1 Initial Comments of Joint Educators, (Joint Educators Class 1 Initial Comments), Docket No.

2020-11, at 3,

(BYU) proposes to expand the eligible users of the exemption to include college and university

employees replacing the term faculty.

As a general matter, NTIA supports expanding the users of this exemption to the groups

listed in the current educational environment where so much learning has moved necessarily

online during the pandemic. Proponents have provided sufficient evidence of harm for these

groups to permit moving forward with these expansions and have shown that while the pandemic

may be a one-time event, changes to the educational environment will continue to evolve to

include a virtual or online component.

Without the exemption it is likely that innovation in

online learning will be hampered. While the opposition suggests that if a major justification for

modifications is the pandemic for which the effects it is hoped will diminish and not have long-

lasting effects; therefore, they assert, perhaps the Office should consider a shorter term for the

exemption changes based upon the pandemic, if any at all.

In contrast, NTIA believes limiting these types of changes that may be highlighted by the

pandemic to a period shorter than the current three year term is not sufficiently justified. In fact,

this would be a confusing outcome to potential users when mid-cycle the exemption would revert

to the current exemption language. This would limit initial investment and discourage entities

from taking advantage of the exemption at all. Indeed, the length of the pandemic is still

undetermined, as we have discovered since the hearings, with the rise of the Delta variant and the

resurgence of new cases in August 2021. But more importantly, the pandemic simply

highlighted already existing needs and gaps in the marketplace and harms that can be fixed

through these changes.

These changes are needed to address problems that exist now and, as

with all exemptions, will be revisited in three years.

https://www.copyright.gov/1201/2021/comments/Class%2001_InitialComments_Joint%20Educators%20

IV.pdf.

BYU Class 1 Initial Comments, at 1.

Joint Educators Class 1 Initial Comments, at 3-4.

See Class 1 Reply Comments of Joint Creators (Joint Creators Class 1 Reply Comments), Docket No.

2020-11, at 3-4,

https://www.copyright.gov/1201/2021/comments/reply/Class%201_Reply_Joint%20Educators%20IV.pdf

(providing that “the pandemic is a time-limited event that should not drive public policy changes with

potentially long-lasting effects. The proposed exemption would be in effect until at least 2024. We are

hopeful, based on the availability of vaccines, that widespread effects from the pandemic will reduce

substantially during the next year.”). See also, Class 1 Post Hearing Letter of Joint Creators (Joint

Creators Class 1 Post Hearing Letter), Docket No. 2020-11, at 2,

https://www.copyright.gov/1201/2021/post-hearing/letters/Class-1-Joint-Creators-Post-Hearing-

Response.pdf.

See Class 1 Post Hearing Letter of University of Illinois, (University of Illinois Class 1 Letter), Docket

No. 2020-11, at 1,

https://www.copyright.gov/1201/2021/post-

hearing/letters/UniversityofIllinois1201Response.pdf.

Class 1 Reply Comments of Brigham Young University (BYU Class 1 Reply Comments), Docket No.

2020-11, at 3,

https://www.copyright.gov/1201/2021/comments/reply/Class%201_Reply_Brigham%20Young%20Univ

ersity%20and%20Brigham%20Young%20University-Idaho.pdf. This will allow all of the parties to

Online Educators

Joint Educators are petitioning for a new group of users to have a similar exemption to

the current MOOC exemption.

However, unlike the MOOC exception, this proposed group

will include non-accredited for-profit online educational entities, which in the past have not been

granted nor included in the MOOC or other exemptions based largely upon their for-profit or

non-accredited status.

For example, the Joint Educators discuss organizations such as

CSForAll, LinkedIn Learning, Osmosis.org and Musora Media. These organizations represent a

variety of expertise and subjects, but are all non-accredited and for-profit educational entities.

Their proposed exemption is as follows:

To allow educators and preparers of online learning materials to use short portions

of motion pictures (including television shows and videos), as defined in 17

U.S.C. 101, for the purpose of criticism, comment, illustration and explanation in

offerings for registered learners on online learning platforms when use of the film

and media excerpts will contribute significantly to learning.

The online provider will limit these online learning materials, to the extent

technologically feasible, to registered learners of the online learning platform,

institute copyright policies, and provide copyright information to educators and

preparers of online learning materials, learners, and relevant staff members.

Further, the online provider, to the extent technologically feasible, will work to

reasonably prevent unauthorized further dissemination of online learning

materials in accessible form to others, including after the registration period

ends.

NTIA Position: NTIA recommends granting a new expansion of this exemption

to include online educators with some modifications of the proposal.

Analysis: The evidence presented in this round was more convincing than in previous

cycles that these for-profit educators would make noninfringing uses of the works in much the

same way as existing authorized users of the educational exemptions.

In fact, this group of

revisit these changes, positive or negative in three years and make a fresh determination. As for now, the

evidence strongly supports making these changes and the pandemic add to that evidence.

In fact, the exemption will almost be identical in many elements.

Joint Educator has raised this idea previously but was not granted an exception.

See Joint Creators Class 1 Post Hearing Letter, at 1-2. CSforAll is unaccredited, for-profit organization

dedicated to computer science education; LinkedIn Learning is also unaccredited, for-profit company

with over 16,000 courses focusing business and other skills taught by industry experts; Osmosis.org also

for-profit, unaccredited organization focusing medical and health education; and Musora Media is also

unaccredited for-profit that focuses on music education. All provide their classes online.

NTIA notes in particular the emphasis in the post hearing answers on particular uses of short clips in

the preparation of educational materials used on their platforms that demonstrate the noninfringing uses

users will make uses identical to those already authorized to do so under other similar

exceptions.

The need for this exemption has become even more important this past year as so

much learning has shifted to a virtual environment as a result of the pandemic as discussed

above. As such, NTIA believes that the proponents have demonstrated in this proceeding these

for-profit online educational entities should be treated equally with not-for-profit educational

entities.

One important point revolves around the quality of the educational materials available.

For example, one of the dilemmas highlighted is that without this exemption these for-profit

entities cannot provide the quality of content that is permitted to not-for-profit educational

entities.

In other words, the current exemptions themselves create disparity that this new

exemption could repair. Also, and more importantly, this change will permit greater access to

quality content to more learners as more and more content is accessed virtually. Thus,

permitting this new group to take short clips of audio visual works with enhance learning in these

online environments is exactly the same way it is currently permitted for other exemptions such

as for MOOCs.

There has been a tendency in the past to tie similar exemptions to the limitations

articulated in the TEACH Act – hence the desire to retain the non-profit accredited language.

However, and as the proponents argue, the current circumstances, along with the evolution of the

online educational market, have obviated the need for strict reliance on this notion. Indeed, the

TEACH Act can be instructive, but this exemption process is designed to be flexible and

intended by the entities that would be added by this proposed expansion. See Class 1 Post Hearing Letter

of Joint Educators, (Joint Educators Class 1 Post Hearing Letter), Docket No. 2020-11, at 4-5,

https://www.copyright.gov/1201/2021/post-hearing/letters/Class-1-Joint-Educators-Post-Hearing-

Response.pdf.

NTIA notes here that the use itself has been discussed for many cycles -- that using short portions of

motion pictures or other audio visual works for educational purposes such as criticism, comment,

scholarship, evaluation, study in the classroom or online are traditionally noninfringing. That analysis

does not change with this cycle. The only question here is determining whether there is sufficient

justification to permit this additional group to have any exception to circumvent.

Class 1 Reply Comments of Joint Educators (Joint Educators Class 1 Reply Comments), Docket No.

2020-11, at 4,

https://www.copyright.gov/1201/2021/comments/reply/Class%201_Reply_Joint%20Educators%20IV.pdf

See, e.g., Joint Educators Class 1 Reply Comments, at 5.

Id. The Joint Educators raise the example of a medical student needing additional study materials on a

particular subject can acquire access at Osmosis.org to content that will assist her with concepts she is

struggling at any time. That learning would be enhanced using clips from audio/visual works.

See, e.g., 17 U.S.C 110(2). For example, the disparity between face to face and online learning in the

TEACH Act, which was enacted in 2002, a very different time and largely before the current push

towards more and more online learning, need not be carried over to 1201. This includes the requiring that

the educational institution allowed to take advantage of the exemption need not be nonprofit.

innovative, and therefore it need not mandate the same requirements as that statute, especially as

those may be dated or irrelevant to the circumstance at hand.

The difficulty confronted in the proceeding with adding this new group is how to craft a

new exemption that is appropriately inclusive, but also protects content providers from

infringement of their works.

This is in part the subject of the Copyright Office’s post hearing

questions, which focused on whether the entity should be accredited.

NTIA supports the

notion that this exemption should be limited to educational entities that employ educators or

demonstrate that they themselves are educators that provide or develop content whether or not

they are accredited or are for-profit or not-for-profit.

The definition of educators and

educational entities in this context should be construed as broadly as possible.

For example,

NTIA believes it would be difficult to draw the line between certain entities. But it may be

sufficient that in order to qualify for this exemption that one would need to produce an education

certificate from a state board or certain degree. And in order to qualify it would be helpful, but

should not be required, that there the entity possess an accreditation by entities authorized or

recognized by the Department of Education or other similar accrediting entity for the

organization itself.

Yet NTIA believes it would be sufficient to qualify for this exemption if

the entity is registered with their state or local jurisdiction as an entity, for profit or not-for-profit,

with an educational purpose or mission. As such, NTIA believes that adding the limitation to the

language that the use must be by an educational entity sufficiently narrows and better defines the

class of users.

NTIA believes it is a matter of good public policy to grant this exemption, which favors

small businesses formed to be educational entities and can allow for those that are experts in

their field to develop educational materials and specialized online courses utilizing that

expertise.

This would, for example, permit small businesses (that are educational entities or

See Joint Educators Class 1 Initial Comments, at 13.

We note that Joint Educators have made clear that they are not seeking to modify the MOOC

exemption, but to add a new class of users to the exemption. See Joint Educators Class 1 Reply

Comments, at 5.

Docket No. 2020-11,

https://www.copyright.gov/1201/2021/post-hearing/letters/Class-1-Post-Hearing-

Letter-4-16-2021.pdf.

NTIA believes that the entities proffered by the Joint Educators would each qualify as an “educational

entity.”

See Joint Educators Class 1 Post Hearing Letter, at 6.

See, e.g., Department of Education, Accreditation: Post-secondary Institutions,

https://www.ed.gov/accreditation

. This list contains information about accreditation, accrediting bodies

and those post-secondary schools and programs that are accredited. Certainly, whether the entity is for-

profit or not-for-profit and they appear on this list – they would qualify for the exemption as NTIA has

contemplated to the extent it is needed for online programs.

Id. at 6. We note the examples used in the Post Hearing Answers demonstrates the benefit of including

experts in fields such as medicine and computer science. But also lifelong musicians could fall into this

category as well. They may not have a degree in education per se, but have a lifetime of expertise that

would more than qualify them to teach the course.

have an educational mission or purpose) that may only have one or a few employees and that

develop and provide online educational content using short portions of motion pictures, and that

establish an online platform for delivering that content to online learners as long as they meet the

other requirements of the exemption to qualify for this exemption.

However, these entities

would not be required to acquire an accreditation or become a non-profit, in order to take

advantage of the exemption. This would be unnecessary and would not add value to the

educational materials or online courses themselves. Permitting this exemption can broaden the

possible number of entities that provide online learning (that use the clips from audio visual

works) specifically mentioned by the Joint Educators in all of their filings and many of whom

also join in this petition.

More importantly, this will provide opportunities for new small

business, and new online learning opportunities.

For this new exemption, NTIA believes the established safeguards articulated in the

MOOC exemption provides good guidance. For example, the educational entity will also need to

implement registration requirements of the students, use only the short clips that are created for

an educational purposes including criticism and comment, illustration and explanation.

would be appropriate then that the new exemption also retain the requirements to prevent sharing

the content provided through the platform in the current exemption as well as the other

technological measures that would prevent unauthorized dissemination or retention of the work.

Proponents of this exemption support retaining these limitations that are a part of the MOOC

exemption with some minor alterations.

NTIA believes these institutional and technological

limitations continue to be appropriate to prevent infringing uses of the short clips created for this

exemption.

NTIA Recommendation for Class 1 (Online Educators): NTIA believes the new

exemption for online educational entities should read as follows:

It is also possible to consider that these same small business can also develop and sell that content to

other educational entities that have established online platforms.

See e.g., Joint Educators Class 1 Post Hearing Letter, at 2. Indeed the current MOOC exemption

already permits the platform to be for profit so there is some precedent. In reality the platform in the

equivalent of the educational entity or online provider in this new exemption.

NTIA is cognizant that the quality or accuracy of the educational materials themselves may be in

question with this broad of a sweep of potentially authorized users. However, that is not the purpose of

decipher the better content to purchase and to study. This is not reason enough to deny this exemption.

Let the market work in this regard.

See, e.g., Joint Educators Class 1 Initial Comments, at 12-13.

Id.

NTIA does not believe that these limitations will not create unreasonable barriers to use, but will

provide adequate protection for copyrighted works thus striking the right balance here. This may limit

access to the educational materials in some cases and require these educational entities to not post things a

free and open platform in order to remain compliant.

(D) To allow By educators and preparers of online learning materials offered by

educational entities to use short portions of motion pictures (including television shows

and videos), as defined in 17 U.S.C. 101,

to registered learners of online learning

platforms when use of the film and media excerpts will contribute significantly to

learning, including for the purpose of criticism, comment, illustration and

explanation,

where the The online provider will limit these online learning materials,

to the extent technologically feasible, to registered learners of the online learning

platform, institute copyright policies, and provide copyright information to educators

and preparers of online learning materials, learners, and relevant staff members, and

the online provider, to the extent technologically feasible, will work to reasonably

prevent unauthorized further dissemination of online learning materials in accessible

form to others, including after the registration period ends.

This version of the proposed exemption contains minimal changes from the original needed to

strike the right balance and drawing from the existing MOOC:

College and University Employees

BYU’s proposal seeks to expand the current exemption to include all university

employees to be able to circumvent for educational purposes.

Currently the exemption limits

the users to “college and university faculty,” which would be replaced by the term “college and

university employees.” This minor modification would eliminate any ambiguity as to who may

circumvent at the university level.

BYU asserts a primary reason for this change is that many

faculty members do not possess the requisite skills or technological tools to circumvent access

controls, thus rendering the current exemption largely unused.

This change will permit, for

example, university IT department employees to circumvent on behalf of the faculty member that

is requesting the circumvention.

This expansion received little opposition.

This text will not be needed here as it covered elsewhere in the regulatory text in paragraph (1).

For readability of the regulatory text NTIA suggests moving this phrase from earlier in the text to here.

This text in red is largely the text proposed by the Joint Educators.

We note that the language here tracks the exemption proposed by the Joint Educators with the addition

of the educational entity. Further the language here is as it would appear in the regulation after the

current MOOC as subsection (1)(ii)(D). See, e.g., Joint Educators Initial Comments, at 16, 18.

This modification would be paragraph (1)(ii)(A) of the current exemption only.

See Transcript, Hearing on Exemptions to the Prohibition on Circumvention of Copyright Protection

Systems for Access Control Technologies, Section 1201 – Digital Millennium Copyright Act, Remarks of

Peter Midgley and Shane Stanley, at 220-222 (Apr. 6, 2021) (April 6 Hearing Transcript),

https://www.copyright.gov/1201/2021/hearing-transcripts/210406-Section-1201-Public-Hearing-Class-

1.pdf.

BYU Class 1 Initial Comments, at 27-28.

Id. at 28.

See April 6 Hearing Transcript, Remarks of Regan Smith, at 221. In fact, it was noted on the record

that opponents had no opposition and had viewed the current exemption to include all university

employees as well as faculty.

NTIA Position: NTIA recommends granting the requested expansion for college and

university employees with some additional modification.

Analysis: NTIA supports this modest expansion to provide clarity as to who might

provide this service to educators within the university. NTIA concurs with BYU that this change

does not alter the current analysis that finds these uses to be noninfringing and, in fact,

universities are adversely impacted by not permitting all university employees to circumvent for

educational purposes.

NTIA notes that BYU did not advance a proposed change for the other educational

entities here such as K-12 educators.

Currently, the same exemption includes K-12 faculty and

therefore NTIA believes the modification should also be extended to K-12 employees. This

would permit, for example, IT offices in K-12 school systems across the country to make these

modifications on behalf of students and educators. Therefore, in NTIA’s view and to eliminate

any ambiguity that a K-12 school could possibly be in violation of the DMCA, when at the

request of an educator, an IT specialist bypassed an encryption so that that educator could utilize

a short portion of motion picture in a classroom discussion, NTIA recommends adding the

additional term “employees” after K-12 educators as demonstrated below.

NTIA Recommendation for Class 1 (College and University Employees): NTIA

recommends that the Librarian modify Section (1)(ii)(A) as follows:

(A) By college and university faculty employees and students or kindergarten through

twelfth-grade (K–12) educators, employees and students (where the K–12 student is

circumventing under the direct supervision of an educator), including of accredited

general educational development (GED) programs, for the purpose of criticism,

comment, teaching, or scholarship;

Screen Capture

All three proponents proposed to eliminate the requirements regarding screen capture

technology. For example, Joint Educators assert that screen capture is not an effective

alternative to circumvention.

OTM argues that “the statutory factors do not provide the Office

with reasons to determine that people entitled to an exemption must use a particular technology

to do so.”

BYU also joins in argument to remove the requirement for screen capture.

BYU Class 1 Initial Comments, at 28.

See, e.g., BYU Class 1 Reply Comments, at 2.

While there was not a discussion of such a change on the record, the lack of opposition and the position

the opposition took with the language should provide enough comfort to permit the Copyright Office to

make this additional change.

Joint Educators Class 1 Initial Comments, at 9.

Class 1 Initial Comments of Organization for Transformative Works (OTW Class 1 Initial Comments),

Docket No. 2020-11, at 3-4,

https://www.copyright.gov/1201/2021/comments/Class%2001_InitialComments_Organization%20for%2

0Transformative%20Works.pdf.

Screen capture technologies are rarely a viable solution for educational uses for a

variety of reasons: they do not provide high-quality copies; the copies made are

static; metadata including closed captioning, different language subtitles and dubs

are lost; and the time needed to create these copies is overly burdensome. In

previous rulemakings, the Register has acknowledged many of the limitations of

screen capture technologies. Even so, the current exemption still includes a

reference to screen capture technology that is not only confusing, but also

unnecessary and overly restrictive. The obligation to use screen capture

technologies neither contributes to preventing infringing uses nor does it benefit

rightsholders in any way.

Removing this language is opposed generally by Joint Creators and DVD and

AACS.

The Joint Creators argue that proponents have not demonstrated that screen

capture and “other licensed alternatives” are not effective for accomplishing many uses

and even more available for education today than three years ago.

With that said

however, the opposition is most concerned that other circumvention methods typically

make the complete work free for copying and distribution without restriction.

NTIA Position: NTIA recommends granting the requested elimination of the

requirement regarding screen capture.

Analysis: NTIA has in past supported eliminating the screen capture technology

requirement and nothing presented in this proceeding persuades NTIA that we should take a

different position in this proceeding.

In 2018, the Copyright Office recommended that screen

capture be included as a precondition to circumvention, thus only permitting circumvention if the

quality is insufficient for the needs of the user.

While this is meant to answer the largest

BYU Class 1 Initial Comments, at 23.

See generally, Class 1 Opposition Comments of DVD and AACS (DVD and AACS Class 1 Opposition

Comments), Docket No. 2020-11, at 5-6,

https://www.copyright.gov/1201/2021/comments/opposition/Class_1_Opp'n_DVD%20CCA%20and%20

AACS%20LA.pdf.

Joint Creators Class 1 Reply Comments, at 2. It is noteworthy here that Joint Creators are not generally

opposed to rewording the exemptions as long as the current limitations are retained. Also, the evidence

presented suggested that new efforts have been made to work with these users and provide services, but

the proponents rebut the notion that these have in any way solved the issues at hand.

See, e.g., NTIA 2018 Letter, at 27-28.

As the 2018 Recommendation explained, “a requirement that users consider whether it is really

necessary to engage in circumvention before doing so is consistent with the aims of the

rulemaking.” U.S. Copyright Office, Section 1201 Rulemaking: Seventh

Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention, Recommendation of

the Register of Copyrights (2018 Register’s Recommendation), at 84-85 (Oct. 2018).

complaint regarding the screen capture language, NTIA believes this language is the cause of

much confusion and actually adds ambiguity to the exemption.

NTIA has observed that screen capture seldom provides the clip quality required for the

users of this exemption and therefore again supports removing this language from the exemption.

We note that this is the primary argument favored by the proponents for this change. In one

example, proponents provide evidence of the ineffectiveness of screen capture.

So, actually, we can’t find any example that we've heard in which screen capture

would be effective. Screen capture creates an imperfect copy, as we’ve already

heard. It can distort the lesson being taught. It has dropped frames. Audio and

video could be out of sync. DRM can block it. Really, there’s an equity

argument. It doesn’t even work -- it works even worse if you're an under-

resourced institution with a bad computer. So, examples like “The King’s

Speech” where it could be used by educators to talk about someone with a speech

defect, if the audio and video are out of sync, you wouldn’t know if it was a

technical issue or if it was part of the medical condition.

The current language requiring the use of screen capture under Class 1 is causing

confusion and is ambiguous in its current formulation. Proponents assert as a growing example

of that ambiguity that many programs block the use of screen capture software, suggesting that

the program considers the screen capture software as a circumvention tool.

In fact, the

language requiring screen capture is unnecessary as the “person engaging in circumvention

believes and has reasonable grounds for believing that circumvention is necessary to fulfill the

purpose of the use.”

This would include an analysis of quality of the output for that use and

would cover any potential use of screen capture by vidders or educators. If the user can use

screen capture -- by all means do so. If they cannot, they are not required to do so. To the extent

there is a question whether screen capture is not considered as an authorized non-circumventing

alternative, but in fact is a circumvention tool -- it would be authorized by this exemption in

either case. In other words, the exemption gains nothing by including the language and only

NTIA notes that this addition to the exemption language was an answer to the convincing record before

the Copyright Office in previous proceedings that screen capture software produced poor quality clips

often unusable by the vidders (or others) and so to give the user an explicit choice and to keep some

vestige of the screen capture requirement in place. However, in doing so, the resulting exemption has

become cumbersome and confusing to potential users.

April 6 Hearing Transcript, Remarks of Peter Decherney, at 230.

April 6 Hearing Transcript, Remarks of Betsy Rosenblatt, at 165. It is important to note here that this

uncertainty does not necessity the Copyright Office from specifically designating screen capture as an

authorized technology. As written it only compounds the ambiguity and confusion. It is also

inappropriate for the Copyright Office to acknowledge and even endorse one specific technology of

another. A better wording, if this language were retained would be to use “authorized circumvention

method or technology.” Regardless, NTIA believes it is time to remove the language as the best option.

April 6 Hearing Transcript, Remarks of Anna Chauvet, at 160.

suffers from a lack clarity by it being included. Further, eliminating the language below

simplifies the exemption and makes it less ambiguous what is authorized by the exemption. The

point should be that screen capture may be used but is not required. In some cases, it works to

use screen capture. In other cases, it will not. The artist or educator should decide.

The opposition’s primary assertion in retaining the requirement to use screen capture

software requirement is that it prevents full copies from being available without the protected

encryption; the screen capture technology provides small clips from the work, but does not make

the entire work available free and clear.

While this may be the case, meaning the typical

circumvention eliminates the encryption permitting the unencrypted copy to be disseminated and

copied, the clip produced by the screen capture software is usually unusable as has been

demonstrated above and throughout this and previous proceedings. Thus, this process is to find a

balance between competing needs. OTM suggests that the fear from the content community

about how these users will utilize a free and clear copy is unfounded.

Neither my research nor my fandom interactions have suggested any connection

between accessing complete copies of works for creative purposes and

distributing “unprotected, perfect, digital, in-the-clear” copies of those works.

This is not surprising: circumventing access controls and distributing files are

entirely different activities, and vidders distinguish between them.

NTIA does not lightly dismiss the caution raised by the content community.

However, we believe it is now prudent to eliminate the language requiring use of screen

capture. The language just prior in the current regulation still requires that the user

determine whether there are non-circumventing alternatives available for their purposes.

In other words, circumvention is still not the first option to the potential user, but with

this formulation the Office is not picking a particular alternative technology over any

others that may be authorized by the content creators.

This language properly preserves

the balance and encourages the marketplace to create tools useful to both interests –

preserving the rights of the content creators and allowing these users to extract short

portions of the motion pictures for criticism and comment or for classroom assignments

at the level of quality needed for the noninfringing use.

See, e.g., Class 1 Reply Comments of Organization for Transformative Works, (OTW Class 1 Reply

Comments), Docket No. 2020-11, at 2,

https://www.copyright.gov/1201/2021/comments/reply/Class%201_Reply_Organization%20for%20Tran

sformative%20Works.pdf.

April 6 Hearing Transcript, Remarks of J. Matthews Williams, at 166-67.

OTW Class 1 Reply Comments, at 3.

NTIA notes again that the Joint Creators did mention other authorized alternative tools, but the record

did not discuss what these might be. NTIA believes market-based solutions and improved authorized

tools are preferable as alternatives to circumvention. At this stage, however, what those market-based

solutions look like is unclear (even in the case of screen capture software). See, e.g., Joint Creators Class

1 Reply Comments, at 2.

NTIA Recommendation for Class 1 (Screen Capture): NTIA supports eliminating the

screen capture language to simplify the exemption, which will adequately preserve the balance.

(1) Motion pictures (including television shows and videos), as defined in 17 U.S.C.

101, where the motion picture is lawfully made and acquired on a DVD protected by

the Content Scramble System, on a Blu-ray disc protected by the Advanced Access

Content System, or via a digital transmission protected by a technological measure, and

the person engaging in circumvention under paragraph (b)(1)(i) and (b)(1)(ii)(A) and

(B) of this section reasonably believes that non-circumventing alternatives are unable

to produce the required level of high-quality content, or the circumvention is

undertaken using screen-capture technology that appears to be offered to the public as

enabling the reproduction of motion pictures after content has been lawfully acquired

and decrypted, where circumvention is undertaken solely in order to make use of short

portions of the motion pictures in the following instances:

Language Changes

BYU proposes significant language changes. First, it posits substituting the more broad

terminology “noninfringing uses” for the current language referring to more educationally-

focused section 107 uses: “criticism, comment, teaching or scholarship.” It also proposes to

eliminate the use of the term “educational uses.”

We note that this change was also opposed by

other proponents such as Joint Educators.

Both formulations could clearly qualify as the basis

for an exemption, especially since the second set of terms used now are all noninfringing uses.

However, BYU asserts that by limiting the exemption to these section 107 terms, the exemption

limits possible educational uses of the exemption. Instead, BYU suggests incorporating by

reference sections 107, 110 and 112 to define the possible noninfringing uses that a university

may make. Such references will permit universities to react to future events that affect

education, such as has occurred during the pandemic, and will be flexible enough to permit

innovative educational uses. Further BYU suggests breaking out all educational uses into a

separate exemption.

Motion pictures (including television shows and videos), as defined in 17 U.S.C.

101, where the motion picture is lawfully made and acquired on a DVD protected

by the Content Scramble System, on a Blu-ray disc protected by the Advanced

Access Content System, or via a digital transmission protected by a technological

measure, where circumvention is undertaken by college and university employees

or students or by kindergarten through twelfth-grade (K-12) educators or students

(where the K-12 student is circumventing under the direct supervision of an

April 6 Hearing Transcript, Remarks of Peter Midgley, at 172-173. BYU suggested that there arises

some confusion with the current formulation of exemption language when using these terms.

April 6 Hearing Transcript, Remarks of Peter Decherney, at 173-174.

BYU Class 1 Initial Comments, at 2-3. NTIA generally supports this notion if a level of clarity and

simplicity can be achieved by such a breakout. This idea was not explored in any real detail as to what

that might look like and how that change benefits the users. NTIA looks forward to more work on this

idea in future rounds.

educator), including of accredited general educational development (GED)

programs, for a noninfringing use under 17 U.S.C. §§ 107, 110(1), 110(2), or

112(f).

NTIA Position: NTIA recommends some changes to the exemption language based

upon BYU’s recommendation.

Analysis: Generally speaking NTIA supports simplifying the language to make the

exemption as easy as possible for users to understand what is and what is not permitted. NTIA

agrees with the sentiment that the regulatory language should be flexible in order to allow

adaptation to future events and needs and to permit innovation. It is also impossible to articulate

all possible noninfringing uses that are authorized or could be authorized by the exemption.

Also, as has been demonstrated and discussed throughout this proceeding, the pandemic has

demonstrated the need for flexibility and innovation. Further, if the language is too rigid, NTIA

concurs that innovation will be stymied. NTIA also agrees that it is good policy to craft an

exemption that fosters innovation in education.

While NTIA agrees with these ideals, NTIA does not concur that all of the changes

suggested necessarily achieve the desired outcome. NTIA does concur with the concept of using

the existing laws as a guidance for possible uses and limitation of these exemptions, as it has

noted previously. Yet NTIA does not concur with eliminating the term “educational uses” from

this exemption, as it is both instructive and appropriately limiting. Not all uses that are

potentially noninfringing uses have been authorized as an exemption to circumvention. Indeed

the statute mandates a balance be struck. Perhaps then the best language to guide university

decisions would be a combination of the existing exemption and BYU’s proposal.

NTIA endorses using the existing Copyright Act sections as guidance for this educational

exemption to the extent they are helpful as guidance. These sections already outline uses

contemplated by Congress. However, NTIA is hesitant to suggest that the entire exemption uses

be based upon these other sections. Indeed in the past referencing other sections has been a

source of confusion and has suggested more than what was intended. We note that an exemption

in this proceeding can and often has granted more use of the work than was contemplated in

these sections (especially 110 and 112). Therefore, NTIA suggests that these sections be

referenced strictly as guidance such as: educational uses authorized by this exemption may be

included from those contemplated in sections 107, 110 (1), 110(2) and 112(f).

Section 110(1)

and 110(2) focus on potential classroom uses of the work including performance and digital

transmission of the work. But as the Joint Creators point out there are limits in 110(1) and

Given that all educational uses that have been permitted prior are noninfringing uses, NTIA does not

oppose this change if combined with the term educational uses, as guided by sections 107, 110, and

112(f).

17 U.S.C. §107 outlines the traditional fair uses, which have been the subject of this exemption from

the beginning. But do not request additional discussion here. These uses have been favored from the

beginning and are discussed by Congress in creating this section. See, e.g., H.R. Rep. No. 105-551, pt.2

at 25 – 26.

110(2) that will not permit for example virtual learning and copying.

Section 112(f) authorizes

digital copies of the work in certain circumstances especially by those same entities authorized

under 110(2) and allows for the conversion from analog to digital in those limited circumstances

such as for face to face in class performance of the work.

These sections help pave the way for

a more broad and flexible educational use exemption, but should only be used as a guide and not

as a replacement for the current text.

NTIA Recommendation for Class 1 (Language Changes): NTIA recommends the

following language for Section A of educational uses (while retaining the title educational uses):

(A) By college and university employees and students or kindergarten through twelfth

grade (K–12) educators, employees and students (where the K–12 student is

circumventing under the direct supervision of an educator), including of accredited

general educational development (GED) programs, for the purpose of criticism,

comment, teaching, or scholarship and other noninfringing uses, as guided by Sections

107, 110(1), 110(2) and 112(f);

Full Length

Next, BYU proposes changing the language for educators to eliminate the “short

portions” limitation for educational uses, which would essentially permit using the entire motion

picture under this new exemption.

NTIA has supported prior iterations of this proposal in past

cycles.

The Copyright Office has rejected this idea in the past as overly broad.

It is noted

that not all proponents supported this idea and it was vigorously opposed.

Another possible

formulation of this idea would be to replace short portions with the broad terminology

“reasonable and limited portions” following language used in section 17 U.S.C. § 110(2).

Class 1 Opposition Comments of Joint Creators (Joint Creators Class 1 Opposition Comments), Docket

No. 2020-11, at 5,

https://www.copyright.gov/1201/2021/comments/opposition/Class_2_Opp'n_Joint%20Creators%20and%

20Copyright%20Owners.pdf (providing that “[a]lthough Section 110(1) allows BYU to engage in certain

public performances of complete motion pictures “in a classroom or similar place devoted to instruction”

(emphasis added), without obtaining licenses, it does not allow those performances to be generated from

unauthorized copies, nor does it contain any limitation on the reproduction right. If Congress wanted EIs

[Educational Institutions] and students to be exempt from purchasing complete copies of works or

authorized access thereto, it would have included an exception to the reproduction right within Section

110 – which it clearly did not”).

NTIA notes that this is important for the discussion in the next section. It was already found to not be

an infringement to change formats for this limited purposes.

This proposed change would not be carried over for vidders and others currently authorized to use only

short portions of the motion pictures that are not associated with educational uses.

2018 NTIA Letter at 17-23. Many of the concepts and issues addressed there are repeated in this cycle.

Accordingly, our thoughts there are incorporated by reference into this recommendation.

See, e.g., 2020 NPRM, 85 Fed. Reg. 65293, 65303.

See, e.g., Joint Creators Class 1 Opposition Comments, at 8-10; see also DVD CCA Class 1 Opposition

Comments, at 19.

NTIA Position: NTIA recommends granting this proposed use with some alterations.

Analysis: Here, BYU proposes to eliminate the short portions language to facilitate use

of full-length motion pictures for educational purposes. In doing so, BYU asserts that a better

use of language would be utilizing other statutory provisions, such as the TEACH Act (sections

110 and 112). The TEACH Act uses “reasonable and limited portions” rather than short

portions.

BYU asserts that this change would permit both use of short portions and full length

(and everything in between) as needed by the educational institution for both face to face and

remote class learning.

Essentially, BYU asks to be able to “space shift” the works from one medium to another

to facilitate remote learning especially because of the need to provide remote learning as a result

of the pandemic.

BYU asserts that the main purpose for this modification would be to allow

the streaming of motion pictures for classroom use (whether virtual or in person) where the

current marketplace does not provide for a license to do so. Educational users would be able to

use DVDs in their existing collection for example, to stream to classrooms or virtually to

students for educational purposes. BYU argues that universities have large investments in their

motion picture collections that may be rendered useless if not for this exemption.

As in the

past, BYU has reiterated that optical drives are becoming obsolete (not being included in new

equipment such as computers purchased by the university) highlighting this need. But it is even

more important especially in light of limitations imposed on classrooms by the pandemic.

well, BYU provides evidence of gaps in the marketplace for digital copies and licenses for

motion pictures that allow universities to use these motion pictures for remote learning or for

face to face learning. Indeed, as mentioned above, the pandemic has moved more classes

necessarily online. BYU provides an important example of why this exemption is needed. In the

fall of 2020, the film studies class moved to virtual learning to include viewing of 12 films for

the class. Although BYU owned the films on DVD, it could not play them. And, because the

films were not available in the digital marketplace for BYU to purchase, other options were

explored. One included requiring students to acquire or view on multiple streaming services that

they would have had to purchase, which would have been cost prohibitive. Instead BYU

17 U.S.C. §110(2).

BYU Class 1 Initial Comments, at 10. In 2018, NTIA noted that BYU supported well the idea of face

to face class use of this proposed exemption, it did not support the remote learning part of its proposal.

NTIA believes in this round that it has supported both uses. See 2018 NTIA Letter, at 23.

This proposal is already authorized in a very limited fashion under 17 U.S.C. § 112(f)(2).

BYU states it has purchased over 19,000 DVDs and 900 Blu Ray discs. See BYU Class 1 Initial

Comments, at 20.

Of particular note is access to university optical drives because of the pandemic as well as the needed

time to quarantine all physical materials used during the pandemic. As noted above this simply proves to

highlight an already existing shortfall in the marketplace with disc drives becoming obsolete to which an

exemption here could help ameliorate. See, e.g., BYU Class 1 Initial Comments, at 25.

adjusted its curriculum to find films it could license.

This choice does not demonstrate a viable

alternative, but a market failure.

Further, as these digital streaming services designed for universities provide some content

and in those instances are used. However, BYU has demonstrated that there are gaps in

availability from these services as just mentioned causing harm to education and learners.

For

another example, although BYU has 16,000 films in its collection and one commercial service

provides over 25,000 titles in its service, there is only an overlap of 1,000 similar works.

Therefore, BYU, without the exemption would not be able to utilize 15,000 of its works for

certain classroom or virtual educational purposes. This is a gap of about 90 percent; others

report a gap of about 25 percent.

100

Equally concerning is the gap in films not offered by these

services, because they are no longer produced, have limited availability, are older, or otherwise

not available. Although these films may be in the university DVD or Blu-ray collection they are

not available for classroom use.

101

At the very least, this demonstrates that streaming services

are not an alternative to circumvention in all cases and have certainly not been during much of

the pandemic.

102

It also still remains that these licenses do not meet the needs of the universities or the

students. Bulk licenses allowing for multiple viewers for educational purposes remains largely

non-existent.

103

And negotiations to acquire licenses at reasonable prices and that meet the

needs of universities have broken down.

104

The post hearing questions asked all to suggest regulatory language appropriate for this

expansion. The BYU Idaho letter proposed limitations such as a market check that would

appropriately cabin this new exemption. This language will help to fill the marketplace gap to

provide motion pictures to stream to classrooms as well as lack of optical disc drives. In

addition, it will provide for appropriate market checks and other limitations endorsed in other

exemptions.

1. a college, university, or K-12 educational library lawfully owns the motion pictures

acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc

protected by the Advanced Access Content System, or via a digital transmission

protected by a technological measure, where circumvention is undertaken by college and

university employees or students or by kindergarten through twelfth-grade (K-12)

Id. at 27-28.

While this example was worsened by the pandemic, it is still important example of the gap in the

marketplace that justifies this exemption.

Id. at 24.

100

University of Illinois Class 1 Letter, at 1.

101

See Post Hearing Letter of Brigham Young University Idaho (BYU Idaho Class 1 Letter), at 1,

https://www.copyright.gov/1201/2021/post-hearing/letters/1201-Post-Hearing-Letter-Response-BYU.pdf

102

Id. It should be noted that many of these streaming services did provide free access to their libraries

for a time, but those have expired. See BYU Idaho Class 1 Letter, at 1.

103

See Class 1 Post Hearing Letter of Columbia University (Columbia Class 1 Letter), at 1,

https://www.copyright.gov/1201/2021/post-hearing/letters/2021-05-07-pantalony-reply-USCO.pdf

104

Id.

educators or students (where the K-12 student is circumventing under the direct

supervision of an educator), including of accredited general educational development

(GED) programs, for the purpose of criticism, comment, teaching, or scholarship allowed

under 17 U.S.C. §§ 107, 110(1), 110(2);

2. a reasonable search of major educational motion picture platforms demonstrates that

no ownable or licensable copy which can be streamed for classroom uses as defined

under §§ 110(1) and 110(2) is available for purchase at a reasonable price;

3. the college, university, or K-12 institution reasonably protects any copies of motion

pictures made under this exception from downstream uses;

4. the college, university, or K-12 institution has reasonable policies ensuring all uses are

noninfringing under §§ 107, 110(1), and 110(2);

5. and decrypted copies are not transferred to any other institutions or entities.

