Statement of the Librarian of Congress Relating to Section 1201 Rulemaking

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

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

    It is important to understand the purposes of this rulemaking, as stated in the law, and the role I have in it. The rulemaking is not a broad evaluation of the successes or failures of the DMCA. The purpose of the proceeding is to determine whether current technologies that control access to copyrighted works are diminishing the ability of individuals to use works in lawful, noninfringing ways. The DMCA does not forbid the act of circumventing copy controls, and therefore this rulemaking proceeding is not about technologies that control copying. Some of the people who participated in the rulemaking did not understand that and made proposals based on their dissatisfaction with copy controls. Other participants sought exemptions that would permit them to circumvent access controls on all works when they are engaging in particular noninfringing uses of those works. The law does not give me that power. The focus in this rulemaking is on whether people have been adversely affected by access controls in th ir ability to make noninfringing uses of particular classes of copyrighted works. Congress has directed me to exempt particular classes of works if the case has been made that such an adverse impact exists or will exist in the next three years. These exemption are in place for only three years, but may be renewed if a case has been made that they are needed.

    As Congress intended, this rulemaking has considered a wide range of possible adverse impacts. There was broad public participation in this rulemaking. Fifty-one individuals or organizations proposed one or more classes of works for exemption, and 338 commented on those proposals. The Copyright Office conducted six days of public hearings in April and May: four in Washington and two in Los Angeles, California. Transcripts of the hearings and copies of all the comments and reply comments and other information received by the Copyright Office were posted promptly on the Office's official website to ensure that the process was as open as possible.

    The Register of Copyrights and her staff have conducted a careful and extensive evaluation of the entire record in the proceeding and determined that proponents of exemptions have demonstrated that the prohibition on circumventing access controls has had a substantial adverse effect on the ability of people to make noninfringing uses of four particular classes of copyrighted works. The Register has given me her analysis and recommendation, and today I have signed a document providing that persons making noninfringing uses of these four classes of works will not be subject to the prohibition against circumventing access controls during the next three years. The four classes of works are:
  1. Compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, websites or portions of websites, but not including lists of Internet locations blocked by software applications that operate exclusively to protect against damage to a computer or computer network or lists of Internet locations blocked by software applications that operate exclusively to prevent receipt of email.
  2. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.
  3. Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access.
  4. Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook's read-aloud function and that prevent the enabling of screen readers to render the text into a specialized format.
    Two of these classes of works are very similar to the two classes of works that were exempted three years ago, but they have been modified to take into account the somewhat different cases that were presented to the Register this year. One of these two new classes of works will provide some relief to libraries and archives in their preservation activities, and the other will assist the blind and visually disabled in their ability to gain meaningful access to digital materials.