|IV. Classes Considered But Not Recommended
Upon the recommendation of the Register of Copyrights, the Librarian has determined that the following classes of works shall not be exempt from the prohibition against circumvention of technological measures set forth in Section 1201(a)(1)(A):
A. Literary works in the public domain digital access
The Register concluded that the requested exemption to access public domain works was beyond the scope of the rulemaking proceeding and declined to recommend its adoption. As further explained in the 2010 rulemaking, Section 1201 does not prohibit circumvention of a technological protection measure when it simply controls access to a public domain work; in such a case, it is lawful to circumvent the technological protection measure and there is no need for an exemption.
Proponent Open Book Alliance (OBA) proposed an exemption to permit the circumvention of literary works in the public domain to enable access to works that are digitally distributed. Proponent sought a clarification that circumvention of technological measures for the purpose of accessing such literary works does not violate Section 1201(a)(1).
As explained above, Section 1201(a)(1) provides that [n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition on circumvention of technological protection measures thus does not apply to public domain materials because such materials are not protected under Title 17.
Joint Creators filed comments in response to OBAs proposal. Joint Creators did not object to the conclusion that Section 1201(a)(1) is inapplicable to literary works that are in the public domain but cautioned that many distributions of such literary works contain ancillary copyrightable elements, such as cover art, inserts, photographs, prefaces, and the like.
NTIA shared the proponents concern that the implementation of [technological measures] restricts universal access to public domain material, and that such restrictions may have a negative impact on educational institutions and research organizations, as well as other adverse impacts on the public. NTIA also recognized, however, that works in the public domain exemption is not required for this class of works.
As Joint Creators observed, questions may arise when a technological measure controls access not only to a work in the public domain, but at the same time controls access to other works that are protected by copyright. There was no need for the Register to address this issue on the record presented, however, because proponents neither raised it nor presented any evidence relating to it.
B. Video game consoles software interoperability
Because the Register determined that the evidentiary record failed to support a finding that the inability to circumvent access controls on video game consoles has, or over the course of the next three years likely would have, a substantial adverse impact on the ability to make noninfringing uses, the Register declined to recommend the proposed class.
EFF, joined by Andrew bunnie Huang (Huang), FSF, SaurikIT, LLC (SaurikIT), and numerous individual supporters, sought an exemption to permit the circumvention of access controls on video game console computer code so that the consoles could be used with non-vendor-approved software that is lawfully acquired.
EFF observed that modern video game consoles are increasingly sophisticated computing devices that are capable of running not only games but entire computer operating systems. All three major video game manufacturers, however Sony, Microsoft, and Nintendo have deployed technological restrictions that force console purchasers to limit their operating systems and software exclusively to vendor-approved offerings. These restrictions require a console owner who would like to install a computer operating system or run a homebrew (i.e., independently developed) application to defeat a number of technical measures before they can do so a process that proponents refer to as jailbreaking. Proponents sought an exemption they proposed would enable interoperability only with lawfully obtained software programs, proponents asserted that the exemption would not authorize or foster infringing activities.
In its comments, EFF explained the circumvention process with reference to Sonys PlayStation 3 (PS3). Sonys PS3 employs a series of technological protections so that the console can only install and run authenticated, encrypted code. One such measure is the encryption of the consoles firmware, which restricts access to the console. The firmware must be authenticated by the consoles bootloader software and decrypted before it can be used. Once the firmware has been authenticated and decrypted, it, in turn, authenticates applications before they can be installed or run on the PS3. EFF added that Microsofts Xbox 360 and Nintendos Wii employ similar authentication procedures as technological protection measures.
In further support of its requested exemption, EFF recounted that when Sony launched the PS3 in 2006, it included a software application called OtherOS that permitted users to install Linux and UNIX operating systems on their consoles. EFF provided examples of researchers who were able to use these earlier PS3 consoles in lieu of other computer systems to conduct various forms of scientific research, citing an Air Force project that made use of 1700 PS3s, as well as two academic projects employing clusters of PS3s to create high-performance computers. Some of these researchers chose to use clustered PS3s because they were less expensive than the available alternatives. In 2010, however, Sony issued a firmware update for the PS3 that removed the OtherOS functionality. PS3 users were not forced to upgrade, but the failure to adopt the upgrade precluded access to certain gameplay features and might make repair or replacement of the gaming system more difficult.