105

Columbia University

106

and the University of Illinois

107

also proposed helpful language

to consider. A few points are important from the three proposals. First, the BYU-Idaho

suggestion more closely tracks the current overall exemption for Class 1. As such, the language

included is well understood and keeps the regulatory language consistent. However, NTIA

believes that the Copyright Office should preserve an exception to the more commonly used

short portions exemption. At this point, NTIA does not see justification to replace the short

portion exemption with this new one. Second, while NTIA endorses this idea for post-secondary

faculty and employees, the idea of including students in this exemption has not been raised. For

this reason alone, this new exemption should not serve to replace the existing exemption. It

should only be used when the primary purpose is to show the work in a teaching situation where

more than a short portion is needed, such as playing the entire work for a class. Further, we

think this exemption would be easily misunderstood to authorize students to decrypt works they

105

BYU Idaho Class 1 Letter, at 2.

106

Columbia University suggested the following: “During an initial three year rulemaking term, motion

pictures (including television shows and videos), as defined in 17 U.S.C. 101, where the motion picture is

lawfully made and acquired by an accredited non-profit educational institution, on a DVD protected by

the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Content System, or

via a digital transmission protected by a technological measure, and the person engaging in circumvention

under paragraph (b)(l)(i) and (b)(l)(ii)(A) and (B) of this section, acting on behalf of a non-profit

accredited educational institution, determines after a reasonable effort, that non-circumventing

alternatives are not available for license at a fair price; where circumvention is undertaken solely in order

to provide lawful streamed access to its faculty, researchers and students for the purposes of research and

teaching.” Columbia Class 1 Letter, at 2.

107

The University of Illinois proposed the following: “Use of a full movie when a streaming version is

not commercially available for educational purposes after conducting a reasonable search for an available

license: (A) By college and university faculty and students or kindergarten through twelfth-grade (K–12)

educators and students (where the K–12 student is circumventing under the direct supervision of an

educator), including of accredited general educational development (GED) programs, for the purpose of

criticism, comment, teaching, or scholarship.” University of Illinois Class 1 Letter, at 2.

borrow from school libraries. There does not appear to be a scenario for appropriate use for

students. Here the most common use is to play the entire work in a classroom setting – and we

see little need for students to do so.

108

Therefore, only the institution should be involved in

making the decision to circumvent.

We also note, however, that it is good policy to extend this exemption to K-12 educators

for the same reasons that it should be extended to the post-secondary institutions. While NTIA

acknowledges there was very little discussion of K-12 need for this exemption, every single use

demonstrated for the university level will also be needed at the K-12 level. As these uses are

noninfringing for post-secondary level educational entities, they will also be noninfringing for K-

12.

Most importantly here are the suggested limitations for the educational institution to

circumvent. The institution will need to limit uses to noninfringing educational uses such as

authorized by the various sections of the Copyright Act. Again, these sections should only be

used as guidelines. For example, to the extent it is unclear whether an institution may play a full-

length motion picture for a class on film studies lab and provide access to that virtually as a part

of the class offering – that should also be included. To be certain, NTIA suggests adding

language to the text that specifically authorizes this type of use.

109

NTIA agrees that using the

language of the Copyright Act also permits other uses outside the classroom such as study of the

film. For example, for a history class, students receive an assignment to study the use of actual

footage of the Vietnam War in motion pictures and compose an essay. It would be an

appropriate use for the students to conduct this scholarship to log into the university system to

play the films on this list in their dorm rooms or the library. Thus, it would be inappropriate to

limit this use to classroom play only.

110

Additionally, the university will need to do a market search for available works that will

fit the needs of the educational use. If such works are unavailable or a license cannot be

obtained, the university may use its DVD collection to fill that need including breaking the

encryption and storing the motion picture on a server in a format that can be streamed to the

classroom. As NTIA noted in 2018, we believe storing and streaming these works on a closed

university system is also sufficient safeguard against infringement. This will require the

institution to police downstream uses including such technological measures as is necessary to

protect the work. The remaining limitations articulate this idea of putting the onus on the

university to ensure that unencrypted works are not shared, played or copied outside these

authorized uses.

108

NTIA notes that Columbia did not extend their suggested language to students, but left it at the

institutional level. See, e.g., Columbia Class 1 Letter, at 2.

109

See generally, April 6 Hearing Transcript, Remarks of Sara Rachel Benson, at 184-185, and Peter

Decherney, at 226-228. This at least in part contains a discussion with the University of Illinois where a

film could be shown to an in person class but could not be shown to a virtual class under Section 110.

110

The record does not contain a lot of discussion of these types of uses. Nevertheless, NTIA believes it

is good policy to extend the uses possible under the exemption to those beyond the classroom.

NTIA Recommendation for Class 1 (Full Length): NTIA recommends adopting the

BYU Idaho suggested text with a few modifications as discussed above as follows:

Except more than short portions may be used when a college, university, or K-12

educational library lawfully owns

111

the motion pictures acquired on a DVD protected

by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access

Content System, or via a digital transmission protected by a technological measure,

where circumvention is undertaken by college and university employees or students or

by kindergarten through twelfth-grade (K-12) educators or employees

112

or students

(where the K-12 student is circumventing under the direct supervision of an educator),

including of accredited general educational development (GED) programs, where

circumvention is undertaken solely in order to provide streamed access to the motion

picture for its faculty, researchers and students for the purposes of research and

teaching including in the classroom;

113

for the purpose of criticism, comment, teaching,

or scholarship allowed under 17 U.S.C. §§ 107, 110(1), 110(2); circumvention may

occur after a reasonable search of major educational motion picture platforms

demonstrates that no ownable or licensable copy which can be streamed for classroom

uses (including virtual classrooms) as defined under §§ 110(1) and 110(2) is available

for purchase at a reasonable price; the college, university, or K-12 institution

reasonably protects any copies of motion pictures made under this exception from

downstream uses; the college, university, or K-12 institution has reasonable policies

ensuring all uses are noninfringing as guided by

114

under §§ 107, 110(1), and 110(2);

and decrypted copies are not transferred to any other institutions or entities.

Class 1 Conclusion: Having analyzed the record, NTIA supports renewal of the

exemption and recommends certain modifications to the exemption as the proponents have

requested will not affect the market value of copyrighted works, and will provide relief from the

harm proponents have demonstrated. Accordingly, if the Copyright Office were to recommend

proceeding with the above NTIA-recommended changes for Class 1, it will read as follows:

(1) Motion pictures (including television shows and videos), as defined in 17 U.S.C. §

101, where the motion picture is lawfully made and acquired on a DVD protected by

the Content Scramble System, on a Blu-ray disc protected by the Advanced Access

Content System, or via a digital transmission protected by a technological measure, and

the person engaging in circumvention under paragraph (b)(1)(i) and (b)(1)(ii)(A) and

(B) of this section reasonably believes that non-circumventing alternatives are unable

111

This language is an important limitation here to make it clear that circumvention cannot be made on

motion pictures not owned by the educational entity. For example, an instructor may wish to circumvent

a work they own to be able to use in the classroom or in research. By not permitting this use, it will keep

the works used within the control of the educational entity.

112

This is a conforming change with prior suggested language changes to include employees of

educational institutions.

113

This section is borrowed from the Columbia University suggested language and defines more precisely

this specific use. This use of classroom should include all possible classrooms including virtual.

114

This change is discussed above and suggests not that the uses are contemplated by these sections but

the technological policies implemented by the educational entity can be drawn from these sections.

to produce the required level of high-quality content, where circumvention is

undertaken solely in order to make use of short portions of the motion pictures in the

following instances:

(i) For the purpose of criticism or comment:

(A) For use in documentary filmmaking, or other films where the motion picture clip is

used in parody or for its biographical or historically significant nature;

(B) For use in noncommercial videos (including videos produced for a paid

commission if the commissioning entity’s use is noncommercial); or

(ii) For educational purposes:

(A) By college and university employees and students or kindergarten through twelfth-

grade (K–12) educators, employees and students (where the K–12 student is

circumventing under the direct supervision of an educator), including of accredited

general educational development (GED) programs, for the purpose of criticism,

comment, teaching, or scholarship and other uses contemplated by Sections 107, 110

(1), 110(2) and 112(f);

(B) By faculty of massive open online courses (MOOCs) offered by accredited

nonprofit educational institutions to officially enrolled students through online

platforms (which platforms themselves may be operated for profit), in film studies or

other courses requiring close analysis of film and media excerpts, for the purpose of

criticism or comment, where the MOOC provider through the online platform limits

transmissions to the extent technologically feasible to such officially enrolled students,

institutes copyright policies and provides copyright informational materials to faculty,

students, and relevant staff members, and applies technological measures that

reasonably prevent unauthorized further dissemination of a work in accessible form to

others or retention of the work for longer than the course session by recipients of a

transmission through the platform, as contemplated by 17 U.S.C. 110(2); or

offered by libraries, museums, and other nonprofit entities with an educational mission,

in the course of face-to-face instructional activities, for the purpose of criticism or

comment, except that such users may only circumvent using screen-capture technology

that appears to be offered to the public as enabling the reproduction of motion pictures

after content has been lawfully acquired and decrypted.

(D) By educators and preparers of online learning materials offered by educational

entities to registered learners of online learning platforms when use of the film and

media excerpts will contribute significantly to learning, including for the purpose of

criticism, comment, illustration and explanation, where the online provider will limit

these online learning materials, to the extent technologically feasible, to registered

learners of the online learning platform, institute copyright policies, and provide

and relevant staff members, and the online provider, to the extent technologically

feasible, will work to reasonably prevent unauthorized further dissemination of online

learning materials in accessible form to others, including after the registration period

ends.

(E) Except more than short portions may be used by a college, university, or K-12

educational library lawfully owns the motion pictures acquired on a DVD protected by

the Content Scramble System, on a Blu-ray disc protected by the Advanced Access

Content System, or via a digital transmission protected by a technological measure,

where circumvention is undertaken by college and university employees or by

kindergarten through twelfth-grade (K-12) educators or employees including of

accredited general educational development (GED) programs, where circumvention is

undertaken solely in order to provide streamed access to the motion picture for its

faculty, researchers and students for the purposes of research and teaching including in

the classroom; circumvention may occur after a reasonable search of major educational

motion picture platforms demonstrates that no ownable or licensable copy which can

be streamed for classroom uses (including virtual classrooms) as defined under §§

110(1) and 110(2) is available for purchase at a reasonable price; the college,

university, or K-12 institution reasonably protects any copies of motion pictures made

under this exception from downstream uses; the college, university, or K-12 institution

has reasonable policies ensuring all uses are noninfringing as suggested by §§ 107,

110(1), and 110(2); and decrypted copies are not transferred to any other institutions or

entities.

Class 2 – Audiovisual Works – Texting

SolaByte Corporation seeks a new exemption to permit the use of short (10 seconds or

less) audiovisual clips in text messages to enhance communication and understanding.

115

Clips

would be taken from various audiovisual works such as movies, TV programs, music video, and

other copyrighted works, stored on DVD and Blue-ray discs.

116

This petition was opposed.

117

NTIA Position: NTIA does not support the proposed exemption.

Analysis: Proponents did not provide sufficient evidence on the record to define the

exact scope and underlying circumstances to support this petition. The Copyright Office sought

further clarification regarding this petition in its 2020 NPRM by noting a lack of argument and

115

See Class 2 Petition for New Exemption of SolaByte Corporation (SolaByte Class 2 Petition), Docket

No. 2020-11,

https://www.copyright.gov/1201/2021/petitions/proposed/New%20Pet.%20-

%20SolaByte%20-%202.pdf.

116

Id. Proponent suggests that the exemption would allow users “to create expressive clips that convey

their thoughts when texting.” Id. at 2.

117

Class 2 Opposition Comments of MPA, ARM, and ESA (Joint Creators Class 2 Opposition

Comments), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/comments/opposition/Class_2_Opp'n_Joint%20Creators%20and%

20Copyright%20Owners.pdf; Class 2 Opposition Comments of DVD CCA and AACS LA (DVD CCA

Class 2 Opposition Comments), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/comments/opposition/Class_2_Opp'n_DVD%20CCA%20and%20

AACS%20LA.pdf.

substantiation.

118

Opponents largely agree with this observation, with one entity also noting that

the exemption would interfere with an already existing market for licensing movie clips.

119

Nevertheless, proponents failed to file any further comments or otherwise present evidence at the

hearings.

120

While NTIA believes this proposed use may not be clearly covered by current

exemptions and therefore warrants future discussion regarding this issue, proponents did not

meet their burden in this round.

NTIA Recommendation for Class 2 (Texting): Without evidence in the record to

support this petition, NTIA recommends denying the proposed exemption.

Class 3 – Audiovisual Works – Accessibility

The Association of Transcribers, Speech-to-Text Providers (ATSP), Association on

Higher Education and Disability, and Library Copyright Alliance collectively propose to “renew

the existing exemption for disability services professionals to circumvent technological

protection measures (TPMs) on audiovisual works for the purpose of adding captions and/or

audio description to a motion picture to create an accessible version under Rule 201.40(b)(2).”

121

NTIA supports renewal of the current exemption.

122

Petitioners propose several changes, including: (1) allowing for the remediation of

motion pictures for faculty and staff with disabilities as well as students; (2) re-use remediated

118

2020 NPRM, 85 Fed. Reg. 65293, 65303. Specifically, the Office sought “additional detail about the

scope of the proposed exemption…such as whether the exemption would be available for commercial

services[,]…specificity [of] the relevant TPMs and whether their presence is adversely affecting

noninfringing uses, [and] any anticipated effect that circumvention of TPMs would have on the market for

or value of the relevant copyrighted works. . . .” Id., at 65303.

119

Further arguments in the Joint Creators Class 2 Opposition Comments added that “at least some of the

proposed uses are potentially covered by the existing ‘non-commercial’ video exemption for purposes of

criticism or comment” and that “consumers may obtain clips using non-circumventing alternatives such

as screen capture technology.” Joint Creators Class 2 Opposition Comments, at 3; see also DVD CCA

Class 2 Opposition Comments, at 3.

120

The Free Software Foundation, Inc. filed comments in support of every class, including this Class 2

petition, by simply noting (in most instances) that all users have a legitimate right to circumvention

regardless of the reason. See Class 2 Initial Comments of Free Software Foundation (Free Software Class

2 Comments), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/comments/Class%2002_InitialComments_Free%20Software%20F

oundation.pdf. NTIA does not endorse this blanket statement. While we encourage all parties to

participate in this proceeding in a meaningful way, current law requires limitations to circumvention of

access controls to protected works.

121

Class 3 Petition for New Exemption of Association of Transcribers and Speech-to-Text Providers,

Association on Higher Education and Disability, & Library Copyright Alliance (ATSP, AHEAD & LCA

Class 3 Petition), Docket No. 2020-11, at 3,

https://www.copyright.gov/1201/2021/comments/Class%2003_InitialComments_Association%20of%20

Transcribers%20and%20Speech-to-

Text%20Providers,%20Association%20on%20Higher%20Education%20and%20Disability,%20and%20

Library%20Copyright%20Alliance.pdf.

122

See 37 C.F.R § 201.40(b)(2)(i); see also ATSP, AHEAD & LCA Class 3 Petition, at 4.

copies already made in the past; (3) allow educational institutions to create accessible versions

proactively (and not wait for an accommodation request from a student); and (4) clarify the

parameters of the phrase “reasonable effort” with respect to determining whether an accessible

version of a motion picture is of “sufficient quality.”

123

Of these four proposed changes, there is

opposition to only two.

NTIA Position: NTIA recommends the renewal of the existing exemption as well as the

requested expansions as described in the post-hearing submissions.

124

Analysis: Three years ago the Librarian of Congress granted an exemption to permit

educational institutions’ disability rights offices to circumvent technological protection measures

on motion pictures in order to add accessibility features for their students, which filmmakers do

not provide.

125

Educational institutions here include K-12 and post-secondary schools.

126

NTIA

supported the exemption in 2018, which increased the copyrighted works available to disabled

persons.

127

The Copyright Office is recommending renewal of the existing exemption.

Proponents seek relatively modest expansions in four areas, and there is little opposition

to these requested expansions.

128

In fact, at the hearings, agreement was generally reached

among the parties except on two of the expansions – Proactive Remediation and Sufficient

Quality.

129

On April 16, 2021, the Copyright Office wrote to the parties to urge agreement on

these two expansions.

130

In their response, dated July 14, 2021, the parties noted that although

“discussions were productive, [they] were not able to reach agreement on specific regulatory

language.”

131

Despite this lack of consensus, the proposed regulatory language is nearly

identical from both sides. As explained in a later ex parte notice, “the parties fell just short of

123

ATSP, AHEAD & LCA Class 3 Petition, at 2-3; see also 2020 NPRM, 85 Fed. Reg. 65293, 65303-

65304.

124

We note that there are two other proposed accessibility related exemptions: Classes 8 and 17. We will

discuss those separately.

125

2018 Final Rule, 83 Fed. Reg. 54010, 54015.

126

See ATSP, AHEAD & LCA Class 3 Petition at 8; see also 2020 NPRM, 85 Fed. Reg. 65293, 65303.

127

See 2018 Final Rule, 83 Fed. Reg. 54010; 2018 NTIA Letter, 9-10.

128

See ATSP, AHEAD & LCA Class 3 Petition.

129

See Transcript, Hearing on Exemptions to the Prohibition on Circumvention of Copyright Protection

Systems for Access Control Technologies, Section 1201 – Digital Millennium Copyright Act, Remarks of

J. Matthew Williams, at 9 (Apr. 5, 2021) (April 5 Hearing Transcript),

https://www.copyright.gov/1201/2021/hearing-transcripts/21040-Section-1201-Public-Hearing-Classes-3-

17-8.pdf.

130

Letter from Regan A. Smith, General Counsel and Associate Register of Copyrights, U.S. Copyright

Office, to Jonathan Band, Counsel, Library Copyright Alliance, et al., (April 16, 2021) (2021 Letter from

Regan Smith),

https://www.copyright.gov/1201/2021/post-hearing/letters/Class-3-Post-Hearing-Letter-

04.16.2021.pdf.

131

Letter from Blake E. Reid, Director of the Samuelson-Glushko Technology Law & Policy Clinic,

Colorado Law, to Regan A. Smith, General Counsel and Associate Register of Copyrights, U.S.

https://www.copyright.gov/1201/2021/post-hearing/letters/Class-3-Accessibility-Petitioners-Post-

Hearing-Response.pdf. It was additionally noted that parties reached agreement on a multitude of issues

during ex parte proceedings.

mutually agreeable language, despite having found high level of agreement in principle in

multiple points during the time allotted for compromise discussions.”

132

As such, NTIA

supports these modest changes and expansions. And, as with the existing exemption, the

proposed expansions meet the tests required by Section 1201 to qualify as an exemption to anti-

circumvention.

Faculty and Staff: Proponents seek to expand the exemption to include faculty and

staff, as well as students with disabilities.

133

Currently, the exemption only applies to

“students”—i.e., when “[c]ircumvention is undertaken . . . for the purpose of adding captions

and/or audio description to a motion picture to create an accessible version as a necessary

accommodation for a student or students with disabilities.”

134

Proponents assert that, like

students, the disability rights offices (or similar offices) at educational institutions also serve

disabled faculty and staff by providing requested modifications to add accessibility features to

motion pictures.

135

There is no opposition to this expansion.

136

NTIA concurs that this is an

appropriate expansion and good policy noting that the uses for staff and faculty who may

disabilities and who serve at the educational institutions will still be largely the same educational

uses as it is for students who were requesting accommodations. Thus, the analysis does not

change. Proponents provide sufficient evidence to proceed with this change.

Re-use of Remediated Motion Pictures: Proponents seek to clarify the existing

exemption to ensure that they can store and re-use motion pictures remediated under the

exemption in response to future requests and needs.

137

The only concern raised here noted that,

if permitted, the storage of these remediated works would need to be secure and not on an open

server, or provided only upon request.

138

Joint Creators specifically state that if “institutions

132

Michael B. Ayers Ex Parte Notice Letter to Mark Gray and Rachel Count (Aug. 3, 2021) (Michael

Ayers Ex Parte Letter),

https://www.copyright.gov/1201/2021/ex-parte/Classes1-3-7aAACSLA-

DVDCCAExParteMeetingSummaryDVDCCAandAACSLA.pdf.

133

Class 3 Petition for New Exemption for Association of Transcribers and Speech-to-Text Providers

(ATSP Class 3 Petition), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/petitions/proposed/New%20Pet.%20-

%20Association%20of%20Transcribers%20and%20Speech-to-Text%20Providers%20et%20al.pdf.

134

Id.

135

Id.

136

NTIA notes that this similar to the request from BYU discussed above in Class 1 that is seeking to

expand the exemption to a practical group that should be authorized to use and be served by the

exemption. The opposition suggested “individuals with disabilities” as an alternative formulation, which

NTIA does not necessarily oppose as a possible way forward, but prefer the list proposed here: students,

faculty and staff. See Letter from Joint Creators and Copyright Owners and DVD CCA and AACS LA to

Regan A. Smith, General Counsel and Associate Register of Copyrights, U.S. Copyright Office, et al.,

(May 14, 2021) (2021 Letter from Joint Creators), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/post-hearing/letters/Class-3-Joint-Creators-DVD-CCA-Post-

Hearing-Response.pdf.

137

Id. at 3.

138

Class 3 Opposition Comment of Joint Creators and Copyright Owners (Joint Creators Class 3

Opposition Comments), Docket No. 2020-11,

comply with the existing requirement to store copies in a manner intended to reasonably prevent

unauthorized further dissemination of a work (which should include encryption/password

protection/copy controls where possible), we do not oppose this request.”

139

NTIA concurs that

these are reasonable limitations.

Proactive Remediation: Proponents assert that they should not have to wait for

reasonable accommodation requests before starting a remediation of a motion picture.

Specifically, proponents assert that the “exemption currently limits eligibility to remediation

undertaken as a necessary accommodation . . . under an applicable disability law, such as the

Americans with Disabilities Act, the Individuals with Disabilities Education Act, or Section 504

of the Rehabilitation Act.”

140

Proponents explain that it is unclear whether Educational

Institution Units (EIUs) may proactively use this exemption for materials that “are likely to be

subject to future accommodation requests.”

141

Proponents argue that the exemptions language

should be altered to allow EIUs to more proactively create and facilitate access to necessary

accommodations.

142

The Joint Creators and Copyright Owners oppose this expansion, arguing that by

allowing this proactive step without a request, the remediation may not be necessary when

actually requested.

143

Opponents point out that because “motion pictures are increasingly being

made available in accessible formats… the proposed expansion would result in many motion

pictures being decrypted that very well may be available in an accessible format by the time it

becomes necessary to accommodate a student or faculty member who needs an accessible copy

of a motion picture for a class.”

144

Additionally, opponents suggested that this would allow

educational entities to acquire permanent copies of works from streaming services when only

temporary ones had been purchased.

145

As such, opponents suggest a significant risk of

disproportionate risk of harm, even if unintentional.

146

The DVD Copy Control Association also would oppose the expansion if the remediation

was not tied to a specific or identified need, but stated that they would not oppose this expansion

if it is to relieve students from the burden of seeking remediation.

147

Opponents note that the

proposed regulatory language may be broadly interpreted to allow for indefinite room for

https://www.copyright.gov/1201/2021/comments/opposition/Class_3_Opp'n_Joint%20Creators%20and%

20Copyright%20Owners.pdf.

139

See id. at 3.

140

ATSP Class 3 Petition, at 3.

141

Class 3 Opposition Comments of DVD CCA and AACS LA (DVD CCA Class 3 Opposition

Comments), Docket No. 2020-11, at 4,

https://www.copyright.gov/1201/2021/comments/opposition/Class_3_Opp'n_DVD%20CCA%20and%20

AACS%20LA.pdf.

142

Joint Creators Class 3 Opposition Comments, at 3.

143

See id.

144

Id. at 4.

145

See id.

146

Id.

147

DVD CCA Class 3 Opposition Comments, at 4.

circumvention, but suggest that “remediation should occur no earlier than at the point the

instructor knows or reasonably believes his or her course will make use of a particular work.”

148

Opponents suggest proposed language that a disability rights office have a reasonable belief that

a need exists to remediate the work for a specific future educational purpose and that the

remediation take place soon after circumvention.

149

Expansion of Reasonable Effort to find an Accessible Work of Sufficient Quality:

Proponents seek a clarification in the limitation requiring reasonable effort to find accessible

works available in the market that are of sufficient quality to adequately serve the needs of the

student, faculty or staff.

150

They have added language regarding motion pictures provided as a

part of a text book.

151

The proponents assert that, on occasion, as they seek to meet the needs of

a particular request, the quality of the features provided are not sufficient to meet the needs of

students and they have needed to re-caption or re-describe the video or correct errors.

152

Proponents maintain that “the exemption should be modified to specify that “accessible

versions” must exist at the time an EIU undertakes the “reasonable effort” and be available at no

additional cost beyond the cost of the inaccessible version of the work.”

153

Opponents do not oppose these clarifications generally, but request maintaining the

market check requirement and additional security measures as required limitations.

154

Opponents “ask that any alteration to the exemption language adhere closely to the factual

scenario presented,” and additionally note that the exemption covers only “necessary

accommodations.”

155

Opponents further note that due the increasingly accessible format of

motion pictures, the proposed exemption risks decrypting a significant amount of copyrighted

work that may be alternatively available.

156

NTIA Recommendation for Class 3 (Accessibility): Based upon the foregoing, NTIA

recommends the Librarian modify the exemption language as follows:

“(2)(i) Motion pictures (including television shows and videos), as defined in 17

U.S.C. 101, where the motion picture is lawfully acquired on a DVD protected by the

Content Scramble System, on a Blu-ray disc protected by the Advanced Access

Content System, or via a digital transmission protected by a technological measure,

where:

(A) Circumvention is undertaken by a disability services office or other unit of a

kindergarten through twelfth-grade educational institution, college, or university

148

See id.

149

See id.

150

ATSP, AHEAD & LCA Class 3 Petition, at 13.

151

See id.

152

Id.

153

Id. at 13-14.

154

See DVD CCA Class 3 Opposition Comments.

155

See Joint Creators Class 3 Opposition Comments, at 4; see also 37 C.F.R. § 201.40 (b)(2)(i)(a).

156

Id.

engaged in and/or responsible for the provision of accessibility services to students, for

the purpose of adding captions and/or audio description to a motion picture to create an

accessible version as a necessary accommodation for a student or students, faculty, or

staff with disabilities;

157

under an applicable disability law, such as the Americans

With Disabilities Act, the Individuals with Disabilities Education Act, or Section 504

of the Rehabilitation Act;

158

(B) The educational institution unit in paragraph (b)(2)(i)(A) of this section has, after a

reasonable effort, determined that an accessible version of sufficient quality cannot be

obtained at a fair price or in a timely manner, including where a copyright holder has

not included an accessible version of a motion picture included with a textbook; and

159

educational institution, including storage that allows for future reuse of the accessible

versions consistent with the purpose specified in subparagraph (i)(A), in a manner

intended to reasonably prevent unauthorized further dissemination of a work.

(ii) For purposes of this paragraph (b)(2), “audio description” means an oral narration

that provides an accurate rendering of the motion picture.

(iii) For purposes of this paragraph (b)(2), “creat[ing] accessible versions for students,

faculty, or staff with disabilities” includes adding captions and/or description to a

motion picture when the educational institution unit in subparagraph (i)(A) has a

reasonable belief that the motion picture will be used for a specific future activity of

the institution and the addition of captions and/or audio description occurs promptly

after circumvention.

160

157

Joint Creators recommended adding the “for educational uses for individuals with disabilities,” which

is consistent with the overall purpose of this exemption. See, Joint Creators Post Hearing Letter, at 2.

NTIA also notes this as a possible text for this section that could simplify and shorten the section. We

believe the better formulation defines for whom the educational entity may perform the circumvention,

which includes for purposes of an accommodation and lists students, faculty, or staff. NTIA does not

believe this inappropriately limits the exemption but instead helps to clarify the possible uses for which

the educational entity may circumvent the work. With that said, proponents’ argument that the addition

of educational uses has not been adequately discussed and may add unnecessary limitations is valid. For

that reason NTIA thought it best not to include “for educational uses” here although that should be

implicit in what is being authorized here.

158

NTIA notes that neither the proponents nor opponents recommend keeping this text that references

disability law. NTIA agrees that for simplification of the regulatory text this may be struck as it is

implied with the use of the retention of the term “necessary accommodation,” which is terminology that

points back to requirements of the disabilities laws mentioned and is sufficient. We note that opponents

do not include this term, but proponents do. We believe it helps the user understand under what

circumstances the circumvention is authorized.

159

The wording here largely tracks the proponents latest version and that has apparent agreement from the

opponents. It does not contain all of the proposed additions from the opponents in their post--hearing

letter.

160

NTIA believes to ensure consistency, the word “audio” should be added to the last line of this new

section and in the subsequent section when referencing description to modify slightly these sections as

recommended by the proponents.

(iv) For purposes of this paragraph (b)(2), “accessible version of sufficient quality”

means a version that in the reasonable judgment of the educational institution unit in

subparagraph (i)(A) has captions and/or audio description that are sufficient to meet the

access needs of the relevant student[s], faculty, and/or staff member[s] with disabilities

and are substantially free of errors that would materially interfere with those needs.

Class 4 – Audiovisual Works – Livestream Recording

FloSports, Inc. proposes a new exemption that would “enable a livestreaming service to

provide individual viewers, via a virtual digital video recorder (“vDVR”), with access to a

recording on a server for fair use purposes.”

161

No current exemption allows for the

circumvention of technology used in the digital storage of audiovisual works originating as a

livestream of events, such as sporting events, live music, and more.

NTIA Position: NTIA staff does not recommend supporting this request.

Analysis: FloSports asserts that this exemption is necessary due to the ephemeral nature

of live broadcasts, which poses technical challenges in accessing stored audio and video files on

a long term basis.

162

FloSports contends that the recording of such material constitutes fair use

on the following basis:

Individual recordings of audiovisual performances, historically, had been used by

directors of the groups in such recordings to instruct, teach, and otherwise educated [sic]

the participants in the recordings on what went right, what went wrong, and how each

could improve. Generally, the individual performances in the audiovisual streams this

petition considers are a very small percentage of the entire copyrighted work (e.g., all

individual performances combined for an entire copyrighted broadcast). Further, there is

no current market for educational recordings at the moment. Granting this exemption, or

the performance of such a recording, would not adversely affect the market for the

copyrighted recordings.

163

This exemption is not without opposition. A submission by the Motion Picture

Association, Inc.(MPA), the Alliance for Recorded Music (ARM), and the Entertainment

Software Association (ESA), jointly known as Joint Creators and Copyright Owners, asked the

factual support or legal arguments.”

164

Joint Creators further contend that

161

Class 4 Petition for New Exemption of FloSports, Inc. (FloSports Class 4 Petition), Docket No. 2020-

11, https://www.copyright.gov/1201/2021/petitions/proposed/New%20Pet.%20-%20FloSports.pdf

162

See id.

163

FloSports Class 4 Petition, at 3; see also 2020 NPRM, 85 Fed. Reg. 65293.

164

Class 4 Opposition Comments of Joint Creators and Copyright Owners (Joint Creators Class 4

Comments), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/comments/opposition/Class_4_Opp'n_Joint%20Creators%20and%

20Copyright%20Owners.pdf.

[N]either Petitioner nor its sole supporter responded satisfactorily to the Copyright

Office’s express request for clarification on: (i) the particular classes of works at issue;

(ii) why the uses at issue should be lawful; (iii) whether TPMs caused the adverse effects

and whether alternatives to circumvention exist; or (iv) whether the intended uses are

educational, and/or noncommercial.

165

First, Joint Creators point out that “FloSports had the burden to identify the technologies

at issue,” and only mentioned the need to “circumvent HTTP Live Streaming (HLS), a live-video

streaming technique that enables high quality streaming of media content over the internet from

web servers.”

166

Opponents state that because FloSports had the burden to identify the

technologies at issue, only HLS should be considered under this new proposition.

167

Second, Joint Creators assert that “the class of works for which FloSports seeks an

exemption is fatally unclear.”

168

Joint Creators use an example from the NPRM, explaining how

it is impossible to determine whether FloSports’ “petition is intended to cover the use of

copyrighted broadcasts owned by another party or other works that may be captured in

broadcasts owned by FloSports.”

169

Joint Creators further elaborate that FloSports does not

present a clear case that their proposed exemption would be noninfringing, and that the lack of

distinct type of audio visual work may be interpreted to mean virtually all audio visual works,

which would clearly be infringing.

Third, FloSports claims “that screen capture technology is inadequate because no

educator can screen capture a live performance of his or her group that is broadcast as they

perform.”

170

Joint Creators suggest that there are readily available technological alternatives to

circumvention that could accomplish the goals for which FloSports seeks an exemption for.

171

And last, regarding FloSports’ assertion that such an exemption would provide

educational benefits, Joint Petitioners point out that no teachers or educators are part of the

petition at all.

172

Joint Petitioners suggest that FloSports petition would be purely for

commercial purposes.

173

NTIA Recommendation for Class 4 (Live Stream Recording): Without evidence or

further details to support or clarify this petition, NTIA cannot recommend the Librarian support

this exemption. In its NPRM, the Copyright Office noted that without further clarification it was

inclined to deny the petition as overly broad and unclear.

174

Specifically, the Copyright Office

165

See id. at 1-2.

166

Joint Creators Class 4 Comments, at 2; see also FloSports Class 4 Petition, at 2.

167

Joint Creators Class 4 Comments, at 2.

168

Id.

169

Id.; See also 2020 NPRM, 85 Fed. Reg. 65293, 65304.

170

FloSports Class 4 Petition, at 3; see also Joint Creators Class 4 Comments, at 3.

171

Joint Creators Class 4 Comments, at 3.

172

Id. at 2-3.

173

Id.

174

2020 NPRM, 85 Fed. Reg. 65293, 65304.

sought clarification on what type of classes FloSports was requesting an exemption for, the

actual extent of the asserted and perceived adverse effects “attributable to ‘[t]he cost and

practical difficulty of obtaining synchronization licenses”, and additional information regarding

noninfringing uses, “including whether it would be appropriate to clarify that the petition is

directed at facilitating educational, noncommercial uses.”

175

Petitioners failed to respond to any

of the Copyright Office’s call for clarification and did not participate in the hearings. NTIA

concurs in the assessment that this petition is overly broad. We note that it is similar in many

respects to existing exemptions such as use of small portions of motion pictures for

noncommercial videos.

176

The Copyright Office raised the issue that the intent of this petition may well be to

largely support a commercial enterprise, stating that “[p]etitioner appears to operate a

commercial livestreaming service, and it is unclear whether this exemption is intended to

facilitate growth in that market.”

177

NTIA agrees that petitioner has not made its case and is

vague on important details. Regardless, NTIA could envision a possible scenario or two akin to

this proposal that may qualify as a fair use in certain limited circumstances. This idea may likely

be the subject of further discussion in future rounds of this rulemaking as streaming of live

competitive content continues to evolve whether it is via social media, YouTube or other Internet

streaming tools. In certain circumstances use of this content in short clips may qualify as fair

use, such as for a small business, where a local basketball trainer wants to show video content to

teach his players a certain technique, or when a high school tennis coach wants to show clips

from the latest grand slam tournament to demonstrate proper footwork. Unfortunately, the

petitioner did not write a clear and concise petition that the Librarian could act upon in this round

and did not respond to requests for clarification. NTIA therefore does not support this petition.

Class 5 - Audiovisual Works - Preservation

The Library Copyright Alliance (LCA) has petitioned for an exemption to allow for the

preservation of audiovisual works in DVDs and Blu-ray discs protected by the Content Scramble

System or the Advanced Access Control System, respectively. As initially proposed, the

proposed exemption would cover “[m]otion pictures (including television shows and videos), as

defined in 17 U.S.C. 101, where the motion picture is lawfully acquired on a DVD protected by

[CSS], or on a Blu-ray disc protected by the [AACS], and is no longer reasonably available in

the commercial marketplace, for the purpose of lawful preservation of the motion picture, by a

library, archives, or museum.”

178

LCA has also requested that the exemption extend to off-

premises access, particularly for “educational uses,” if the petitions to expand the software and

video game preservation exemptions (Class 14(a) and (b), respectively) to off-premises access

175

Id.

176

See 2018 Final Rule, 83 Fed. Reg. 54010.

177

2020 NPRM, 85 Fed. Reg. 65293, 65304.

178

Class 5 Initial Comments of Library Copyright Alliance (LCA Class 5 Initial Comments), Docket No.

2020-11, at 2,

https://www.copyright.gov/1201/2021/comments/Class%2005_InitialComments_Library%20Copyright%

20Alliance.pdf.

are granted.

179

The Free Software Foundation submitted a comment in support of the petition.

180

Alisha Cunzio submitted a comment requesting that “digital institutions that would otherwise

qualify as eligible for section 1201 circumvention exemptions be granted clear and specific

inclusion in the language of the eight triennial final ruling.”

181

The Joint Creators and Copyright Owners (JCCO)

182

and DVD CCS and AALS oppose

the petition on several grounds, including that the request is too broad and that the marketplace

for motion pictures does provide reasonable alternatives to circumvention.

183

In response to

concerns raised by opponents in their submissions in Round 2, the LCA narrowed its proposal to

incorporate some limitations present in the current exemptions for preservation, as well as

drawing other limitations from section 108 of Title 17.

184

NTIA Position: NTIA supports an exemption from preservation of motion pictures

(including television shows and videos) by eligible libraries, archives, and museums, as

described below.

Analysis: LCA is concerned that large collections of DVDs and Blu-rays in libraries,

archives, and museums (institutions) are degrading due to “disc rot.”

185

LCA presents detailed

179

Id.

180

Class 5 Initial Comments of Free Software Foundation (FSF Class 5 Initial Comments), Docket No.

2020-11,

https://www.copyright.gov/1201/2021/comments/Class%2005_InitialComments_Free%20Software%20F

oundation.pdf.

181

Class 5 Initial Comments of Alisha Cunzio (Cunzio Class 5 Initial Comments), Docket No. 2020-11, at

1, https://www.copyright.gov/1201/2021/comments/Class%2005%20Alisha%20Cunzio.pdf

. Alisha

Cunzio’s comment cites to the current exemption for software preservation to note that a physical

premises limitation “does not account for digital libraries, archives, or museums that do not have a

physical premises.” The commenter notes that “[n]ot only is it imperative to include such [digital]

institutions in an era of remote learning and pandemic distancing, but more and more digital-based

institutions are being formed due to the significant accessibility that a lack of overhead costs due to a

physical space makes.” Id.

182

The JCCO is made up of the MPA, ARM, and ESA.

183

See, e.g., Class 5 Opposition Comments of Joint Creators (Joint Creators Class 5 Opposition

Comments), Docket No. 2020-11, at 6-11 and Appendix i-iv,

https://www.copyright.gov/1201/2021/comments/opposition/Class_5_Opp'n_Joint%20Creators%20and%

20Copyright%20Owners.pdf; Class 5 Opposition Comments of DVD Copy Control Association and

Advanced Access Content System Licensing Administrator, LLC (DVD CCA and AACS LA Class 5

Opposition Comments), Docket No. 2020-11, at 17-21 and Swank Motion Pictures Attachment,

https://www.copyright.gov/1201/2021/comments/opposition/Class_5_Opp'n_DVD%20CCA%20and%20

AACS%20LA.pdf.

184

Class 5 Reply Comments of Library Copyright Alliance (LCA Class 5 Reply Comments), Docket No.

