Order Code RL33887
The Digital Millennium Copyright Act: Exemptions
to the Prohibition on Circumvention
February 21, 2007
Kate M. Manuel
Law Clerk
American Law Division
Brian T. Yeh
Legislative Attorney
American Law Division

The Digital Millennium Copyright Act: Exemptions to
the Prohibition on Circumvention
Summary
Congress passed the Digital Millennium Copyright Act (DMCA) in 1998, in
part, to help copyright owners protect their exclusive rights against infringement
facilitated by digital technologies, including the Internet. Section 1201 of the DMCA
outlaws circumvention of any access control devices, such as password codes,
encryption, and scrambling, that copyright owners may use to protect copyrighted
works. The DMCA’s prohibition on circumvention is not absolute, however. In
addition to several statutory exceptions to the general anti-circumvention provision,
the DMCA authorizes the Librarian of Congress, upon the recommendation of the
Register of Copyrights, to grant temporary exemptions in order to ensure that the
public may use certain copyrighted works in non-infringing ways, including engaging
in “fair use” of such works.
Exemptions to the prohibition on circumvention of access controls are granted
every three years, following a notice-and-comment rulemaking proceeding that the
Register of Copyrights conducts. As a result of the most recent Copyright Office
rulemaking proceeding, the Librarian of Congress recognized six new exemptions on
November 27, 2006. These are effective until October 27, 2009, and permit the
circumvention of access control devices, under specified circumstances, in order to
(1) make compilations of video clips for film and media studies courses; (2) archive
obsolete computer programs or games; (3) bypass “dongles,” or hardware locks, that
are obsolete; (4) use read-aloud functions or screen readers with e-books; (5) connect
wireless telephone handsets to communication networks; and (6) test for or correct
security flaws in works distributed on compact discs.
This report reviews the statutory basis for the triennial exemptions, explains the
Copyright Office’s rulemaking process pursuant to the DMCA, summarizes the
exemptions granted and rejected in 2006, and describes public reactions to the 2006
exemptions.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Digital Millennium Copyright Act . . . . . . . . . . . . . . . . . . . . . . . . . 1
The DMCA § 1201(a)(1) Rulemaking Proceeding . . . . . . . . . . . . . . . . . . . . 4
Change in the Scope of the Term “Class of Works” . . . . . . . . . . . . . . . 7
The 2006 Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Exemptions Granted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Exemptions Denied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Public Responses and Reactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Appendix A. Exemptions Granted under 17 U.S.C. §§ 1201(a)(1)(B)-(C)
in 2000, 2003, and 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

The Digital Millennium Copyright Act:
Exemptions to the Prohibition
on Circumvention
Introduction
On November 27, 2006, the Librarian of Congress announced six exemptions
to the Digital Millennium Copyright Act’s (DMCA’s) prohibition on circumvention
of technological measures controlling access to copyrighted works. These
exemptions allow users of copyrighted works to circumvent access control devices,
under certain specified conditions, during the next three years, in order to (1) make
compilations of video clips for film and media studies courses; (2) archive obsolete
computer programs or games; (3) bypass “dongles,” or hardware locks, that are
obsolete; (4) use read-aloud functions or screen readers with e-books; (5) connect
wireless telephone handsets to communication networks; and (6) test for or correct
security flaws in works distributed on compact discs.1 This report describes the
statutory basis for the exemptions, the triennial rulemaking proceeding that results
in them, and the exemptions granted in 2006.
Background
The Digital Millennium Copyright Act. Copyright is a protection provided
by U.S. law2 to literary, musical, dramatic, artistic, and other works that are original
and fixed in a tangible medium of expression.3 The authors of copyrighted works,
or those to whom they transfer their copyrights, have the exclusive rights to
reproduce, distribute, and publicly perform or display the works, and to prepare
derivative works based upon them.4 Congress passed the Digital Millennium
Copyright Act (P.L. 105-304) in 1998, in part, to help copyright owners protect their
exclusive rights against infringement facilitated by digital technologies, including the
1 Exemption to the Prohibition on Circumvention of Copyright Protection Systems for
Access Controls (hereinafter “1201(a)(1) Exemptions”), 70 Fed. Reg. 68,472, 68,473-77
(Nov. 27, 2006), available on Feb. 2, 2007, at [http://www.copyright.gov/fedreg/
2006/71fr68472.html] (amending 37 C.F.R. § 201.40).