EFF further asserted that none of the three major console manufacturers currently allows the installation of independently developed applications on their consoles unless the developer may require the developer to license costly development tools. As a result, hobbyists and homebrew developers engage in circumvention to defeat technical restrictions in order to create and run games and other applications on the PS3, Wii, and Xbox consoles.
EFF noted over 450 independently created games and applications for Nintendos Wii available on the homebrew site WiiBrew.org, as well as some 18 homebrew games and several nongaming applications developed for the PS3 including a file backup program called Multiman and an application that transforms the PS3 into an FTP server and a handful of other homebrew applications for other platforms and handheld gaming devices. EFF pointed out that there is no strong homebrew community for the Xbox360, attributing this phenomenon to a Microsoft development program that allows developers to publish games with relative ease.
Proponents argued that manufacturers technological restrictions on video game consoles not only constrain consumer choice but also inhibit scientific research and homebrew development activities. Pointing to the Registers determination in the last Section 1201 rulemaking that circumvention of technological measures on smartphones to enable interoperability with lawfully obtained applications was a permissible fair use, proponents urged that the same logic should apply here. According to proponents, the restrictions on video game consoles do not protect the value or integrity of copyrighted works but instead reflect a business decision to restrict the applications that users can run on their devices.
EFF explained that a large community of console jailbreakers currently exists for all three major video game consoles but noted that such jailbreakers face potential liability under Section 1201(a)(1). As evidence of this, EFF cited recent litigation pursued by Sony against an individual and others who developed a method for jailbreaking the PS3. EFF explained that in January 2010, George Hotz (also known by his online name GeoHot) published a method for among other things, that the defendants had conspired to violate the DMCA.
Finally, a few supporters of EFFs proposal suggested potential scenarios in which a console might need to be jailbroken to effectuate a repair but did not provide any specific evidence of actual repair issues.
The proposal to permit circumvention of video game consoles was vigorously opposed by the Entertainment Software Association (ESA), Sony Computer Entertainment America LLC (SCEA or Sony), and Joint Creators. Opponents filed extensive comments in response to EFFs request.
ESA characterized video game consoles as the center of an intellectual property ecosystem which makes copyrighted content readily and legally accessible, stating that the entire system depends upon effective and secure access controls. ESA explained that there are at least two potential access controls at issue. To play an unauthorized application, the user must circumvent not only the encryption on the consoles firmware, but also modify the firmware to defeat the authentication check access control. It added that once modified, the firmware will operate, but the access controls will be circumvented, effectively allowing the console to run unauthorized content.
SCEAs comments focused on its PS3 console (the dominant example addressed in EFFs proposal). SCEA confirmed that the technological restrictions controlling access to the PS3 protect both its firmware and the copyrighted video games that are developed for that system. As explained by SCEA, allowing circumvention of the PS3 access controls would mean that the basic security checks could be skipped and the firmware freely modified to bypass or eliminate the process by which the video games are authenticated for use on the console, thus making it virtually certain that successful hackers, under the guise of the exemption, will create the tools games.
Throughout their comments, opponents stressed piracy as an overriding concern, noting that once a user circumvents a consoles security measures even for an ostensibly benign purpose it becomes a vehicle for unauthorized content. In their view, EFFs attempt to limit the exemption to interoperability with lawful applications would make no difference in practice, because all known methods for circumventing game console [technological protection measures] necessarily eliminate the measures ability to preclude the play, reproduction and distribution of infringing content.
In support of their contentions regarding the link between circumvention and piracy, opponents provided documentation of console hacking packages that come bundled with applications to play pirated content. They further noted, again with supporting materials, that the homebrew channel installed with a popular Wii hacking package automatically includes applications that enable the console to play pirated content. They pointed out, with still further support in the record, that the Multiman backup system referenced by EFF as an example of a useful application enabled by jailbroken PS3s is used to decrypt and copy protected PS3 games so they can be illegally distributed. Other documentary evidence submitted by opponents showed that the PS3 FTP file server application described by EFF is used as a means to transfer illegal files. Opponents also furnished multiple examples of advertisements for console jailbreaking services that included (for an all-in price) a library of pirated games.