2020-11, at 6,

https://www.copyright.gov/1201/2021/comments/reply/Class%205_Reply_Library%20Copyright%20Alli

ance.pdf. The two variations of proposed subsection (i)(C) account for the LCA’s request that this class

not contain a physical premises limitation depending on the outcome of the rulemaking in Class 14.

185

See LCA Class 5 Initial Comments, at 4-9. Participants at the hearing testified about “increasing

problems with disc rot affecting a number of commercially-pressed DVDs” from a “wide range of

information about this phenomenon, explained why disc rot is affecting with more frequency the

collections housed in the institutions, included first-hand accounts from librarians describing the

issues, and asserted how the prohibition against circumvention is preventing the institutions from

circumventing the TPMs on DVDs and Blu-ray discs to preserve the collections.

186

LCA also

notes that there may be some copies in particular that suffer from accelerated disc rot due to

production flaws.

187

LCA indicates that alternatives to circumvention are insufficient to address

the concern, as copies of the copyrighted works may be commercially unavailable to the

institutions and the only copies that may exist were produced decades ago or with production

flaws.

188

LCA emphasizes that the goal of the exemption is not to target popular commercial

motion pictures, but rather focus on “at-risk” copies of works that libraries, archives, and

museums have lawfully acquired.

189

The JCCO contend that the proposal in LCA’s petition would essentially result in a high

number of decrypted copies of motion pictures being available to the public and easily risk being

available online, leading to significant market harm for the copyrighted works.

190

They highlight

a number of provisions from the current preservation exemptions are absent from LCA’s original

proposal.

191

The JCCO remain skeptical about an exemption for preservation of motion pictures

even if all those concerns were resolved, and note that “[f]ar more tailoring is therefore

necessary” for an exemption to even be considered.

192

Moreover, both the JCCO and DVD CCS

and AALS contend that the marketplace offers readily available alternatives that obviate the need

for an exemption.

193

Opponents’ concerns about an exemption in this area ultimately did not

appear to change substantially at the hearing or in the post-hearing record, including in reaction

to narrower proposals.

194

producers.” See, e.g., Transcript, Hearing on Exemptions to the Prohibition on Circumvention of

https://www.copyright.gov/1201/2021/hearing-transcripts/210419-Section-1201-Public-Hearings-Class-

5-14a-14b.pdf.

186

See LCA Class 5 Initial Comments, at 2, 4-10. As LCA notes, the TPMs at issue are the Content

Scrambling System (CSS) in DVDs, and the Advanced Access Content System in Blu-ray discs, and the

methods of circumvention are similar to those in other classes covering motion pictures protected by such

TPMs.

187

See LCA Class 5 Reply Comments, at 4; April 19 Hearing Transcript, Remarks of James Steffen, at

590-91.

188

See, e.g., LCA Class 5 Reply Comments, at 4-6; LCA Class 5 Initial Comments, at 8-10; April 19

Hearing Transcript, Remarks of James Steffen, at 590-91.

189

See April 19 Hearing Transcript, Remarks of Jonathan Band, at 602-03; Class 5 Ex Parte Letter of the

Library Copyright Alliance (LCA Class 5 Ex Parte Letter) (June 23, 2021), Docket No. 2020-11, at 1,

https://www.copyright.gov/1201/2021/ex-parte/Class-5-DVD-Preservation-ex-parte-letter-from-LCA.pdf

190

See, e.g., Joint Creators Class 5 Opposition Comments, at 11.

191

Id. at 11.

192

Id.

193

Id. at Appendix i-iv; DVD CCA and AACS LA Class 5 Opposition Comments, at 17-21 and Swank

Motion Pictures Attachment.

194

For example, in a post-hearing ex parte letter, counsel for MPA “responded more specifically to the ex

parte letter filed on Proposed Class 5 [by LCA], which appeared to narrow the scope of the requested

NTIA is persuaded that the initial framing of the proposed exemption should be

narrowed. Specifically, NTIA recommends using the existing software preservation exemption

as a guide, with modifications to address particular concerns here. NTIA believes an exemption

for the preservation of motion pictures should have similar restrictions, particularly as LCA

largely bases its arguments on the rationale for those exemptions.

195

LCA has, as noted above,

narrowed their proposal to include some key limitations.

196

NTIA supports additional limitations to the original proposal that at a minimum:

1) State that the exemption is solely for the preservation of the motion picture (including

television shows and videos);

2) Cabin the eligibility of libraries, archives, and museums to those entities that meet the

institutional requirements under the current software preservation exemption,

including the requirement that the institutions must implement reasonable digital

security measures as appropriate for the activities covered in the exemption; and

3) Restrict the institutions to activities carried out without any purpose of direct or

indirect commercial advantage.

And to determine commercial unavailability, the following modified language drawing from

section 108:

4) Require the eligible institution to engage in a reasonable effort to determine that an

unused and undamaged replacement copy cannot be obtained at a fair price.

NTIA agrees this proposed exemption, in seeking to preserve copies of works in

collections that the institutions have lawfully acquired, should “concentrate on the most at-risk

motion pictures.”

197

But such evaluation does not stop at discs currently damaged or

deteriorating, as “the objective of preservation is better achieved if the preservation occurs before

the copy of the motion picture is damaged or deteriorating” and “[d]ata lost to disc rot cannot be

retrieved.”

198

It makes sense for libraries, archives, and museums to want to proactively respond

to the problem if they can do so by preserving copies they have lawfully acquired that are not

otherwise commercially available to them.

Opponents argue that attempts at accounting for “fragility” in section 108 of Title 17

have not advanced legislatively, even though they have been raised in other important copyright

exemption.” The counsel “reiterated MPA’s opposition to the exemption even if it was narrowed as

discussed in the letter.” Class 1 & 5 Ex Parte Letter of MPA (MPA Class 1 & 5 Ex Parte Letter) (Aug. 17,

2021), Docket No. 2020-11, at 1,

https://www.copyright.gov/1201/2021/ex-parte/Classes-1-and-5-Ex-

Parte-Meeting-Summary-MPA.pdf.

195

See LCA Class 5 Initial Comments, at 2-4.

196

See LCA Class 5 Reply Comments, at 6.

197

See LCA Class 5 Ex Parte Letter.

198

LCA Class 5 Reply Comments, at 3.

policy discussions.

199

NTIA thinks opponents’ argument would be more on point if section 108

served as the exclusive or primary basis for the exemption. As has been recognized, including

in these rulemakings, section 108 is not the only relevant limitation on exclusive rights that affect

preservation.

200

Fair use plays an important role in understanding which uses may be permitted

in this context.

201

Moreover, section 108 is not well-suited by itself attend to the needs of

modern digital preservation efforts by the institutions. The Copyright Office has recognized that

“[t]he current section 108 language is insufficient to address digital works and digital

transmissions, does not reflect the way that libraries and archives actually operate, and excludes

museums, among other constraints.”

202

Indeed, the Copyright Office and the Librarian have

accommodated exemptions for preservation that go beyond the language in section 108. For

example, both the video game and software preservation exemptions include “museums” as

eligible entities, and the software preservation exemption requires institutions to implement

“reasonable digital security measures.”

203

As the LCA also points out, the software preservation

exemption does not depend on degrading or deteriorating copies of works (or even copies of

works in obsolete formats, where the discussion was more relevant in the software context).

204

Section 108 also contains a saving clause on fair use.

205

The Copyright Office has further noted

that “fair use remains an important safety valve that is available to libraries and archives in

situations not addressed by the text of section 108.”

206

Therefore, fair use is an essential part of the consideration to determine what

noninfringing use may entail. After proper scoping to generally align with limitations in the

current exemptions for video game and software preservation (except in one respect, and

assuming no off-premises access, which will be further discussed below), NTIA believes that the

exemption sought here fits within the contours of fair use as discussed in previous rulemakings.

As a starting proposition, NTIA notes that “preventative preservation” – that is, preservation

sought by the institutions for the institutions’ lawfully acquired copies of works that are in

danger of deterioration and are expected in time to deteriorate to the point of irretrievability of

199

April 19 Hearing Transcript, Remarks of J. Matthew Williams, at 616-18.

200

See, e.g., April 19 Hearing Transcript, Remarks of Jonathan Band, at 618 (providing that “[Section]

108 is not the be-all and end-all that is applicable. You know, the Office has already determined that

Section 107 is relevant in this context”). That being said, at a minimum proponents have presented strong

arguments that at the very least support a preservation exemption based primarily on Section 108. NTIA,

however, believes that the totality of the records supports going further than Section 108, and that going

further would actually address the adverse effects presented here.

201

See, e.g., H.R. Rep. No. 105–551, pt. 2, at 25 (1998) (‘‘Commerce Committee Report”) (“Fair use,

thus, provides the basis for many of the most important day-to-day activities in libraries, as well as in

scholarship and education.”)

202

U.S. Copyright Office, Section 108 of Title 17, Discussion Document of the Register of Copyrights

(2017 Discussion Document) (Sept. 2017), at 1,

https://www.copyright.gov/policy/section108/discussion-

document.pdf.

203

See, e.g., 37 C.F.R. §201.40(b)(12), (13). As noted in the discussion for Class 14, NTIA recommends

that the latter provision apply equally to the video game preservation exemption.

204

LCA Class 5 Reply Comments, at 2-3.

205

17 U.S.C. §108(f)(4).

206

2018 Register’s Recommendation, at 240 (internal citation and brackets omitted).

the content – does not negate fair use; instead, such concept would seem to be within the scope

of fair use, at least for archival preservation.

207

Under the first factor, the use here would preserve copies to provide greater accessibility

to works for which the institutions have already lawfully acquired copies, promoting significant

social benefits by helping further activities such as research. Even if the Register does not

resolve whether the use is transformative, the use sought here is a “favored purpose” under the

fair use analysis, and, moreover, would incorporate key elements from section 108.

208

The use

here is also not commercial. Under the second factor, although the copyrighted works at issue

are expressive and even though this factor may not favor fair use, the factor is of limited

significance because preservation is “necessary to allow continued legitimate use of the

work.”

209

Under the third factor, the institutions would be allowed to copy up to the entire work,

but, as the Copyright Office has noted, the amount that would be copied is “reasonable in

relation to the purpose of the copying.”

210

The fourth factor does not weigh against a finding of fair use, including under a modified

section 108 test for commercial unavailability (see above). Since the institutions have to carry

out the covered activities without any purpose of direct or indirect commercial advantage, no

presumption should be read that the use is harmful to the market or has the potential to be

harmful if widespread.

211

While the reissue market is likely larger here than in the context of

video games or computer programs, LCA has pointed to examples of works that do not appear to

207

See Copyright Law Revision, House of Rep., Rep. No. 94-1476, 94

Congress, 2d. Session.

(Copyright Law Revision), at 73, https://www.copyright.gov/history/law/clrev_94-1476.pdf

. The report

states: “A problem of particular urgency is that of preserving for posterity prints of motion pictures made

before 1942. Aside from the deplorable fact that in a great many cases the only existing copy of a film has

been deliberately destroyed, those that remain are in immediate danger of disintegration; they were

printed on film stock with a nitrate base that will inevitably decompose in time. The efforts of the Library

of Congress, the American Film Institute, and other organizations to rescue and preserve this irreplaceable

contribution to our cultural life are to be applauded, and the making of duplicate copies for purposes of

archival preservation certainly falls within the scope of ‘fair use.’” (emphasis added). Although this

Congressional report refers to an “immediate danger of disintegration,” the danger appears to be coming

from the fragility in the composition of the medium to which the work is affixed and does not necessarily

seem to relate to decomposition that may be actively happening (or actively happening for at least some

copies), as well as the potential unavailability of the work through means other than preservation. Per the

record presented in this rulemaking, disc rot presents an analogous phenomenon. While certainly every

object will degrade given enough time, LCA persuasively argues why this problem exists now. See LCA

Class 5 Reply Comments, at 3-4. LCA also explains for certain works are commercially unavailable to

them, and thus their lawfully acquired copies might disintegrate before they find a substitute in the

marketplace. See id., at 5-6. In any event, the Congressional record indicates that preservation to address

decomposition of motion pictures that “will inevitably” occur “in time” is a legitimate activity that can be

supported under fair use.

208

See 2018 Register’s Recommendation, at 242.

209

See 2018 Register’s Recommendation, at 243 (citing 2015 Recommendation, at 338).

210

See id.

211

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 591 (1994) (“No ‘presumption’ or inference of

market harm that might find support in [Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417

(1984)] in a case involving something beyond mere duplication for commercial purposes.”).

have been reissued, including some that may have only ever been released commercially once

and where copies that may exist are not readily available or are unlikely to be prime candidates

for preservation purposes (e.g., they are also deteriorating because they may have been created

decades ago or because all copies made in a particular place may suffer from the same

production flaws).

212

Opponents list various services that make works commercially available,

indicating that this undercuts proponents’ arguments about the state of the marketplace.

213

NTIA

is not as persuaded that the availability of these services solves the problem at hand. Indeed the

availability of these services would be more persuasive if the services carried all or a majority of

the corpus at issue or, in the case of some services, if they licensed to the institutions directly.

The availability of these services does indicate, however, that when works are available in the

commercial marketplace, the institutions will use these services rather than circumvent, which is

their current practice.

214

Overall, the fourth weighs in favor of fair use, or, at least, is not

dispositive against proponents when considered in relation to the other three factors.

Alternatives to Circumvention and Statutory Factors: Proponents have demonstrated

that the prohibition on circumvention leads to the adverse effects they wish to address. NTIA is

persuaded that there are no reasonable alternatives for libraries, archives, and museums to

address the adverse effects discussed under this exemption. Moreover, NTIA is persuaded that

the “reasonable commercial availability” condition that is present in the current video game and

software preservation exemptions should be modified to address the commercial environment in

which libraries, archives, museums operate. As LCA indicates, the availability of services that

provide licenses to stream some content is insufficient to address the adverse effects due to the

lack of a fulsome catalogue that includes the copies of the works the institutions lawfully

acquired (and that contain material like bonus features, which may be even more elusive to

obtain lawfully) and because some of services that might carry a broader set of collections do not

license to these institutions. As a result, while the existence of those services certainly offers

significant value, they do not seem to be a viable alternative to fill the institution’s need for an

exemption for preservation of motion pictures that the institutions have already lawfully

acquired. Even individuals working at the institutions who may see these services as valuable

for faculty and students nonetheless note the need for an exemption for library preservation.

215

Moreover, the only copies of works that may be available in the marketplace might be in the

same medium that suffers from “disc rot.” Therefore, it would be more appropriate for this class

to require the institutions to engage in reasonable efforts to determine whether an unused and

undamaged replacement copy is available to them at a fair price, a test tailored to meet this

particular need.

212

LCA Class 5 Initial Comments, at 4; LCA Class 5 Reply Comments, at 4-6.

213

See, e.g., Joint Creators Class 5 Opposition Comments, at Appendix i-iv.

214

For example, the Film and Media Services Librarian at the University of California at Berkeley

described that “at the University of California, Berkeley, we spend more than a quarter of a million

dollars annually on licensing media content for our users -- for our 21 students, faculty, and staff. So,

$237,000 is spent licensing media. We're not seeking to not pay to use content.” April 19 Hearing

Transcript, Remarks of Gisele Tanasse, at 620-21; see also LCA Class 5 Reply Comments, at 2.

215

See LCA Class 5 Reply Comments, at 4, n.4.

The statutory factors overall also weigh in favor of proponents. The exemption is for

preservation by the eligible institutions of copies of the copyrighted works to make copies

available to their patrons; the copies would be made available for purposes such as scholarship

and research; by preserving copies of the works, the exemption would promote criticism,

comment, news reporting, and teaching based on that scholarship and research; and, given that

the intention of the exemption is to limit one copy to one patron at a time and the exemption

would target “at-risk” works, circumvention would not appear to have a significant negative

impact on the market for or value of the copyrighted works.

216

Making the preserved copies

could lead to renewed public interest and commercial demand in less-known and obscure motion

pictures (and their bonus materials) based on the results of the scholarship and research allowed

under the exemption.

Off-Premises Request: The LCA also requests that if the Copyright Office recommends

granting the petitions for Class 14(a) and Class 14(b), that “this class be expanded to include off-

premises uses of the preserved motion pictures, particularly educational uses.”

217

NTIA fully

recognizes that the record presented here could have been more robust to, for example, discuss

the impact that not including a physical premises limitation might have on the marketplace for

motion pictures. However, NTIA urges the Copyright Office and the Librarian to evaluate the

request on its merits.

NTIA agrees that a significantly thin record on an issue can weigh heavily against

proponents in this proceeding, but there are critical public policy reasons to consider this

particular request on its merits, and, when viewed within the context of Class 14, there is

sufficient information on the record for a more substantive evaluation. It is difficult to believe

that the challenges faced by the institutions due to the ongoing global pandemic simply end

based on the “particular class of work” at issue, especially given the phenomenon of “disc rot”

described in the Class 5 record and the substantial commonalities between Class 14 and Class 5

beneficiaries. In Class 5, the LCA spends only a few sentences discussing the pandemic, and is

more focused on obtaining an exemption for preservation in the first place. In Class 14, where

there is already an exemption established for preservation, LCA and the Software Preservation

Network extensively describe the challenges that libraries, archives, and museums are facing due

to ongoing global pandemic, including through first-hand accounts from librarians and others

impacted.

218

The substantial challenges librarians and others similarly situated face should be

216

April 19 Hearing Transcript, Remarks of Jonathan Band, at 615 (“I mean, the idea [of a server copy] is

if you have one copy in your collection, that you would end up with one copy in your collection and that

only one copy could be used at a time, right? . . . [N]o one’s envisioning that this should lead to a

proliferation of copies . . . . [T]he goal here is to maintain the status quo.”). Further, as the LCA notes,

the current exemption for software preservation does not appear to restrict institutions from making

copies in a different medium than that of the original copy of the work lawfully acquired.

217

LCA Class 5 Initial Comments, at 2.

218

See generally Class 14 Initial Comments of Software Preservation Network (SPN Class 14 Initial

Comments), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/comments/Class%2014a%20and%2014b_InitialComments_Softw

are%20Preservation%20Network%20and%20Library%20Copyright%20Alliance.pdf; see also Class 14

Reply Comments of Software Preservation Network (SPN Class 14 Reply Comments), Docket No. 2020-

11,

addressed in contexts where the analyses may be similar. Moreover, LCA has indicated that the

pandemic did affect its contribution to the record in at least one respect: “Because of the Covid-

19 pandemic, many libraries are still closed, so librarians have been unable to provide us with

comprehensive lists of titles of discs in their collections experiencing disc rot.”

219

LCA also

notes, albeit briefly, the impact the pandemic has had on the institutions.

220

NTIA believes it is appropriate to incorporate aspects of the analysis of the record in

Class 14 into the analysis here, as it has least been requested by LCA since early in the

proceeding. In other words, as much material as appropriate and relevant from the Class 14(a)

and Class 14(b) analyses should be considered in this class (particularly if the Copyright Office

recommends and/or the Librarian grants an exemption in Class 5 and Class 14). This could

include, for example, Class 14 proponents’ fair use arguments, in particular indicating why

remote access within the context the preservation exemptions leans to fair use. It may cover

analysis related to the institutions’ implementation of reasonable digital security measures to

protect the covered activities and the copies of the works. It could consider how appropriate it

may to be evaluate whether all the limitations that would be placed on the institutions in Class 14

to permit remote access would be sufficient to mitigate market harm here, even when the markets

are not exactly the same but where there is a record of what the market here looks like today.

Considering the analysis in Class 14 with Class 5 would be in line with the approach petitioner

has requested the Copyright Office and the Librarian to adopt since early in the proceeding and

for which the proponent provided model regulatory language in its Round 3 comments available

to all parties.

Should off-premises access be permitted, libraries, archives, and museums would be able

to start or continue highly socially beneficial work—and, with appropriate limitations, would

help minimize risk to copyright holders. The Librarian, when analyzing the record and making

her decision, can take a relatively inclusive approach in evaluating the interests and the

significant social benefits at issue. Indeed, the fifth statutory factor affords the Librarian such

flexibility, as it notes that “the Librarian shall examine . . . such other factors as the Librarian

considers appropriate.”

221

The role of libraries in the digital age was an essential part of the

https://www.copyright.gov/1201/2021/comments/reply/Class%2014b_Reply_Software%20Preservation%

20Network%20and%20Library%20Copyright%20Alliance.pdf.

219

LCA Class 5 Initial Comments, at 6, n. 2. Regardless of the Register and the Librarian’s disposition of

the “off-premises access” issue for this class, this should be considered as a factor impacting the record

more.

220

LCA Class 5 Reply Comments, at 2 (“First, many library buildings have now been closed for almost

twelve months due to the COVID-19 pandemic. Important research has been interrupted because of the

inaccessibility of motion pictures. Second, off-premises access could be afforded to authorized students

and researchers without the motion pictures being available to the general public for entertainment

purposes. Thus, libraries could provide off-premises access to preserved motion pictures without harming

streaming services.”). As noted at beginning of this section, another commenter also supports not

including a physical premises limitation.

221

See 17 U.S.C. §1201(a)(1)(C)(v) (emphasis added). Indeed, NTIA regularly stresses that this

proceeding should focus on copyright law and policy concerns. NTIA believes that factors that

exacerbate the prohibition on circumvention’s adverse effects to users being able to make non-infringing

uses of copyrighted works are a component of a core copyright concern.

discussions leading to the passage of the DMCA. As NTIA noted in its first consultation with

the Copyright Office in the year 2000, when deliberating the inclusion of section 1201, the

Committee on Commerce of the House of Representatives was particularly interested in the fair

use concerns of libraries and educators.

222

Congress, of course, did not stop there to attempt to

address the needs of libraries in the digital era, as it also passed important updates to section 108.

The prohibition on circumvention ultimately creates the adverse effects at issue in the

discussion for this class. However, the pandemic has significantly increased the need for people

to work and learn from home—indeed, to be creative with limited resources—and the LCA has

noted that this has impacted research that would be supported by access to libraries.

223

As such,

the pandemic aggravates the adverse effects created by the prohibition on circumvention. It is

appropriate, NTIA believes, to strongly consider the effects of the ongoing global pandemic as a

factor in this evaluation, particularly given the continued uncertainty the pandemic presents for

people being able to access physical premises readily but in which libraries are equipped to serve

their patrons in a largely off-premises manner and take great care to ensure the safety or their

staff and patrons (and the libraries’ collections), even if they have to take drastic steps at

potentially significant cost.

224

As discussed further in Class 14, NTIA stresses that the

exemptions granted under this rulemaking are temporary, and are thus well-positioned to address

present-day concerns and can be modified should those concerns change in the next three

222

Letter from Gregory L. Rohde, Assistant Secretary of Commerce for Communications and

Information, Administrator NTIA, to Marybeth Peters, Register of Copyrights, Library of Congress, at 2,

n. 7 (Sept. 29, 2000) https://www.copyright.gov/1201/2000/commerce.pdf

(citing H.R. Rep. No. 105–

551, pt. 2, at 25) (1998) (‘‘Commerce Comm. Report’’). Indeed, the first exemption NTIA supported “as

a starting point” in a DMCA 1201 rulemaking was one proposed by the “library and academic

communities.” Id. at 4.

223

LCA Class 5 Reply Comments, at 2.

224

See, e.g., American Library Association, “2021 State of America’s Libraries: Special Report: COVID-

19,” at 8,

https://www.ala.org/news/sites/ala.org.news/files/content/State-of-Americas-Libraries-Report-

2021.pdf (“For libraries, however, closing didn’t mean shutting down; rather it required finding new ways

to serve and continue supporting their communities— often at a distance. . . . The Public Library

Association (PLA), an ALA division, conducted a survey March 24–April 1 to understand how public

libraries were responding to the pandemic. Although 99 percent of respondents confirmed that their

libraries had closed, most of them had extended online renewal policies, expanded online checkout

services, and added virtual programming.”); id. at 9 (“It wasn’t just public libraries that felt the impact of

COVID-19. A survey developed by Lisa Janicke Hinchliffe (University of Illinois at Urbana–Campaign)

and Christine Wolff-Eisenberg (Ithaka S+R) chronicled the impact of the pandemic on academic libraries.

It found that libraries pivoted reference services to online or phone delivery. Meanwhile, access to print

collections, whether onsite or via delivery, declined significantly.”); American Library Association

COVID-19 Recovery,

https://www.ala.org/tools/covid/libraries-respond-covid-19-survey; American

Library Association, Pandemic Preparedness, https://www.ala.org/tools/atoz/pandemic-preparedness;

“ALA Executive Board recommends closing libraries to public,” American Library Association News,

https://www.ala.org/news/press-releases/2020/03/ala-executive-board-recommends-closing-libraries-

public. See also Laura Wronski & Jon Cohen, “Uncertainty is back on Main Street as delta variant rattles

reopening plans,” CNBC, https://www.cnbc.com/2021/08/12/uncertainty-is-back-on-main-street-as-delta-

variant-rattles-reopening.html.

years.

225

NTIA believes that the Librarian would be justified in granting an exemption for off-

premises access in this class similar to that which may be granted in Class 14(a) or 14(b). There

are broad benefits to society if libraries, archives, and museums can preserve lawfully acquired

works in their collections.

226

Libraries, archives, and museums serve unique and special roles in

society. NTIA believes they should be afforded the opportunity under the law to continue to

serve those roles remotely.

NTIA Recommendation for Class 5 (Preservation): For the reasons stated above,

NTIA supports the following exemption:

(i) Motion pictures (including television shows and videos), as defined in 17 U.S.C. §

101, that have been lawfully acquired on a DVD protected by the Content Scramble

System, or on a Blu-ray disc protected by the Advanced Access Content System, solely

for the purpose of lawful preservation of the motion picture, by an eligible library,

archives, or museum, where such activities are carried out without any purpose of

direct or indirect commercial advantage, and the eligible institution, after a reasonable

effort, determined that an unused and undamaged replacement copy cannot be obtained

at a fair price.

(ii) For purposes of the exemption in paragraph (i) of this section, a library, archives, or

museum is considered “eligible” if—

(A) The collections of the library, archives, or museum are open to the public and/or

are routinely made available to researchers who are not affiliated with the library,

archives, or museum;

(B) The library, archives, or museum has a public service mission;

services normally associated with libraries, archives, or museums;

(D) The collections of the library, archives, or museum are composed of lawfully

acquired and/or licensed materials; and

(E) The library, archives, or museum implements reasonable digital security measures

as appropriate for the activities permitted by this paragraph.

225

As noted in Class 14, however, NTIA does not to intend to suggest that there would not be a need for

an exemption once the pandemic subsides.

226

For reasons discussed in Class 14, NTIA is not opposed in principle to including additional parts of

Section 108 to limit an exemption that provides off-premises access as a way to balance the interests at

issue, but, if the concept of “notice” in Sections 108(d)(1) and (e)(1) is incorporated into the regulation,

that requirement should be carefully written to ensure that it serves as a meaningful way for copyright

holders to assert their rights while protecting the ability of others to continue to make noninfringing uses

under the exemption. On the other hand, as also noted in Class 14, NTIA would instead be more

supportive of including a limitation for off-premises access that explicitly denotes that the preserved

works are available for teaching, research, or scholarship.

Class 6 – Audiovisual Works – Space-Shifting

Petitioners seek an exemption to allow owners of a copy of a DVD or Blu-ray disc to

make a backup copy five years after purchase.

227

The Librarian rejected similar proposals in the

2006, 2012, 2015, and 2018 rulemakings, finding that the proponents had failed to clearly

establish under applicable law that space-shifting for this purpose is a noninfringing use.

228

There is continued opposition to this type of proposal from the content community.

229

The

petitioners did not file comments nor participate in the hearings to further support their petition.

NTIA position: NTIA recommends denying this proposed exemption.

Analysis: The Copyright Office invited the petitioners to provide evidence that in the last

three years facts and/or the law have changed sufficiently to convince the Office to recommend

227

See Class 6 Petition for New Exemption of Solabyte Corporation (Solabyte Class 6 Petition), Docket

No. 2020-11,

https://www.copyright.gov/1201/2021/petitions/proposed/New%20Pet.%20-

%20SolaByte%20-%201.pdf; see also 2018 NTIA Letter (providing that “[s]pace-shifting refers to the

transfer of digital content that enables a user to view on a different device the content protected by

technological protection measures embedded in a lawfully acquired device (e.g., a DVD, a Blu-ray disc,

or a computer hard-drive). The physical devices in which the content is fixed contain TPMs that control

users’ ability to move that content to different devices for personal use or to create backup copies.”).

228

See U.S. Copyright Office, Exemption to Prohibition on Circumvention of Copyright Protection

Systems for Access Control Technologies, Docket No. RM 2005-11, Final Rule, 71 Fed. Reg. 68472,

68478 (Nov. 27, 2006) (2006 Final Rule),

https://www.gpo.gov/fdsys/pkg/FR-2006-11-27/pdf/E6-

20029.pdf (stating that “[y]et these commenters uniformly failed to cite legal precedent that establishes

that such space–shifting is, in fact, a noninfringing use.”); see also, U.S. Copyright Office, Exemptions to

Permit Circumvention of Access Controls on Copyrighted Works, Docket No. 2011-7, Final Rule, 77 Fed.

Reg. 65260, 65277 (Oct. 26, 2012) (2012 Final Rule),

https://www.gpo.gov/fdsys/pkg/FR2012-10-

26/pdf/2012-26308.pdf (providing that “[b]ut while the Register was sympathetic to the desire to

consume content on a variety of different devices, she noted that there is no basis under current law to

assume that the space shifting activities that would be permitted under NTIA’s proposal would be

noninfringing”); see also U.S. Copyright Office, Exemption to Prohibition on Circumvention of

Reg. 65944, 65960 (Oct. 28, 2015) (2015 Final Rule),

https://www.gpo.gov/fdsys/pkg/FR-2015-10-

28/pdf/2015-27212.pdf (stating that “[i]In the past four rulemakings, the Register has declined to

recommend, and the Librarian has declined to adopt, an exemption for such uses because the proponents

had failed to establish a legal or factual record sufficient to establish that the space- or format shifting of

audiovisual works, e-books, and other copyrighted works constitutes a noninfringing use”); see also 2018

Final Rule, 83 Fed. Reg. 54010, 54027 (“…the Acting Register found no basis to depart from the fair use

analysis and ultimate conclusion reached in the 2015 proceeding, where the Register was unable to

determine that the proposed uses were noninfringing.”). NTIA notes that while this proposal is for

space-shifting for personal use which has not been found to be a noninfringing use in the past, the space-

shifting discussed above in Class 1 for educational uses does present a better case for noninfringing use of

the work.

229

See Class 6 Section 1201 Exemptions to Prohibition Against Circumvention of Technological

Measures Protecting Copyrighted Works: Opposition Comments,

https://www.copyright.gov/1201/2021/comments/opposition/

. Joint Creators and Copyright Owners

(JCCO), the DVD CCA and AACS LA, and Software and Information Industry Association (SIIA) all

filed oppositions to the petition.

the petition. The petitioners did not do so. In fact, the opposition noted that “[t]he submissions

in the present rulemaking offer no new evidence, legal arguments or legal authorities in support

of the exemption.”

230

Without evidence or further details or legal or policy discussion to support

or clarify this petition, NTIA cannot support this petition as presented.

NTIA Recommendation for Class 6 (Space Shifting): NTIA recommends the Librarian

deny the proposed exemptions.

Class 7 – Class 7(a) (Motion Pictures – Text and Data Mining) and 7(b) (Literary

Works – Text and Data Mining)

Proponents seek a new exemption to allow for circumvention by researchers in the social

sciences and humanities seeking to perform text and data mining (“TDM”) on electronic copies

of literary works and motion pictures. The Authors Alliance, American Association of

University Professors, and LCA (collectively “TDM Petitioners”) petition for a new exemption

“for researchers to circumvent [TPMs] on lawfully accessed literary works distributed

electronically as well as on lawfully accessed motion pictures, in order to deploy text and data

mining techniques.”

231

In response to comments filed by opponents, discussion during the

hearing, and post-hearing questions posed by the Copyright Office, TDM Petitioners propose

various modifications and limitations. Their current proposal would limit the exemption to

literary works (excluding computer programs) which are “lawfully made and obtained.”

232

Under the revised proposal, in order for circumvention to be lawful, it must be undertaken by a

researcher affiliated with a nonprofit library, archive, museum, or institution of higher education,

for the purpose of scholarly research and teaching. Moreover, the researcher, under the revised

proposal, would be required to utilize “reasonable security measures to limit access to the corpus

of circumvented works only to other researchers affiliated with qualifying institutions for

purposes of collaboration or the replication and verification of research findings.”

233

NTIA position: NTIA recommends adoption of exemptions that track the TDM

Petitioners’ revised proposal. Specifically:

230

Class 6 Opposition Comments of SIIA (SIIA Class 6 Opposition Comments), Docket No. 2020-11, at

https://www.copyright.gov/1201/2021/comments/opposition/Class_6_Opp'n_Software%20and%20Infor

mation%20Industry%20Association%20FINAL.pdf.

231

Class 7 Petition for New Exemption of Authors Alliance, American Association of University

Professors, and LCA (Authors Alliance Class 7 Petition), Docket No. 2020-11, at 2,

https://www.copyright.gov/1201/2021/petitions/proposed/New%20Pet.%20-

%20Authors%20Alliance%20et%20al.pdf.

232

Class 7 Reply Comments of Authors Alliance, American Association of University Professors, and

LCA (Authors Alliance Class 7 Reply Comments), Docket No. 2020-11, at 6,

https://www.copyright.gov/1201/2021/comments/reply/Class%207(a)%20and%207(b)_Reply_Authors%

20Alliance,%20American%20Association%20of%20University%20Professors,%20Library%20Copyrigh

t%20Alliance.pdf.

233

Id.

Class 7(a): Motion pictures, where the motion picture is lawfully made and

obtained on a DVD protected by the Content Scramble System, on a Blu-ray disc

protected by the Advanced Access Content System, or via a digital transmission

protected by a technological protection measure,

234

where:

(1) the circumvention is undertaken by a researcher affiliated with

a nonprofit library, archive, museum, or institution of higher

education to deploy text and data mining techniques for the

purpose of scholarly research and teaching; and

(2) the researcher uses reasonable security measures to limit access

to the corpus of circumvented works only to other researchers

affiliated with qualifying institutions for purposes of collaboration

or the replication and verification of research findings.

Class 7(b): Literary works, excluding computer programs, distributed

electronically and lawfully obtained, that are protected by technological measures

that interfere with text and data mining, where:

(1) the circumvention is undertaken by a researcher affiliated with

a nonprofit library, archive, museum, or institution of higher

education to deploy text and data mining techniques for the

purpose of scholarly research and teaching; and

(2) the researcher uses reasonable security measures to limit access

to the corpus of circumvented works only to other researchers

affiliated with qualifying institutions for purposes of collaboration

or the replication and verification of research findings.

Analysis: NTIA supports an exemption that tracks the TDM Petitioners’ revised

proposal, with exceptions for preexisting databases specifically prepared for TDM purposes. An

exemption here would advance the overriding objectives of copyright law – namely, “[t]o

promote the Progress of Science and useful Arts . . . .”

235

Moreover, the limitations the TDM

Petitioners have placed on their initial request – for example, requiring reasonable security and

excluding computer programs - address NTIA’s concerns with the earlier proposals.

The TDM Petitioners and their supporters argue persuasively that TDM, as performed on

literary works and motion pictures, has produced and will continue to produce substantial social

benefits. TDM, in their words, “makes it possible to glean insights from large volumes of

material, more than a single researcher could ever examine unaided.”

236

To perform TDM, a

234

This framing intentionally tracks the language used in the existing exemption set forth in 37 C.F.R. §

201.40(b)(1).

235

U.S. Const. art. 1, § 8, cl. 8; see also Campbell, 510 U.S. at 574 (quoting same).

236

Class 7 Initial Comments of Authors Alliance, American Association of University Professors, and

LCA (Authors Alliance Class 7 Initial Comments), Docket No. 2020-11, at 5,

researcher must compile a large collection of digitized works – most critically here, motion

pictures (7a) or books (7b). The researcher then uses search tools or other mechanisms to assess

patterns such as how frequently a given word is used over time or how the portrayal of a

particular group in literature or film has evolved. The TDM Petitioners submitted letters from

numerous researchers and groups detailing the broad and valuable ends toward which TDM is

being applied.

237

Proponents have argued persuasively (and opponents do not dispute) that the application

of TPMs to digitized books and motion pictures hinder access to the underlying works for

purposes of performing TDM. Films distributed on DVD are subject to the Content Scramble

System (CSS), which encrypts the underlying work. Blu-ray discs, similarly, are protected by

the Advanced Access Content System (AACS). Digitally distributed films are also encrypted.

The Register has recognized that CSS, AACS, and the encryption used to protect motion pictures

transmitted digitally all constitute TPMs.

238

Likewise, literary works distributed as e-books are

protected by TPMs – as the Register also has recognized.

239

These TDMs, proponents have shown, undermine research activities. Professor Matthew

Sag observes in a letter filed by petitioners that researchers “frequently curtail their studies

because … otherwise useful digital works are protected by TPMs.”

240

Instead, they “focus their

efforts on low-risk data, such as works in the public domain,” resulting in a dearth of “significant

research into contemporary cultural works including literature, movies, and tv shows.”

241

Two

researchers who submitted letters for the record indicate, for example, that Section 1201 TPMs

have prompted them to eschew their prior study of post-World War II novels.

242

Another reports

that she has shifted from studying the copyrighted literary works of James Baldwin in favor of

studying tweets citing such works. Two professors focused on analysis of visual works

comments that, as a result of TPMs sanctioned by Section 1201, they “cannot study the 20

and

century visual culture, which is only available through media formats such as DVDs and

protected digital files.”

243

These limitations severely restrict the study of numerous topics,

stunting research across a wide array of topics. The record includes letters from researchers

stating that, if an exemption were granted, they would pursue research on subjects as varied as

https://www.copyright.gov/1201/2021/comments/Class%2007a%20and%2007b_InitialComments_Autho

rs%20Alliance,%20American%20Association%20of%20University%20Professors,%20and%20Library%

20Copyright%20Alliance.pdf.

237

Id. at Appx. A-Appx. P.

238

See Sixth Triennial Section 1201 Rulemaking, Recommendation of Register of Copyrights (2015

https://www.copyright.gov/1201/2015/registers-

recommendation.pdf.

239

Id.

240

Authors Alliance Class 7 Initial Comments, at Appx. J.

241

Id.

242

See id., at Appx. C (Letter from James Clawson) and at Appx. P (Letter from Henry Alexander

Wermer-Colan).

243

Id. at Appx. M (Letter from Lauren Tilton and Taylor Arnold).

the changing depiction of violence in film over the past century,

244

the characteristics of modern

African American writing,

245

the evolution of how color and close-ups have been used in film

over time,

246

and how consolidation in the publishing industry has affected fiction.

247

TDM Petitioners also show that existing alternatives to circumvention are not adequate.

There exist today only a handful of digital libraries; proponents argue that these contain

substantial gaps and are prohibitively difficult to use.

248

It is likewise impractical for researchers

to develop their own digital libraries from scratch, as can take decades to scan written works at

the scale needed to create machine-readable databases appropriate for TDM.

249

Technologies

such as motion picture screen capture are similarly unfeasible – one researcher, for example,

reported that it would have taken ten years to use this technology to create the dataset of 10,000

films needed for his project.

