USCO Studying Anti-Circumvention Exemptions

The Copyright Office of the Library of Congress is preparing to conduct proceedings in accordance with section 1201(a)(1) of the Copyright Act, which was added by the Digital Millennium Copyright Act, and which provides that the Librarian of Congress may exempt certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works. The purpose of this rulemaking proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention. Written comments are due by December 1, 2005. Reply comments are due by February 2, 2006.

Section 1201 does not define a critical term for the rulemaking process: “class of works.” In a previous rulemaking, the Register elicited views on the scope and meaning of this term and decided that four classes of works should be exempted:

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 a 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. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.
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.

The Register also plans on holding public hearings in the Spring after receipt of the comments and reply comments.