Opponents pointed to online forums and other sources that specifically referenced George Hotzs hack of the PS3 described sympathetically by EFF in its proposal as permitting users to play pirated games and content, and provided representative postings. The documentation evidenced a broadly shared perception in the gaming community that jailbreaking leads to piracy would negatively impact the development of new games.
Possibly referring to Hotz, SCEA elaborated on the hacking issue by commenting specifically on the events surrounding a 2010 breach of its PS3 system. In that case, hackers announced that they had successfully circumvented the technological measures on PS3 firmware, which was accomplished by exploiting vulnerabilities in Linux operating in the OtherOS environment. Although the hackers stated that they did not endorse or condone piracy, one hacker subsequently published PS3s encryption keys on the internet, which were quickly used to create jailbreak software to permit the use of illegally made games. Sony saw an immediate rise in the number of illegal copies but no increase in homebrew development, while sales of legitimate software declined dramatically. As a result of the hack, Sony decided it had no choice but to discontinue OtherOS and issued a system upgrade that disabled OtherOS functionality for those who wished to maintain access to Sonys PlayStation network.
Mindful of the exemption established by the Librarian in the prior proceeding to permit jailbreaking of smartphones, opponents urged that video game consoles are not the equivalent of iPhones, asserting that the technological measures on game consoles legitimately protect the creation and dissemination of copyrighted works by discouraging pirated content and protecting creators investment in new games. Opponents distinguished the development of a video game a long and intensive process akin to motion picture production involving a team of developers that can cost tens of millions of dollars from the relative ease and inexpensiveness of creating a smartphone application. According to opponents, the development of new video games would be significantly impaired without reliable technological protections to protect developers investments.
homebrew programs, opponents observed that while EFFs request focused on the PS3, the homebrew community for that device is small, as evidenced by the fact that less than one-tenth of one percent of PS3 users (fewer than 2,000 in all) had made use of the PS3s OtherOS feature. In any event, they noted, there are over 4,000 devices on which Linux can be run without the need for circumvention, and homebrew games and applications can be played on a wide array of open platform devices. Opponents further observed that each of the three major video game console manufacturers has a program to support independent developers in creating and publishing compatible games.
Finally, opponents disputed proponents suggestion that circumvention is necessary to repair broken game consoles, explaining that each console maker offers authorized repair services free of charge for consoles still under warranty for a nominal fee thereafter.
Although EFF sought to rely upon the Registers 2010 determination that modification of smartphone software to permit interoperability with non-vendor-approved applications was a fair use, the Register concluded that the fair use analysis for video consoles diverged from that in the smartphone context. Unlike in the case of smartphones, the record demonstrated that access controls on gaming consoles protect not only the console firmware, but the video games and applications that run on the console as well. The evidence showed that video games are far more difficult and complex to produce than smartphone applications, requiring teams of developers and potential investments in the millions of dollars. While the access controls at issue might serve to further manufacturers business interests, they also protect highly valuable expressive works many of which are created and owned by the manufacturers in addition to console firmware itself.
claimed would be enabled by circumvention might well constitute transformative uses. On the other hand, circumventing console code to play games and other entertainment content (even if lawfully acquired) is not a transformative use, as the circumvented code is serving the same fundamental purpose as the unbroken code. While the second and third fair use factors did not greatly affect the analysis, on the significant question of market harm, the Register concluded that opponents had provided compelling evidence that circumvention of access controls to permit interoperability of video game consoles regardless of purpose had the effect of diminishing the value of, and impairing the market for, the affected code, because the compromised code could no longer serve as a secure platform for the development and distribution of legitimate content. The Register noted that instead of countering this evidence with a factual showing to prove opponents wrong, EFF merely asserted that its proposal would not permit infringing uses. The Register did not believe that this response satisfied proponents obligation to address the real-world impact of their proposed exemption. Overall, the Register found that proponents had failed to fulfill their obligation to establish persuasively that fair use could serve as a basis for the exemption they sought.
The Register further found that even if proponents had satisfied their burden of establishing noninfringing uses, they nonetheless failed to demonstrate that video game console access controls have or are likely to have a substantial adverse impact on such uses. Proponents identified two broad categories of activities that were allegedly threatened by the prohibition on circumvention, scientific research and homebrew software development. With respect to scientific research, a small number of research projects involving only one type of gaming console, the PS3, suggested a de minimis impact, if any. This conclusion was reinforced by record evidence indicating that Sony had in fact cooperated with and been a supporter of marketplace.