250

TDM Petitioners are similarly persuasive in demonstrating that the TDM-related uses that

these TPMs block are likely to be noninfringing. Much of the record with respect to classes 7(a)

and 7(b) centers on whether TDM, as proposed here, would constitute “fair use.” Proponents

and opponents focus specifically on the Second Circuit’s decisions in Authors Guild, Inc. v.

Hathitrust and Authors Guild v. Google, Inc.

251

NTIA agrees with proponents that the types of

TDM at issue here very likely fall squarely within the “fair use” category under these and other

precedents. The first factor, “the purpose and character of the use,” strongly favors a “fair use”

determination. One key to the “purpose and character” inquiry is whether the use is

“transformative” – i.e., “if it does something more than repackage or republish the original

copyrighted work,”

252

“add[ing] something new, with a further purpose or different

character….”

253

The Hathitrust court considered whether a full-text search function, applied to a

library containing more than ten million digitized works, constituted fair use. With respect to the

first factor, the court determined that “the creation of a full-text searchable database is a

quintessentially transformative use,” because the result of the search was “different in purpose,

character, expression, meaning, and message from the page (and the book) from which it is

244

Id. at Appx. B (Letter from David Bamman).

245

Id. at Appx. C (Letter from James Clawson).

246

Id. at Appx. E (Letter from Eric Hoyt).

247

Id. at Appx. F (Letter from Matthew Jockers).

248

See Authors Alliance Class 7 Initial Comments, at 11-13.

249

Id. at 13 (“One hundred percent of survey respondents agreed with the statement that it was

‘financially unfeasible for them to pay someone to scan and perform optical character recognition (OCR)

in order to transform all of the books that they would like to use into digital copies.’”). For this reason,

opponents’ claim that researchers stymied by existing databases’ gaps simply scan relevant materials

themselves (Class 7 Opposition Comments of Association of American Publishers (AAP Class 7

Opposition Comments), Docket No. 2020-11, at 11,

https://www.copyright.gov/1201/2021/comments/opposition/Class_7b_Opp'n_Association%20of%20Am

erican%20Publishers.pdf), is unavailing.

250

See Authors Alliance Class 7 Initial Comments, at Appx. B (Letter from David Bamman).

251

See Hathitrust, 755 F.3d 87 (2d Cir. 2014); Google, 804 F.3d 202 (2d Cir. 2015).

252

Hathitrust, 755 F.3d at 96.

253

Campbell, 510 U.S. at 579.

drawn,” and thus did not “‘supersede[] the objects [or purposes] of the original creation.’”

254

Google, the court reached the same conclusion regarding copies made “for the purpose of

enabling a search for identification of books containing a term of interest to the searcher.”

255

The actions at issue in Hathitrust and Google, the Google court observed, were both aimed at

providing “information about th[e] books,” not at replicating the books’ contents.

256

The same is

true here: researchers seeking to apply TDM to digitized works producing materials that are

different in purpose, character, expression, meaning, and message from the underlying works –

materials containing information about those works, rather than substitutes for them. As such,

the first factor favors a fair use finding.

The second factor, “the nature of the copyrighted work,” considers whether the work is

“of the creative or instructive type that the copyright laws value and seek to foster.”

257

The

Hathitrust and Google courts both noted that this factor is rarely determinative of fair use,

particularly where the use serves a transformative purpose. The two courts both found that the

uses at issue were transformative, minimizing the second factor’s relevance.

258

Here, again, the

results of TDM research are indisputably transformative. Thus, the second factor supports a fair

use finding.

Likewise, the third factor, which looks to whether the secondary use employs more of the

copyrighted work than is necessary, supports fair use here. The Supreme Court has held that

“the extent of permissible copying varies with the purpose and character of the use,” and that the

determinative question is whether “no more was taken than was necessary.”

259

In Hathitrust, the

defendant had copied entire books, but the court determined that this was consistent with a fair

use finding “[b]ecause it was reasonably necessary … to make use of the entirety of the works in

order to enable the full-text search function.”

260

The Google court concurred, noting that

“[c]omplete unchanged copying has repeatedly been found justified as fair use when the copying

was reasonably appropriate to achieve the copier’s transformative purpose and was done in such

a manner that it did not offer a competing substitute for the original.”

261

What mattered, in other

words, was “not so much the [amount of the original work used] in making a copy, but rather the

amount and substantiality of what is thereby made accessible to a public for which it may serve

as a compelling substitute.”

262

Here, researchers must copy entire works in order to perform

meaningful analysis using TDM: “Access to the entirety of the work is necessary for the

exemption to achieve its purpose. Computational analysis of anything less than the entire works

254

Hathitrust, 755 F.3d at 97, quoting Campbell, 510 U.S. at 579 (alterations in original).

255

Google, 804 F.3d at 216.

256

Google, 804 F.3d at 217 (emphasis added).

257

Hathitrust, 755 F.3d at 96, quoting Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV.

1105,1107, 1117 (1990).

258

See Hathitrust, 755 F.3d at 98; Google, 804 F.3d at 220.

259

Campbell, 510 U.S. at 586-87, 589.

260

Hathitrust, 755 F.3d at 98.

261

Google, 804 F.3d at 221.

262

Id. at 222 (emphases in original).

would yield inaccurate and unreliable findings.”

263

Further, the products of their research make

virtually none of the original work accessible to the public, and are not in any way a substitute

for the original works.

264

Further, while DVD CCA contends that the proposed exemption is

incompatible with the Register’s prior determination that only “short portions” of a motion

picture could be used in noninfringing ways, this is not so.

265

The prior decision is inapposite

here, because the product of TDM is not a clip of film at all, but rather data regarding that film,

which is them aggregated with data from many other analyzed films. Thus, even the application

of TDM to an entire motion picture is likely to reveal much less of the film to third parties than

the reproduction of even a short clip of that film. For these reasons, the third factor favors a “fair

use” finding.

Finally, the fourth fair use factor supports fair use, because there is no circumstance in

which the results of TDM would undercut the market for or value of the copyrighted work in

relevant ways.

266

“[T]he Factor Four analysis is concerned with only one type of economic

injury to a copyright holder: the harm that results because the secondary use serves as a

substitute for the original work.”

267

This variety of harm does not arise where, as here, “the

secondary use is transformative.”

268

The Hathitrust court found that factor four was not

applicable to the facts before it, because a “full-text search function does not serve as a substitute

for the books that are being searched.”

269

Moreover, it was “irrelevant” that rightsholders might

wish to sell licenses to others to facilitate competing search offering, because “[l]ost licensing

revenue counts under Factor Four only when the use serves as a substitute for the original and

the full-text search does not.”

270

The Google court went further. There, the use at issue

permitted searchers to view a snippet of the underlying text. The court recognized that there

“surely” would be cases in which the snippet satisfied the searcher’s needs, resulting in lost sales

of the underlying work. Nevertheless, “the possibility, or even the probability or certainty, of

some loss of sales does not suffice to make the copy an effectively competing substitute that

would tilt the weighty fourth factor in favor of the rights holder in the original.”

271

263

Authors Alliance Class 7 Reply Comments, at 21.

264

Contrary to one commenter’s suggestion, TDM does not involve “converting … books into a digitized

form and making that digitized version accessible to the public.” AAP Class 7 Opposition Comments at

5, 7. Rather, the result of TDM would be an article or other publication mentioning that (for example) that

a particular work is one of 1,432 works published between 1990 and 2005 containing the words “blog” or

“weblog.”

265

Class 7 Opposition Comments of DVD CCA and AACS LA (DVD CCA Class 7 Opposition

Comments), Docket No. 2020-11, at 8-10,

https://www.copyright.gov/1201/2021/comments/opposition/Class_7a_Opp'n_DVD%20CCA%20and%2

0AACS%20LA.pdf.

266

Harper & Row v. Nation Enterprises, 471 U.S. 539, 566-69 (1985).

267

Hathitrust, 755 F.3d at 99.

268

Id.

269

Id. at 100.

270

Id.

271

Google, 804 F.3d at 224.

Joint Creators and Copyright Owners and the American Association of Publishers both

suggest that the Second Circuit’s 2018 decision in Fox News Network, LLC v. TVEyes, Inc. either

curtailed the reach of Hathitrust and Google or rendered those decisions inapplicable to video

works.

272

It did neither. The Fox court considered a service offered by defendant TVEyes that

enabled clients ‘to easily locate and view segments of televised video programming that are

responsive to the clients’ interests.”

273

Clients could watch clips lasting up to ten minutes, but

could watch as many such clips as they liked.

274

The court determined that the product at issue

was not fair use, because it “makes available virtually all of Fox’s copyrighted audiovisual

content – including all of the Fox content that TVEyes’s clients wish to see and hear….”

275

This

key fact affected each prong of the fair-use analysis. For example, whereas TDM facilitates a

highly transformative and typically non-commercial use, the Fox court found that TVEyes’s use

was commercial, and that “the transformative character of the secondary use [wa]s modest.”

276

Whereas TDM research makes virtually none of the underlying work available to the public and

limits such material to the researcher and those checking or reviewing the researcher’s work,

TVEyes made “virtually the entirety of the Fox programming….” available to anyone who

chooses to purchase its service.

277

And whereas TDM-based research does not at all displace

demand for the underlying works, “[s]uch displacement d[id] occur” in the context of TVEyes’s

offering.

278

In contrast, the works subjected to TDM here cannot be consumed by the public:

Only researchers and those checking or reviewing their work would even conceivably have

access to the underlying works, while others would have access only to the results of TDM

research, which reveals virtually none of the corpus. For these reasons, Fox does not preclude a

finding that TDM is fair use here.

Section 1201’s statutory factors also broadly favor expansion of the exemption to cover

circumvention with respect TDM performed on the text and audiovisual works within the scope

of Petitioners’ revised request. First, circumvention will enhance the copyrighted work’s

availability for use. TDM’s purpose is to enable to analysis of literary works and motion

pictures at scale, which in turn facilitates the production of research materials setting forth the

272

See Fox News Network, LLC v. TVEyes, Inc., 883 F.3d 169 (2d Cir. 2018); see also Class 7,

Opposition Comments, Joint Creators and Copyright Owners (Joint Creators Class 7 Opposition

Comments), Docket No. 2020-11, at 3,

https://www.copyright.gov/1201/2021/comments/opposition/corrections/2021-04-

29%20CORRECTED%20FINAL%20JCCO%20Class%207%20Comments%20-

%20Motion%20Pictures%20Literary%20Works%20for%20TDM%2002%2009(13130443.1).pdf; Class

7 Opposition Comments of Association of American Publishers (AAP Class 7 Opposition Comments),

Docket No. 2020-11, at 4-5,

https://www.copyright.gov/1201/2021/comments/opposition/Class_7b_Opp'n_Association%20of%20Am

erican%20Publishers.pdf.

273

Fox, 883 F.3d at 173-74.

274

Id. at 174.

275

Id.

276

Id. at 178.

277

Id. at 179.

278

Id. at 180.

results of such analysis. The Register has found that the first statutory factor favors an

exemption when it “would increase the availability of copyrighted works in the form of articles,

presentations,” and similar materials.

279

Moreover, the risk that TDM will reduce the availability

of the works at issue is vanishingly small. There is no reason to think that the production of

research articles evaluating trends across dozens, hundreds, or thousands of works will undercut

demand for any particular work. Moreover, the Register already has found that circumvention of

TPMs with respect to motion pictures would not materially impact those films’ availability,

280

and that exemptions allowing circumvention have not had a harmful effect on the value of or

market for e-books.

281

The second and third factors strongly favor an exemption here, because an exemption for

TDM would increase the availability of works for educational purposes. The Register’s 2015

recommendation favoring an exemption to permit security research observed that the prohibition

against circumvention “play[ed] a negative role in universities’ willingness to engage in and fund

security research, and may limit student involvement in academic research projects.”

282

The

same is true here: An exemption would enhance research institutions’ willingness to engage in

and fund research that requires application of TDM to a corpus of copyrighted work, and will

expand knowledge and understanding regarding the materials studied.

Finally, the fourth statutory factor – the effect of circumvention on the market for or

value of the copyrighted work – also favors an exemption here. As noted in the “fair use”

discussion above, an article produced using TDM research techniques is in no way a substitute

for the underlying works, and therefore would not “devalue those works.”

283

It therefore will

have no adverse effect on the market for or value of the copyrighted works.

Several of the opponents’ most forceful arguments have been mooted by proponents’

efforts to narrow their original requests. Several opponents, for example, expressed concern that

the originally proposed exemption was not limited to researchers or institutions that owned

lawful copies of the underlying works.

284

Proponents have, however, agreed to limit the

exemption to literary works and motion pictures “that have been lawfully obtained by the

279

2018 Register’s Recommendation, at 312.

280

2015 Register’s Recommendation, at 93-94 (“The Register agrees that access controls such as AACS

play a significant role in copyright owners’ ability to invest in and disseminate valuable copyrighted

works. As discussed below, however, while this may be true as a general matter, the record does not

reflect that allowing the uses proposed here will have a material impact on the efficacy of AACS

technology or the ability to bring new Blu-ray content to market…. The Register therefore cannot

conclude on this record that allowing a limited exemption to make brief, transformative uses of motion

pictures for noninfringing purposes would have a material impact on the availability of motion pictures on

Blu-ray or of motion pictures generally.”).

281

Id. at 136 (finding “no evidence” that circumvention of TPMs “will undermine the value of or market

for e-books, as that market has grown substantially in recent years despite the existence of earlier

exemptions”).

282

Id. at 174.

283

AAP Class 7 Opposition Comments, at 12.

284

See, e.g., JCCO Class 7 Opposition Comments, at 3-4.

researcher or their affiliated institution.”

285

Likewise, some opponents worried that the original

proposal might permit researchers to make works or portions thereof available to the public or

expose the works to unauthorized download or distribution.

286

Petitioners’ modification of their

request to include a “reasonable security measures” proviso addresses both of these concerns.

Other arguments raised by opponents survive the revision of Classes 7(a) and 7(b), but

are unpersuasive. Some opponents claim that the class for which proponents seek an exemption

is either impermissibly broad or simply undefined.

287

NTIA does not agree. Proponents have

described TDM as a class of techniques used to analyze large volumes of material to extract

specific traits – words, colors, and so forth – and identify trends and evolutions over time. The

fact that proponents will not limit themselves to the particular techniques used to undertake TDM

today does not undermine their claims.

288

Nor is the term “scholarly research and teaching” too

broad in this context, given that the exemption as framed is limited to “a researcher affiliated

with a nonprofit library, archive, museum, or institution of higher education” for the purpose of

performing TDM. Similarly, there is no reason to exclude non-fiction works from the

exemption’s scope, for non-fiction works (in written and audiovisual format) are amenable to

productive analysis using TDM no less than fiction works.

289

In NTIA’s view, opponents have

not demonstrated that this class is inappropriately large. Further, concerns that the exemption

would be utilized by those with commercial objectives are obviated by the addition of the

requirement that the researcher undertaking circumvention be affiliated with a nonprofit library,

archive, museum, or institution of higher education.

Although Petitioners have agreed to a requirement that those using copyrighted works

properly secure such works to prevent unauthorized access, Joint Creators and Copyright Owners

continue to express concern regarding whether such security will be adequate and ask the

Librarian to require specific security measures. For example, the Association of American

Publishers (AAP) entreats the Librarian to apply a “minimum baseline” built on the National

Institute of Standards and Technology’s (“NIST’s”) framework for highly sensitive unclassified

governmental information.

290

The Software and Information Industry Association (SIIA) argues

that “any exemption ought to expressly define [appropriate security] measures,” including

285

Authors Alliance Class 7 Reply Comments, at 7. As proponents clarify, the class of works “lawfully

obtained” could extend beyond the class of works that the institution “owns,” because digital works are

often characterized as having been transferred via a license rather than a sale. See id. at 8.

286

JCCO Class 7 Opposition Comments, at 5; AAP Class 7 Opposition Comments, at 3.

287

See DVD CCA Class 7 Opposition Comments, at 3-6.

288

See, e.g., Authors Alliance Comments at 15-16 (“TDM involves diverse methods. New ones will

emerge. Petitioners are thus unwilling to artificially constrain eligible methods here.”).

289

See, e.g., id. at 6-7.

290

See Class 7 Post-Hearing Response of AAP (AAP Class 7 Post-Hearing Response) (May 21, 2021),

Docket No. 2020-11, at 3,

https://www.copyright.gov/1201/2021/post-

hearing/letters/Class%207%20AAP%20--%20Post-Hearing%20Response.pdf.

recommending using the NIST framework as applicable.

291

The AAP and the MPA contend that

researchers must apply.

292

NTIA urges the Copyright Office to reject these prescriptive

approaches. What constitutes reasonable security will vary by circumstance, and will likely

evolve over time. To ensure that its rule is as simple as possible, and that security measures are

properly targeted to specific circumstances, the Librarian should adopt a flexible framework that

can be tailored to the type of work at issue, the resources of the institution, and evolving security

threats. Further, there is no evidence that the “reasonable digital security” proviso adopted as a

condition to the “Computer Programs—Software Preservation” class in 2018 has been

unworkable or resulted in inadequate protection.

293

Thus, NTIA urges the Copyright Office to

rely on a “reasonable security measures” requirement here, too. That approach will afford

researchers and their institutions sufficient flexibility while providing appropriate safeguards

against piracy and other unlawful use or access of protected materials.

294

NTIA also believes that proponents have demonstrated a need for the researchers

conducting TDM, and those reviewing their work, to have access to the underlying copyrighted

materials. The AAP contends that researchers have no need for access to the underlying work

entered into TDM-capable databases, because they or their institutions will necessarily have

access to the underlying works.

295

SIIA concurs.

296

Authors Alliance and Library Copyright

Alliance explain, however, that “researchers must be able to view enough of the text and images

included in the corpus to verify their research methods and research results.”

297

It would be

impossible, they show, for researchers to sift through non-digitized films for particular frames

revealed to contain certain images, or find and verify hundreds of instances of a particular word

in hundreds of different books.

298

NTIA is, however, persuaded by opponents that the exemption requested should be

narrowed such that it expressly excludes commercial use of the accessed works.

299

Proponents

have limited their request to researchers affiliated with a nonprofit library, archive, museum, or

291

Class 7 Post-Hearing Response of SIIA (SIIA Class 7 Post-Hearing Response) (May 21, 2021), Docket

No. 2020-11, at 6,

https://www.copyright.gov/1201/2021/post-

hearing/letters/Class%207b%20SIIA%20TDM.pdf.

292

AAP Class 7 Post-Hearing Response, at 3.

293

2018 Final Rule, 83 Fed. Reg. 54010, 54030.

294

The AAP’s concern that hacked e-books “can be shared freely on pirate sites” is beside the point. AAP

Class 7 Opposition Comments, at 2. If the mere possibility of piracy was sufficient to bar an exemption,

there would be no Section 1201 exemptions at all. The proposed exemption’s “reasonable security”

proviso should afford rightsholders adequate protections against such piracy.

295

See AAP Class 7 Post-Hearing Response, at 6-7.

296

SIIA Class 7 Post-Hearing Response, at 7.

297

AAP Class 7 Post-Hearing Response, at 3.

298

Id.; see also Class 7 Ex Parte Letter of Authors Alliance (Authors Alliance Class 7 Letter) (August 9,

2021), Docket No. 2020-11, at 2,

https://www.copyright.gov/1201/2021/ex-

parte/Authors%20Alliance%20Class%207%20Ex%20Parte%20Summary.pdf.

299

See, e.g., AAP Class 7 Opposition Comments, at 8.

institution of higher education. Moreover, the Supreme Court has rejected the proposition that

Congress, in codifying the “fair use” doctrine, intended a broad presumption against all

commercial uses.

300

The Second Circuit has noted, in turn, that “[m]any of the most universally

accepted forms of fair use, such as news reporting and commentary, quotation in historical or

analytic books, reviews of books, and performances, as well as parody, are all normally done

commercially for profit.”

301

Nevertheless, because the gravamen of Petitioners’ request is that

circumvention will allow for the expansion of academic knowledge and understanding, and that

such research would be undertaken for academic purposes, NTIA supports the inclusion of the

modifier “noncommercial” before the terms “research and education” in the exemption

recommended here.

NTIA Recommendation for Class 7(a) (Motion Pictures – Text and Data Mining)

and 7(b) (Literary Works – Text and Data Mining):

In light of the above, NTIA recommends that the Copyright Office recommend the

following exemptions for addition to 37 C.F.R. § 201.40(b):

Class 7(a): Motion pictures, where the motion picture is lawfully made and obtained on

a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the

Advanced Access Content System, or via a digital transmission protected by a

technological protection measure,

302

where:

(1) the circumvention is undertaken by a researcher affiliated with a nonprofit library,

archive, museum, or institution of higher education to deploy text and data mining

techniques for the purpose of scholarly research and teaching; and

(2) the researcher uses reasonable security measures to limit access to the corpus of

circumvented works only to other researchers affiliated with qualifying institutions for

purposes of collaboration or the replication and verification of research findings.

Class 7(b): Literary works, excluding computer programs, distributed electronically

and lawfully obtained, that are protected by technological measures that interfere with

text and data mining, where:

(1) the circumvention is undertaken by a researcher affiliated with a nonprofit library,

archive, museum, or institution of higher education to deploy text and data mining

techniques for the purpose of scholarly research and teaching; and

(2) the researcher uses reasonable security measures to limit access to the corpus of

circumvented works only to other researchers affiliated with qualifying institutions for

purposes of collaboration or the replication and verification of research findings.

300

See Campbell, 510 U.S. at 584.

301

Google, 804. F.3d at 219.

302

This framing intentionally tracks the language used in the existing exemption set forth in 37 C.F.R. §

201.40(b)(1).

Class 8 – Audiovisual Works – Accessibility (e-books)

The American Council of the Blind (ACB) and other entities propose to expand the

current exemption for the use of assistive technologies by visually impaired persons in

connection with electronically distributed literary works (e-books).

303

The current regulatory

language applies to literary works, distributed electronically, that are protected by technological

measures that either prevent the enabling of read-aloud functionality or interfere with screen

readers or other applications or assistive technologies. The proposed expansion of this

exemption would amend the language to: (1) update provisions in accordance with new statutory

language such as the description of eligible users from “blind or other person with a disability” to

“eligible person, as such a person is defined in 17 U.S.C. 121;” (2) expand the description of

eligible works to include “literary works and previously published musical works that have been

fixed in the form of text or notation;” and (3) eliminate the reference to the price of

“mainstream” copies of works . . . and replace this term with a more inclusive phrase such as

“market price of an inaccessible copy.”

304

The proponents seek to clarify the current language

and the scope of exemption to ensure that those with disabilities are better able to obtain

accessible literary works.

NTIA position: NTIA recommends granting a renewal of the existing exemption as well

as the requested expansions and clarifications.

305

Analysis: The Copyright Office is recommending the extension of the current exemption

for accessibility to e-books for the blind and those with similar visual impairments, which is one

of the earliest exemptions granted by the Librarian of Congress. Both the extension and

expansion are largely unopposed.

306

Since its inception, NTIA has supported this exemption.

The proposed changes meet the 1201 requirements and there is sufficient evidence on the record

to support these changes.

Many of these proposed changes are necessary to be consistent with recent changes to

U.S. law implementing the Marrakesh Treaty to Facilitate Access to Published Works for

Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (Marrakesh Treaty),

303

Class 8 Petition for New Exemption of American Council of the Blind et al. (ACB Class 8 Petition),

Docket No. 2020-11,

https://www.copyright.gov/1201/2021/petitions/proposed/New%20Pet.%20-

%20American%20Council%20of%20the%20Blind%20et%20al.pdf. Petitioning on behalf of other groups

such as American Council of the Blind, American Foundation for the Blind, National Federation of the

Blind, Association for Education and Rehabilitation of the Blind and Visually Impaired, Library

304

ACB Class 8 Petition, at 4.

305

We note that there are two other proposed accessibility related exemptions. Classes 3 and 17 are

discussed respectively in their own sections.

306

Class 8 Opposition Comments of JCCO (JCCO Class 8 Opposition Comments), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/comments/opposition/Class_8_Opp'n_Joint%20Creators%20and%

20Copyright%20Owners.pdf. JCCO do not oppose the renewal and of this exemption and seek only to

clarify that the expanded language does not include sound recordings of musical performances as

proponents seek to expand to works such as sheet music.

which the U.S. signed in 2019.

307

These proposed changes also include the Chaffee

Amendment, codified at 17 USC §121, and the newly adopted section 121A, which pertains to

the import and export of works in accessible formats.

308

Changing the language to be consistent

with the statute broadens those eligible to make use of the exemption and eliminates

inadvertently excluding individuals that are currently not able to access the works according to

the record and evidence presented at the hearing.

309

Secondly, adopting the statutory language

additionally clarifies that individuals who import or export accessible versions that are not

available in the United States do not violate section 1201, further clarifying the scope of this

exemption. This will prevent confusion within the marketplace and among these statutory

provisions and these regulations.

Next, the expansion to include music written and available in digital form, such as sheet

music, is a natural extension of the current exemption. This simply clarifies that while not

technically a literary work when it is in fixed digital format this type of work (digital sheet

music) should be treated in a similar fashion as e-books to allow circumvention if the work is not

otherwise in an accessible format. The proponents clarified that this expansion does not include

sound recordings of the music itself. In post-hearing questions, the parties agreed on certain

regulatory language that makes it clear that the proposed exemption does not include sound

recordings of performances of the work unless a copy of the sound recording is included with the

e-book. NTIA supports these clarifications.

310

Finally, NTIA supports eliminating regulatory wording that is either unclear or that is

inappropriate. In this case, the proponents effectively argue that use of “mainstream” copies

suggests that accessible versions are outside mainstream and is inappropriate and detracts from

the intent of the exemption. Alternative language such as “inaccessible copies” better reflects

the purpose of the limitation placed on utilizing the current exemption and does not change the

overall 1201 analysis. NTIA concurs and recommends that the Copyright Office modify the

exemption accordingly. These changes are highlighted specifically below.

NTIA Recommendation for Class 8 (Accessibility):

NTIA recommends that the Copyright Office recommend that the Librarian adopt the following

exemption for addition to 37 C.F.R. §201.40:

307

Marrakesh Treaty, June 30, 2016.

308

17 USC §121 (2018).

309

17 USC §121 (3) (providing that “eligible person” means an individual who, regardless of any other

disability—

(A) is blind; (B) has a visual impairment or perceptual or reading disability that cannot be improved to

give visual function substantially equivalent to that of a person who has no such impairment or disability

and so is unable to read printed works to substantially the same degree as a person without an impairment

or disability; or (C) is otherwise unable, through physical disability, to hold or manipulate a book or to

focus or move the eyes to the extent that would be normally acceptable for reading”).

310

Class 8 Post-Hearing Response, Exemptions to Prohibition Against Circumvention of Technological

Measures Protecting Copyrighted Works, (May 14, 2021),

https://www.copyright.gov/1201/2021/post-

hearing/letters/Class-8-Joint-Post-Hearing-Response.pdf.

3) Literary works and previously published musical works that have been fixed in the

form of text or notation, distributed electronically, that are protected by technological

measures that either prevent the enabling of read-aloud functionality or interfere with

screen readers or other applications or assistive technologies:

(i) …of such a work is lawfully obtained by an eligible person blind or other person

with a disability, as such a person is defined in 17 U.S.C. 121; provided, however, that

the rights owner is remunerated, as appropriate, for the market price of an inaccessible

copy price of the mainstream copy of the work as made available to the general public

through customary channels; or

Class 9 – Literary Works – Medical Device Data

Hugo Campos, a member of the Coalition of Medical Device Patients and Researchers

(CMPDR), seeks renewal and expansion of the current exemption to for patients to circumvent

TPMs to access their own data from medical devices and corresponding personal monitoring

systems.

311

Consumer Reports expressed support for the renewal of this exemption.

312

Since

petitioner has demonstrated the continuing need for these exemptions, the Copyright Office

intends to recommend exemption’s renewal, and the renewal is unopposed, NTIA agrees that

renewal of this exemption is justified.

313

Mr. Campos and other members of CMPDR seek the expansion of the current exemption

in several ways: removing the limitation that circumvention can only occur on “wholly or

partially implanted devices,” permitting third parties to perform the circumvention at the request

of the patient, removing the passive monitoring requirement, and eliminating the language that

the use of the exemption does not constitute a violation of applicable law.

314

The proponents

preferred language for regulatory text to incorporate all their proposals is as follows:

311

Class 9 Petition to Renew a Current Exemption of Coalition of Medical Device Patients and

Researchers (Coalition Class 9 Renewal Petition), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/petitions/renewal/Renewal%20Pet.%20-

%20Medical%20Devices%20-%20Medical%20Device%20Research%20Coalition.pdf; 37 C.F.R.

§201.40(b)(4).

312

Class 9 Comments Supporting Renewal of Exemption of Consumer Reports (Consumer Reports Class

9 Comments), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/petitions/renewal/Supp.%20-

%20Medical%20Devices%20-%20Consumer%20Reports.pdf.

313

See 2020 NPRM, 85 Fed. Reg. 65293, 65299.

314

The record in different places refers to CMPDR or members of CMPDR as petitioners. For simplicity,

this Letter in the Class 9 discussion employs the term “proponents” to refer to supporting material for the

new proposals from CMPDR or members of CMPDR. Class 9 Initial Comments of Coalition of Medical

Device Patients and Researchers (Coalition Class 9 Initial Comments) Docket No. 2020-11, at 3,

https://www.copyright.gov/1201/2021/comments/Class%2009_InitialComments_Coalition%20of%20Me

dical%20Device%20Patients%20and%20Researchers.pdf.

Literary works consisting of compilations of data generated by medical devices or

by their corresponding personal monitoring systems, where such circumvention is

undertaken by or on behalf of the patient for the sole purpose of lawfully

accessing the data generated by their own device or monitoring system.

315

Proponents argue that patients’ need for real-time access to their own medical device data

is the same whether they are using an implanted or non-implanted device, and preventing access

to health data via TPMs can adversely affect patient care and medical research.

316

Proponents

assert that limiting circumvention to passive monitoring wireless transmissions sent by medical

devices does not reflect the reality that some medical devices do not transmit data wirelessly

(e.g., data stored on an SD card); that there may be more efficient or effective ways for patients

to access their medical data from medical devices; and that enabling wireless capabilities to

access medical data could put that data and the medical devices at risk from third party

intrusions.

317

Proponents also note that restricting a user of the exemption to the individual

patient using the device makes the “practical application of an exemption . . . incredibly slim”

and that nothing in section 1201 supports such a limitation.

318

Lastly, proponents request

removing the reference in the regulatory text to other laws (e.g., the Health Insurance Portability

and Accountability Act of 1996) as those laws are about concerns unrelated to copyright law.

319

The opponents argue that the proponents have failed to establish that they are or are

likely to be harmed if the exemption remained unchanged, that the proposed exemption

modifications “will negatively impact the thriving marketplace of innovation for mobile health

products and services,” and would “negate federal and international regulations and guidance to

ensure the safety and efficacy of medical devices and laws to protect patient data privacy.”

320

NTIA Position: NTIA supports petitioners’ proposal to expand the current medical

device data exemption. NTIA recommends that the Librarian specify that the exemption permits

these activities to be carried out with the assistance of third parties.

Analysis: As stated in its 2015 Letter, NTIA believes that making it easier for patients to

access their own medical data would not adversely affect the market value for mobile health

315

Id.

316

Id. at 9-11.

317

Id. at 11.

318

Id. at 11-13.

319

Id. at 13.

320

Class 9 Opposition Comments of ACT | The App Association (ACT Class 9 Opposition Comments),

Docket No. 2020-11, at 2,

https://www.copyright.gov/1201/2021/comments/opposition/Class_9_Opp'n_ACT%20The%20App%20

Association.pdf

. The President of ACT | The App Association submitted the organization’s opposition comments in

Round 2. The organization’s president also participated in the Copyright Office hearing for Class 9, but

in his role as the Executive Director of the Connected Health Initiative. For simplicity, this Letter

employs the term “opponents” in the Class 9 discussion when referring to opposition material on the

record.

products and services; and, moreover, it would provide relief from the harm patients experience

due to delayed access to their health data associated with the general prohibition on

circumvention in section 1201.

321

Proponents have persuasively argued that these same

considerations apply to non-implanted medical devices as they do to the currently exempted

implanted devices.

322

Proponents have highlighted several examples of adverse effects that are

happening now or are likely to occur in the next three years if the exemption is not granted.

323

As NTIA has raised previously, and the Copyright Office has acknowledged, it is not always

clear whether the works being accessed under this exemption (compilations of data generated by

medical devices or by their personal monitoring systems) are subject to copyright; to the extent

that there may be copyrighted works at issue, patient access to their own medical data is likely a

fair use.

324

NTIA does not believe that the proposed changes alter this analysis. Further, NTIA

is not convinced by opponents’ contention that granting the proposed expansions “will

negatively impact the ability of app developers to successfully compete in the mobile health

marketplace.”

325

The opponents raise safety concerns (further addressed below), as well as

concerns stemming from potential piracy that the proposal could enable; however, as proponents

note, the exemption would continue to be fairly limited to patients being able to access their own

medical data from their own devices or monitoring systems.

326

In any event, the rulemaking

does not grant parties the permission to commit copyright infringement.

327

The opponents argue the proposed expansions would undermine medical device and

software purveyors’ ability to comply with other applicable regulations, and lead to concerns

involving safety, efficiency, and patient privacy.

328

While NTIA appreciates that medical

devices and data are highly regulated, NTIA’s longstanding position is that this exemption

process should generally be limited to the consideration of copyright issues.

329

Issues related to

data privacy, device safety, and other non-copyright concerns can and should be addressed by the

appropriate agencies and legal and regulatory regimes as these issues arise. Exemptions granted

under the DMCA 1201 rulemaking process do not give users permission to disobey other laws or

321

See 2015 NTIA Letter, at 59-60.

322

See Coalition Class 9 Initial Comments, at 9-10; April 8 Hearing Transcript, Remarks of Keon

Zemoudeh, at 546-547.

323

Coalition Class 9 Initial Comments, at 4-5.

324

See id. at 11.

325

ACT Class 9 Opposition Comments at 5; April 8 Hearing Transcript, Remarks of Morgan Reed, at

527-528.

326

Class 9 Reply Comments of Coalition of Medical Device Patients and Researchers (Coalition Class 9

Reply Comments), Docket No. 2020-11, at 5,

https://www.copyright.gov/1201/2021/comments/reply/Class%209_Reply_Coalition%20of%20Medical

%20Device%20Patients%20and%20Researchers.pdf.

327

To the extent the concern is that granting the proposed exemptions would increase the circulation of

circumvention tools and in this way increase the risk of piracy in the commercial marketplace, this

concern is addressed by the anti-trafficking provision in section 1201(a)(2) and by the limitations in the

modified exemption language itself.

328

See ACT Class 9 Opposition Comments, at 4-5.

329

See, e.g., 2015 NTIA Letter, at 62; 2018 NTIA Letter, at 2.

regulatory regimes. Neither the current nor the proposed exemption prevent agencies with the

appropriate authority and expertise from regulating medical devices and data. The rulemaking is

not—and should not become—a forum to address the particularities of other laws and regulatory

regimes unrelated to copyright.

330

NTIA also notes that the proposed exemption would not seem

to impose requirements on manufacturers of software-enabled products to take affirmative steps

to comply either with the DMCA or other laws or regulations; just as the obligations of a user to

comply with other laws and regulations do not change, neither do manufacturer’s obligations

under other laws and regulations change.

331

The opponents further argue that non-passive access to data is akin to hacking, and that it

allows more intrusive forms of access that could lead to devices being less secure.

332

However,

NTIA is convinced by proponents’ argument that non-passive monitoring is often non-intrusive,

as is the case with proponent’s primary example of retrieving data from the SD card of a CPAP

machine,

333

and it appears unlikely that granting petitioners’ proposals for non-passive

monitoring would compromise the safety and efficiency of medical devices.

334

Also, insofar as

there is a concern that the expansion of the exemption would allow for more intrusive access to a

broader variety medical devices, compromising safety of these devices and endangering patients,

the Librarian in one respect has more recently addressed a comparable concern related to

expanding an exemption for the circumvention of TPMs in categories of medical devices. The

temporary exemption for security research (computer programs) following the Sixth Triennial

Rulemaking limited circumvention to specific categories of devices, including “medical devices

designed for whole or partial implantation in patients, as well as corresponding personal

monitoring systems.” (the device limitation).

335

In the Seventh Triennial Rulemaking, the

330

Discussion on the record included references to the Food and Drug Administration’s (FDA) regulatory

authority, and the FDA has responded in this proceeding to note that “an exemption from liability

expressly limited to circumvention conducted for the sole purpose of lawfully accessing data generated by

a patient’s own device or associated monitoring system, whether or not such device is implanted and/or

such access is accomplished through the passive monitoring of existing wireless transmissions, is unlikely

to undermine the cybersecurity of affected devices, other than as intentionally undertaken by the patient

and as may impact only such patient’s own device.” Letter from Food and Drug Administration to USCO

re: Classes 9 and 12, at 2 (Aug. 13, 2021) (2021 FDA Letter),

https://www.copyright.gov/1201/2021/USCO-letters/Classes-9-and-12-Ex-Parte-Meeting-Summary-

FDA.pdf.

331

NTIA thus agrees with proponents’ comment in this respect: “[w]hether or not it is a violation of

manufacturer’s obligations under unrelated regulations to include TPMs restricting access to medical

data.” Class 9 Coalition Reply Comments, at 4.

332

See April 8 Hearing Transcript, Remarks of Morgan Reed, at 534-536, 542-543.

333

See April 8 Hearing Transcript, Remarks of Keon Zemoudeh, at 544-547; see also CMPDR Class 9

Reply Comments, at 5-7.

334

See April 8 Hearing Transcript, Remarks of Keon Zemoudeh, at 552; see also 2021 FDA Letter, at 2.

Noting that proponents’ proposal is unlikely “to undermine or impede efforts to ensure an appropriate

degree of cybersecurity for medical devices” whether or not access to a patient’s own data is

accomplished through the passive monitoring of wireless transmissions.

335

2018 Register’s Recommendation, at 283.

Acting Register recommended, and the Librarian adopted in her final rule, a modification to the

security research exemption that removed the device limitation, including for specific categories

of medical devices.

336

Of course, the security research exemption supports a different purpose,

covers a different “particular class of work,” contains additional requirements, and the removal

of the device limitation hinged on that particular record.

337

However, NTIA believes that the

Librarian can look to her decision and the Copyright Office’s recommendation in the Seventh

Triennial Rulemaking for guidance in the current context as it relates to safety, as there is a

similar concern expressed here.

338

NTIA also supports allowing third party circumvention on behalf of a patient. This

expansion would further the utility of the exemption by allowing patients who do not have the

technical expertise or tools to circumvent technological protection measures to nonetheless

access their own data.

339

In accordance with the Copyright Office’s 2018 Recommendation for

repair of certain devices, NTIA recommends at least removing the qualifications from the current

exemption that circumvention must be carried out by a patient to address this hurdle to access for

noninfringing purposes.

340

NTIA would go further and note that circumvention can be

undertaken by or behalf of a patient. As explained in more detail in the discussion of Class 12,

NTIA does not believe that section 1201’s anti-trafficking provisions constrain third-party

assistance in this context.