2 The source of federal copyright law originates with the Copyright and Patent Clause of the
U.S. Constitution, which authorizes Congress “[t]o promote the Progress of Science ... by
securing for limited Times to Authors ... the exclusive Right to their ... Writings.” U.S.
CONST. art. I, § 8, cl. 8.
3 17 U.S.C. § 102(a). A work is sufficiently “original” for copyright protection if it is
independently created by its author and possesses a minimal degree of creativity. See Feist
Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).
4 17 U.S.C. § 106.

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Internet.5 Section 1201 of the DMCA outlaws circumvention of any access control
devices, such as password codes, encryption, and scrambling, that copyright owners
may use to protect copyrighted works.6 The DMCA’s prohibition on circumvention
extends to both the act of circumventing access control devices and trafficking in
devices that may be used for this purpose.7
The DMCA’s prohibition on circumvention is not absolute, however. Much like
the way in which the Copyright Act limits copyright owners’ exclusive rights with
the doctrine of fair use,8 the DMCA allows for circumvention in certain limited
circumstances.9 First, the DMCA includes statutory exceptions, providing that
circumvention is not unlawful when —
! a library, archive, or educational institution accesses a commercial
work only to make a decision about purchasing that work;10
5 The DMCA was shaped both by congressional deliberations about Internet copyright
policy and by U.S. ratification of the World Intellectual Property Organization (WIPO)
Copyright Treaty and the WIPO Performances and Phonograms Treaty. See CRS Report
98-943, Digital Millennium Copyright Act, P.L. 105-304: Summary and Analysis, by
Dorothy M. Schrader.
6 17 U.S.C. § 1201(a)(1)(A) (“No person shall circumvent a technological measure that
effectively controls access to a work protected under this title.”). This one sentence
originally comprised the entirety of § 1201(a)(1) in the House Judiciary Committee’s draft
DMCA bill. However, the House Commerce Committee was concerned that this provision
could undermine fair use and so added what is currently 17 U.S.C. §§ 1201(a)(1)(B)-(C),
allowing temporary exemptions to be created by rulemaking. See H.Rept. 105-551, pt. 2,
at 35 (1998).
7 17 U.S.C. §§ 1201(a)(1)-(2) and § 1201(b). A violation of the DMCA’s anti-trafficking
provision may extend to publication or dissemination of information about how to
circumvent an access control measure. See Universal City Studios, Inc. v. Reimerdes, 111
F. Supp. 2d 294, 325 (S.D.N.Y. 2000) (finding a violation of the DMCA where a website
linked to other websites that provided computer code for descrambling the content
scrambling system used as an access control device on DVDs).
8 17 U.S.C. § 107. Fair use recognizes the right of the public to make reasonable uses of
copyrighted materials without the copyright owners’ consent in situations involving
criticism, comment, news reporting, teaching, scholarship, research, and similar activities.
9 Fair use is only a defense to claims of infringement of the copyright holder’s § 106 rights.
It does not excuse circumventing a copyright owner’s access control device under § 1201.
See Universal City Studios, 111 F. Supp. 2d at 322 (“[T]he decision not to make fair use a
defense to a claim under Section 1201(a) was quite deliberate” on Congress’s part).
However, § 1201 utilizes factors like those in the fair use doctrine in determining whether
the Librarian of Congress should grant an exemption. 17 U.S.C. §§ 1201 (a)(1)(C)(i)-(iv)
(considering the copyrighted work’s availability for archival, preservation and educational
purposes; the impact of the access control device on criticism, comment, news reporting,
teaching, scholarship and research; and the effect that circumvention of an access control
device has on the market for a work). The DMCA does not bar use of the fair use defense
in response to allegations of copyright infringement. 17 U.S.C. § 1201 (c)(1).
10 17 U.S.C. § 1201(d).