Nor, according to the Registers analysis, did the record support a finding that Section 1201(a)(1) is having a substantial adverse impact on lawful homebrew activities. The most significant level of homebrew activity identified by EFF appears to have occurred in relation to the Wii, but the record was relatively sparse in relation to other gaming platforms. Concerning the use of video game consoles to operate Linux software generally, the record showed that only a very small percentage of PS3 users availed themselves of the (now discontinued) OtherOS option that permitted users to run Linux on their PS3s. At the same time, there are thousands of alternative devices that can be used to develop and run Linux-based video games and other applications. In addition, the record indicated that developers can and do take advantage of various manufacturer programs to pursue independent development activities.
Finally, as noted above, the Register determined that proponents offered no factual basis in support of their suggestion that users are having difficulty repairing their consoles as a result of Section 1201(a)(1). This appeared to be only a hypothetical concern, as proponents failed to document any actual instances of users seeking to make repairs.
The Register therefore concluded that proponents had failed to establish that the prohibition on circumvention, as applied to video game console code, is causing substantial adverse effects.
Turning to the statutory factors, the Register took issue with proponents view that piracy was an irrelevant consideration because the exemption they sought was only to allow interoperability with lawfully obtained applications. The Register explained that she could not ignore the record before her. Even if piracy were not the initial or intended purpose for circumvention, the record substantiated opponents assessment that in the case of video games, console jailbreaking leads to a higher level of infringing activity, thus sharply distinguishing the case of video consoles from smartphones, where the record did not support the same finding. The evidence also suggested that the restriction limiting the proposed class to lawfully obtained applications which the Register has found effective in other contexts did not provide adequate assurance in this case. The Register noted that simply to suggest, as proponents had, that unlawful uses were outside the scope of the exemption and therefore of no concern was not a persuasive answer.
Finally, the Register agreed with proponents assessment that the access controls protecting video game console code facilitate a business model, as many technological restrictions do. But the Register concluded that in the case of gaming platforms, that was not the sole purpose. Console access controls protect not only the integrity of the console code, but the copyrighted works that run on the consoles. In so doing, they provide important incentives to create video games and other content for consoles, and thus play a critical role in the development and dissemination of highly innovative copyrighted works.
NTIA supported the innovative spirit epitomized by independent developers and researchers whose needs proponents contemplate in this class, but noted that the evidence in the record was insufficient to support the considerable breadth of the proposed class. NTIA asserted that the record was unclear with respect to the need for an exemption to enable software interoperability, and that there was compelling evidence of reasonable alternatives available for research purposes. NTIA was also cognizant of the proposals likely negative impact on the underlying business model that has enabled significant growth and innovation in the video game industry.
Although NTIA did not support the exemption as requested by proponents, it did support a limited exemption to allow videogame console owners to repair or replace hardware console and authorized replacement parts are no longer on the market. As explained above, however, the Register found that the record lacked any factual basis upon which to recommend the designation of even such a limited class.
C. Personal computing devices software interoperability
While the Register recognized that the concern expressed by proponents that a broad implementation of restrictive access controls could preclude users from installing operating systems and applications of their choice is a significant one, she found that proponents had relied heavily on speculation and failed to present specific and compelling evidence in support of a focused exemption. The Register therefore declined to recommend the adoption of the proposed class.
Software Freedom Law Center (SFLC), supported by FSF, Mozilla, SaurikIT, New Yorkers for Fair Use, Huang, and others, sought an exemption to permit the circumvention of computer programs on personal computing devices to enable the installation of other software, including alternative operating systems, when such software is lawfully obtained. The proposed exemption would have allowed circumvention by the device owner or by someone acting at the device owners request.
In requesting this exemption, SFLC explained that there are two broad categories of access controls on personal computing devices: application locks, which effectively prevent users from installing certain software applications, and OS locks, which effectively prevent users from installing replacement operating systems. Citing the Librarians 2010 determination permitting jailbreaking of smartphones to enable interoperability, SFLC asserted that the restrictions addressed by the smartphone exemption have become commonplace on other mobile computing devices and have begun to appear on personal computers. Accordingly, SFLC computing devices so as to permit circumvention for the purpose of installing any software the user chooses, including a new operating system.