Regarding the request to remove the “applicable law” limitation, NTIA discusses a

similar issue in more detail in Class 13, and that same substantive analysis applies here. In short,

NTIA recognizes the need to alter the current “applicable law” limitation to clarify that this

exemption does not export DMCA’s penalties into non-copyright areas or import non-copyright

analysis into the DMCA. As noted, exemptions granted under this rulemaking do not give

proponents permission to disobey other laws. NTIA therefore recommends removing the

“applicable law” limitation from the regulatory text and replacing it with a notice (also in the

regulatory text) that the exemption does not obviate the need to follow other laws and

regulations. In order to harmonize the regulatory language, NTIA recommends taking the same

approach on the “any applicable law” limitations in Classes 9, 12, and Class 13, should the

336

See id. at 288-289.

337

Id. at 13.

338

Id. at 300 (“Nor does the Acting Register believe that public safety concerns provide an appropriate

basis for denying [the removal of the device limitation]. As explained above, while such matters of course

are of vital importance, they are within the competence of other agencies and generally are not among the

factors considered as part of this rulemaking absent unusual circumstances.”).

339

Coalition Class 9 Reply Comments, at 12-13.

340

See 2018 Register’s Recommendation, at 222-225. Moreover, NTIA agrees with proponents that there

are persuasive reasons to believe that the Unlocking Consumer Choice and Wireless Competition Act

should not be read to suggest that Librarian does not have the authority to permit third party

circumvention in certain instances absent further congressional action. See Coalition Class 9 Reply

Comments, at 12.

Librarian grant the requests.

341

NTIA would not object if the reference further mentioned

specific laws that may be relevant in this context, such as the Health Insurance Portability and

Accountability Act of 1996.

There is one potential aspect of proponents’ proposal that NTIA does not support at this

time. In their initial petition, proponents referenced “medical and wellness devices and

corresponding personal monitoring systems.”

342

The term “wellness” device (or “medical and

wellness” device) does not appear elsewhere in the record, and proponents subsequently do not

indicate whether and how this term might differ from “medical device.” The term is also not a

part of proponents’ preferred regulatory language. Given these facts, NTIA does not recommend

including the term “wellness” (or “medical and wellness” device) in the exemption should the

Librarian decide to adopt part or all of proponents’ proposals. At the same time, NTIA cautions

that not including a reference to the term should not be seen as limiting the scope of medical

devices and corresponding monitoring systems that would be covered under an expanded

exemption.

NTIA Recommendation for Class 9 (Medical Devices): NTIA recommends modifying

the exemption based on proponents’ proposals, as modified. Accordingly, NTIA recommends

the following exemption language:

Literary works consisting of compilations of data generated by medical devices or by

their corresponding personal monitoring systems, where such circumvention is

undertaken by or on behalf of a patient for the sole purpose of lawfully accessing the

data generated by the patient’s own device or monitoring system. This exemption does

not obviate the need to comply with all other applicable laws and regulations.

341

This could also include the alternative approach to resolving this issue proposed by Rapid7 and

amplified by others in the Class 13 discussion. See Class 13 Initial Comments of Rapid7 (Rapid7 Class

13 Initial Comments), Docket No. 2020-11, at 2-5,

https://www.copyright.gov/1201/2021/comments/Class%2013_InitialComments_Rapid7.pdf

(recommending replacement of the “‘any applicable law’ provision with a clarification that the

security testing exemption does not void other applicable laws”); see also April 8 Hearing Transcript,

Remarks of Keon Zemoudeh, at 573 (“We do think that the DOJ’s recommendation on adding language

about notifying people on having to comply with other laws, we do think that would be a good addition to

the language in place of something like having to comply with other laws or lawfully accessing the data.

So I believe DOJ’s recommendation was to add language requiring – stating that qualification for an

exemption is not a safe harbor or defense to liability under other applicable laws. And we think that

would do a great job of notifying the public while not adding further penalties under the DMCA.”).

342

Class 9 Petition for New Exemption of Coalition of Medical Device Patients and Researchers

(Coalition Class 9 New Exemption Petition), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/petitions/proposed/New%20Pet.%20-

%20Medical%20Device%20Research%20Coalition.pdf.

Class 10 – Computer Programs – Unlocking

The current exemption for unlocking allows circumvention of certain computing devices

(such as cellphones, tablets) for use with alternative wireless telecommunications network.

343

The Competitive Carriers Association (CCA) and the Institute of Scrap Recycling, Inc. (ISRI)

each submitted a petition to renew the current exemption.

344

No parties oppose renewing the

exemption. NTIA agrees with the Copyright Office’s conclusion in its NPRM that “the

conditions that led to adoption of this exemption are likely to continue during the triennial

period.”

345

Because petitioner demonstrated the continuing need for these exemptions, and

because they were unopposed, NTIA urges, at a minimum, renewal of the existing exemption.

ISRI submitted two petitions for expansion of the current exemption, requesting that it

apply to 1) lawfully acquired locked laptop computers, including Chromebooks,

346

and

preferably, to 2) all lawfully acquired locked wireless devices, rather than the enumerated list of

types of devices in the current exemption (which includes mobile phones, tablets, hotspot

devices, and wearables).

347

The latter proposal would cover any devices with cellular connection

capabilities that can connect to wireless telecommunications networks, which can include, but

are not limited to, desktop computers, Smart TVs, Internet of Things devices, extended reality

headsets, and drones. Proponents note that recyclers are increasingly unable to effectively resell

wireless devices capable of connecting to a wireless telecommunications network in other

markets because they are carrier locked.

348

For example, some laptops with cellular connectivity

are now carrier-locked,

349

and other types of devices, including smart TVs, drones, and extended

reality headsets are beginning to include cellular capabilities.

350

343

37 C.F.R. § 201.40(b)(5).

344

See Class 10 Renewal Petition of Competitive Carriers Association (CCA Class 10 Petition) Docket

No. 2020-11,

https://www.copyright.gov/1201/2021/petitions/renewal/Renewal%20Pet.%20-

%20Unlocking%20-%20CCA.pdf; Class 10 Renewal Petition of Institute of Scrap Recycling Industries,

Inc. (ISRI Class 10 Renewal Petition), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/petitions/renewal/Renewal%20Pet.%20-%20Unlocking%20-

%20Inst.%20Scrap%20Recycling%20Industries.pdf.

345

2020 NPRM, 85 Fed. Reg. 65293, 65301.

346

Class 10 Petition for New Exemption, Institute of Scrap Recycling Industries, Inc. #1 (ISRI Class 10

Petition #1) Docket No. 2020-11, at 2,

https://www.copyright.gov/1201/2021/petitions/proposed/New%20Pet.%20-

%20Inst.%20Scrap%20Recycling%20Industries%20-%201.pdf.

347

Class 10 Petition for New Exemption, Institute of Scrap Recycling Industries, Inc. #2 (ISRI Class 10

Petition #2), Docket No. 2020-11, at 2,

https://www.copyright.gov/1201/2021/petitions/proposed/New%20Pet.%20-

%20Inst.%20Scrap%20Recycling%20Industries%20-%202.pdf.

348

Class 10 Initial Comments of Institute of Scrap Recycling Industries, Inc. (ISRI Class 10 Initial

Comments), Docket No. 2020-11, at 6,

https://www.copyright.gov/1201/2021/comments/Class%2010_InitialComments_Institute%20of%20Scra

p%20Recycling.pdf.

349

Id. at 8.

350

Id. at 10–11.

The sole opponent to the expansion of this class, the Motor & Equipment Manufacturers

Association (MEMA), argues that expanding the exemption to cover cellular-connected vehicle

modules and Electronic Control Units without limitations and safeguards could have a negative

impact on consumer safety.

351

Therefore, MEMA requests that any expansion of the unlocking

exemption exclude motor vehicles and motor vehicle equipment. MEMA focuses its substantive

argument against such expansion entirely on concerns about vehicle safety and environmental

regulations, though they also claim that proponents have not provided sufficient evidence and are

requesting an exemption that is overly broad.

352

NTIA Position: Consistent with NTIA’s recommendations in 2012, 2015, and 2018, we

urge the inclusion in this exemption of all lawfully-acquired devices that connect to wireless

networks.

Analysis: NTIA has a long history of supporting consumers in their efforts to use their

devices on the networks they choose, both in the Section 1201 rulemaking and through

proceedings at the Federal Communications Commission.

353

The issue of unlocking wireless

devices for use with alternative carriers is, perhaps, one of the longest-running examples of the

misuse of the prohibition against circumvention to achieve ends unrelated to copyright. The

recommended an exemption for the activity in 2006:

There is no evidence in the record of this rulemaking that

demonstrates or even suggests that obtaining access to the mobile

firmware in a mobile handset that is owned by a consumer is an

infringing act. Similarly, there has been no argument or suggestion

that a consumer desiring to switch a lawfully purchased mobile

handset from one network carrier to another is engaging in

351

Class 10 Opposition Comments of MEMA (MEMA Class 10 Opposition Comments), Docket No.

2020-11, at 1,

https://www.copyright.gov/1201/2021/comments/opposition/Class_10_Opp'n_The%20Motor%20&%20E

quipment%20Manufacturers%20Association%20FINAL.pdf.

352

Id. at 2.

353

See Fifth Triennial Section 1201 Rulemaking, Recommendations of the National Telecommunications

and Information Administration to the Register of Copyrights (2012 NTIA Letter), at 18, Docket No.

2011-7, https://www.copyright.gov/1201/2012/Section_1201_Rulemaking_2012_Recommendation.pdf

;

2015 NTIA Letter, at 42; 2018 NTIA Letter, at 44; Petition for Rulemaking of the National

Telecommunications and Information Administration: In the Matter of Amendment of Part 20 of the

Commission’s Rules and Regulations to Require Certain Providers of Commercial Mobile Radio Services

to Unlock Wireless Devices Upon Request, WT Dkt. No. PRM13WT (filed Sep. 17, 2013),

https://www.ntia.gov/files/ntia/publications/ntia_mobile_devices_unlocking_petition_09172013.pdf;

Letter re: Verizon Request for Declaratory Ruling, or, in the Alternative, for Partial Waiver, Regarding

the Handset Locking Rule for C Block Licensees, WT Dkt. No. 06–150 (filed June 6, 2019),

https://ecfsapi.fcc.gov/file/10606290512037/NTIA%20Ltr%20re%20%20Verizon%20Wireless%20C%2

0Block%20HandsetLocking%20Rule%20Request.pdf.

354

Rather than protecting a copyright interest, the locking of wireless devices to a single

carrier is a decision made to enforce a particular business model. This remains true irrespective

of the particular type of device on which the software is contained, whether a smartphone, tablet,

laptop, or even a device like an extended reality headset. NTIA has repeatedly recommended

exemption language that would have included all types of wireless devices, similar to what ISRI

is now seeking, and we believe the record of adverse effects to non-infringing uses of such

devices has only expanded over time.

355

As noted above, the record shows the number of

devices—and device types—in the marketplace capable of connecting to wireless

telecommunications networks has continued to increase. Therefore, NTIA believes listing the

types of devices that may be unlocked is both unnecessary and too inflexible. Trimming the

language to only reference devices that connect to telecommunications network sufficiently and

precisely defines this class.

NTIA believes that this proposed class represents one of several opportunities for the

address concerns about consumer safety, environmental regulations, or other non-copyright

concerns, as we discuss in the introductory section of these recommendations.

356

Further, we

disagree with the notion put forward by MEMA that the proposed exemption is overly broad by

virtue of the scope of devices to be included.

357

We continue to caution against limiting

exemptions based on the types of devices or media on which they are contained, and recommend

instead focusing on the copyrighted works at issue and their users.

358

NTIA Recommendation for Class 10: The regulatory text proposed by ISRI

359

substantively identical to that recommended by NTIA in 2018,

360

and we continue to support this

language, or similar language that conforms to a structured template for regulatory text:

Computer programs that enable lawfully acquired wireless devices to connect to a wireless

telecommunications network, when circumvention is undertaken solely in order to connect the

wireless device to a wireless telecommunications network and such connection is authorized

by the operator of such network.

354

U.S. Copyright Office, Section 1201 Rulemaking: Third

Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention, Recommendation of

the Register of Copyrights (2018 Register’s Recommendation), at 50 (November 2006),

https://cdn.loc.gov/copyright/1201/docs/1201_recommendation.pdf

355

See, e.g., 2018 NTIA Letter, at 44.

356

See supra at 5.

357

MEMA Class 10 Opposition Comments, at 2.

358

See supra at 4.

359

ISRI Class 10 Initial Comments, at 9.

360

2018 NTIA Letter, at 44.

Class 11 – Computer Programs – Jailbreaking

The current exemption for jailbreaking of devices is divided into three parts, and allows

for circumvention of:

361

(6) Computer programs that enable smartphones and portable all-

purpose mobile computing devices to execute lawfully obtained

software applications, where circumvention is accomplished for

the sole purpose of enabling interoperability of such applications

with computer programs on the smartphone or device, or to permit

removal of software from the smartphone or device. For purposes

of this paragraph (b)(6), a “portable all-purpose mobile computing

device” is a device that is primarily designed to run a wide variety

of programs rather than for consumption of a particular type of

media content, is equipped with an operating system primarily

designed for mobile use, and is intended to be carried or worn by

an individual.

(7) Computer programs that enable smart televisions to execute

lawfully obtained software applications, where circumvention is

accomplished for the sole purpose of enabling interoperability of

such applications with computer programs on the smart television.

(8) Computer programs that enable voice assistant devices to

execute lawfully obtained software applications, where

circumvention is accomplished for the sole purpose of enabling

interoperability of such applications with computer programs on

the device, or to permit removal of software from the device, and is

not accomplished for the purpose of gaining unauthorized access to

other copyrighted works. For purposes of this paragraph (b)(8), a

“voice assistant device” is a device that is primarily designed to

run a wide variety of programs rather than for consumption of a

particular type of media content, is designed to take user input

primarily by voice, and is designed to be installed in a home or

office.

362

361

For the purposes of this proceeding, “jailbreaking” means “the process of gaining access to the

operating system of a computing device . . . to install and execute software that could not otherwise be

installed or run on that device, or to remove pre-installed software that could not otherwise be

uninstalled.” 2018 Register’s Recommendation, at 163.

362

37 C.F.R. § 201.40(b)(6), (7), (8).

At a minimum, NTIA supports renewal of all three parts of this exemption. EFF, New

Media Rights, and SFC each submitted a petition to review the current exemption.

363

There are

no opponents on the record against renewing the exemption. Because the petitioners

demonstrated continuing need for this exemption, and because it was unopposed, NTIA urges the

exempted classes of work and use cases.

EFF and SFC each submitted a petition to expand on the current exemption. EFF

proposes to clarify that the portion of the current exemption covering smart televisions “includes

computer programs on devices that are primarily designed to display software applications on a

television, including applications that stream video delivered via the Internet, where such devices

are not physically integrated into a television” (e.g., Roku devices, Amazon Fire TV stick, Apple

TV).

364

In its comments, EFF explains that it would like the Librarian to either define “smart

television” as including “devices that are primarily designed to display software applications on

a screen, including applications that stream video delivered via the Internet, where such devices

connect to but are not physically integrated into a display,” or in the alternative, to explicitly

expand the exemption to include the contemplated devices.

365

EFF explains that allowing

jailbreaking on these TV-connected devices would, as in the context of other similar devices,

allow users to run applications not approved by the manufacturer, enable new features

contributed by independent developers, and even enhance user privacy, among other things.

366

DVD CCA and AACS LA oppose EFF’s proposal “to the extent it is intended to create an

exemption that would permit circumvention of technical protection measures (‘TPMs’) of DVD

and Blu-ray players,”

367

and the Joint Creators oppose it on the grounds that “the proposed class

would arguably sweep in all ‘over the-top set top boxes’ such as cable boxes and satellite service

363

See Class 11 Renewal Petition of Electronic Frontier Foundation (EFF Class 11 Petition), Docket No.

2020-11,

https://www.copyright.gov/1201/2021/petitions/renewal/Renewal%20Pet.%20-

%20Jailbreaking%20-%20EFF.pdf; Class 11 Renewal Petition of New Media Rights (New Media Rights

Class 11 Petition), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/petitions/renewal/Renewal%20Pet.%20-%20Jailbreaking%20-

%20New%20Media%20Rights.pdf; Class 11 Renewal Petition of Software Freedom Conservancy (SFC

Class 11 Petition), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/petitions/renewal/Renewal%20Pet.%20-%20Jailbreaking%20-

%20Software%20Freedom%20Conservancy.pdf.

364

Class 11 Initial Comments of Electronic Frontier Foundation (EFF Class 11 Initial Comments), Docket

No. 2020-11, at 2,

https://www.copyright.gov/1201/2021/comments/Class%2011_InitialComments_Electronic%20Frontier

%20Foundation.pdf.

365

Id. at 2.

366

Id. at 13–14.

367

Class 11 Opposition Comments of DVD CCA and AACS LA (DVD CCA Class 11 Opposition

Comments), Docket No. 2020-11, at ii,

https://www.copyright.gov/1201/2021/comments/opposition/Class_11_Opp'n_DVD%20CCA%20and%2

0AACS%20LA.pdf.

boxes, video game consoles, and disc players that transmit content to TVs.”

368

EFF counters that

the proposed “class does not encompass devices that integrate Smart TV functionality into other

types of devices such DVD players, Blu-Ray players, and game consoles, because streaming

video from the Internet is not the primary purpose of these devices.”

369

More generally,

opponents assert that the proposed exemption is overly broad, that the proposed uses are often

infringing, and that the proponents have not shown sufficient harm from the prohibition against

circumvention.

370

Separately, SFC proposes a new exemption to enable the installation of alternative

firmware on routers and other networking devices.

371

They explain that “as with other

computers, the software on wireless routers—referred to collectively as ‘firmware’ because it is

installed in the router’s semi-permanent memory—can be upgraded, extended, and replaced,”

and that owners of these devices often find that, for example, the manufacturer has ceased

providing security updates, or that they require functionality not built into the manufacturer’s

firmware.

372

In a typical case, the goal of proponents is to install alternative software, such as

the Open Source OpenWrt onto the router, as opposed to making use of the copyrighted work

being protected by the access control.

373

ACT, which is the primary opponent, argues that the

uses contemplated in this proposal are not fair use, that the exemption is not narrowly defined,

and that the exemption would expose consumers to malware and other harms.

374

368

Class 11 Opposition Comments of Joint Creators (Joint Creators Class 11 Opposition Comments),

Docket No. 2020-11, at 3,

https://www.copyright.gov/1201/2021/comments/opposition/Class_11_Opp'n_Joint%20Creators%20and

%20Copyright%20Owners.pdf.

369

Class 11 Reply Comments of Electronic Frontier Foundation (EFF Class 11 Reply Comments), Docket

No. 2020-11, at 3,

https://www.copyright.gov/1201/2021/comments/reply/Class%2011_Reply_Electronic%20Frontier%20F

oundation.pdf.

370

Joint Creators Class 11 Opposition Comments, at 3, 6.

371

SFC Class 11 Petition, at 2.

372

Class 11 Initial Comments of Software Freedom Conservancy (SFC Class 11 Initial Comments),

Docket No. 2020-11, at 2,

https://www.copyright.gov/1201/2021/comments/Class%2011_InitialComments_Software%20Freedom

%20Conservancy.pdf.

373

Id. at 3. This raises the question, contemplated in NTIA in the introductory section, as to whether the

technological barriers encountered by proponents here necessarily constitute technological protection

measures under the statute. A mechanism that simply prevents installation of firmware other than from

the manufacturer, similar to the UEFI Secure Boot case recounted in the introduction (supra at 5), would

not seem to fit the statutory definition because it is not effectively controlling access to a copyrighted

work (just preventing the execution of alternative works irrespective of licensing or even copyright

status). However, NTIA is persuaded that some routers and other networking equipment likely do contain

access controls under Section 1201, and that the contemplated users may need to circumvent them to

achieve the desired noninfringing purposes (either to install the alternative firmware, or at a minimum to

determine from the preinstalled firmware how to go about successfully completing installation).

374

Class 11 Opposition Comments of ACT | The App Association (ACT Class 11 Opposition Comments),

Docket No. 2020-11, at 2–5,

NTIA Position: NTIA supports the adoption of both proposals to expand the

jailbreaking exemption. To promote simplicity and clarity in the regulatory language, NTIA

recommends explicitly adding video streaming devices to the smart television portion of the

exemption, rather than attempting to define “smart television” to include those devices.

Analysis: The request to expand the exemption to also include TV-connected devices

that essentially perform the same functions (and often run the same operating systems) as the

“smart” portion of a smart television serves as a paradigmatic example of the perils of

conditioning an exemption on the device or medium on which a class of work is contained.

Users of Rokus, Fire Sticks, Apple TVs, and similar devices are undertaking nearly identical

activities to those who prefer the built-in computing functionalities of smart televisions, and are

likely to have identical needs for circumventing the relevant access controls. Proponents offer a

number of such examples, including jailbreaking to “connect a variety of game controllers and

joysticks,” “add a web browser,” or “include support for an external broadcast TV tuner” on the

Apple TV.

375

Given the similarly in the relevant works and functionalities to those found in

smart televisions, we are unpersuaded by opponent arguments that “jailbreaking video streaming

devices does not meet the standards set in case law and by the Copyright Office in rulemakings

to qualify as a non-infringing use.”

376

Given that the Copyright Office has determined it will

presumptively recommend the existing smart television portion of this exemption—which has

been in effect since 2015—for renewal, and in light of the fact that the proposal is not meant to

extend to DVD players, game consoles, or other devices that are different in software and

functionality from video streaming devices, adoption of this proposal is prudent.

377

Where the EFF proposal corrects an anachronistic exclusion from the existing

jailbreaking exemption, the SFC petition extends it to include a somewhat different set of use

cases requiring circumvention of access controls on software that is less known to followers of

the Section 1201 rulemaking. Yet even here, the noninfringing uses harmed by the prohibition

against circumvention are familiar, and focus on extending and improving device functionality

beyond what was provided by the manufacturer. Given the most common way to accomplish

these goals is to load an alternative, Open Source software on the networking equipment, the

uses contemplated here are clearly noninfringing.

378

NTIA also finds the proposed class, which

is limited to firmware on routers and other networking equipment, is sufficiently narrow in scope

as it defines a particular class of work (networking firmware) and user (users of lawfully-

acquired networking devices seeking to install alternative firmware).

NTIA Recommendation for Class 11: In an effort to simplify the resulting regulatory

text, we recommend either consolidating the three parts of the jailbreaking exemption into a

single paragraph covering computing programs enabling execution of lawfully obtained software

https://www.copyright.gov/1201/2021/comments/opposition/Class_11_Opp'n_ACT%20The%20App%20

Association.pdf.

375

EFF Class 11 Initial Comments, at 13–14.

376

ACT Class 11 Opposition Comments, at 3.

377

2020 NPRM, 85 Fed. Reg. 65293, 65301.

378

SFC Class 11 Initial Comments, at 2–3.

applications on all covered types of devices, or restructuring the text to fit a structured exemption

pattern. At a minimum, implementation could also be accomplished by editing the existing text

in the following fashion:

(6) Computer programs that enable smartphones and portable all-purpose mobile

computing devices to execute lawfully obtained software applications, where

circumvention is accomplished for the sole purpose of enabling interoperability of such

applications with computer programs on the smartphone or device, or to permit

removal of software from the smartphone or device. For purposes of this paragraph

(b)(6), a “portable all-purpose mobile computing device” is a device that is primarily

designed to run a wide variety of programs rather than for consumption of a particular

type of media content, is equipped with an operating system primarily designed for

mobile use, and is intended to be carried or worn by an individual.

(7) Computer programs that enable smart televisions and TV-connected devices

primarily designed to display video downloaded from the Internet to execute lawfully

obtained software applications, where circumvention is accomplished for the sole

purpose of enabling interoperability of such applications with computer programs on

the smart television or TV-connected device.

(8) Computer programs that enable voice assistant devices to execute lawfully obtained

software applications, where circumvention is accomplished for the sole purpose of

enabling interoperability of such applications with computer programs on the device,

or to permit removal of software from the device, and is not accomplished for the

purpose of gaining unauthorized access to other copyrighted works. For purposes of

this paragraph (b)(8), a “voice assistant device” is a device that is primarily designed to

run a wide variety of programs rather than for consumption of a particular type of

media content, is designed to take user input primarily by voice, and is designed to be

installed in a home or office.

(9) Computer programs that enable routers and other networking equipment to

function, where circumvention is accomplished for the purpose of installing alternative

software on the equipment.

Class 12 – Computer Programs – Repair

Proponents seek renewal and expansion of the existing repair exemption, which currently

includes two specific types of device-embedded software. First, the Librarian has authorized

circumvention of TPMs in motorized land vehicles (under certain conditions) for repair of these

vehicles.

379

Also, the current repair exemption permits circumvention of TPMs in certain

devices for repair, diagnosis and maintenance such as smartphones, home appliances, and HVAC

379

37 C.F.R. § 201.40(b)(9).

systems.

380

Multiple parties sought renewal of both exemptions.

381

As the Copyright Office

noted in its NPRM, petitioners explained the continued need for these exemptions and there was

no opposition.

382

NTIA agrees that renewal conditions have been met.

In addition, various parties sought expansion of the existing exemptions. Some seek new

device-specific exemptions: Summit Imaging, Inc. requests an exemption allowing

circumvention of “technological measures applied to software programs and data files that are

contained in and control the functioning of a computer-controlled medical device for purposes of

diagnosis, maintenance, or repair of such a device.”

383

Transtate Equipment Company requests

an exemption for software and data files that control the functions of, or store data relating to the

functioning of, lawfully acquired medical systems or devices, when undertaken by or on behalf

of their owners or lessees to enable the systems’ or devices’ unfettered diagnosis, repair, and

maintenance.

384

iFixit and Public Knowledge seek an exemption permitting circumvention of

TPMs to repair video game consoles and replace damaged hardware.

385

Other petitioners seek

broader exemptions: The Electronic Frontier Foundation (EFF) seeks expansion of the current

exemption to enable circumvention of all access controls applied to software and data

compilations for the purpose of noninfringing repair, diagnoses, or modification of any software-

enabled device,

386

and iFixit and Repair.Org seek a similar exemption covering computer

380

37 C.F.R. § 201.40(b)(10). In this context, “maintenance” means “the servicing of the device or

system in order to make it work in accordance with its original specifications and any changes to those

specifications authorized for that device or system” and “repair” means “the restoring of the device or

system to the state of working in accordance with its original specifications and any changes to those

specifications authorized for that device or system.”

381

See 2020 NPRM, 85 Fed. Reg. 65293, 65299, n. 85 (listing petitions seeking renewal of exemption for

repair of motorized land vehicles); id. at 65300, n. 97 (listing petitions seeking renewal of exemption for

repair of smartphones, home appliances, and home systems).

382

Id. at 65299-65300.

383

Class 12 Petition for New Exemption of Summit Imaging, Inc. (Summit Class 12 Petition), Docket No.

2020-11,

https://www.copyright.gov/1201/2021/petitions/proposed/New%20Pet.%20-

%20Summit%20Imaging.pdf.

384

Class 12 Petition for New Exemption of Transtate Equipment Company, Inc. (Transtate Class 12

Petition), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/petitions/proposed/New%20Pet.%20-

%20Transtate%20Equipment%20Co..pdf.

385

Class 12 Petition for New Exemption of iFixit and Public Knowledge (iFixit/Public Knowledge Class

12 Petition), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/petitions/proposed/New%20Pet.%20-

%20iFixit%20&%20Public%20Knowledge.pdf.

386

Class 12 Petition for New Exemption of Electronic Frontier Foundation (EFF Class 12 Petition),

Docket No. 2020-11,

https://www.copyright.gov/1201/2021/petitions/proposed/New%20Pet.%20-

%20Electronic%20Frontier%20Foundation%20-%202.pdf.

programs that control any lawfully acquired devices to permit the diagnosis, repair, maintenance,

or modification of such devices.

387

NTIA position: NTIA recommends expansion of the current exemption to include

circumvention of TPMs for the diagnosis, maintenance, and repair of all software-enabled

devices, machines, and systems (collectively “devices” herein) for lawful modification that is

necessary for a repair or maintenance, and for modifications of software regarding the

functionality of a device. NTIA also recommends that the Librarian specify that the exemption

permits these activities to be carried out with the assistance of third parties.

388

Analysis: Petitioners and their supporters assert various arguments in favor of expanding

the repair exemption, either for all software-enabled devices or specific classes of such devices.

Proponents emphasize that many devices previously devoid of electronic components now

routinely rely on computer processors and software for their operation, and that this evolution

has curtailed users’ and third parties’ ability to repair or modify such devices – particularly

because original equipment manufacturers (OEMs) typically utilize TPMs to limit access to

embedded software.

389

The Auto Care Association, which seeks an exemption covering

circumvention of TPMs for “computer programs that control any lawfully acquired devices to

permit the diagnosis, repair, maintenance, or modification of those devices,”

390

observes that the

principles underlying the existing exemptions “apply to any consumer product,” noting that “[i]t

surely was lawful to repair earlier generations of such products with mechanical controls.”

391

Several commenters assert that the current approach, which exempts circumvention for

repairs to specifically named devices, substantially burdens noninfringing users, who must seek

new exemptions for each new device as OEMs add capabilities that rely on software.

Commenters likewise note that the current piecemeal approach also results in distinctions with

no apparent basis in copyright law – for example, the current “smartphone” exemption might

allow circumvention to facilitate the repair of an iPhone, but not an iPad.

392

In one commenter’s

387

Class 12 Petition for New Exemption of iFixit and Repair.Org (iFixit/Repair.Org Class 12 Petition),

Docket No. 2020-11,

https://www.copyright.gov/1201/2021/petitions/proposed/New%20Pet.%20-

%20Repair.org%20&%20iFixit.pdf.

388

See generally 2018 Register’s Recommendation, at 222-25 (explaining recommendation to remove

language indicating that repairs must be “undertaken by the [device’s] authorized owner”).

389

See, e.g., Class 12 Initial Comments of Transtate Equipment Company, Inc. (Transtate Class 12 Initial

Comments), Docket No. 2020-11, at 4-5,

https://www.copyright.gov/1201/2021/comments/Class%2012_InitialComments_Transtate%20Equipmen

t.pdf.

390

Class 12 Initial Comments of Auto Care Association (ACA Class 12 Initial Comments), Docket No.

2020-11, at 1,

https://www.copyright.gov/1201/2021/comments/Class%2012_InitialComments_Auto%20Care%20Asso

ciation.pdf.

391

Id.

392

Class 12 Initial Comments of iFixit and Repair.Org (iFixit/Repair.Org Class 12 Initial Comments),

Docket No. 2020-11, at 2,

words, “[t]here is no difference between boats and land vehicles when it comes to copyright

interests and the noninfringing purpose of repair.”

393

More broadly, commenters provide

detailed material regarding the reasons why a wide range of software-enabled devices cannot be

repaired or modified absent circumvention of TPMs, the type of TPMs used, and the ways in

which these TPMs impair noninfringing uses. Thus, in contrast to the record developed in 2018,

which the Register found did not provide an adequate basis for expanding device-specific

exemptions to cover all software-enabled devices,

394

the current record reflects that all such

devices share critical features with regard to repair, that the TPMs used to protect them from

repair also share common traits, and that the factors otherwise relevant to the Librarian’s

consideration also favor expansion.

NTIA supports expansion of the repair exemption to allow circumvention of TPMs – by a

device’s owner or an authorized third party – for the purpose of the diagnosis, maintenance, and

repair of software-enabled devices, for lawful modification that is necessary for a repair or

maintenance, and for modifications of software regarding the functionality of a device.

Moreover, NTIA recommends that these activities be able to be carried out with the assistance of

third parties, as requested by some of the proponents. In 2018, the Acting Register removed

language indicating that repairs to motor vehicles needed to be “undertaken by the authorized

owner” to qualify for an exemption from section 1201’s circumvention ban.

395

The rationale

undergirding this determination applies with equal force to other software-enabled devices.

NTIA reiterates its position stated in the Seventh Triennial Rulemaking that third-party

circumvention does not always implicate the anti-trafficking provision in section 1201. Here, the

proposal would allow for third party use of tools at the direction of the device owner for repair

and modification at the direction of a device’s owner. As NTIA noted in 2018 in the context of

vehicle repair, such a use “is not primarily ‘for the purpose of circumventing a technological

measure’ that protects copyrights; the circumvention here is incidental.”

396

The proposals seek

to enable all the benefits of ownership consistent with the DMCA’s anti-trafficking provisions.

NTIA appreciates that the Copyright Office has been sympathetic to concerns previously

expressed about the lack of third-party assistance, and NTIA believes that “it is a logical

extension of the Copyright Office’s own analysis to say that Congress did not intend to apply the

anti-trafficking provisions to third-party circumvention” when an exemption would allow device

owners to receive the necessary assistance to exercise their ownership rights.

397

https://www.copyright.gov/1201/2021/comments/Class%2012_InitialComments_iFixit%20and%20Repai

r%20Association.pdf.

393

Id. at 8.

394

See 2018 Register’s Recommendation, at 191-93.

395

2018 Final Rule, 83 Fed. Reg. 54010, 54022.

396

2018 NTIA Letter, at 58, citing 17 U.S.C. § 1201(a)(2)(A), (b)(1)(A).

397

See id. at 58, n. 298 (referencing the Copyright Office’s Section 1201 Study that “there are strong

reasons to conclude that Congress did not intend to apply the manufacturing bar to exemption

beneficiaries from producing their own circumvention tools for personal use”). U.S. Copyright Office,

Section 1201 of Title 17, Report of the Register of Copyrights (June 2017), at 54,

https://www.copyright.gov/policy/1201/section-1201-full-report.pdf

The expansion NTIA supports here would advance important policy goals recognized by

President Biden, the Federal Trade Commission (FTC), and the Copyright Office alike. In his

recent Executive Order addressing competition, President Biden underscored the systemic

benefits of competition and the threats posed by economic consolidation.

398

The Executive

Order specifically noted the harms arising from “unfair anticompetitive restrictions on third-

party repair or self-repair of items, such as the restrictions imposed by powerful manufacturers

that prevent farmers from repairing their own equipment.”

399

The FTC addressed such concerns

at length in a May 2021 “Report to Congress on Repair Restrictions.”

400

Restrictions on

competition in the repair marketplace have the unsurprising effect of increasing costs to

consumers: the record indicated that repairs by independent entities could be as much as 70

percent less expensive than similar repairs made by manufacturers.

401

Such restrictions also

impair small businesses offering repair and modification of software-enabled devices. This

burden “may fall more heavily on communities of color and lower-income communities,”

because “[m]any Black-owned small businesses are in the repair and maintenance industries, and

difficulties facing small businesses can disproportionately affect small businesses owned by

people of color.”

402

In contrast, the FTC concluded that there was “scant evidence to support

manufacturers’ justifications for repair restrictions.”

403

Moreover, the Copyright Office itself has acknowledged that repair activities are often

protected against claims of infringement by multiple provisions of copyright law, including the

fair use doctrine and section 117.

404

For example, “the fundamental purpose of any repair is to

preserve or restore the functionality of a software-enabled device so that it may continue to be

used,” undercutting concern that circumvention of TPMs for the purpose of facilitating repair

could violate property rights.

405

The Office has echoed proponents’ concerns regarding the

proliferation of software-enabled devices and its effect on third parties’ ability to make

repairs,

406

concluding that “a properly-tailored exemption for repair activities could alleviate

concerns regarding section 1201’s effect on consumers’ ability to engage in legitimate activities

that did not previously implicate copyright law, without creating a material risk of harm to the

398

The White House, Executive Order on Promoting Competition in the American Economy (July 9,

2021),

https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-

promoting-competition-in-the-american-economy/.

399

Id.

400

Federal Trade Commission, Nixing the Fix: An FTC Report to Congress on Repair Restrictions (May

2021) (Nixing the Fix),

https://www.ftc.gov/system/files/documents/reports/nixing-fix-ftc-report-

congress-repair-restrictions/nixing_the_fix_report_final_5521_630pm-508_002.pdf.

401

Id. at 40 (citing record evidence regarding medical equipment repair).

402

Id. at 3.

403

Id at 6.

404

See U.S. Copyright Office, Software-Enabled Consumer Products: A Report of the Register of

Copyrights (Dec. 2016) at 33, 39-41 (Software Report); United States Copyright Office, Section 1201 of

Title 17: A Report of the Register of Copyrights (June 2017) at 90 (Section 1201 Report).

405

See Software Report, at 40; Section 1201 Report, at 90.

406

See Section 1201 Report, at 88 (quoting Repair Association comments citing the rise of software-

enabled devices and noting that migration’s implication for repair).

market for or value of copyrighted works.”

407

The Office likewise has recognized the value of a

broad exemption, recommending that Congress adopt a repair exemption that is not limited to

specific technologies or devices, as any such limitation “would likely be soon outpaced by

technology.”

408

Petitioners have argued persuasively that, absent circumvention of the TPMs at issue,

over the next three years users are or are likely to be adversely affected in their ability to make

noninfringing uses of copyrighted works within the class. Petitioners and their supporters detail

the use of a wide variety of TPMs employed across a range of devices with the purpose or effect

of curtailing repair or modification by entities other than the OEM or its authorized agents.

Summit Imaging notes that OEMs “restrict access to diagnostic software and data files in their

medical imaging systems through the use of access codes, passwords, keys, or other similar

technological measures.”

409

The Electronic Freedom Foundation (EFF) and Georgetown

University’s Intellectual Property and Information Policy Clinic (IPIPC) offer detailed

descriptions of how TPMs such as passwords and encrypted, locked, and compressed firmware

are used to control access to digital cameras, “smart” litterboxes, printers, microcontroller

debuggers, camera stabilizers, e-readers, robotic companions, and radios.

410

iFixit and

Repair.Org describe other TPMs, including software requiring that replacement parts be specific

to the device or manufacturer and manufacturers’ use of calibration software that must be

connected in order for a user to receive diagnostic information.

411

Petitioners are similarly persuasive in demonstrating that these TPMs inhibit

noninfringing use of the works at issue. EFF states that it is not aware of any category of

software-enabled device that has escaped application of TPMs.

412

Commenters note that TPMs

preclude repair and tinkering both by a device’s owner and by independent service providers.

413

While opponents cite the availability of repair services offered by OEMs and their authorized

agents, the ban on circumvention thwarts third parties’ efforts to compete against incumbents,

407

Id. at 92.

408

Section 1201 Report, at 95.

409

Class 12 Initial Comments of Summit Imaging, Inc. (Summit Class 12 Initial Comments), Docket No.

2020-11, at 2,

https://www.copyright.gov/1201/2021/comments/Class%2012_InitialComments_Summit%20Imaging.pd

410

Class 12 Initial Comments of Electronic Frontier Foundation and Intellectual Property and Information

Policy Clinic (EFF/IPIPC Class 12 Initial Comments), Docket No. 2020-11, at 3-13,

https://www.copyright.gov/1201/2021/comments/Class%2012_InitialComments_Electronic%20Frontier

%20Foundation.pdf.

411

Class 12 Initial Comments of iFixit and Repair.Org (iFixit/Repair.Org Class 12 Initial Comments),

Docket No. 2020-11, at 5-10,

https://www.copyright.gov/1201/2021/comments/Class%2012_InitialComments_iFixit%20and%20Repai

r%20Association.pdf.

412

EFF/IPIPC Class 12 Initial Comments, at 13.

413

Summit Class 12 Initial Comments, at 3.

and thus perpetuates market concentration.