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! a federal, state, or local law enforcement officer accesses a work in
the course of a lawful investigation;11
! a person who has lawfully obtained use of a computer program
accesses a particular portion of the program solely to identify and
study elements of the program that are necessary for interoperability
and that have not been previously available to him or her;12
! a person who made a good faith effort to obtain permission accesses
a lawfully obtained published work to conduct encryption research,
provided that doing so does not otherwise violate the Copyright Act
or the Computer Fraud and Abuse Act (P.L. 99-474);13 or
! a person identifies and disables access control devices that also
collect or disseminate personally identifying information about his
or her activities.14
Second, the DMCA establishes a rulemaking proceeding, wherein the Librarian
of Congress, acting upon the recommendation of the Register of Copyrights, may
exempt for three years a “particular class of copyrighted works” from the DMCA’s
prohibition on circumvention.15 According to the legislative history of the DMCA,
the relatively short duration of these exemptions reflects Congress’s intent that the
“§ 1201 rulemaking” functions as a “fail safe,” monitoring developments in the
marketplace for copyrighted works and temporarily waiving enforcement of the
prohibition on circumvention in response to those market changes.16
11 17 U.S.C. § 1201(e).
12 17 U.S.C. § 1201(f). Compare United States v. Elcom Ltd., 203 F. Supp. 2d 1111, 1130
(N.D. Cal. 2002) (finding that creating and marketing a program enabling e-book users to
read the book on other computers, print from it, and make back-up copies was not protected
under 17 U.S.C. § 1201(f)) with Lexmark Int’l, Inc. v. Static Control Components, Inc., 387
F.3d 522, 550 (6th Cir. 2004) (finding that in order to promote interoperability, a
manufacturer of toner cartridges that mimicked the code allowing its toner to work with a
competitor’s printers was protected under 17 U.S.C. § 1201(f)).
13 17 U.S.C. § 1201(g). See Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294,
321 (S.D.N.Y. 2000) (finding that a website operator could not rely on the protections of 17
U.S.C. § 1201(g) when its links to websites providing circumventing code were not of the
sort to promote research).
14 17 U.S.C. § 1201(i).
15 17 U.S.C. §§ 1201(a)(1)(B)-(C). See 1201(a)(1) Exemptions, 70 Fed. Reg. 57,526, 57,527
(Oct. 3, 2005), available on Feb. 2, 2007, at [http://www.copyright.gov/fedreg/
2005/70fr57526.html] (noting that the exemptions announced on November 27, 2006 will
expire on October 27, 2009). The 2003 exemptions were to expire on Oct. 27, 2006, but the
Librarian of Congress extended them on an interim basis until the 2006 exemptions were
announced. See 1201(a)(1) Exemptions, 71 Fed. Reg. 63,247 (Oct. 30, 2006).
16 H.Rept. 105-551, pt. 2, at 36 (1998).

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Although these triennial exemptions apply to the DMCA’s anti-circumvention
provision, they do not affect the DMCA’s prohibition on trafficking in devices that
facilitate circumvention. Thus, while the act of circumventing a technological
protection measure that controls access to an exempted class of work is not itself a
violation of the DMCA during the three-year period, the making and distribution of
technology that enables that circumvention is still prohibited and the exemptions
cannot be invoked as a defense to an action brought under the DMCA’s anti-
trafficking ban.17 Furthermore, the exemptions only apply to persons making
noninfringing uses of the exempted classes of works — an individual who
circumvents an access control to engage in copyright infringement will still be liable
for those infringing acts.18
The DMCA § 1201(a)(1) Rulemaking Proceeding
The DMCA provides that the Librarian of Congress and the Register of
Copyrights determine exemptions through a “rulemaking proceeding.”19 The
DMCA’s legislative history specifies that this rulemaking proceeding is to be
conducted through “notice-and-comment.”20 Accordingly, the Librarian and the
Register provided notice of the rulemaking, solicited initial and reply comments from
the public, and conducted hearings in granting the 2000, 2003, and 2006
exemptions.21 Content users who are presently affected, or likely to be affected
within the next three years, may propose exemptions to the DMCA’s prohibition on
circumvention.22
Proponents of exemptions bear the burden of proof.23 Based upon its reading
of the DMCA statute and legislative history, the Copyright Office has determined
that to meet this burden of proof, proponents must (1) identify the specific
technological measures causing the alleged problems and show that these measures
effectively control access to copyrighted works; (2) explain the non-infringing
17 See 17 U.S.C. § 1201(a)(1)(E) (“Neither the exception under subparagraph (B) from the
applicability of the prohibition contained in subparagraph (A), nor any determination made
in a rulemaking conducted under subparagraph (C), may be used as a defense in any action
to enforce any provision of this title other than this paragraph.”).