SFLC explained that the mobile device market, which includes not only smartphones but also tablet computers, is dominated by Googles Android operating system and Apples iOS, which together account for 94 percent of the market. The two most popular ebook readers, Amazons Kindle and Barnes & Nobles Nook, are Android-based devices. According to SFLC, [a]ll of the restrictions addressed by the [smartphone] exemption are reproduced on the new formats. Thus, the iOS on the iPhone and iPad limits applications to those obtained from Apples store. In the case of Android, users are allowed to install applications obtained from channels other than Googles Android Marketplace, but Android withholds many vital privileges (i.e., important device functionalities) from alternatively sourced applications. In addition, even though the Kindle and Nook are Android-based, Amazon and Barnes & Noble have substituted their own exclusive distribution channels, which cannot be avoided without jailbreaking.
SFLC further observed that Microsoft has announced that it will require hardware manufacturers for the forthcoming Windows 8 operating system to enable a secure boot system which can function as a type of OS lock by default. It asserted that because Microsoft controls nearly 90 percent of the operating system market, secure boot will be a nearly ubiquitous feature on personal computers in the next year. According to SFLC, this will decimate what is now a thriving market for alternative PC operating systems. In a further submission to the Copyright Office, however, SFLC conceded that Microsoft had established a program to enable developers to have their operating systems signed by Microsoft i.e., to acquire a secure boot key for a fee of 99 dollars.
SFLC acknowledged that the stated justification for OS locks is to protect device owners from malicious software by making it impossible for viruses to gain access to, or replace, a devices operating system. But in SFLCs words, [t]his security feature is undiscerning: it will reject the device owners intentional installation of an operating system just as it will reject a viruss payload. SFLC observed that [t]o the extent the firmware lock being circumvented merely prevents unauthorized operating systems from running, it does not protect access to a copyrighted work of the device producer, but rather prevents access to a competing copyrighted work to which the device owner has a license.
On the question of noninfringing use, SFLC asserted that it is not infringing for the owner of a device to install applications that have not been approved by the devices manufacturer. According to SFLC, this conclusion drawn from the Registers analysis and findings in the 2010 rulemaking proceeding applies with equal force to application locks on devices other than smartphones, as well as to OS locks. SFLC noted that in 2010, the Register determined that circumvention for the purpose of achieving interoperability was either noninfringing or fair. SFLC further opined that, while modification of a preinstalled operating system is sometimes necessary to circumvent an application lock, the same is not true of OS locks, as removal of a devices default operating system does not implicate any of the exclusive rights of the owner of the operating system.
The proposed class was opposed by Joint Creators, who argued that the requested exemption targets every device and every platform, and creates an open-ended standard for circumvention. In their view, if granted, the exemption would strip any copyright owner, distributor, or licensee from exercising any choices with respect to how to construct a distribution system related to personal computing, and would thus expose copyright owners and their business partners to unnecessary risk, piracy, and unpredictability. Joint Creators failed to meet the substantial burden required for an exemption.
Joint Creators also contended that the primary effects of such an exemption would be to enable distribution of pirated applications, and to remove technical limitations that would otherwise protect trial versions of applications. According to Joint Creators, circumvention of technical measures on computer programs is accomplished primarily to unlock trial versions of software or enable access to pirated copies or unauthorized modified versions.
Joint Creators stressed that proponents arguments in favor of the proposed class were based on speculation rather than facts. They asserted that proponents comments presented theories about what might occur but failed to demonstrate that the scenarios they portrayed were more likely than not. In particular, with respect to the secure boot issue, Joint Creators pointed out that proponents had not identified a single platform that precluded the installation of an alternative operating system.
Finally, Joint Creators asserted that the proposed class in purporting to immunize circumvention, performed . . . at the request of the devices owner amounted to a request to exempt the provision of circumvention services, which is prohibited under Section 1201(a)(1)(E).
The Register found that proponents had offered very little support for their claim that the uses for which they sought an exemption are noninfringing, even though it is a threshold requirement before an exemption can be considered. Instead, proponents chose to rest their case upon the Registers conclusion in the 2010 rulemaking in the context of smartphones that it was not an infringement to install applications that have not been approved by a devices manufacturer. The Register opined that proponents conclusory declaration that the expansive context of the rulemaking.