414

This result is contrary to the statute’s purpose: as

the Copyright Office has stated, “section 1201 was not intended to facilitate manufacturers’ use

of TPMs to facilitate product tying or to achieve a lock-in effect under which consumers are

effectively limited to repair services offered by the manufacturer.”

415

Further, the record reflects

that in some cases manufacturer-provided repair services are not available at all, because the

manufacturer has discontinued a product and terminated support.

416

Petitioners demonstrate that these limitations on third-party repair harm consumers and

independent service providers alike. iFixit and Repair.Org, for example, note that “[c]onsumers

who depend on software-enabled devices like motorized wheelchairs, CPAP machines, hearing

aids, blood glucose monitors, and even breast milk pumps could find themselves without a much

needed device while they wait for manufacturers’ repair services that may be exorbitantly

expensive or significantly delayed, if they are available at all.”

417

Similar problems arise in the

context of industrial devices, supervisory control and data acquisition (SCADA) systems, and

elsewhere.

418

Transtate warns that, absent circumvention, independent entities that service

medical equipment are being driven out of the market, which is already dominated by OEMs.

419

Petitioners also show that the TPMs at issue are impeding noninfringing uses. In

particular, commenters show that access to software to facilitate repair and/or modification

would likely constitute fair use. First, the purpose and character of the use – namely, for repair

and modification – supports a “fair use” determination. As the Acting Register stated in the

2018 Recommendation, “because the fundamental purpose of repair is to restore the functionality

of a device so that it may be used, ‘repair supports – rather than displaces – the purpose of the

414

See, e.g., Class 12 Opposition Comments of Joint Creators (Joint Creators Class 12 Opposition

Comments), Docket No. 2020-11, at 3,

https://www.copyright.gov/1201/2021/comments/opposition/corrections/2021-04-

29%20CORRECTED%20FINAL%20JCCO%20Class%2012%20Comments%20Repair%2002%2009(13

130595.1).pdf; Class 12 Opposition Comments of Equipment Dealers Assn. et al. (EDA Class 12

Opposition Comments), Docket No. 2020-11, at 10-12,

https://www.copyright.gov/1201/2021/comments/opposition/Class_12_Opp'n_Equipment%20Dealers%2

0Association%20and%20Associated%20Equipment%20Distribution.pdf; Class 12 Opposition Comments

of Alliance for Automotive Innovation (Auto Innovators Class 12 Opposition Comments), Docket No.

2020-11, at 4,

https://www.copyright.gov/1201/2021/comments/opposition/Class_12_Opp'n_Auto%20Innovators.pdf.

415

Section 1201 Report, at 92.

416

Public Knowledge and iFixit, for example, state that Microsoft instituted a policy in 2019 under which

it would no longer offer repair services for game consoles that were no longer in active production. Class

12 Initial Comments of Public Knowledge and iFixit,(Public Knowledge and iFixit Class 12 Initial

Comments), Docket No. 2020-11, at 4,

https://www.copyright.gov/1201/2021/comments/Class%2012_InitialComments_Public%20Knowledge

%20and%20iFixit.pdf; see also Transtate Class 12 Initial Comments, at 6 (“[M]any owners have older

equipment that OEMs no longer support because the OEMs have deemed the equipment to have reached

end of commercial life, and hence the equipment is considered obsolete.”).

417

iFixit/Repair.Org Class 12 Initial Comments, at 18.

418

Id. at 19.

419

Transtate Class 12 Initial Comments, at 10 and n. 41.

embedded programs.’”

420

Modification of a device is also consistent with a “fair use” finding

under the first prong, because such modification is “transformative.”

421

The second “fair use”

factor also supports a fair use determination, because the work at issue – computer data files that

control the operation, maintenance, and repair of devices – is functional, not expressive.

422

too, the third factor is likely to support a fair use determination, because in many cases those

seeking to repair or modify software-enabled devices generally will only require access to a

small fraction of the entire software package associated with the device.

423

Finally, the fourth

factor supports “fair use,” because the effect of circumvention on the market for or value of the

work is likely to be minimal. The software at issue is, by definition, installed on a device that the

customer purchases. In most or all cases, there is no stand-alone market for such software.

424

Thus, circumvention is unlikely to have any effect on any market for the copyrighted work itself.

Indeed, to the extent circumvention has any market effect with respect to the software-enabled

devices at issue, it is likely to enhance the market for and value of such devices by reducing the

cost associated with repairing or modifying them and expanding the field of entities capable of

performing such repairs and modifications.

425

In addition to the likelihood that repair and modification will constitute fair use, uses

facilitated by broadening the current exemption are likely to be noninfringing under section

117’s “essential step” provision.

426

As commenters note, access to computer programs and data

files embedded in software-enabled devices is an essential step in servicing, maintaining, and

repairing such equipment.

427

Some opponents argue that section 117(a)(1) does not apply

because customers are licensees, not owners, of the software embedded in their devices.

428

the Copyright Office has recognized, however, the courts have adopted a fact-based approach to

assessing the “ownership” of software installed on a device, and this analysis does not end with

420

2018 Register’s Recommendation, at 203; quoting Software Report, at 38-41.

421

See, e.g., EFF/IPIPC Comments, at 14.

422

See, e.g., Lexmark International, Inc. v. Static Control Components, Inc., 387 F.3d 522, 536 (6th Cir.

2004); Sony Computer Entertainment, Inc. v. Connectix Cor., 203 F.3d 596, 603 (9

Cir. 2000) (“[T]he

fair use doctrine preserves public access to the ideas and functional elements embedded in copyrighted

computer software programs.”).

423

See, e.g., Summit Class 12 Initial Comments, at 6 (“The computer programs and data files involved [in

servicing medical equipment] are but a small portion of the entire software package used to operate and

service medical imaging devices and are integrated into the machine.”).

424

See, e.g., EFF/IPIPC Class 12 Initial Comments, at 15; Transtate Class 12 Initial Comments, at 17-18.

425

To the extent opponents argue that circumvention will diminish their own share of the repair market,

this is not a cognizable interest under Section 1201. As the Copyright Office concluded in its 2017

Section 1201 Report, “virtually all agree that section 1201 was not intended to facilitate manufacturers’

use of TPMs to facilitate product tying or to achieve a lock-in effect under which consumers are

effectively limited to repair services offered by the manufacturer.”). Section 1201 Report, at 92.

426

17 U.S.C. § 117(a)(1).

427

See, e.g., Summit Class 12 Initial Comments, at 7.

428

See Joint Content Creators Class 12 Opposition Comments, at 5; Class 12 Opposition Comments of

Philips North America, LLC (Philips Opposition Comments), Docket No. 2020-11, at 11,

https://www.copyright.gov/1201/2021/comments/opposition/Class_12_Opp'n_Philips%20North%20Ame

rica.pdf.

the seller’s characterization of the buyer’s right as a “license.” Rather, where a device owner has

the right to use embedded software indefinitely, without significant use restrictions, that

individual is likely to “own” the software for Copyright Act purposes, even when the seller

purports merely to have licensed use by the buyer.

429

Finally, uses facilitated by an expanded exemption are likely to be noninfringing under

section 117(c) of the Copyright Act, under which “it is not an infringement for the owner or

lessee of a machine to make or authorize the making of a copy of a computer program if such

copy is made solely by virtue of the activation of a machine that lawfully contains an authorized

copy of the computer program, for purposes only of maintenance or repair of that machine.”

430

Section 1201’s statutory factors also broadly favor expansion of the exemption to cover

circumvention with respect to computer programs that are contained in and control the

functioning of a lawfully acquired device for the diagnosis, maintenance, and repair of such

device, for lawful modification that is necessary for a repair or maintenance, and for

modifications of software regarding the functionality of a device. First, expanding options for

repair of software-enabled devices will enhance the copyrighted work’s availability for use.

Thus, as the Register noted in 2018, “[t]he first statutory factor favors an exemption, as the

proposed uses [i.e., repair of home appliances and smartphones] extend the useful life of the

devices by facilitating repair and restoration of device functionality.”

431

This is equally true

here. Similarly, the Acting Register’s 2018 conclusion that the second and third statutory factors

“weigh slightly in favor of a determination that TPMs have an adverse effect on [repair]” applies

to devices beyond home appliances and smartphones – “consumers and independent repair

services” likely “rely on shared observations about device malfunctions” in many different

spheres.

432

The fourth statutory factor – the effect of circumvention on the market for or value of

the copyrighted work – also favors an exemption here. As several commenters note, the relevant

work here is the software itself, not the device on which it is installed. In most or all cases, there

is no stand-alone market for the software. Thus, circumvention likely will not affect the

marketplace at all. Moreover, the fourth factor would favor an exemption even if the relevant

market were the market for the device itself. As discussed above, the proliferation of options for

those seeking to repair their devices – and the salutary effects of greater competition in the repair

marketplace – will enhance the value of the devices at issue by increasing their longevity, and

thus their utility to prospective purchasers.

Opponents contend that any exemption for purposes of facilitating repair or modification

of software-enabled devices must be cabined by a requirement that circumvention does not

429

See generally 2018 Register’s Recommendation, at 21; Vernor v. Autodesk, 621 F.3d 1102, 1111 (9

Cir. 2010) (holding that a software user is a licensee only when the copyright owner (1) specifies that the

user is granted a license, (2) significantly restricts the user’s ability to transfer the software, and (3)

imposes notable use restrictions); Krause v. Titleserv, Inc., 402 F.3d 119 (2d Cir. 2005) (modification of

software to debug and add new features was “essential step” in software’s utilization).

430

17 U.S.C. § 117(c).

431

2018 Register’s Recommendation, at 221.

432

Id.

constitute a violation of other applicable law.

433

NTIA continues to believe that this requirement

is unnecessary and unwarranted.

434

The proposed exemption does not obviate the need to

comply with all other applicable laws and regulations. For example, a party modifying a medical

device would be obliged to do so in a manner consistent with FDA mandates, irrespective of the

Section 1201 exemption. As the Copyright Office has concluded, “non-copyright related

concerns, such as public safety, . . . are better addressed through laws or regulations outside of

the Copyright Act.”

435

NTIA thus opposes the addition of an “illegality” carve-out for the

repair/modification exemption, in line with the approach NTIA takes on substantially the same

issue in Classes 9 and 13, and instead recommends adding an appropriate notice in the regulatory

text.

NTIA also is unpersuaded by claims that TPMs are necessary to ensure that devices are

not repaired or modified by untrained or incompetent services, endangering users.

436

mentioned above, the Biden Administration favors increased competition in the repair markets.

Moreover, opponents have not shown that repair or modification by an OEM or its agent is any

safer than repair or modification by a third party. The FTC’s May 2021 report rejected claims

that independent or third-party repair and modification posed prohibitive safety risks. It

observed that manufacturers generally had failed to produce data showing that injuries are tied to

repairs performed by device owners and third parties and had not “provided factual support for

their statements that authorized repair persons are more careful or that individuals or independent

repair shops fail to take appropriate safety precautions . . . .”

437

“[A]dvocates for the right to

repair,” on the other hand, “submitted evidence that consumers are generally satisfied with

repairs made by independent repair shops.”

438

Further, to the extent that medical devices,

automobiles, or other classes of equipment are subject to non-copyright laws or regulations

governing who may service them, those requirements fall outside the scope of this proceeding.

Agencies such as the FDA and the Environmental Protection Agency are equipped to impose and

enforce such requirements irrespective of whether users are free to circumvent TPMs for

Several opponents claim that circumvention for purposes of repair or modification of

DVD players, Blu-Ray players, and gaming consoles will expose the content accessed by such

433

See, e.g., EDA Class 12 Opposition Comments, at 9; 2021 FDA Letter, at 1 (observing that opponents

of the proposed exemption have expressed concerns regarding potential impacts to health and safety).

434

See 2018 NTIA Letter, at 78-79 (“Nothing in this 1201 proceeding or in the exemptions the Librarian

will promulgate affect a party’s responsibility to comply with other laws.”).

435

See Section 1201 Report, at 95.

436

See Philips Class 12 Opposition Comments, at 9; Auto Innovators Class 12 Opposition Comments, at

7; Class 12 Opposition Comments of Medical Imaging & Technology Alliance (MITA Class 12

Opposition Comments), Docket No. 2020-11, at 3,

https://www.copyright.gov/1201/2021/comments/opposition/Class_12_Opp'n_Medical%20Imaging%20

&%20Technology%20Alliance.pdf.

437

Nixing the Fix, at 28.

438

Id. at 38.

devices to piracy.

439

NTIA is not persuaded by this argument. The exemption proponents seek

is limited to repair and modification of the device itself, and thus would not permit

circumvention for the purpose of unlawfully accessing or copying specific content. Nor is there

any reason why access undertaken to repair or modify a device would necessarily facilitate

reproduction of content found on the device or associated media. Indeed, after considering the

same arguments raised here, the FTC found that “at present, the assertion of IP rights does not

appear to be a significant impediment to independent repair.”

440

Similarly, NTIA is not persuaded by claims that allowing circumvention for purposes of

repair and modification of software-enabled devices will threaten user privacy.

441

Opponents do

not clearly show how the limited exemption at issue here would risk exposing sensitive

information. Nor have they explained why a device’s owner could not ensure (e.g., via contract)

that third parties do not collect or share any such information accessed while repairing or

modifying a device.

NTIA Recommendation for Class 12 (Computer Programs – Repair):

In light of these arguments, NTIA recommends that the Librarian adopt the following

language to replace existing exemptions set out in 37 C.F.R. § 201.40(b)(9) and (10):

Computer programs that are contained in and control the functioning of a lawfully

acquired device, machine, or system when circumvention is for: the diagnosis,

maintenance, and repair of such device, machine, or system; lawful modification that is

necessary for a repair or maintenance of such device, machine, or system; or for

modifications of software regarding the functionality of such device, machine, or

system. This exemption applies to diagnosis, maintenance, repair, and modification by

the device, machine, or system’s owner or a third party authorized by the owner. This

exemption does not obviate the need to comply with all other applicable laws and

regulations.

Class 13 – Computer Programs – Security Research

The current security research exemption allows for circumvention of:

(b)(11)

(i) Computer programs, where the circumvention is undertaken on a lawfully acquired

device or machine on which the computer program operates, or is undertaken on a

computer, computer system, or computer network on which the computer program operates

439

See, e.g., Joint Creators Class 12 Opposition Comments, at 2-3, 12-15; MITA Class 12 Opposition

Comments at, 3.

440

Nixing the Fix, at 24.

441

See, e.g., Class 12 Opposition Comments of ACT | The App Association (ACT Class 12 Opposition

Comments), Docket No. 2020-11, at 3, 5,

https://www.copyright.gov/1201/2021/comments/opposition/Class_12_Opp'n_ACT%20The%20App%20

Association.pdf; Auto Innovators Class 12 Opposition Comments, at 7.

with the authorization of the owner or operator of such computer, computer system, or

computer network, solely for the purpose of good-faith security research and does not

violate any applicable law, including without limitation the Computer Fraud and Abuse Act

of 1986.

(ii) For purposes of this paragraph (b)(11), “good-faith security research” means accessing a

computer program solely for purposes of good-faith testing, investigation, and/or correction

of a security flaw or vulnerability, where such activity is carried out in an environment

designed to avoid any harm to individuals or the public, and where the information derived

from the activity is used primarily to promote the security or safety of the class of devices

or machines on which the computer program operates, or those who use such devices or

machines, and is not used or maintained in a manner that facilitates copyright

infringement.

442

Several organizations and individuals, including security researchers, submitted petitions to renew

the exemption.

443

The petitioners presented information showing there is a continuing need for

the exemption.

444

Consumer Reports submitted comments supporting the exemption’s renewal.

445

The Copyright Office found no meaningful opposition on the record to renew the current

exemption.

446

NTIA agrees with the Copyright Office’s conclusion that for this exemption “the

conditions that led to adoption of this exemption are likely to continue during the next triennial

period.”

447

Because the petitioners demonstrated the continuing need for these exemptions, and

because they were unopposed, NTIA urges the adoption of an exemption that, at minimum,

includes the previously exempted class of work and use cases.

Two petitions seek to modify the current security research exemption. Professor J. Alex

Halderman, the Center for Democracy & Technology, and the U.S. Technology Policy

Committee of the Association for Computing Machinery, filed a petition to remove several

442

37 C.F.R. § 201.40(b)(11).

443

Class 13 Petition to Renew Exemption of J. Alex Halderman, et al. (Halderman Class 13 Renewal

Petition), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/petitions/renewal/Renewal%20Pet.%20-

%20Security%20Research%20-%20Halderman,%20CDT,%20ACM.pdf; Class 13 Petition to Renew

Exemption of Professor Matt Blaze and Professor Steven Bellovin (Blaze & Bellovin Class 13 Renewal

Petition), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/petitions/renewal/Renewal%20Pet.%20-

%20Security%20Research%20-%20Blaze%20&%20Bellovin.pdf; Class 13 Petition to Renew Exemption

of MEMA (MEMA Class 12 Renewal Petition), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/petitions/renewal/Renewal%20Pet.%20-

%20Security%20Research%20-%20MEMA.pdf. In the context of discussing a separate exemption,

another party also expressed support for the security research exemption. Coalition Class 9 Renewal

Petition, at 4.

444

2020 NPRM, 85 Fed. Reg. 65293, 65300.

445

Class 13 Reply Comments of Consumer Reports (Consumer Reports Class 13 Reply Comments),

Docket No. 2020-11,

https://www.copyright.gov/1201/2021/petitions/renewal/Supp.%20-

%20Security%20Research%20-%20Consumer%20Reports.pdf.

446

2020 NPRM, 85 Fed. Reg. 65293, 65300.

447

Id. at 65301.

limitations in the current exemption (Halderman Petition).

448

The Software Freedom

Conservancy (SFC) filed a petition to “clarify that the definition of ‘good faith security research’

. . . includes good-faith testing, investigation, and/or correction of privacy issues (including flaws

or functionality that may expose personal information) and permits the owner of the device to

remove software or disable functionality that may expose personal information” (SFC

Petition).

449

The Free Software Foundation, HackerOne, Rapid7, Consumer Reports, and

GitHub submitted supportive comments to varying extents and focusing on particular petitions or

aspects of those petitions.

450

The U.S. Department of Justice’s Computer Crime and Intellectual

Property Section (CCIPS) also submitted comments contributing its views on the proposals.

451

448

Class 13 Petition for New Exemption of J. Alex Halderman, et al. (Halderman Class 13 New

Exemption Petition), Docket No. 2020-11, at 2-4,

https://www.copyright.gov/1201/2021/petitions/proposed/New%20Pet.%20-

%20J.%20Alex%20Halderman%20et%20al.pdf. As described by the Copyright Office, petitioners seek

removal of: “(1) The requirement that circumvention be undertaken on a ‘lawfully acquired device or

machine on which the computer program operates’ and ‘not violate any applicable law’; (2) both

instances of the term ‘solely’ (i.e., ‘solely for the purpose of good-faith security research’ and ‘solely for

purposes of good-faith testing, investigation, and/or correction of a security flaw or vulnerability’); and

(3) the requirement that the information derived from the activity be used ‘primarily to promote the

security or safety of the class of devices or machines on which the computer program operates, or those

who use such devices or machines, and is not used or maintained in a manner that facilitates copyright

infringement.’” 2020 NPRM, 85 Fed. Reg. 65293, 65307 (citing Halderman Class 13 New Exemption

Petition, at 3) (quotation marks in original). Petitioners here request similar changes as those sought in

the 2018 rulemaking.

448

2020 NPRM, 85 Fed. Reg. 65293, 65307.

449

2020 NPRM, 85 Fed. Reg. 65293, 65307 (citing Class 13 Petition for New Exemption of Software

Freedom Conservancy (SFC Class 13 Petition), Docket No. 2020-11, at 2,

https://www.copyright.gov/1201/2021/petitions/proposed/New%20Pet.%20-

%20Software%20Freedom%20Conservancy%20-%202.pdf).

450

See Class 13 Initial Comments of Free Software Foundation, Inc. (FSF Class 13 Initial Comments),

Docket No. 2020-11,

https://www.copyright.gov/1201/2021/comments/Class%2013_InitialComments_Free%20Software%20F

oundation.pdf; Class 13 Initial Comments of HackerOne (HackerOne Class 13 Initial Comments), Docket

No. 2020-11,

https://www.copyright.gov/1201/2021/comments/Class%2013_InitialComments_HackerOne.pdf; Class

13 Initial Comments of Rapid7 (Rapid7 Class 13 Initial Comments), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/comments/Class%2013_InitialComments_Rapid7.pdf; Consumer

Reports Class 13 Reply Comments; Class 13 Reply Comments of GitHub (GitHub Class 13 Reply

Comments), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/comments/reply/Class%2013_Reply_GitHub.pdf. Cybersecurity

and data analytics company Rapid7 in particular submitted helpful alternative approaches that may

address some of the concerns raised in the Halderman and SFC petitions. Rapid7 Class 13 Initial

Comments at 2-8.

451

Class 13 Reply Comments of Department of Justice (DOJ Class 13 Reply Comments), Docket No.

2020-11, at 4,

https://www.copyright.gov/1201/2021/comments/reply/Class%2013_Reply_Department%20of%20Justic

e.pdf.

ACT -- The App Association, BSA -- The Software Alliance, DVD CCA and AACS LA,

JCCO,

452

MEMA, and SIIA oppose the petitions on several grounds.

453

NTIA Position: NTIA recommends an exemption that largely advances the proposals in

the Halderman Petition, as further described below.

454

In line with its 2018 submission, NTIA

agrees with CCIPS that “while the DMCA was enacted to serve the important goal of protecting

technological measures and thereby bolstering protection for the exclusive rights granted by

neither the most efficient nor most appropriate tool for doing so.”

455

NTIA is also strongly supportive of privacy-related research activities within the current

good-faith security research exemption. NTIA, however, does not recommend modifying the

current regulatory language to address the SFC Petition. NTIA believes that the current

exemption already covers the privacy-related research activities referenced in the participants’

post-hearing May 14, 2021 letter, of which SFC and some opponents were signatories

(participants’ post-hearing letter).

456

As a result of this development in the record, NTIA at this

time believes it is appropriate in this particular instance for the Register in its Recommendation

and the Librarian when issuing final rules to adopt this understanding into their guidance.

Furthermore, NTIA recommends that the Register and the Librarian note that the activities

referenced in the participants’ post-hearing letter do not encompass the totality of privacy-related

research activities that are permitted with the good-faith security research exemption. Because

NTIA believes the good-faith security research exemption already encompasses the listed

452

Class 13 Opposition Comments of MPA (MPA Class 13 Opposition Comments), Docket 2020-11, at

https://www.copyright.gov/1201/2021/comments/opposition/corrections/2021-04-

29%20CORRECTED%20FINAL%20JCCO%20Class%2013%20Comments%20Security%20Research%

20%2002%2009(13130401.1).pdf.

453

Generally, opponents believe that petitioners have not shown sufficient support for any of the proposed

modifications. More specific concerns are addressed throughout this section.

454

Both in 2015 and 2018, NTIA did not include a definition of “good-faith security research” in its

proposed regulatory text. NTIA does not introduce such a definition in its proposed regulatory text in this

rulemaking, but understands that the proposals in this rulemaking are different than the 2018 proposals

(e.g., there is no proposal to remove the “controlled environment” limitation). As such, NTIA in this

rulemaking operates under the assumption that the regulatory text will maintain a definition for good-faith

security research (if the exemption is at least renewed).

455

DOJ Class 13 Reply Comments, at 4; see 2018 NTIA Letter, at 73 (“NTIA also agrees with the view

of the Department of Justice’s Computer Crime and Intellectual Property Section (CCIPS) that ‘the

DMCA is not the sole nor even the primary legal protection preventing malicious tampering with [devices

such as voting machines or motorized land vehicles], or otherwise defining the contours of appropriate

research.’”) (citing Letter from John T. Lynch, Jr., Chief, U.S. Department of Justice, to Regan Smith,

https://www.copyright.gov/1201/2018/USCO-letters/USDOJ_Letter_to_USCO.pdf

.).

456

Class 13 Post-Hearing Letter of Participants (Participants’ Class 13 Post-Hearing Letter), Docket No.,

2020-11,

https://www.copyright.gov/1201/2021/post-hearing/letters/Class-13-Joint-Post-Hearing-

Response.pdf.

activities in the participants’ post-hearing letter, NTIA’s discussion below focuses primarily on

the Halderman Petition, except where otherwise noted.

Analysis: Good-faith security research is critical to address threats of vital national,

economic, and societal interest. As highlighted in this rulemaking, the threats that security

researchers are analyzing are not hypotheticals; they are “real and persistent.”

457

The importance

of such research continues to increase given the “the ubiquity of software in modern life.”

458

Security research often takes place in educational settings, but it is not limited to purely

academic environments.

459

NTIA explained in its 2015 submission that “it is essential that

security researchers have the ability to conduct necessary research in order to identify and notify

publishers and the public before the vulnerabilities lead to massive breaches or exploitations.”

460

NTIA continues to believe that supporting an inclusive security research exemption that provides

457

See Class 13 Initial Comments of J. Alex Halderman, et al., (Halderman Class 13 Initial Comments),

Docket No. 2020-11, at 8,

https://www.copyright.gov/1201/2021/comments/Class%2013_InitialComments_J.%20Alex%20Halderm

an,%20Center%20for%20Democracy%20&%20Technology,%20and%20U.S.%20Technology%20Policy

%20Committee%20of%20the%20Association%20for%20Computing%20Machinery.pdf; Participants’

Class 13 Post-Hearing Letter, at 33-34 (“Good-faith security research and testing are matters of national

security policy. Without robust security testing, bad actors can exploit vulnerabilities in national computer

programs to the detriment of the United States and its citizens.”); HackerOne Class 13 Initial Comments,

at 2 (“We live in an era of stunning security failures and breakneck innovation. Bad actors can now easily

obtain the tools they need to steal our most precious resource: our information – health records, financial

data, and private communication between friends and family to name a few. The stakes could not be

higher. Security is everyone’s responsibility.”); DOJ Class 13 Reply Comments, at 2 (“[T]he Department

[of Justice] is keenly aware of the harms that can result from exploitation of technological vulnerabilities

in software, as well as the benefits that legitimate security research provides to the government and the

public by identifying vulnerabilities in software, devices, and networks and defending such systems from

criminal exploitation.”).

458

Halderman Class 13 Initial Comments, at 8 (adding that “[o]ur world continues to run on software.

Software underlies nearly every aspect of modern life—from digital devices that we interact with on a

daily—or even hourly—basis, to the public infrastructure that runs our everyday lives. Software underlies

the World Wide Web, vehicles, home appliances, our elections, and our life-saving medical devices.”); Id.

(“The pandemic has also created a new atmosphere of opportunity for malicious actors as more people are

working from home and increasingly dependent on digital applications for everyday services.”) (citing

Interpol, “INTERPOL report shows alarming rate of cyberattacks during COVID-19” (Aug. 4, 2020),

https://www.interpol.int/en/News-and-Events/News/2020/INTERPOL-report-shows-alarming-rate-of-

cyberattacks-during-COVID-19; GitHub Class 13 Reply Comments, at 2, (“Just the open source

dependencies in the software supply chain number in the millions.”).

459

GitHub Class 13 Reply Comments, at 2 (“Not everyone who contributes to the safety and security of

software is a professor at a prestigious university. Important contributions to security come not only from

academia, but also from those working in enterprises—and from a large community of civic-minded

independent researchers who understand the broader impacts of software security, even if not for their day

job.”).

460

2015 NTIA Letter, at 73 (internal citation omitted) (emphasis in original).

certainty to security researchers will ultimately lead to more good-faith security research and

serve the public interest in significant ways.

461

The proposed class includes at least some copyrighted works protected by technological

protection measures.

462

The record demonstrates that the uses envisioned under the modified

good-faith security research exemption are noninfringing uses, and in particular fair uses.

463

in the Seventh Rulemaking, where many of the proposals requested here were also sought, NTIA

believes “that the uses described are similar or identical to those allowed by the current security

research exemption.”

464

The fair use statutory factors are not exhaustive and no one factor is automatically and

always dominant over others, as they must be analyzed in relation to each other and in the

specific context in which they are raised.

465

Under the first factor, the purpose and character of

461

See generally 2018 NTIA Letter, at 71-84; 2015 NTIA Letter, at 71-89.

462

Halderman Class 13 Initial Comments, at 11-13.

463

Id. at 14-17. Although proponents in the Halderman Petition did not discuss the applicability of

Section 117 of Title 17 in this rulemaking, NTIA notes that Section 117 may continue to provide a basis

for noninfringing uses under this section in some instances, although NTIA understands that the Acting

recommend an exemption on these grounds. See 2018 Register’s Recommendation, at 291-92 (“While

the ownership analysis provided by [petitioner] may well be accurate as to some categories of software-

enabled devices, he offered no evidence that would enable the Acting Register to reach that conclusion

with respect to such devices generally.”); see also 2018 NTIA Letter, at 74; 2015 NTIA Letter, at 74.

464

2018 NTIA Letter, at 74 (noting that “[i]n 2010 and 2015 the Register and Librarian concluded that

security research (in a variety of forms) is a fair use. See 2010 Final Rule, 75 Fed. Reg. at 43833; 2015

Final Rule, 80 Fed. Reg. at 65956.”); Halderman Class 13 Initial Comments, at 14-15 (“This fair use

analysis relates to all the requested modifications because the current limitations restrict good-faith

security researchers’ noninfringing activities. Except where noted, the fair use factors apply in the same

or substantially similar ways for each of the good-faith security research uses that would be permitted if

the modifications to the existing exemption were granted. While it is difficult to offer a specific

infringement analysis for each individual use, all of the uses are consistently under the banner of fair use

and therefore support the modification of this exemption since they will not result in copyright

infringement. The proposed exemption does not seek to insulate activities that go beyond security

research.”) (internal footnotes and citations omitted).

465

See Campbell, 510 U.S. at 578 (“Nor may the four statutory factors be treated in isolation, one from

another. All are to be explored, and the results weighted together, in light of the purposes of copyright.”)

(internal citations omitted); Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913, 956 (2d Cir. 1994)

(interpreting Campbell as “[a]pparently abandoning the idea that any factor enjoys primacy.”); See also

Google LLC v. Oracle Am., Inc., 141 S.Ct. 1183, 1197 (2021) (“In applying this provision, we, like other

courts, have understood that the provision’s list of factors is not exhaustive (note the words ‘include’ and

‘including’), that the examples it sets forth do not exclude other examples (note the words ‘such as’), and

that some factors may prove more important in some contexts than in others.” See also Campbell, 510

U.S. at 577; Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560, (1985);

Leval, Toward a Fair Use Standard, 103 H

ARV. L. REV. 1105, 1110 (1990) (Leval) (‘The factors do not

represent a score card that promises victory to the winner of the majority’)) (quotation marks in original);

id. at 1197-98 (“The language of § 107, the “fair use” provision, reflects its judge-made origins . . . . That

background, as well as modern courts’ use of the doctrine, makes clear that the concept is flexible, that

the use remain the same as they did in 2018, when the Copyright Office and the Librarian found

that activities under the good-faith security research exemption are likely to be transformative.

466

Indeed, NTIA believes that modifying the security research exemption to address many of its

current limitations will help bring about more good-faith security research (and more effective

research as well) by bringing more certainty to research, teaching, criticism, scholarship,

commentary, and news reporting.

467

Security research supports a vital public interest in, among

other things, promoting the development of safer devices, as well as the safety of the digital

environment against critical threats, which are sometimes enabled by malicious actors. That the

use could be commercial does not negate a finding of fair use here.

468

Under the second factor,

the copyrighted works at issue continue to be the same under the proposed modification

(computer programs used to operate machines, devices or systems), and therefore “are likely to

fall on the functional rather than creative end of the spectrum.”

469

Under the third factor, even when security researchers may have to copy part or all of the

copyrighted work at issue, the third factor can tilt in favor of fair use when the copying is for a

transformative purpose and the user copies only what was necessary for that purpose.

470

The

fourth factor likely does not weigh against fair use, or, at the very least, does not eliminate a

finding of fair use when all factors are analyzed together in the context for this proposed

exemption. Some of the activities here, as has been recognized previously, lead to harms that are

not cognizable under the fourth factor or copyright in general (e.g., reputational harm to a

product if security vulnerabilities are discovered).

471

Moreover, the Supreme Court has indicated

courts must apply it in light of the sometimes-conflicting aims of copyright law, and that its application

may well vary depending upon context. Thus, copyright's protection may be stronger where the

copyrighted material is fiction, not fact, where it consists of a motion picture rather than a news broadcast,

or where it serves an artistic rather than a utilitarian function.”) (internal citations omitted).

466

See Halderman Class 13 Initial Comments, at 15 (citing 2018 Register’s Recommendation, at 294).

467

The fair use statute, 17 U.S.C. § 107, explicitly recognizes these activities as prototypical examples of

fair uses. See Halderman Class 13 Initial Comments, at 15 (“The additional proposed activities are once

again of the same purpose and character; removal of the Use Limitations would merely ensure that

security researchers would not be chilled as they engage in scientific dialogue, classroom teaching and

other scholarship, activities long established in Section 107 to be transformative in nature. Thus, the first

factor weighs heavily in favor of fair use, and each limitation should be removed because they restrict

noninfringing uses.”).

468

See Campbell, 510 U.S. at 579 (“[T]he goal of copyright, to promote science and arts, is generally

furthered by the creation of transformative works. Such works thus lie at the heart of the fair use

doctrine’s guarantee of breathing space within the confines of copyright, [. . .] and the more

transformative the new work, the less will be the significance of other factors, like commercialism, that

may weigh against a finding of fair use.”) (internal citation omitted).

469

Halderman Class 13 Initial Comments, at 15-16 (citing 2018 Register’s Recommendation, at 295-96).

470

Even if the third factor were to disfavor fair use, the Acting Register in 2018 also recognized that that

factor is “not accorded significant weight where functional elements of a program cannot be investigated

without some intermediate reproduction.” Halderman Class 13 Initial Comments, at 16 (citing 2018

471

2018 Register’s Recommendation, at 296; see also, Halderman Class 13 Initial Comments, at 20

(“After conducting this kind research, Prof Halderman and other researchers simply seek to publish code

that “market harm is a matter of degree, and the importance of this [fourth] factor will vary, not

only with the amount of harm, but also with the relative strength of the showing on the other

factors.”

472

A more recent decision has noted that “potential loss of revenue is not the whole

story” to analyzing the fourth factor, and that public benefits that the copyright will produce can

be taken into account.

473

The Copyright Office and the Librarian should consider these

dynamics, as applicable, insofar as they help shape the determination of the fourth factor under

the proposed modifications. The Copyright Office and the Librarian should also consider

whether, even if the fourth factor tilts against fair use, the full analysis weighs in favor of fair use

given the other fair use factors and the specific conditions that petitioners have identified are

present in the security research world.

474

snippets in their research to highlight and discuss the vulnerabilities they have identified—not to reuse,

resell, or otherwise repurpose the software. Even if the publication had some impact on the potential

market—such as by dissuading election administrators from purchasing services from vendors that

produce vulnerable election software—that would not be the kind of market effect protectable by

472

Campbell, 510 U.S. at 590, n. 21.

473

Google, 141 S. Ct. 1183 at 1206 (“Further, we must take into account the public benefits the copying

will produce. Are those benefits, for example, related to copyright’s concern for the creative production

of new expression? Are they comparatively important, or unimportant, when compared with dollar

amounts likely lost (taking into account as well the nature of the source of the loss)? Cf. MCA, INC. v.

Wilson, 677 F.2d 180, 183 (C.A.2 1981) (calling for a balancing of public benefits and losses to copyright

owner under this factor). We do not say that these questions are always relevant to the application of fair

use, not even in the world of computer programs. Nor do we say that these questions are the only

questions a court might ask. But we do find them relevant here in helping to determine the likely market

effects of Google’s reimplementation.”).

474

NTIA emphasizes that it does not advocate that any users in this class engage in illegal behavior. This

rulemaking cannot grant permission for users in this class to abstain from the need to follow any other

law. In this particular context, NTIA questions whether it is reasonable to assume that users in this class

will likely engage in widespread illegal behavior, such as obtaining devices unlawfully, when such

evidence has not been presented on the record (the opposite is true – proponents have stressed and given

examples of the caution good faith security researchers take to comply with the law) and proponents have

asserted legal ambiguities in the area of ownership. In 2018, the Acting Register, in the context of the fair

use analysis, did not remove the “lawfully acquired” provision and noted that “acquiring a device in

violation of law would weigh heavily against a fair use finding, as it is plainly conduct that, were it to

become widespread, would adversely affect the software copyright owner’s potential market.”) See 2018

2018 that the fourth factor weighed in favor of fair use subject to that limitation. Id. However, the

allegations presented back then (and now) were speculative about the likelihood of users in this class

engaging in such behavior. Consequently, NTIA is curious whether the analysis can just assume

widespread illegal behavior in the abstract, or whether there needs to be at least some showing beyond

speculation or mere assertion that the alleged illicit conduct will materialize in this class in such a way

that it provides a reasonable basis to conclude that the conduct will likely be widespread. Cf. 4 Patry on

factor in the copyright owner’s favor, if the use is of a type which, if widespread, would result in

substantial harm, this fact should be taken into account.

At the same time, the mere assertion that others

Proponents assert that several provisions in the current exemption adversely affect or are

likely to adversely affect users of this class of work. As to the Halderman Petition, opponents

generally argue that proponents have failed to meet their burden, that the Librarian already

rejected many of these proposals in 2018, that the underlying rationale for these rejections has

not changed and that the current temporary exemption properly balances equities, that in some

cases the Copyright Office issued administrative guidance to address similar concerns presented

in this rulemaking, that the proposed class is overbroad, and that the Librarian should strive to

follow similar language found in the statutory exemptions.

475

Other arguments against the

proposals include alleged diminished protections for software developers, as well as

compromising the technology associated with the protection of copyrighted works in DVDs and

Blu-Ray Discs.

476

As with its submission in 2018, NTIA believes that proponents have made

might engage in similar uses should be insufficient to raise a credible inference of widespread similar use:

reasonable grounds for such an inference must be presented; otherwise, genuinely insubstantial market

harms are given undue weight.”) (internal footnote omitted). Furthermore, the temporary good-faith

security research exemption is not the only law or regulation pertaining to the legality of acquiring

devices or addressing illegal behavior that could be considered possible. See Halderman Class 13 Initial

Comments, at 4 (“Our proposed modifications largely preserve the existing definition of ‘good faith

security research,’ which categorically excludes any conduct that amounts to or facilitates infringement.

Moreover, our proposed modifications do not change the applicability of other existing legal remedies

that are available to protect the rights of copyright holders. Our proposed modifications will simply

eliminate ambiguities with the existing exemption that creates uncertainty for security researchers.”).