18 17 U.S.C. §§ 1201(a)(1)(B)-(E).
19 17 U.S.C. § 1201(a)(1)(C).
20 H.Rept. 105-796, at 64 (1998) (“It is the intention of the conferees that, as is typical with
other rulemaking under title 17, and in recognition of the expertise of the Copyright Office,
the Register of Copyrights will conduct the rulemaking, including providing notice of the
rulemaking [and] seeking comments from the public.”).
21 See, e.g., 1201(a)(1) Exemptions, 71 Fed. Reg. 9,302 (Feb. 23, 2006), available on Feb.
2, 2007, at [http://www.copyright.gov/fedreg/2006/71fr9302.html] (notice of public
hearings); 1201(a)(1) Exemptions, 70 Fed. Reg. 57,526 (Oct. 3, 2005), available on Feb. 2,
2007, at [http://www.copyright.gov/fedreg/2005/70fr57526.html] (request for comments).
22 17 U.S.C. §§ 1201(a)(1)(B)-(C).
23 1201(a)(1) Exemptions, 70 Fed. Reg. 68,472, 68,473 (Nov. 27, 2006), available on Feb.
2, 2007, at [http://www.copyright.gov/fedreg/2006/71fr68472.html].

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activities that the prohibition adversely affects; and (3) establish that the prevented
activities are, in fact, non-infringing under current law.24 Only technological
measures that restrict access are considered; non-technological measures that restrict
access (e.g., contracts or usage agreements) are not considered, nor are technological
measures that control things other than access (e.g., reproduction or distribution).25
The technological measure must directly lead to the problems of which the
exemption’s proponent complains: “[a]dverse impacts that flow from other sources
... are outside the scope of the rulemaking.”26 The problems complained of must be
more than “isolated harm or mere inconveniences,”27 and the adverse effects must be
substantial.28 Claims of present problems and adverse effects should be supported
by first-hand knowledge of “verifiable problems occurring in the marketplace” and,
preferably, documented by factual and quantitative data.29 Claims of future problems
and adverse effects should be especially well documented, because the legislative
history of the DMCA provides that future harm should only be recognized “in
extraordinary circumstances in which the evidence of likelihood is highly specific,
strong and persuasive.”30 Non-infringing activities must be recognized under the
24 1201(a)(1) Exemptions, 70 Fed. Reg. 57,526, 57,529-30 (Oct. 3, 2005), available on Feb.
2, 2007, at [http://www.copyright.gov/fedreg/2005/70fr57526.html].
25 See, e.g., 1201(a)(1) Exemptions, 65 Fed. Reg. 64,555, 64,563 and 64,571(Oct. 27, 2000),
available on Feb. 2, 2007, at [http://www.copyright.gov/fedreg/2000/65fr64555.html]
(noting that “[m]any of the complaints aired in this rulemaking actually related primarily to
licensing practices rather than technological measures that control access to works” and
rejecting an exemption for “fair use” works because its proponents complained, in part, of
technological measures that prevent copying, not access).
26 H.Rept. 105-551, pt. 2, at 37 (1998).
27 1201(a)(1) Exemptions, 70 Fed. Reg. 68,472, 68,473 (Nov. 27, 2006), available on Feb.
2, 2007, at [http://www.copyright.gov/fedreg/2006/71fr68472.html].
28 1201(a)(1) Exemptions, 70 Fed. Reg. 57,526, 57,528 (Oct. 3, 2005), available on Feb. 2,
2007, at [http://www.copyright.gov/fedreg/2005/70fr57526.html]. The Copyright Office has
been criticized for requiring a “substantial” adverse effect, because 17 U.S.C. §§
1201(a)(1)(B)-(C) do not specify how “adversely affected” a use must be in order to merit
an exemption. See, e.g., Bill D. Herman & Oscar H. Gandy, Catch 1201: A Legislative
History and Content Analysis of the DMCA Exemption Proceedings
, 24 CARDOZO ARTS &
ENT. L. J. 121, 168 (2006). The Copyright Office defends the substantiality requirement by
referring to the DMCA’s legislative history, which speaks of “substantial adverse impact,”
“distinct, verifiable, and measurable impacts,” and more than de minimis impacts. See
1201(a)(1) Exemptions,
68 Fed. Reg. 62,011, 62,013 (Nov. 27, 2006), available on Feb. 2,
2007, at [http://www.copyright.gov/fedreg/2006/71fr68472.html].