The Register noted that the record was murky on the especially critical issue of whether the removal of an operating system from a device in its entirety an activity proponents sought to facilitate through the rulemaking process required the circumvention of technical measures before erasing the operating system, or whether it was possible to remove an operating system without prior circumvention (even if such removal also simultaneously removed the access controls for that operating system). At the hearings, the Copyright Office sought clarification on this point from the parties, but the results were inconclusive. Another question that was not answered by the record was whether an OS lock preventing the operation of an alternative operating system is in fact a technological measure protecting a copyrighted work within the meaning of Section 1201(a).
The Register explained that to the extent an operating system can be removed without having first to gain access to the work through an act of circumvention, even if such work is protected for other purposes by technological measures, such removal would not constitute a violation of Section 1201(a)(1). This is because upon deletion of the work, any such technological measure is no longer effectively control[ling] access to the work. In such a case, of course, an exemption is unnecessary.
The Register also observed that much of proponents concern appeared to be centered on Microsofts to be launched Windows 8 operating system and its secure boot functionality. But proponents own statements indicated that this concern was speculative. It appeared undisputed in the record that, at least as of today, purchasers of PCs are able to install alternative operating systems without resorting to circumvention. Indeed, proponents conceded that the specification allegedly adopted by Microsoft does not prevent manufacturers from allowing users to disable to acquire keys for 99 dollars.
The Register determined that proponents suppositions concerning the features of forthcoming software fell short of making a case that the harmful effects they posited were more likely to occur than not. The Register reiterated that mere speculation cannot support an exception to Section 1201(a)(1); rather, predicted adverse effects are only cognizable in extraordinary circumstances in which the evidence of likelihood of future adverse impact is highly specific, strong and persuasive. The Register concluded that proponents had failed to offer any such evidence here.
The Register additionally observed that granting an exemption for such a sweeping class would be without precedent in the history of Section 1201 rulemakings. In the past, faced with a proposed class with respect to which the proponents have offered substantial and persuasive evidence, but for which the definition proposed is not fully congruent with the proponents showing, the Register has to the extent a sufficient basis exists in the record refined the class definition to ensure that it is appropriately tailored to her findings. But such refinement is only possible where the proponent of the proposed class has otherwise succeeded in demonstrating that some version of its exemption is warranted. The Register cannot delineate the appropriate contours of a class in a factual vacuum.
As a final consideration, the Register noted that to the extent the proposed class would effectively permit the provision of circumvention services to others as it appeared to do it must be rejected, as the provision of such services to others is forbidden under Section 1201(a)(2) of the DMCA.
NTIA was not convinced that Secure Boot constitutes a technological measure that effectively controls access to a work protected by U.S. copyright law. It further noted that Windows 8 or any other work for purposes of protecting copyright. NTIA thus did not support the designation of the proposed class.
D. Motion pictures and other works on DVDs and other media space shifting
The Register concluded that proponents had failed to establish that the prohibition on circumvention is imposing an adverse impact on noninfringing uses and declined to recommend the requested exemptions for space shifting.
Proponent Public Knowledge, as well as proponents Cassiopaea, Tambolini, Susan Fuhs, Kellie Heistand, Andy Kossowsky, and Curt Wiederhoeft, sought similar exemptions to permit the circumvention of motion pictures and other works on DVDs and other media to enable space shifting, i.e., the copying of complete works to permit personal use on alternative devices.
Proponent Public Knowledge stated a desire to move lawfully acquired motion pictures on DVDs to consumer electronic devices, such as tablet computers and laptop computers, that lack DVD drives. It asserted that consumers inability to play lawfully acquired DVDs on the newest devices adversely affected noninfringing uses of the works contained on DVDs, and that a reasonable solution was for these consumers to copy the motion pictures into a format that could be viewed on the new devices. Public Knowledge urged that such an exemption would merely allow a user to make use of a motion picture she has already acquired. The space shifting proposals by the additional proponents most of which were one page or less sought similar exemptions, but offered few factual details and little or no legal analysis.
The current proposals were not unlike the proposal sought in the 2006 rulemaking. In that rulemaking, the Register declined to recommend a space shifting exemption in part because the proponents failed to offer persuasive legal arguments that space shifting was a noninfringing use. The Register also addressed space shifting in the 2003 rulemaking in her consideration of a requested exemption regarding tethering. In her 2003 recommendation, the Register observed that no court has held that space-shifting is a fair use.