475

See Class 13 Opposition Comments of ACT | The App Association (ACT Class 13 Opposition

Comments), Docket No. 2020-11, at 2-4,

https://www.copyright.gov/1201/2021/comments/opposition/Class_13_Opp'n_ACT%20The%20App%20

Association.pdf; Class 13 Opposition Comments of Software Alliance (Software Alliance Class 13

Opposition Comments), Docket 2020-11, at 3-6,

https://www.copyright.gov/1201/2021/comments/opposition/Class_13_Opp'n_BSA%20The%20Software

%20Alliance.pdf; Class 13 Opposition Comments of SIIA (SIIA Class 13 Opposition Comments), Docket

No. 2020-11, at 3-5,

https://www.copyright.gov/1201/2021/comments/opposition/Class_13_Opp'n_Software%20and%20Infor

mation%20Industry%20Association.pdf; Class 13 Opposition Comments of DVD CCA and AACS (DVD

CCA Class 13 Opposition Comments), Docket No. 2020-11, at 3-6,

https://www.copyright.gov/1201/2021/comments/opposition/Class_13_Opp'n_DVD%20CCA%20and%2

0AACS%20LA.pdf; Class 13 Opposition Comments of Joint Creators (Joint Creators Class 13

Opposition Comments), Docket No. 2020-11, at 3-6,

https://www.copyright.gov/1201/2021/comments/opposition/corrections/2021-04-

29%20CORRECTED%20FINAL%20JCCO%20Class%2013%20Comments%20Security%20Research%

20%2002%2009(13130401.1).pdf; Class 13 Opposition Comments of MEMA (MEMA Class 13

Opposition Comments), Docket No. 2020-11, at 1-2,

https://www.copyright.gov/1201/2021/comments/opposition/Class_13_Opp'n_The%20Motor%20&%20E

quipment%20Manufacturers%20Association%20FINAL.pdf.

476

ACT Class 13 Opposition Comments, at 3 (“The proposed new exemption for security testing

effectively removes all protections afforded to software developers to protect their code, their business,

and their customers.”); DVD CCA Class 13 Opposition Comments, at 3-4.

their case that a modified exemption largely incorporating the proposals presented here would be

sufficiently narrow and focused for the purposes of Section 1201.

477

In response to SFC’s initial petition and Round 1 comments, opponents question SFC’s

interpretation of the statutory exemption for “protection of personally identifying information” in

17 U.S.C. § 1201(i) and expressed uncertainty about the scope of SFC’s proposal.

478

Opponents

further argue that the proposal is broader than what is permitted under the current temporary

security research exemption,

479

that the security research exemption seeks to address ambiguities

in section 1201(j) while the proposal focuses on ambiguities in section 1201(i),

480

and that the

harms appeared more theoretical than real, arguing that “consumers can choose the ecosystem

that works best for them as both closed and open-source systems are flourishing.”

481

NTIA addresses the various proposals in turn.

482

The “Any Applicable Law” Provision: NTIA is persuaded that users in this class are

adversely affected or likely to be adversely affected by the language in the current exemption

that circumvention “does not violate any applicable law, including without limitation the

Computer Fraud and Abuse Act of 1986.”

483

Proponents argue that the current regulatory

language “mak[es] the entire body of federal, state, and local law a trigger for liability under

Section 1201,” which raises an uncertainty when undertaking security research since it is not

always evident when liability under these other laws would apply, and inappropriately brings

non-copyright law considerations into the exemption and exports DMCA liability to other legal

regimes.

484

477

2018 NTIA Letter, at 75.

478

Joint Creators Class 13 Opposition Comments, at 6-7.

479

MEMA Class 13 Opposition Comments, at 1-2.

480

Class 13 Opposition Comments of BSA | The Software Alliance (BSA Class 13 Opposition

Comments), Docket No. 2020-11, at 7,

https://www.copyright.gov/1201/2021/comments/opposition/Class_13_Opp'n_BSA%20The%20Software

%20Alliance.pdf.

481

ACT Class 13 Opposition Comment, at 3.

482

Proponents in various places raise First Amendment constitutional concerns, and in particular

reference the decision of the District Court for the District of Columbia in Green v. U.S. Dept. of Justice,

et al, 392 F.Supp.3d 68 (D.D.C. 2019); see id. at 9, 19-21. While the rulemaking record contains

discussion of Green, NTIA notes that nothing in this submission should be read as opining on any aspect

of that litigation against U.S. government agencies.

483

Halderman Class 13 Initial Comments, at 31-32.

484

Id. at 23, 26-27 (“This is especially problematic in the context of laws like the CFAA that depend on

nuanced prosecutorial discretion and guidance to differentiate purely technical violations that are rarely—

if ever—litigated from instances where researchers are actually likely to face liability or prosecution.”)

(internal footnote and citation omitted); see also Rapid7 Class 13 Initial Comments, at 4 (“Researchers

that seek to ensure protection under the current temporary exemption for security research are forced to

weigh legal risks associated with the ambiguities of numerous obscure laws with uneven application in

different jurisdictions. It is concerning that if good faith security research violates an obscure legal

NTIA emphasizes that an exemption granted under this rulemaking does not obviate the

need to comply with any other laws and regulations. The Librarian does not have the authority to

exempt parties from their duty to comply with other laws and regulations, even with respect to

other aspects of the DMCA such as the anti-trafficking provisions.

485

Likewise, it does not

prevent parties from seeking relief pursuant to these laws as appropriate. Moreover, the

prohibition on circumvention is not the best vehicle to ensure compliance with other laws

unrelated to copyright, including the CFAA.

486

NTIA understands, however, that the current

regulatory language in essence exports potential liability under the DMCA to any other legal

regime.

487

This also brings non-copyright law considerations into this exemption. Even if the

conduct at issue otherwise falls within the bounds of the security research exemption, a technical

violation of any applicable law could make the security researchers ineligible for the exemption

and liable for violation of section 1201, even if that law has little or nothing to do with the

DMCA or protecting copyright.

488

At that point, the security researcher would presumably be

subject to the civil remedies listed in section 1203.

489

Although opponents contend that the

provision with no bearing on security or copyright, the security testing exemption may thus be forfeited

and the researcher thereby exposed to private lawsuits under 17 USC 1203(a)(1)-(2)”).

485

2018 Register’s Recommendation, at 11-12 (“The Register does not have authority to recommend—

nor does the Librarian of Congress have authority to adopt—exemptions for these anti-trafficking

prohibitions as part of the triennial rulemaking process . . . . The Librarian cannot exempt any parties

from their duty to comply with other laws, including non-copyright statutes or regulations.”) (internal

citation omitted); see, e.g., April 8 Hearing Transcript, Remarks of Christian Troncoso, at 478 (“I

understand that there is a legal overlay to a lot of the activity that is in play with security research, but that

legal overlay is not going to go away merely by removing the limitations in this exemption. That legal

overlay is the natural byproduct of there being a statutory prohibition that can cover this activity and other

statutes, the CFAA and others [. . . ].”) and Wilson Scarbeary, at 497 (One proponent notes that they “still

maintain that there’s no way the exemption could really be read to also be an exemption to the CFAA.”);

Rapid7 Class 13 Initial Comments, at 2-3 (“These other laws apply independently of section 1201, and

violations carry their own penalties, remedies, and enforcement entities separate from copyright and the

Librarian of Congress.”), citing 2015 Register’s Recommendation, at 316 (noting that “the rules that

should govern [security research] are best considered by those responsible for our national security and

for regulating the consumer products and services at issue.”) (brackets added in Rapid7’s comment).

486

See, e.g., DOJ Class 13 Reply Comment, at 4 (“Yet, as we noted in our 2018 comments, while the

DMCA was enacted to serve the important goal of protecting technological measures and thereby

bolstering protection for the exclusive rights granted by copyright, it was not designed to ensure

compliance with other laws unrelated to copyright. It is neither the most efficient nor most appropriate

tool for doing so.”); see also 2018 Register’s Recommendation, at 301, n. 1831 (“The Copyright Office

subsequently issued its Section 1201 Report, reiterating that ‘other agencies should not rely on section

1201 to help enforce or cover gaps in their own . . . regulations.’”) (citing to Section 1201, at 124-126)

(internal quotation marks in original).

487

DOJ Class 13 Reply Comments, at 4 (“The existing language significantly increases the potential

consequences to security researchers of even a minor violation of the law by exposing them to DMCA

liability in addition to whatever penalty may apply directly to the violation.”) (emphasis added); NTIA

2018 Letter, at 78-79.

488

Id.

489

See Halderman Class 13 Initial Comments, at 26; see also DOJ Class 13 Reply Comments, at 4

(“Unfortunately, conditioning the security research exemption on the requirement that the research ‘not

prohibition on circumvention is not a cause of the adverse effects proponents raise,

490

proponents

explain how in practice the “any applicable law” provision in the exemption makes it more

difficult to launch legitimate research projects.

491

This dynamic can also create the conditions

for parties that according to proponents allegedly “merely seek to leverage Section 1201 to

intimidate critics or opponents” by raising claims “that have no actual basis in copyright law” but

nonetheless use a copyright hook to dissuade researchers from their otherwise legitimate

activities.

492

The negative impact of this provision on security research is further compounded if

the “any applicable law” provision includes laws and regulations outside of the United States, a

concern that has been expressed in this rulemaking given the continually evolving software

product market and security research collaboration across borders.

493

NTIA agrees with

violate any applicable law’ effectively means that where a researcher has undertaken a project involving

circumvention in good faith, after diligent efforts to ensure legal compliance, even a minor violation of

applicable law could prevent the security research exemption from applying, and result in substantial

liability under the DMCA.) (quotation marks in original). Several opponents noted that the threat of

criminal liability is low in part due to the elements required to be liable under Section 1204 of Title 17.

See, e.g., Joint Creators Class 13 Opposition Comments, at 6. However, proponents here focused their

discussion on section 1203, not section 1204. CCIPS has recognized that the risk of DMCA liability for

violation of any applicable law, including even a minor violation, is legitimate. See DOJ Class 13 Reply

Comments, at 4.

490

See, e.g., April 8 Hearing Transcript, Remarks of Chris Mohr, at 498 (“[I]f all of these other laws are

problematic in stopping this kind of [security] research and they are somehow in the way, then the

[section 1201] statute is not in the way.”); BSA Class 13 Opposition Comments, at 5-6; SIIA Class 13

Opposition Comments, at 4 (“Conversely, if the CFAA or ECPA (or similar statute) prevents certain

activity, then 1201 does not cause the adverse effect as a matter of law.”).

491

See, e.g., April 8 Hearing Transcript, Remarks of Blake Reid, at 503-04, (“[W]e’re dealing with people

who to need to affirmatively demonstrate that their behavior is sufficiently not risky, for example, to get

the go-ahead from their university or their company to move ahead.”), Stan Adams, at 499, (“[B]ecause

they are tied conditionally to 1201, all these other laws become part of 1201 and are part of the problem [.

. .].”), and Blake Reid, at 437 (Explicitly tying section 1201 and every other lead “significantly

complicates the risk calculus for security researchers.”).

492

Halderman Class 13 Initial Comments, at 26, 29; see also April 8 Hearing Transcript, Remarks of

Blake Reid, at 489 (“And I think a lot of [proponents’] concerns here are rooted in a need for certainty

that the users of the exemption are indeed complying with the law and not merely that they’re avoided

getting sued.”).

493

See Rapid7 Class 13 Initial Comments, at 5; see also DOJ Class 13 Reply Comments, at 4 (“An

increasing portion of contemporary computer security research involves collaboration among researchers

across international borders. Accordingly, the ‘any applicable law’ requirement means that a U.S.

researcher’s violation of foreign law could result in a loss of the exemption and attendant liability under

the DMCA. This could be the consequence even where the foreign violation is an obscure or minor one,

the foreign law in question is more onerous than or inconsistent with U.S. law, or the foreign law is

administered or enforced in a manner inconsistent with U.S. standards.”); Class 13 Ex Parte Letter of

Rapid7 and Halderman (Rapid7 and Halderman Class 13 Ex Parte Letter), Docket No. 2020-11, at 2,

https://www.copyright.gov/1201/2021/ex-parte/Class-13-Ex-Parte-Meeting-Summary-proponents.pdf

(“There is nothing in Section 1201 that says obscure and extraterritorial laws do not apply under the ‘any

applicable law”’ provision.). There is disagreement on the record on whether the “any applicable law”

provision should be read to sweep in foreign laws. See April 8 Hearing Transcript, Remarks of Chris

proponents that the “any applicable law” provision tends to pull significant non-copyright law

and policy considerations into this rulemaking process.

494

Removing this limitation would also

help in the administration and evaluation of the exemption.

495

Although NTIA supports

removing and replacing the “any applicable law” language as noted in this section, should the

Librarian retain that regulatory language as is, NTIA urges the Copyright Office and the

Librarian to at the very least indicate that the “any applicable law” limitation as written in the

regulation should not necessarily be understood to apply to foreign laws, as even some

opponents do not appear to agree with that interpretation of the limitation.

496

Previously, the Copyright Office has noted that the “any applicable law” provision is

similar to the condition under the statutory exemption for security testing under section 1201(j),

and opponents emphasize that the Librarian should be wary of removing the language since it

was Congress that wrote such language into the statute.

497

While the provision is modeled after

the statutory language, the Librarian does not need to always duplicate that model in the

temporary exemption, particularly when the record demonstrates a strong need to do otherwise.

This rulemaking affords the Librarian the opportunity and flexibility to devise exemptions that

address current concerns, and the rulemaking serves a way to supplement the permanent

exemptions.

498

Mohr, at 491-493 (noting that “the copyright laws certainly have not been interpreted to have

extraterritorial reach”).

494

See Halderman Class 13 Initial Comments, at 26.

495

See id. at 4 (“Additionally, the current exemption imports uncertainty from legal regimes outside of

security researchers and unnecessary complexity for the Office in administering these rules.”).

496

See, e.g., SIIA Class 13 Opposition Comments, at 4. One opponent also mentioned that he “never

thought of foreign laws as being part of that limitation on the exemption” and would support clarifying

that without changing the regulatory language. April 8 Hearing Transcript, Remarks of J. Matthew

Williams, at 493.

497

See, e.g., Joint Creators Class 13 Opposition Comments, at 6 (“Congress wrote a similar requirement

that researchers must comply with laws other than the Copyright Act into the statutory security testing

exemption, Section 1201(j). Thus, Congress clearly had no problem with other laws being considered in

connection with Section 1201, and neither should the Copyright Office.”); see also ACT Class 13

Opposition Comments, at 2; BSA Class 13 Opposition Comments, at 6; SIIA Class 13 Opposition

Comments, at 4.

498

See DOJ Class 13 Reply Comments, at 4, n. 8 (“We recognize that a similar requirement that good

faith security testing not constitute ‘a violation of applicable law’ is incorporated in the DMCA’s

statutory exception for security testing under § 1201(j)(2). One advantage of the Register’s triennial

review process, however, is that it permits the language of exemptions to adapt to evolving technologies,

market conditions, and legal landscapes.”) (internal italics and quotation marks in original); April 8

Hearing Transcript, Remarks of Wilson Scarbeary, at 498, (“The purpose of this rulemaking is because

Congress recognized that those [statutory] exemptions would probably and most likely be insufficient

going forward, and so simply sort of anchoring the language to how it exists in the statute makes no sense

in that context.”), and J. Alex Halderman, at 512-13 (“The world looks completely different today in

terms of cybersecurity threats and in terms of the shape of the defensive community of how much we are

relying on a broad community of academics and individuals and companies to keep all parts of our

Instead of removing a reference to other laws outright, NTIA, consistent with its

recommendation in 2018, continues to recommend replacing the “any applicable law” provision

with language that gives clear notice to users in this class of the need to comply with other laws,

but that otherwise avoids creating the risks highlighted in the record. Several commenters in this

proceeding already suggest a similar solution. NTIA’s preferred approach is to delete the

provision and add a sentence to the end of the regulatory text that reads: “This exemption does

not obviate the need to comply with all other applicable laws and regulations.” Should the

Librarian want to reference the CFAA, it can be done in the context of that notice.

Understanding the complexities in this record, NTIA would also be comfortable if the Librarian

instead adopted Rapid7’s helpful proposal to amend the definition of “good faith security

research” in 37 C.F.R.§ 201.40(b)(11)(ii) to include the following statement:

Good faith security research that qualifies for the exemption under paragraph (a) may

nevertheless incur liability under other applicable laws, including without limitation the

Computer Fraud and Abuse Act of 1986, as amended and codified in title 18, United

States Code.

499

infrastructure and society safe.”); Class 13 Reply Comments of J. Alex Halderman, et al. (Halderman

Class 13 Reply Comments), Docket No. 2020-11, at 10,

https://www.copyright.gov/1201/2021/comments/reply/Class%2013_Reply_J.%20Alex%20Halderman,%

20Center%20for%20Democracy%20and%20Technology,%20U.S.%20Technology%20Policy%20Comm

ittee%20of%20the%20Association%20for%20Computing%20Machinery.pdf (“Congress explicitly added

the triennial review process to Section 1201 to allow the [Copyright] Office to adjust and rework

exemptions based on changing circumstances and new technologies.”) (internal footnote omitted).

Although the bases referenced above are sufficient for the Librarian to not replicate the text in section

1201(j), depending on the language of the final rule in this rulemaking, the updated regulatory language

may have other explicit limitations in place that seek to address the issues that Congress may have been

contemplating when referencing violations of “applicable law” in section 1201(j). See Rapid7 Class 13

Initial Comments, at 3 (“However, when Congress deliberated on the ‘any applicable law’ limitation in

the 1201(j) permanent exemption for security testing, Congress focused squarely on issues of consent and

lawful acquisition. The Copyright Office has already addressed consent and lawful acquisition elsewhere

in the temporary exemption. Two decades ago, Congress did not contemplate the broad diversity of laws

now implicated in decentralized security research on a vast array of software, and how this would

significantly expand the breadth of the ‘any applicable law’ provision. This is the type of ‘flexibility in

enforcement’ issue that Congress intended the triennial rulemaking process to rebalance.”) (internal

citations omitted).

499

Rapid7 Class 13 Initial Comments, at 5; Rapid7 and Halderman Class 13 Ex Parte Letter, at 1; DOJ

Class 13 Reply Comments, at 4-5. Although this is not proponents’ preferred solution, they note that

“Rapid7’s proposed modification with regard to the Other Laws Limitation would solve many of the

issues with the Other Laws Limitation.” See also Halderman Class 13 Initial Comments, at 12; DOJ

Class 13 Reply Comments, at 4-5 (supporting Rapid7’s suggestion). CCIPS proposes an addendum to the

Rapid7 proposed regulatory text that would read: “and qualification for the exemption under paragraph

(a) is not a safe harbor or defense to liability under other applicable laws.” Id. at 5. This addendum was

not significantly discussed on the record, but NTIA would also not object to its incorporation. CCIPS

notes that the addendum serves as a “further clarification” on the issue. Id. As such, NTIA understands

that this addendum does not change the eligibility requirements to qualify for the security research

The “Lawfully Acquired” Provision: Proponents also petition the Librarian to remove

the limitation in the current exemption that circumvention be “undertaken on a lawfully acquired

device or machine on which the computer program operates, or is undertaken on a computer,

computer system, or computer network on which the computer program operates with the

authorization of the owner or operator of such computer, computer system, or computer

network.”

500

Proponents note that it can be unclear when a device or machine has been

“lawfully acquired” for the purposes of the exemption, and they also fear that this provision

could be weaponized to deter security research.

501

Although the Acting Register in 2018 stated

that she does not believe the phrase “lawfully acquired” to be ambiguous, she clarified that

eligibility should not turn on restrictive contractual terms “purporting to limit the use of the

hardware on which the copyrighted software is running.”

502

NTIA emphasizes that it is critical that users in this class obtain access to programs,

devices, machines, and systems in a legitimate manner, and that an exemption granted under this

rulemaking does not grant permission to abstain from following other laws and regulations in

this regard, even with respect to other parts of the DMCA. As noted above, an exemption does

not prevent parties from seeking relief pursuant to these laws as appropriate. In the past, NTIA

has conditioned its recommended regulatory language in this class on circumvention being

“initiated by the owner of the copy of the computer program or with the permission of the owner

of the copy of the computer program.”

503

For this rulemaking, NTIA is persuaded that

proponents have demonstrated that users in this class are adversely affected or likely to be

adversely affected by the “lawfully acquired” provision in a similar way as the “any applicable

law” provision.

504

The limitation as written does not properly address the modern digital security research

use cases that proponents highlight and creates an adverse effect on legitimate security

research.

505

Proponents have raised concerning scenarios specific to the security research

context. Proponents, for example, claim that researchers “often cannot purchase devices like

[voting equipment] directly from the manufacturer or vendor.”

506

In such an instance, a

exemption or the nature of the permitted activities. NTIA also does not read the addendum as expanding

or limiting the rights of parties in matters outside of section 1201(a)(1).

500

Halderman Class 13 Initial Comments, at 5 (citing to 37 C.F.R § 201.40(b)(11)(i)).

501

Id. at 24; see also April 8 Hearing Transcript, Remarks of Wilson Scarbeary, at 477 (“Our concern

here is simply that [the “lawfully acquired” provision] allows software developers to essentially

weaponized the DMCA in a way to totally preclude security research by including a contractual clause

that devices cannot be sold to security researchers.”).

502

2018 Register’s Recommendation, at 303 (citing CCIPS 2018 Letter at 5).

503

2018 NTIA Letter, at 84.

504

Although the contours of the “lawfully acquired” provision may generally fall closer to copyright

interests than those of the “any applicable law” provision, the concerns presented show the real problems

security researchers face if both provisions are kept as they are.

505

NTIA notes this conclusion is only for this particular class based on the totality of the record presented

here.

506

Halderman Class 13 Initial Comments, at 24.

researcher may seek to acquire the needed devices secondhand from third parties; however, the

original buyer may have had a resale constraint specifically aimed at restricting sales to third

parties like researchers (unknown to the researcher), creating a situation where there would be

liability for researchers that “would be entirely dependent on the actions of a third party . . . over

whom researchers have no control.”

507

Proponents further note that “in many cases, these

contractual restraints against resale are placed on devices by manufacturers or vendors expressly

for the purpose of deterring security research.”

508

These examples create situations where a

security researcher might have indeed obtained access to a program, device, machine, or system

in a legitimate manner (and done their best to do so), but nonetheless the threat of section 1201

liability looms large due to potential ambiguities in the law. It is critical that these concerns do

not limit valuable independent research that may shed further light into issues of vital national

interest when those researchers are abiding by the law.

509

To be clear, consideration of contractual issues or other legal issues involving obtaining

access to programs, devices, machines, and systems legitimately do not go away for any user in

this class if the Librarian removes the “lawfully acquired” limitation, as the Librarian’s

exemptions do not affect liability under other laws and regulations.

510

It is the users in this class

who ultimately bear the legal risk of their actions in this context, with or without the provision.

The same applies to considerations of copyright infringement.

511

In other words, this change

507

See id., at 24 (“And we pointed out in our comments one area where this is particularly common, is in

the context of election machine security research, where these companies frequently try and dissuade

security researchers from analyzing their systems by including these kind of contractual restraints.”); see

also April 8 Hearing Transcript, Remarks of J. Alex Halderman, at 477-78, 481-82, 483 (providing an

example in which a voting equipment is brought for study to a security research conference).

508

Halderman Class 13 Initial Comments, at 24 (citing documentary statement of Harri Hursti and J. Alex

Halderman in Item F.1 of the submission).

509

See, e.g., Halderman Class 13 Initial Comments, at 36 (“Occasionally, vendors will ship voting

machines with assurances that the machines cannot be accessed or controlled wirelessly. However, these

machines may contain a wireless modem that has been switched off but could easily be activated by a

malicious actors. In order to assess the potential vulnerabilities in machines like this that could allow

for—among other things—the alteration of votes by malicious actors. First, it is necessary to determine

whether or not the device actually has a wireless modem. Obviously, it would be easiest to physically

take apart the machine to determine this, but vendors often include contractual restraints that prevent

purchasers from taking apart or fixing machines on their own. There may also be contractual provisions

that prohibit buyers from re-selling devices to third parties.”); see also April 8 Hearing Transcript,

Remarks of J. Alex Halderman, at 443-44 (“Well, so a large part of the problem, as we’ve explained,

comes from the various complicating factors of the existing exemption, including the other laws

provision, which makes it just so much harder to have a brief overview of someone’s project and be able

to determine where it’s safe to proceed. So, in my experience and the experience watching colleagues

who have gone through this, the problem is not that there’s no exemption. The problem is that the

exemption has so many caveats.”).

510

See supra n. 485.

511

Halderman Class 13 Reply Comments, at 11.

100

should not be read to terminate liability in any other context. The change will also not impose

additional obligations on device manufacturers to comply with other laws regulations.

512

However, there is a risk present that is related to copyright policy that the Librarian can

address. NTIA believes this issue is similar to the discussion of the “any applicable law”

provision, insofar as both provisions export DMCA liability from other legal regimes (e.g., state

contract law) in the DMCA 1201 exemption, with the understanding that this limitation may also

need to take into account foreign laws and regulations.

513

This can create a condition that allows

the specter of section 1201 liability to exist even when there might not be a copyright or DMCA

concern. As such, NTIA proposes the same approach to resolve this issue: remove the relevant

language and add a statement to the regulatory text providing clear notice that the exemption

does not obviate the need to comply with all other applicable laws and regulations.

514

The

regulatory text can make a specific point that the removal does not impact laws or regulations

that may be relevant in the inquiry of whether a program, device, machine, or system has been

“lawfully acquired” or whether the circumvention is undertaken with the permission of the

“owner or operator of such computer, computer system, or computer network.”

515

NTIA welcomes the steps the Acting Register and the Librarian took in 2018 to clarify

the contours of the “lawfully acquired” provision within the context of the rulemaking. The

Acting Register recommended, and the Librarian adopted, regulatory language that notes that

circumvention can be undertaken with the “authorization of the owner or operator” of the

“computer, computer system, or computer network.”

516

The Acting Register in its guidance

specifically noted that the exemption “does not require that the circumventing party be the lawful

512

Id. at 9 (“To be clear, removing the linkage between the Section 1201 and ‘all other laws’ won’t

materially affect the ability of companies to continue to secure their products with TPMs to comply with

various regulations. It would merely constrain the reach of Section 1201 to copyright concerns.”) (internal

citation omitted).

513

Proponents reference the “lawfully acquired” provision and the “any applicable law” provision under

the umbrella term “other laws.” See id. at 24-25 (“While the Lawfully Acquired Limitation creates

uncertainty for security researchers based on the applicability of state contract law, the Any Law

Limitation implicates these issues as well as other complex questions of law under any law in the entirety

of the US Code, state law, and county or municipal regulations.”); April 8 Hearing Transcript, Remarks of

Blake Reid, at 475 (“I just wanted to . . . point out that basically our concerns with ‘lawfully acquired’ are

a subset of the concerns with other laws. In other words, the set of legal issues, the set of risks, the set of

uncertainty, the complexity of dealing with it is just – we kind of see “lawfully acquired” as an example

of the kinds of problems that occur with other law but obviously a narrower subset, a narrower set of laws

that are potentially implicated, a slightly simpler question.”).

514

Opponents argue that the Librarian should align the temporary exemption with the statutory

exemptions. See, e.g., Joint Creators Class 13 Opposition Comments, at 5 (“Moreover, the Copyright

Office should not alter the current exemption; it aligns with the common sense approach that Congress

itself adopted in the Copyright Act.”) (citing H.R. Rep. No. 105-796, 105th Cong. 2d Sess., at 67 (Oct. 8,

1998)). However, as noted in the discussion of the “any applicable law” provision, the Librarian need not

replicate the exact language or approach of the statutory exemptions.

515

37 C.F.R. §201.40(b)(11)(i).

516

Id.

101

owner of the device—or the software embedded within the device—only that the device be

lawfully acquired.”

517

Importantly, the Acting Register in 2018 recognized that eligibility for the

exemption “should not turn on restrictive contractual terms purporting to limit the use of the

hardware on which the copyrighted software is running.”

518

NTIA, however, does not believe

that guidance alone means that the regulatory text should not be modified. As noted, one risk

shown in this record relates to the automatic incorporation of DMCA liability into any other

regime—potentially even foreign laws and regulations dealing with ownership issues. Guidance

alone may not resolve that issue.

519

Thus, when possible and as warranted, the Librarian should

seek to make to make the changes to the regulatory text.

520

The “Purpose” Provision: NTIA is persuaded that users in this class are adversely

affected or likely to be adversely affected by the language in the current exemption that cabins

circumvention “solely for the purpose of good-faith security research” and that cabins the

definition of good-faith security research to accessing a computer program “solely for the

purposes good faith testing, investigation, and/or correction of a security flaw or

vulnerability.”

521

In both instances, proponents seek to remove the term “solely” from the

current exemption language.

522

A rigid formulation of good-faith security research in the regulatory text can make the

exemption “ambiguous, limits security research activities such as public discussion and

publication of academic papers, and ultimately decreases the identification of vulnerabilities.”

523

In this record, the proponents note that “[u]ncertainty concerning the scope and definition of the

‘solely’ requirements . . . deprives researchers of sufficient clarity about whether the exemption

permits engaging in scholarship or criticism related to copyright materials protected by a

517

2018 Register’s Recommendation, at 303.

518

Id. (citing CCIPS 2018 Letter at 5); see also DOJ Class 13 Reply Comments, at 5. CCIPS maintains

the “lawfully acquired” provision should remain in the regulatory text, and they note that the exemption is

“sufficiently broad to encompass research performed by a researchers who possesses a device legally,

even pursuant to a license, and research performed on hardware owned by another party, if the researchers

has the permission of the owner or another lawful possessor of the hardware, such as a lessee.” Id. at 5.

519

See April 8 Hearing Transcript, Remarks of Blake Reid, at 486 (“[H]aving guidance buried somewhere

in the recommendation doesn’t penetrate all the way out into the communities that are affected here.”).

520

NTIA acknowledges that this is not a simple proposition, and the right balance on language in the

regulatory text will differ on a case-by-case basis. Cf. April 8 Hearing Transcript, Remarks of Kevin

Amer, at 479-80 (highlighting potential complications in changing regulatory text). While there is no

steadfast rule in this regard, NTIA suggests that when removing regulatory text and replacing it with a

clear notice can resolve a particularly identifiable concern, then such action is likely appropriate.

521

Halderman Class 13 Initial Comments, at 5 (emphasis added). The proponents incorporate both

instances of the use of the word “solely” under the umbrella term “purpose limitation.” NTIA uses the

term “purpose provision” to refer to the discussion of the inclusion of the word “solely” in the exemption.

522

Id.

523

See NTIA 2018 Letter, at 79 (internal footnote omitted). In the 2018 rulemaking, both instances of the

use of the word “solely” were referred to as the “Access Limitation.”

102

TPM.”

524

Indeed, these activities are the core of what researchers do,

525

and the concerns about

the term “solely” are not limited to just academic settings.

526

Finally, NTIA agrees with

proponents that the Librarian does not need to always replicate the language from the statutory

exemptions in the temporary exemptions, particularly since the temporary exemptions can more

readily address current concerns.

527

NTIA appreciates the Acting Register’s clarification in 2018 that the application of the

term “solely” in both instances “is not properly read to prohibit teaching, academic dialogue, or

scholarship involving information derived from good-faith security research” and that “a

researcher who at the time of circumvention intends to publish the results of the good-faith

research or use them in the course of teaching would not exceed the bounds” presented by the

term “solely” in the exemption.

528

In this rulemaking’s hearings, NTIA probed whether the

guidance issued alongside the regulatory text (e.g., the Register’s Recommendation) is useful.

529

NTIA is persuaded that, at least in this particular context, the community of users is diverse

enough that the guidance, while helpful, may not be “filtered into the community quite

readily.”

530

And, as proponents further explained, removing “solely” can mitigate potential risk

of abuse against those who are ultimately using the exemption for good faith security research,

524

Halderman Class 13 Initial Comments, at 18.

525

April 8 Hearing Transcript, Remarks of J. Alex Halderman, at 448-49 (“Then usually after the

problems are fixed, but not always, usually after they’re fixed, the researchers go public with the results

of their findings, and that’s not only to disseminate knowledge to the broader research community about

how similar problems could be found, but it’s also to alert the public about the problems that have existed

so people can make better choices in the future about what products or services they want to buy or rely

on. [. . .] [I]n the vast majority of projects I’ve worked on, they’ve resulted ultimately in some kind of

publication that described the findings and what we did. That’s just core to the academic mission of a

university.”).

526

April 8 Hearing Transcript, Remarks of Blake Reid, at 454-55 (“To the point that GitHub raised, I

think what you’re hearing is that this is not just a concern for academic researchers, but this is a concern

out in industry that when folks are doing work like securing a supply chain that’s integrated with other

aspects of a business, these same sorts of concerns that we’re talking about here are prevalent there as

well.”) (referencing the submission from GitHub on the record: GitHub Class 13 Reply Comments).

527

Halderman Class 13 Initial Comments, at 20.

528

2018 Register’s Recommendation, at 305-06; see also April 8 Hearing Transcript, Remarks of Brad

Greenberg, at 449 (“In both 2018 and 2015, the register clarified that the access limitation does not

prohibit teaching, academic dialogue, or scholarship involving the information derived from good-faith

research.”) U.S. DOJ CCIPS notes that with the Acting Register’s 2018 guidance, they believe the

change to remove the references to “solely” is unnecessary. DOJ Class 13 Reply Comments, at 5. In

response to that clarification, of the opponents argues that this proposal should be denied because the

“purported adverse effects” rely from an “unreasonable interpretation” and “misreading” of the limitation.

BSA Class 13 Opposition Comments, at 4; see also Joint Creators Class 13 Opposition Comments, at 4.

529

See April 8 Hearing Transcript, Remarks of Blake Reid, at 483-86.

530

See id. NTIA does not intend to suggest a hardline rule in this regard. In the discussion on privacy-

related activities that fall under good-faith security research NTIA does support issuing clarifying

guidance and not changing the regulatory text at this time, given the particular record in that portion of

the discussion.

103

and thus overall reduce uncertainty by users in this class.

531

To the extent that there is concern

that removing “solely” may create an environment for copyright infringement, it may be more

appropriate to address that concern as part of the discussion of the limitation that “the

information derived from the activity . . . is not used or maintained in a manner that facilitates

532

NTIA concludes the same as it did in 2018: modifying the provision to remove the term

“solely” will “provide clarity to good-faith security researchers and result in increased good-faith

security research efforts, further coordination within the security research community, and

ultimately promote public safety and security.”

533

NTIA notes that removing the word “solely”

does not remove the requirement that users in this class continue to engage in good-faith security

research.

534

The “Security” Provision: NTIA is persuaded that users in this class are adversely

affected or likely to be adversely affected by the language in the current exemption that contains

the following requirement: “the information derived from the activity is used primarily to

531

2018 NTIA Letter, at 80; April 8 Hearing Transcript, Remarks of Blake Reid, at 457 (“By doing that

[removing the word “solely”], we avoid basically creating a foothold for these sort of abusive arguments

that say, well, you might be doing something else, we don’t know about the publication of this paper, we

don’t know – it seems like this is related to a business, you’re getting paid for this.”). One opponent

contends that by removing the word “solely” the value derived from security research “is a hundred

percent going to end up in products that are on the Dark Web and are available from people who do not

have a good-faith intent. So I think that’s the problem. If you remove ‘solely,’ you essentially create an

entire ecosystem around bad faith.” See April 8 Hearing Transcript, Remarks of Morgan Reed, at 460.

NTIA is not persuaded by this argument, as the harm contemplated here seems to be focusing on the

actions of third parties, not the users in the class. Moreover, as discussed more substantially in discussion

of the “any applicable law” provision, the concerns addressed in this proceeding should be about

532

37 CFR 201.40(b)(11)(ii); see also April 8 Hearing Transcript, Remarks of Blake Reid, at 469 (“The

one core concern that we hear that is cognizable under 1201 as one that is within the ambit of the

[Copyright Office’s] jurisdiction here is . . . about copyright infringement, and I’d note that there’s a

limitation in the existing exemption that restricts use of the information that’s derived from the security

research in a manner that facilitates copyright infringement. Now we have concerns about the

formulation of that particular limitation because it puts responsibility on basically for downstream third-

party behavior, not of the researcher. We don’t think that formulation is right. But, to the extent that the

[Copyright Office] wants to focus on extraneous concerns or bad faith, [. . .] thinking about making sure

that those concerns are actually narrowed to concerns of copyright infringement, I think, is important.”).

533

NTIA 2018 Letter, at 80; see also GitHub Class 13 Reply Comments, at 4 (“The purpose of the

security exemption must be to incentivize, rather than discourage, practices consistent with good faith

security research.”).

534

April 8 Hearing Transcript, Remarks of Aaron Williamson, at 463 (“If you remove ‘solely,’ you’re left

with ‘for the purpose of good-faith security research,’ right? And so, you know, it’s a lot easier to tell

whether you’re doing research in good faith than it is to tell whether you’re doing research solely for – or

doing work solely for good-faith security research because . . . those who work in security research are

often is a sort of dual-purpose role . . . . And every criticism I’ve heard of the word ‘solely’ from the

opposition would suggest that they’re looking at bad-faith potential uses. And so, when you remove

‘solely,’ I think ‘good faith’ does all the work that they need ‘solely’ to do.”).

104

promote the security or safety of the class of devices or machines on which the computer

program operates, or those who use such devices or machines, and is not used or maintained in a

manner that facilitates copyright infringement.”

535

The Acting Register in 2018 stated that “it is not plausible to conclude that the term

‘primarily’ could be interpreted to mean ‘only.’ Those two terms clearly are not synonymous . . .

.”

536

Opponents in this rulemaking support this rationale as part of their argument that the

537

NTIA agrees that “primarily” and “only” do not

mean the same thing.

538

However, the issue here is not just whether “primarily” means “only” –

it is what “primarily” entails (and therefore restricts) on its own; the uncertainty can put at risk in

practice the application of the good faith security research exemption.

539

In this sense,

employment of the word “primarily” carries similar concerns as the word “solely” discussed in

the previous section.

540

NTIA concludes the same as it did in 2018: removal of this provision

535

Halderman Class 13 Initial Comments, at 5.

536

2018 Register’s Recommendation, at 309.

537

See, e.g., BSA Class 13 Opposition Comments, at 4-5; DVD CCA Class 13 Opposition Comments, at

4; Joint Creators Class 13 Opposition Comments, at 4. One opponent noted that making arguments that

“primarily” can be read as “solely” “can lead to concerns in the security research community that the

2018 exemption is much narrower that it, in fact, is.” See April 8 Hearing Transcript, Remarks of

Christian Troncoso, at 487.

538

NTIA does caution that in practice, “primarily” may in effect turn to “only” in practice given the risks

security researchers face in their work. See, e.g., Halderman Class 13 Initial Comments, at 21 (“For

example, a researcher might feel after conducting a security audit that in addition to disclosing the

vulnerability to the software developer, the public should also be warned about the potential security

risks. While this could be interpreted as improving security for ‘those who use’ the device, the Office has

not provided sufficient clarity around how this limitation will be interpreted.”) (italics and quotation

marks in original); April 8 Hearing Transcript, Remarks of Wilson Scarbeary, at 447 (“We've also

identified the use limitations, the multiple references to ‘solely’ and ‘primarily’ that significantly cabin

security research. These create problems as far as ancillary activities related to security research, such as

scholarship and criticism, that we think is problematic.”).

539

See Halderman Class 13 Initial Comments, at 18 (“Likewise, the Security Limitation requires that

information be used ‘primarily’ to improve the security of devices, adding confusion to researchers’

ability to engage in valuable public discourse concerning cybersecurity policy that isn’t per se tied to

improving the security of specific devices.”); id. at 23 (“Without these changes [removing the “purpose”

and “security” provisions], researchers may be circumspect in discussing their work or reluctant to inform

the public about critical vulnerabilities in applications from social media to election infrastructure. Even if

the suits filed against researchers are entirely meritless, just the threat of litigation from a well-funded

firm can be enough to dissuade security researchers—who often work for universities and non-profit

organizations.”); HackerOne Class 13 Initial Comments, at 4 (“The idea behind security research is to

identify vulnerabilities before bad actors can find them, and it is common for vulnerabilities to appear

across devices. Moreover, in addition to finding and reporting a vulnerability to that device’s owner, a

security researcher should be able to share his or her findings with others. In short, transparency should

not have consequences.”).