Public Knowledge cited RIAA v. Diamond Multimedia Systems Inc., 180 F.3d 1072 (1999), and Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), in support of its contention that space shifting is a noncommercial personal use, and therefore a fair use. It applied the four-factor fair use test of Section 107 in support of its assertion that the sort of space shifting for which it sought an exemption is a noninfringing use. Public Knowledge further argued that the space shifting would not negatively impact the availability of, or harm the market for, copyrighted works, or contribute to piracy. Finally, Public Knowledge claimed that there were no reasonable alternatives to such space shifting.
Public Knowledge asked the Register to evaluate the legitimacy of personal space shifting through independent examination. According to Public Knowledge, the Section 1201(a) rulemaking process of recommending, consulting, determining, and speculating necessarily requires the Register to draw conclusions beyond parroting the statute and existing case law.
Proponents of the additional proposals sought to exempt other digital works, including sound recordings and ebooks, in addition to motion pictures, for purposes of space shifting. They offered insufficient factual or legal analysis in support of their proposed exemptions, however.
DVD CCA opposed the requested exemptions by first observing that, although many new electronic devices are made without DVD drives, consumers can still play DVDs on such devices through the use of peripheral tools, i.e., external drives that connect to the devices and are capable of playing DVDs. DVD CCA argued that just because a consumer prefers a portable different device to play DVDs or that an exemption for space shifting is warranted.
DVD CCA further noted that, contrary to the statements made by Public Knowledge, consumers have not purchased the motion picture itself, but a DVD copy of the motion picture, which affords only the right to access the work according to the DVD format specifications, i.e., through the use of a DVD player. DVD CCA explained that consumers are able to purchase the copy at its retail price typically less than 20 dollars because it is distributed on a specific medium that will only play back on a licensed player. It stated that the Register has previously recognized that there is no unqualified right to access a work on a particular device.
DVD CCA alleged that the proposed exemption would harm the market for works distributed in the DVD medium as well as that for works offered in other digital media, explaining that the proposed exemption would displace sales for existing and forthcoming digital offerings that the DMCA was meant to encourage. It further alleged that the proposed exemption would create public confusion as to what is permitted activity.
Joint Creators similarly disputed Public Knowledges assertion that consumers are adversely affected by an inability to play DVDs on electronic devices that are not designed to play DVDs, pointing to services that provide access to numerous titles for low subscription prices. They argued that it was not the purpose of the rulemaking to provide consumers with the most cost-effective manner to obtain commercial video content.
AACS LA opposed an exemption for space shifting that would apply to AACS technology protecting Blu-ray discs. It noted that proponents had failed to satisfy their burden to demonstrate that an exemption is warranted or that space shifting is a noninfringing act.
The Register recognized that there is significant consumer interest in the proposed exemption. Proponents, however, had the burden of demonstrating that the requested use was noninfringing. Neither of the two key cases relied upon by proponents, however, addresses or informs the space shifting activities at issue.
The Register noted that she had previously explained that Diamond Multimedia a case in which the court was called upon to interpret the Audio Home Recording Act (AHRA) did not hold that space-shifting is fair use. It did state, in dicta, that space-shifting of digital and analog musical recordings is a noncommercial personal use consistent with the Audio Home Recording Act. Notably, neither Diamond Multimedia, nor the statute it interpreted, addressed motion pictures, the focus of Public Knowledges proposal.
Turning to Sony, the Register clarified that that case involved time-shifting, defined by the Supreme Court as the practice of recording a program to view it once at a later time, and thereafter erasing it. It did not address the legality of librarying, i.e., the maintenance of copies of copyrighted works. Here, by contrast, librarying was among the activities contemplated by the proposed exemptions.
The Register further observed that the law does not guarantee access to copyrighted material in a users preferred format or technique. Indeed, copyright owners typically have the legal authority to decide whether and how to exploit new formats. The Register noted that while the law may someday evolve to accommodate some of proponents proposed uses, more recent cases touching upon space shifting confirm that the fair use implications of various forms of space shifting are far from settled. The Register reiterated her view that the Section 1201 rulemaking process was not the forum in which to break new ground on the scope of fair use. She then proceeded to assess the proposed exemptions under the traditional fair use factors.