540

Cf. April 8 Hearing Transcript, Remarks of Aaron Williamson, at 464 (Responding that changing the

word “solely” to “primarily” “is a small step but contains nearly all the uncertainty of ‘solely.’”).

105

“would provide clarity to good-faith security researchers and eliminate the potential liability of

these researchers for the actions of third parties.”

541

Rapid7 highlights a more specific concern with the security provision, focused on the

requirement that information derived from the security research is not used or maintained in a

manner that facilitates copyright infringement.

542

In particular, Rapid7 is concerned that this

provision is ambiguous “regarding who is using or maintaining the information” and could be

used to penalize a security researcher for “unintended third party use of publicly disclosed

information derived from the research activity.”

543

In 2018, the Acting Register acknowledged

that “concern about liability turning on the acts of third parties is somewhat more understandable

given the exemption’s requirement that the information is not used or maintained in a manner

that facilitates copyright infringement.”

544

However, the Acting Register declined to remove the

language and instead opted to add clarifying guidance in its Recommendation that the language

“refers to the researcher’s own use and maintenance of the information derived from the

research.”

545

NTIA commends the Copyright Office for issuing this guidance, but agrees with

Rapid7 that “the actual language of the security testing exemption should reflect this clarification

and resolve the ambiguity.”

546

Accordingly, if the Librarian declines to remove the security

provision as requested in the Halderman Petition, NTIA would recommend adopting Rapid7’s

modification to the exemption language as a way to begin to address the listed concerns.

547

Good-Faith Security Research and Privacy: The SFC’s privacy-related research

proposal has gone through various iterations during the rulemaking. SFC’s initial petition

requested that the Librarian ‘‘clarify that the definition of ‘good faith security research’ . . .

includes good-faith testing, investigation, and/or correction of privacy issues (including flaws or

functionality that may expose personal information) and permits the owner of the device to

remove software or disable functionality that may expose personal information.’’

548

SFC’s

Round 1 comments also asked for this clarification and explained in more detail why the

541

NTIA 2018 Letter, at 81.

542

Rapid7 Class 13 Initial Comments, at 6 (citing 37 C.F.R. § 201.40(b)(11)(ii)).

543

Rapid7 Class 13 Initial Comments, at 6; Halderman Class 13 Reply Comments, at 6-7 (“Rapid7 notes

that this condition could expose a security research to liability where a subsequent malicious actor

leverages information in a vulnerability disclosure to commit copyright infringement.”) (citing Rapid7

Class 13 Initial Comments, at 6).

544

2018 Register’s Recommendation, at 309 (internal citation and quotation marks omitted).

545

Id.; see also DOJ Class 13 Reply Comments, at 5 (“To the extent that the existing language of

201.40(b)(11)(i) and (ii) could be construed to hold researchers responsible for copyright infringement

committed by others, the Register’s 2018 clarification—that ‘this language refers to the researcher’s own

use and maintenance of the information derived from the research,’ and that any facilitation should be

assessed using established principles of third party liability for infringement—largely addressed this

concern.”).

546

Rapid7 Class 13 Initial Comments, at 6.

547

See id. Rapid7 would replace the following portion of the temporary security research exemption “and

is not used or maintained in a manner that facilitates copyright infringement” with “and the person

conducting security research does not use the information to facilitate copyright infringement.”

548

SFC Class 13 Petition, at 2.

106

petitioner believes that the current statutory and temporary exemptions are not sufficient to cover

the uses sought.

549

In response to opponents’ submissions in Round 2, SFC indicated in its

Round 3 comments that “a better approach would be to establish a new, separate exemption for

privacy research, modeled on the security research exemption and incorporating similar

limitations.”

550

SFC provided preferred regulatory language to that effect.

551

At the hearing, the

research exemption already covers the type of privacy research that interests SFC.

552

After some

discussion with SFC about the contours of the temporary and statutory exemptions, the

that would “permit the owner of a device to remove software or disable functionality that may

expose personal information” and have the Office clarify that the exemption already covers the

549

Class 13 Initial Comments of Software Freedom Conservancy (SFC Class 13 Initial Comments),

Docket No. 2020-11, at 2,

https://www.copyright.gov/1201/2021/comments/Class%2013_Initial%20Comment_Software%20Freedo

m%20Conservancy.pdf. SFC’s initial petition and the Round 1 comments equally framed the sought

clarifications as an expansion of the current good-faith security research exemption.

550

Class 13 Reply Comments of Software Freedom Conservancy (SFC Class 13 Reply Comments),

Docket No. 2020-11, at 2,

https://www.copyright.gov/1201/2021/comments/reply/Class%2013_Reply_Software%20Freedom%20C

onservancy.pdf.

551

See id.

552

April 8 Hearing Transcript, Remarks of Brad Greenberg, at 514 (“DOJ and Rapid7 both basically said,

if I understood correctly, the current good-faith security research exemption covers the type of privacy

research that Software Freedom Conservancy was asking for an exemption for. And Consumer Reports

said that they were in support of the office simply clarifying that the current exemption already covers

this, so maybe they didn't think the language was clear enough in the register’s recommendations but that

the regulatory language itself should and did.”). See Rapid7 Class 13 Initial Comments, at 7 (“The SFC

petition notes its proposal would be to ‘test for and investigate . . . functionality that inadvertently or

deliberately exposes personally identifying information and other privacy-sensitive information to third

parties.’ Rapid7 believes the Software Freedom Conservancy (SFC) petition largely describes activities

that are key to the concept of security testing. As such, we recommend the Copyright Office clarify that

the existing statutory and regulatory exemptions cover these activities without change, and so no

expansion or modification is necessary.”) (internal footnote omitted) (quotation marks in original); DOJ

Class 13 Reply Comments, at 5-6 (“Although we recognize the importance of the type of testing and

investigation concerning privacy issues, as Rapid7 noted in its comments on SFC’s petition, these

activities would seem to fall within the category of security testing already exempted by existing statutory

and regulatory exemptions. Therefore, we agree with Rapid7’s recommendation that SFC’s concerns

could be more easily addressed through a clarifying statement and do not require changes to the wording

of the security research exemption itself.”).

107

type of privacy research raised in the course of the rulemaking.

553

SFC agreed that such

clarification would address their concerns.

554

Following the hearings, the Copyright Office sent the parties a letter indicating that “there

appeared to be agreement among participants that the current temporary exemption for security

research covers the privacy-related research described in [SFC’s] petition” and that there seemed

to be agreement that a clarifying statement in the Register’s Recommendation could be written to

address SFC’s concerns.

555

The Copyright Office then asked participants in the hearing to

confer and confirm this understanding.

556

The participants met and issued a joint letter

(participants’ post-hearing letter) in which most hearing participants—including SFC and some

opponents— agreed that “the existing exemption covers testing, investigating, and correcting

security flaws or vulnerabilities comprising or related to the unauthorized disclosure or collection

of personal information.”

557

NTIA agrees that the current temporary exemption for good-faith security research

includes the activities listed in participants’ post-hearing letter. NTIA, however, also notes that

the participants’ post-hearing letter should not be read to encompass all privacy-related research

activities in the temporary exemption, and the Register and the Librarian should make this clear

in addressing SFC’s petition. In this respect, NTIA strongly supports the statement by Professor

Halderman and his counsel Blake Reid in the July 16, 2021 ex parte letter following their

meeting with the Copyright Office that the participants’ post-hearing letter “was merely intended

to convey that the activities described by SFC’s petition are generally covered by the existing

exemption” and should not be construed “to exhaustively account for all conceivable ‘privacy-

related’ research allowed under the exemption.”

558

With this understanding, NTIA supports a statement in the Register’s Recommendation

and the Librarian’s Final Rule that the good-faith security research exemption already covers the

“testing, investigating, and correcting security flaws or vulnerabilities comprising or related to

the unauthorized disclosure or collection of personal information.” Although NTIA has for other

parts of this exemption suggested modifying the regulatory text (by removing or rewriting

language) as opposed to just clarification in administrative guidance, in this particular instance

553

SFC Class 13 Petition, at 2; see April 8 Hearing Transcript, Remarks of Brad Greenberg, at 516-17

(“I'm actually kind of wondering if we can resolve this pretty easily. I just wonder if -- it sounds to me,

and I did see that in your comments, but like you would support removing that portion of the requested

temporary exemption and just we could clarify the language so that it would cover the type of privacy

research that DOJ and Rapid7 and others are saying already is covered by the current good-faith security

research exemption. Would that be an accurate framing of your position on this?”).

554

See April 8 Hearing Transcript, Remarks of Aaron Williamson, at 517.

555

Participants’ Class 13 Post-Hearing Letter, at 1-2.

556

Id.

557

This statement was agreed by SFC, the Center for Democracy & Technology, Professor Halderman,

Blake Reid (counsel to Professor Halderman), ACT | The App Association, BSA | The Software Alliance,

and AACS LA and DVDV CC. Counsel for the Joint Creators and SIIA participated in the meet and

confer but do not endorse this language. Participants’ Class 13 Post-Hearing Letter, at 1-2.

558

Rapid7 and Halderman Class 13 Ex Parte Letter, at 5.

108

NTIA is persuaded that administrative guidance is the preferred outcome at this time.

Specifically, a significant number of parties in the rulemaking, including the petitioner and some

opponents, seem to agree that these activities are already part of the exemption and that changing

the text to reflect that is not necessary. NTIA also recommends that the Register and the

Librarian note that the privacy-related research language agreed by the parties should not be read

as the whole sum of privacy-related research activities permitted under the good-faith security

research exemption.

Alternatives to circumvention and statutory factors: NTIA concludes the same as in

2018: “[n]o reasonable alternative to circumvention exists because security research cannot take

place without circumventing software or device TPMs and developers and rights holders often

lack incentives to participate in security research.”

559

The relevant statutory exemptions do not

accommodate the proposed activities, which are similar to those discussed in 2015 and 2018.

560

The Section 1201 rulemaking statutory factors generally favor proponents. Under the

first factor, a modified security research exemption will likely increase the availability of

copyrighted works. As the uncertainties to engage in good-faith security research are further

addressed, security researchers will likely produce more copyrighted works in this area,

including, as the Register noted in 2018, “in the forms of articles, presentations, and computer

programs aimed at rectifying security flaws.”

561

NTIA is persuaded by proponents’ arguments

that addressing their concerns as presented in this rulemaking will not decrease the availability of

other copyrighted works, as their “activity does not remove copyrighted information from the

market or stifle copyrighted material from entering the market.”

562

Under the second factor and third factors, addressing concerns in the current limitations is

also likely to increase the availability of works for preservation and educational purposes, as well

as promote criticism, comment, news reporting, teaching, scholarship, and research.

563

NTIA

acknowledges and welcomes efforts by device manufacturers to identify flaws and promote

securities in their devices; however, modifying the current security research exemption will

promote important public discourse that is critical in part because device manufacturers and

distributors have an incentive to “delay or suppress the disclosure of security vulnerabilities in

559

NTIA 2018 Letter, at 81; Halderman Class 13 Initial Comments, at 35-37. As NTIA agrees that the

privacy-related research activities in participants’ post-hearing letter are already covered under the current

security research exemption, this section focuses exclusively on the Halderman Petition, although NTIA

notes that clarifying that the privacy research activities in participants’ post-hearing letter also generally

favor proponents under the statutory factors for similar reasons.

560

NTIA 2018 Letter, at 81, n. 416 (“As the Register concluded in 2015, ‘the permanent exemptions in

sections 1201(f), 1201(g), and 1201(j) are inadequate to accommodate the proposed research activities.’

2015 Final Rule, 80 Fed. Reg. at 65956. The proposed research activities in this proceeding are

substantially similar to those contemplated in 2015, so NTIA believes that this determination still

applies.”).

561

Halderman Class 13 Initial Comments, at 30 (citing 2018 Register’s Recommendation, at 312).

562

Id. at 30.

563

See, e.g., April 8 Hearing Transcript, Remarks of J. Alex Halderman, at 441-43; Halderman Class 13

Initial Comments, at 31-32, 35-37.

109

devices or systems.”

564

This dynamic is exacerbated when, especially in this particular context,

such manufacturers or distributors may place restrictions specifically aimed at thwarting

independent good-faith security research or otherwise may seek to use the specter of DMCA

liability for non-DMCA or other non-copyright purposes. Although the Copyright Office and the

Librarian took thoughtful steps to attempt to address some of these concerns via administrative

guidance in the last rulemaking and through certain modifications to the regulatory text,

proponents have explained why the better course of action is to change the text itself.

The fourth factor, the effect of circumvention of technological measures on the market

for or value of copyrighted works, is also a required consideration for the Librarian in this

proceeding. NTIA believes that, given the likelihood that good-faith security research activities

will increase if petitioners’ proposals are adopted, there will be a “positive net effect on the

market for software and devices as more security research invites new, more secure products to

enter the market.”

565

Certain potential market harms are not cognizable under copyright law and

not meant to be addressed in this rulemaking (e.g., reputational harms for software and devices

shown to have security weaknesses); should there be cognizable harms, these would appear to be

relatively minimal given that the modifications will not grant permission to avoid following

other laws—including the anti-trafficking provisions in the DMCA—and the purpose of the

temporary exemption and the requirements that would remain therein. Importantly, modifying

these exemptions does not limit the rights of copyright holders in any other manner, including

their ability to sue for copyright infringement or to hold users in this class accountable for

violations of any other laws.

566

While this point could be raised in the context of other

exemptions, it merits particular consideration here where several of the proposals seek to address

the intertwining of copyright law and policy with other legal and regulatory regimes.

567

The fifth factor allows the Librarian to consider any other factors they consider

appropriate. As in previous rulemakings, NTIA emphasizes that “the deliberative process should

not stray too far afield from copyright policy concerns.”

568

In stating this, NTIA does not seek to

minimize other risks that have been alleged in this rulemaking and that have formed part of the

discussion. However, risks unrelated to copyright and that primarily center on other issues are

best debated in different venues and addressed by other laws, regulations, and relevant

government bodies.

In addition, NTIA is concerned about the harms to good-faith security research

implicated in the exportation of DMCA liability into every other legal and regulatory regime,

including those that may have little to do with the DMCA or copyright. This dynamic also

imports the analyses from those other legal and regulatory regimes into the DMCA. Here, then,

564

NTIA 2018 Letter, at 83 (internal footnote and citation omitted).

565

Halderman Class 13 Initial Comments, at 33.

566

See, e.g., Halderman Class 13 Initial Comments, at 11.

567

If the Copyright Office and the Librarian do not consider it appropriate to consider this issue under the

fourth factor, it could be considered under the fifth factor, as it squarely falls into considerations of

568

NTIA 2018 Letter, at 2.

110

the current temporary exemption wades significantly into non-copyright areas (and/or into

territory where there is significant ambiguity or differences that this rulemaking process is not

empowered to resolve).

569

This can lead to unintended outcomes adversely affecting parties who

strive to comply with legal and regulatory requirements and take reasonable care in doing so.

570

Understandably, the Copyright Office and the Librarian seek to draft exemptions that are

fully within the law and do not even tacitly suggest that any illegal behavior is permitted under

the exemptions. NTIA shares and commends those efforts. But, as has been illustrated in this

rulemaking, there are ways to accomplish that goal while simultaneously furthering actual good-

faith security research activities. Copyright interests will continue to be protected, and the

security research ecosystem will thrive if the proposals to expand the exemptions are granted.

NTIA Recommendation for Class 13 (Security Research):

NTIA supports modifying the current regulatory text to address the concerns raised in the

Halderman Petition. NTIA does not at this time support modifying the regulatory text in

furtherance of the SFC Petition, as privacy-related research activities discussed in the

participants’ post-hearing letter are already part of the temporary security research exemption. In

this particular instance, NTIA recommends the issuance of guidance that captures this

understanding, and that further notes that these privacy-related research activities covered in the

exemption are not limited to the activities listed in participants’ post-hearing letter. Accordingly,

NTIA recommends the following exemption:

571

Computer programs, in the form of firmware or software, regardless of the device,

machine, or system on which they are run, in order to conduct good-faith security

569

See, e.g., Halderman Class 13 Initial Comments, at 25-26.

570

The discussion in the rulemaking of the “any applicable law” provision is a good example of this. The

argument that the provision incorporates foreign laws was not specifically raised by petitioners in their

initial submission. It was introduced by a supporter of the proponents (specifically, a private sector

cybersecurity firm) in a separate comment. While supporters and at least some opponents in this process

do not read foreign laws as being applicable, the U.S. Department of Justice’s Computer Crime and

Intellectual Property Section notes that “the ‘any applicable law’ requirement means that a U.S.

researcher’s violation of foreign law could result in a loss of the exemption and attendant liability under

the DMCA. This could be the consequence even where the foreign violation is an obscure or minor one,

the foreign law in question is more onerous than or inconsistent with U.S. law, or the foreign law is

administered or enforced in a manner inconsistent with U.S. standards.” CCIPS ultimately supports

replacing the “any applicable law” provision with a notice that makes it clear to users in this class that the

security exemption does not absolve them of their responsibility to follow laws or is a safe harbor or

defense to liability for violating other laws. DOJ Class 13 Reply Comments, at 4-5. NTIA recognizes,

however, that CCIPS is not in favor of modifying the text related to the “lawfully acquired,”

“purpose,” and “security” provisions. Id. at 4-6.

571

As noted at the beginning of this discussion, NTIA is not providing a definition for good-faith security

research in its proposed regulatory text but, given the proposed requests, assumes that such a definition

will likely be incorporated in the Librarian’s final rules if the current exemption is at least renewed.

111

research. This exemption does not obviate the need to comply with all other applicable

laws and regulations.

Class 14 – Class 14(a) (Computer Programs – Preservation) and 14(b) (Video

Games – Preservation)

Proponents seek renewal and expansion of the current computer programs—software

preservation exemption (“software preservation exemption”) and computer programs—video

games preservation exemption (“video games preservation exemption”), which allow for

preservation activities so long as those activities occur within the physical premises of eligible

libraries, archives, and museums, among other qualification requirements.

572

Because petitioners

demonstrated the continuing need for these exemptions, the Copyright Office intends to

recommend their renewal, and the petitions were unopposed, NTIA urges the Librarian to adopt

exemptions that at minimum include the previously exempted classes of work and use cases.

573

Software Preservation Network (SPN) and LCA seek to expand the scope of both

exemptions in a similar way. The requested expansion would eliminate the requirement that

computer programs and video games that fall under the exemptions not be distributed or made

available outside of the physical premises of the eligible institutions, thereby permitting remote

access to the copyrighted works.

574

Proponents generally assert that the current physical

premises requirement in the exemptions prevents eligible institutions, which have preservation-

oriented missions, from carrying out those missions and providing access to lawfully acquired

works to a variety of individuals, including preservationists, librarians, researchers, and

educators.

575

Opponents JCCO indicate their support for “legitimate, lawful preservation

efforts” but generally assert that the proposals, in particular to video games, could lead to

widespread distribution of unauthorized copies of copyrighted works to the general public for

572

See 37 C.F.R. §201.40(b)(12), (13).

573

See 2020 NPRM, 85 Fed. Reg. 65293, 65301.

574

Class 14(a) Petition for New Exemption of Software Preservation Network and Library Copyright

Alliance (SPN Class 14a Petition), Docket No. 2020-11,

%20Software%20Preservation%20Network%20&%20Library%20Copyright%20Alliance%20-%202.pdf;

Class 14(b) Software Preservation Network and Library Copyright Alliance Petition for New on Video

Games (SPN Class 14b Petition), Docket No. 2020-11,

%20Software%20Preservation%20Network%20&%20Library%20Copyright%20Alliance%20-%201.pdf.

575

Class 14 Initial Comments of SPN and LCA (SPN Class 14 Initial Comments), Docket No. 2020-11, at

4-12,

https://www.copyright.gov/1201/2021/comments/Class%2014a%20and%2014b_InitialComments_Softw

are%20Preservation%20Network%20and%20Library%20Copyright%20Alliance.pdf.

112

purposes beyond what opponents consider preservation uses, impacting the marketplace and

value for these works

and potentially other works not contemplated by the exemptions.

576

NTIA Position: NTIA recommends expansion of the software and video game

preservation exemptions to accommodate the distribution and making available of works covered

under these exemptions outside of the physical premises of the eligible institutions, with

modifications as described below. NTIA further recommends that the eligibility requirements

for libraries, archive, and museums in the software preservation exemption be adopted into the

video game preservation exemption.

577

The interests of copyright holders should be adequately

protected through this rulemaking, and the additional eligibility requirements for institutions in

the context of off-premises access—in particular the implementation of reasonable digital

security measures—are essential to this goal while helping ensure that legitimate activities under

the exemption continue.

Analysis: It is critical to afford eligible libraries, archives, and museums as much

flexibility as possible under the law to make noninfringing uses of copyrighted works, and the

nature of these noninfringing uses does not necessarily become infringing by removing the

physical premises limitation. Proponents indicated that their efforts have been impeded due to

the physical premises requirement.

578

The cause of the adverse effects is ultimately the

576

Opponents list several concerns: 1) the proposed regulatory language by proponents does not limit the

usage of unauthorized copies created through circumvention in any way, appearing to “allow for the

provision of unauthorized, remote access to complete works for the general public, including for

entertainment purposes, and even if the copyright owner has since reissued the work (or issued a

derivative version of the work) or may do so in the future”; 2) the proposals “are not focused on access

controls impeding preservation of works for researchers, teachers, and future generations” and the

“proposed expansions [as compared to the existing exemptions] focus on providing the public with the

ability to use works without limitation and without compensation to copyright owners”; and 3) to the

extent that the expansion of this proposal would permit circumvention of access controls on video game

consoles by more individuals, it increases the risk that “consoles could be used to play unauthorized

copies of games or make unauthorized copies of other kinds of media available on consoles . . . .” Id.

(internal footnoted omitted) (emphasis in original). Class 14 Opposition Comments of Motion Picture

Association, et al. (MPA Class 14 Opposition Comments), Docket No. 2020-11, at 2-3,

https://www.copyright.gov/1201/2021/comments/opposition/Class_14a%20and%2014b_Opp'n_Joint%20

Creators%20and%20Copyright%20Owners.pdf. The ESA filed additional opposition comments in

Round 2 specific to Class 14(b). Class 14 Opposition Comments of the Entertainment Software

Association (ESA Class 14 Opposition Comments), Docket No. 2020-11,

https://www.copyright.gov/1201/2021/comments/opposition/Class_14b_Opp'n_Entertainment%20Softwa

re%20Association.pdf. See also April 19 Hearing Transcript, Remarks of Steve Englund, at 666 (Apr. 19,

2021) (“[T]here aren’t a lot of limitations [in proponents’ various versions of their proposals]. And so, I

think the Office’s task is to analyze the full possible scope of what is permitted under any particular

regulations under consideration. And I think, based on what we’re hearing so far, it’s one that would

allow any public library in America to engage in circumvention of TPMs without a limitation to

university libraries or research purposes, or much of anything else.”).

577

37 C.F.R. §201.40(b)(13)(ii) (software preservation exemption eligibility requirements for libraries,

archives, and museums).

578

See, e.g., SPN Class 14 Initial Comments, at 8-12.

113

prohibition on circumvention, but the need to expand the scope of the exemptions is particularly

clear in light of the ongoing pandemic, since, as proponents indicate, conditions have further

prevented access to the eligible institutions, and, by consequence, the lawfully acquired works,

and curtailed a variety of activities permitted under the current exemptions.

579

Numerous first-

hand accounts from librarians and other individuals at the institutions serve to strengthen the

record by demonstrating that the harms are real and happening now, and not merely hypothetical.

NTIA has previously described why the uses envisioned by these exemptions are likely

noninfringing and, in particular, fair uses.

580

recommended and the Librarian adopted preservation exemptions with the understanding that the

uses covered in the exemptions are likely noninfringing uses, including fair uses.

581

Here, then,

one of the Librarian’s considerations should be whether the removal of the physical premises

limitation–that is, providing the opportunity for off-site or remote access–changes this analysis in

such a way that the uses become likely infringing.

582

NTIA cautions against substantially

reopening the discussion on every matter addressed in the current exemptions that would have

been better served in discussion of renewing the exemptions, unless the specific proposed

changes merits such reopening.

583

Proponents highlight several provisions of copyright law that may be relevant to this

proposal: the TEACH Act, the Music Modernization Act (MMA), and Section 108 of Title

17.

584

It is unlikely that the TEACH Act can accommodate the uses contemplated in the

modified exemptions.

585

The MMA reflects steps Congress has taken to “ke[ep] pace with the

579

Id. at 9-10, 13-14. As proponents indicate, removing the physical premises requirement “would

provide access to those individuals with significant logistical and financial limitations, including those . . .

affected by U.S. travel restrictions” (internal footnote omitted) (citing conversation with Kyle K.

Courtney, Copyright Advisor and Program Manager at Harvard Library).

580

2018 NTIA Letter, at 65-68, 68-69; 2015 NTIA Letter, at 65-68.

581

See generally 2015 Final Rule, 80 Fed. Reg. 65944; 2018 Final Rule, 83 Fed. Reg. 54010.

582

See April 19 Hearing Transcript, Remarks of Kevin Amer, at 688.

583

Substantive discussion about certain matters, to the extent they do not impact the discussion for

modification, are best handled at the petition for renewal stage. The Register has explained that the

streamlined process includes “the same evidentiary standard in recommending the renewal of exemptions

as for first-time exemptions requests” and that determinations are not automatically the same as those

from the previous rulemakings. See 2020 NPRM, 85 Fed. Reg 65293, 65294 (internal citation and

footnote omitted).

584

SPN Class 14 Initial Comments, at 22-23.

585

April 19 Hearing Transcript, Remarks of Mayze Teitler, at 716-17. (“[I]t’s pretty clear that the highly

specific standards in the TEACH Act limit usability in a degree that’s just far too great and ends up

chilling a lot of otherwise fair and permissible uses . . . [i]f we did import [specific limitations in the

TEACH Act], because libraries are so risk averse, they probably, as school[s] have, in the TEACH Act,

would shy away from using the exemption at all, and end up . . . choosing not to engage in activities that

might be fair. So, I think we have to be really sensitive to the organizations we’re talking about here and

what their behavior’s like in the real world.”); see also April 19 Hearing Transcript, Remarks of Henry

Lowood, at 718 (“[U]nder COVID, we spent a lot of time thinking about the TEACH Act and what it

allowed us to do, and it is the case it wasn’t particularly helpful in coming up with clear guidelines about

the kinds of questions we were getting as instructors were frantically moving from all face-to-face

114

music industry to reflect changes in consumer preferences and technological developments,”

586

and in this regard does help highlight some of Congress’ recent considerations in the application

of copyright law to the digital age (particularly on noncommercial use of copyrighted materials),

but the legislation would not appear to be a primary basis for the expansion of this exemption.

While Section 108 of Title 17 is indicative of the value that eligible institutions and their

activities have in copyright law and in society and can serve as a basis for preservation

exemptions, Section 108 should not be the sole consideration for noninfringing uses in this

rulemaking process, as that section does not comprehensively address modern digital

preservation scenarios.

587

However, while all three would not serve as the exclusive basis for an

exemption in this context, proponents explain the critical role of these provision within the ambit

of fair use: “In considering whether a particular use should be favored by fair use, and in

particular in weighing the first factor, courts look to other parts of the Copyright Act, and to

other federal policies, for evidence showing a particular use advances the goals of copyright or of

federal policy more generally.”

588

Proponents persuasively explain how providing remote access for preservation purposes

is likely a fair use, including the intermediate steps necessary to provide such access.

589

teaching to all-online teaching and trying to figure out how they could do the equivalent of a screening in

a course, you know, showing a film or showing a game to a group of students in real time.”).

586

SPN Class 14 Initial Comments, at 26 (citing S. REP. 155-339 at 1 (2018),

https://www.copyright.gov/legislation/mma_conference_report.pdf

.).

587

See Section 108 Discussion Document, at 1 (“The current section 108 language is insufficient to

address digital works and digital transmissions, does not reflect the way that libraries and archives

actually operate, and excludes museums, among other constraints.”); see also 2018 NTIA Letter, at 69;

2018 Register’s Recommendation, at 239-40. The Copyright Office at the hearings noted in particular

that section 108(i) excludes audiovisual works, so the proponents would have to look beyond section 108

to cover video games. See April 19 Hearing Transcript, Remarks of Kevin Amer, at 673. However, in

the context of the sought expansion for software preservation, NTIA notes that 17 U.S.C. § 108(i) does

not exclude computer programs from the rights of reproduction and distribution covered under Section

108. On section 108 reform, NTIA remains optimistic that efforts to modernize Section 108 will be

successful and can help address the needs expressed in this rulemaking, but it does not believe that the

rulemaking should wait for such changes when there are clear needs today that the Librarian can address

under her authority in this rulemaking.

588

SPN Class 14 Initial Comments, at 22-23 (citing Authors Guild v. HathiTrust 755 F.3d at 101–02 to

indicate the court there “survey[ed] provisions in the Copyright Act and in federal law generally favoring

access for the blind and print-disabled as part of the first factor inquiry.”).

589

See SPN Class 14 Initial Comments, at 15-22. Proponents cite to a recent decision in the District

Court for the Southern District of Florida, Apple Inc., v. Corellium, No. 19-81160-CIV, 2020 WL

8642269 (S.D. Fla. Dec. 29, 2020) (Corellium), to support their assertion that the development of a

remote access mechanism to access lawfully acquired works for research purposes can be within fair use;

Class 14 Reply Comments of Software Preservation Network and Library Copyright Alliance (SPN Class

14 Reply Comments), Docket 2020-11, at 9-11,

https://www.copyright.gov/1201/2021/comments/reply/Class%2014b_Reply_Software%20Preservation%

20Network%20and%20Library%20Copyright%20Alliance.pdf. Apple has more recently filed notice to

appeal part of that decision involving claims of copyright infringement. Proponents also cite to cases

discussed in previous rulemakings, including Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d. Cir.

115

NTIA also noted in 2018, courts have favored digital efforts that provide access to works or parts

of works as a public benefit,

590

and the proposed exemption would continue to support that fair

use. Moreover, as the proponents note, the authorized uses that that the exemption would allow

have been found to be transformative.

591

Even if the efforts here are not transformative, they are

for a “favored purpose” (preservation) and non-commercial, which weighs in favor of fair use.

The second factor generally weighs in favor of opponents when elements that are more

expressive are at issue, and in favor of proponents when functional elements are at issue,

592

though this factor is not as dispositive when preservation is “necessary to allow continued

legitimate use of the work.”

593

For the third factor, both parties recognize that entire works

would be copied (as with the current exemptions); however, as proponents note, “this factor can

favor fair use when entire works are used because copying the entirety of a work is sometimes

necessary to make a fair use” and “research uses often require access to the entire work to

support complete examination of its elements.”

594

Proponents also explain why providing

remote access itself may not always be possible without the entire work, as “[e]mulation often

requires the entire codebase to run functional software.”

595

In other words, the third factor likely

weighs in favor proponents because the amount and substantiality of the copying is reasonable in

relation to the purpose of the copying.

Under the fourth factor, effects of the use on the market, the discussion between parties is

primarily about the video game preservation exemption. Opponents contend that unlike the

current exemption, this proposal would “enable remote gameplay by the public without

restriction, which poses a very significant risk of harm to the substantial and growing market for

both derivative works and reissues of video games.”

596

Opponents recommend that the Register

assume that the proposed exemptions would enable providing access to widely available video

games.

597

NTIA notes that such titles would appear to not be covered under the current

2014) (HathiTrust), to support the view that fair use can support digital remote access in some instances;

SPN Class 14 Reply Comments, at 9-10. NTIA sees the decisions cited by proponents, alongside

decisions extensively discussed in previous rulemakings such as The Authors Guild, Inc., et al. v. Google,

Inc., 804 F.3d 202 (2d Cir. 2015)—while not strictly about the activities covered here—as showing strong

support for digital access efforts that promote research and scholarship. On remote access specifically,

the decisions do not appear to have treated this as dispositive; in other words, issues like physical

premises restrictions were not dispositive to findings of fair use, including where remote access to

copyrighted works ranged from widespread (e.g., a member of the public with Internet access) to a more

curated environment (individuals vetted by a company), and even where significant differences existed in

the level of supervision between remote and on-premises access for the same activities (e.g., less

supervision in one context compared to the other).

590

See 2018 NTIA Letter, at 68.

591

See SPN Class 14 Reply Comments, at 9-10.

592

SPN Class 14 Initial Comments, at 18.

593

See 2018 Register’s Recommendation, at 243 (citing 2015 Register’s Recommendation, at 338).

594

SPN Class 14 Initial Comments, at 19.

595

See id.

596

ESA Class 14 Opposition Comments, at 13.

597

April 19 Hearing Transcript, Remarks of Steve Englund, at 720 (“[T]he Office’s analysis needs to look

at the broadest aspects of the activities permitted here. So, you’ve got to assume that the games that

116

exemptions or proposed exemptions unless they are no longer reasonably available in the

commercial marketplace, which would suggest they are not “the most popular titles of three

years ago.”

598

Copyrighted works that are reasonably available in the commercial marketplace

would fall outside of the exemption.

599

Although the size the of the “derivative” or “reissue”

market is disputed,

600

and NTIA does not come to a conclusion about its actual scope, even

assuming that those markets are significant, NTIA is unclear whether the proposed exemption

would always do what opponents claim: act as a substitute, or competition, for newer games.

601

As proponents note, one of the reasons to preserve older works is precisely because they are

different from newer works.

602

And NTIA agrees with the Copyright Office’s previous

conclusion that “[n]ot all such games will be reintroduced” and that reintroduced games do not

always include the same functionalities as the original.

603

we’re talking about providing access to are the most popular titles of three years ago that may be part of a

franchise that has a current edition out in the market now, and through that lens, apply fair use analysis.”).

598

See id.

599

SPN Class 14 Reply Comments, at 8 (“To the extent a game is made available by its creators, it would

not be eligible for the exemption.”); id. at 22 (“The proposed exemption is limited to research and

academic uses which do not supersede market transactions because the proposed exempted works are out-

of-commerce, which are definitionally unavailable and often unusable on modern consoles or computers.”

(emphasis in original).

600

Compare ESA Class 14 Opposition Comments, at 2-4 (noting that “[v]ideo games, like other types of

creative works, are also regularly reintroduced or reimagined” and providing a list of video games titles to

support that statement), with SPN Class 14 Reply Comments, at 15 (asserting that some of the titles cited

by opponents “represent just a tiny fraction of the games produced over the years . . . .”).

601

ESA Class 14 Opposition Comments, at 14 (“If a copyright owner chooses to suspend

commercialization of an older game to help drive demand for a successor to that game, its new title

should not have to compete with the predecessor version made available to the public by a self-styled

archives.”).

602

See, e.g., April 19 Hearing Transcript, Remarks of Kendra Albert, at 714-15 (“I think the most

evocative example we found was the Baldur’s Gate Enhanced Edition which actually changed two of the

characters’ sexualities between the original release and re-release. So, I, colloquially, have been calling

this the Han shot first problem . . . .”). NTIA does not take a position or mean to imply that the original

video game referenced in proponents’ example would be subject to the video game preservation

exemption, but it does indicate that there are material differences relevant to preservation.

603

2015 Register’s Recommendation, at 339. One of the examples offered by opponents as an example of

a reintroduced game, NieR Replicant, may help illustrate this point. ESA Class 14 Opposition Comments,

at 4. NTIA offers no position or means to imply in any way whether the original NieR released in 2010

would be subject to the current exemption. As background, NieR was originally released in two versions

in Japan: NieR Replicant and NieR Gestalt. Shilling, Chris, “Nier. And yet so far.,” Eurogamer (Apr. 22,

2010), https://www.eurogamer.net/articles/nier-review

; Yang, George, “The creators of Nier Replicant on

the little changes that make a big difference,” Polygon (Apr. 23, 2021),

https://www.polygon.com/interviews/22399273/nier-replicant-automata-sequels-prequels-dlc-interview.

Each version featured a different protagonist, and Near Gestalt became the basis for versions of the game

released outside of Japan. See id. (“According to a previous interview, Gestalt was chosen because, at

that time, it was thought that the middle-aged protagonist would be more appealing to a global

audience.”) (internal hyperlink omitted). The game released in 2021, NieR Replicant

ver.1.22474487139… (“NieR 2021”) is advertised as “an updated version of NieR Replicant, previously

117

Proponents have also highlighted other provisions in copyright law that may be relevant

to this proposal: the TEACH Act, the Music Modernization Act (MMA), and Section 108 of

Title 17.

604

It is unlikely that the TEACH Act can accommodate the uses contemplated in the

modified exemptions.

605

The MMA reflects steps Congress has taken to “ke[ep] pace with the

music industry to reflect changes in consumer preferences and technological developments,”

606

and in this regard does help highlight some of Congress’ recent considerations in the application

of copyright law to the digital age (particularly on noncommercial use of copyrighted materials),

but the legislation would not appear to be a primary basis for the expansion of this exemption.

While Section 108 of Title 17 is indicative of the value that eligible institutions and their

activities have in copyright law and in society and can serve as a basis for preservation

only released in Japan.” NieR Replicant ver.1.22474487139…, Steam, available at

https://store.steampowered.com/app/1113560/NieR_Replicant_ver122474487139/

. Assuming arguendo

that the original NieR (either Replicant or Gestalt) is subject to the exemption, this example helps

illustrate proponents’ contention that re-releases, including updated re-releases, do not always substitute

for the original works, as they may contain significant changes to game elements and preservationists

seek to look at the game in the way it was originally released. In other words, they are different games.

See SPN Class 14 Initial Comments, at 19-20. Although the game in NieR 2021 appears to be similar to

the original Japanese version, in addition to visual updates, NieR 2021 includes “differences in combat,

which has been revamped to play more like NieR: Automata [a sequel].” Gamespot, Nier (Original) vs

Nier Replicant Ver.1.2247 Graphics Comparison, Youtube (Apr. 23, 2021),

https://www.youtube.com/watch?v=oSla4s7D_KY; Yang, George, “The creators of Nier Replicant on the

little changes that make a big difference,” Polygon (Apr. 23, 2021),

https://www.polygon.com/interviews/22399273/nier-replicant-automata-sequels-prequels-dlc-interview

(“However, in this new version of the game, the player can now fire off magic attacks and execute

combos with their weapon simultaneously, resulting in the game’s combat being much more fluid than

the original’s. Additionally, they no longer have to stand still when charging [floating book companion

Grimoire] Weiss’ magic spells, so they can stylishly hop around, just like [the NieR producer] intended.”);

Saltzman, Mitchell, “NieR Replicant Ver. 1.22474487139 Review,” IGN (Apr. 27, 2021),

https://www.ign.com/articles/nier-replicant-ver-122474487139-review (“However, one big change, and

one of the reasons why I think it’s impossible to label [NieR 2021] just as a remaster, is the fact that every

character is now voiced. This is a huge improvement that goes a long way in bringing Nier’s otherwise-

sleepy world to life.”).