In urging that space shifting is a fair use, Public Knowledge characterized the copying of motion pictures for use on personal devices as a paradigmatic noncommercial personal use that could facilitate a transformative use. It further asserted that integrating reproductions of motion integration of thumbnail images into internet search engines found to be a transformative use in Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007).
The Register did not agree with this analysis. In her view, the incorporation of reproductions of motion pictures from DVDs into a consumers media management software is not equivalent to the provision of public search engine functionality. Rather, it is simply a means for an individual consumer to access content for the same entertainment purpose as the original work. Put another way, it does not add something new, with a further purpose or different character, altering the first with new expression, meaning, or advance criticism, comment, or any other interest enumerated in the preamble of Section 107. The Register therefore concluded that the first fair use factor did not favor a finding of fair use. The Register additionally determined that where creative works were being copied in their entirety, factors two and three also weighed against fair use, and that there was an inadequate basis in the record to conclude that the developing market for the online distribution of motion pictures would not be harmed by the proposed uses.
Finally, the Register concluded that proponents had failed to demonstrate that the use of a reasonably priced peripheral, a different device, or an online subscription service to access and play desired content did not offer a reasonable alternative to circumvention. Accordingly, the Register was not persuaded that the inability to engage in the space shifting activities described by proponents is having a substantial adverse impact on consumers ability to make noninfringing uses of copyrighted works.
NTIA suggested what it described as a more narrowly-constructed version of Public Knowledges proposed exemption. Specifically, it supported an exemption to allow circumvention of lawfully acquired DVDs when the DVD neither contains nor is accompanied undertaken solely in order to accomplish the noncommercial space shifting of the contained motion picture. NTIA voiced support for the motion picture industrys efforts to make content available on the wide range of new devices, and encouraged the industry to continue developing new offerings. It contended that by limiting the exemption to circumstances in which the market had not supplied alternatives to DVDs, the potential adverse effect on the market is minimal.
The Register likewise expressed support for the motion picture industrys innovation and the development of market approaches to satisfy the demand for electronically distributed content. But 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 NTIAs proposal would be noninfringing. Moreover, in light of the record before her, the Register did not find that such activities would not adversely affect the legitimate future markets of copyright owners.
Having considered the evidence in the record, the contentions of the commenting parties, and the statutory objectives, the Register of Copyrights has recommended that the Librarian of Congress publish certain classes of works, as designated above, so that the prohibition against circumvention of technological measures that effectively control access to copyrighted works shall not apply to persons who engage in noninfringing uses of those particular classes of works.
Dated: October 22, 2012
Maria A. Pallante,
Determination of the Librarian of Congress
Having duly considered and accepted the Recommendation of the Register of Copyrights, which Recommendation is hereby incorporated by reference, the Librarian of Congress is exercising his authority under 17 U.S.C. 1201(a)(1)(C) and (D) and is publishing as a new rule the classes of copyrighted works that shall be subject to the exemption found in 17 U.S.C. 1201(a)(1)(B) from the prohibition against circumvention of technological measures that effectively control access to copyrighted works set forth in 17 U.S.C. 1201(a)(1)(A).
List of Subjects in 37 CFR Part 201
Copyright, Exemptions to prohibition against circumvention.
For the reasons set forth in the preamble, 37 CFR part 201 is amended as follows:
PART 201GENERAL PROVISIONS
1. The authority citation for part 201 continues to read as follows:
Authority: 17 U.S.C. 702
2. Section 201.40 is amended by revising paragraph (b) to read as follows:
§ 201.40 Exemption to prohibition against circumvention.
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(b) Classes of copyrighted works. Pursuant to the authority set forth in 17 U.S.C. 1201(a)(1)(C) and (D), and upon the recommendation of the Register of Copyrights, the Librarian has determined that the prohibition against circumvention of technological measures that effectively control access to copyrighted works set forth in 17 U.S.C. 1201(a)(1)(A) shall not apply to persons who engage in noninfringing uses of the following classes of copyrighted works:
(1) Literary works, distributed electronically, that are protected by technological measures which either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies in the following instances:(i) When a copy of such a work is lawfully obtained by a blind or other person with a disability, as such a person is defined in 17 U.S.C. 121; provided, however, the rights owner is remunerated, as appropriate, for the price of the mainstream copy of the work as made available to the general public through customary channels; or
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Dated: October 22, 2012
James H. Billington,
[BILLING CODE 1410-30-P]