29 1201(a)(1) Exemptions, 70 Fed. Reg. 57,526, 57,528 (Oct. 3, 2005), available on Feb. 2,
2007, at [http://www.copyright.gov/fedreg/2005/70fr57526.html]. See also id. at 57,530 (“It
[is] also useful for the commenter to quantify the adverse effects in order to explain the
scope of the present or likely problem.”) and 1201(a)(1) Exemptions, 71 Fed. Reg. 9,302,
9,302 (Feb. 23, 2006), available on Feb. 2, 2007, at [http://www.copyright.gov/fedreg/
2006/71fr9302.html] (“[F]actual arguments are at least as important as legal arguments.”).
30 House Committee on the Judiciary, 105th Cong., Section-by-Section Analysis of H.R. 2281
as Passed by the United States House of Representatives on August 4, 1998
, at 6. Although
this language could be interpreted as raising the burden of proof beyond a preponderance
(continued...)

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current law and must not be possible by alternative means.31 Proponents arguing for
the renewal of existing exemptions must make their case de novo.32 The existence
of an exemption that was granted in previous rulemaking proceedings does not create
a presumption in its favor; rather, it must be justified as if it were a new exemption.33
Even when proponents demonstrate that access control devices adversely affect
their abilities to make non-infringing uses of copyrighted works, their exemptions are
not automatically granted.34 Rather, the Librarian of Congress and the Register of
Copyrights weigh the proven harm against other factors prescribed by statute in
determining whether to grant an exemption. These factors include
! the availability of copyrighted works generally;
! the availability of copyrighted works for nonprofit archival,
preservation, and educational purposes;
! the impact of access control devices on criticism, comment, news
reporting, teaching, scholarship, and research;
! the effect that circumvention of access control devices would have
on the market for or value of copyrighted works; and
! any other factors the Librarian deems appropriate.35
These factors are intended to ensure that the Librarian and the Register balance the
adverse and positive effects of access control devices, which not only limit access but
also promote copyright owners’ willingness to disseminate their works in new
30 (...continued)
of the evidence, which is otherwise the standard in a DMCA § 1201 rulemaking, the
Copyright Office nonetheless applies the preponderance standard with claims of future
problems or adverse effects since the statutory language provides no additional
requirements. See 1201(a)(1) Exemptions, 70 Fed. Reg. 57,526 (Oct. 3, 2005), available on
Feb. 2, 2007, at [http://www.copyright.gov/fedreg/2005/70fr57526.html].
31 See, e.g., 1201(a)(1) Exemptions, 70 Fed. Reg. 68,472, 68,478 (Nov. 27, 2006), available
on Feb. 2, 2007, at [http://www.copyright.gov/fedreg/2006/71fr68472.html] (rejecting an
exemption for space-shifting, or copying content from one location to another, because there
was no legal precedent establishing space-shifting as a noninfringing use); id. (rejecting an
exemption for region-coded DVDs because “numerous options are available to individuals
seeking access to content from other regions”).
32 Id at 68,473.
33 Id.
34 1201(a)(1) Exemptions, 70 Fed. Reg. 57,526, 57,528 (Oct. 3, 2005), available on Feb. 2,
2007, at [http://www.copyright.gov/fedreg/2005/70fr57526.html] (“[P]roof of harm is never
the only consideration in the rulemaking process ... the sufficiency of the harm will always
be relative to other considerations.”).
35 17 U.S.C. §§ 1201(a)(1)(C)(i)-(v).

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ways.36 The Register also must consult with the Assistant Secretary for
Communications and Information of the Department of Commerce, who heads the
National Telecommunications and Information Administration, before
recommending exemptions to the Librarian in order to ensure that the market benefits
of both access control devices and potential exemptions are fully considered.37
Change in the Scope of the Term “Class of Works”. In granting
exemptions, the Librarian of Congress and the Register of Copyrights must consider
to what “class of works” the exemption will apply. The DMCA states that an
exemption may be granted only for “a particular class of copyrighted works” upon
a sufficient showing of adverse effects.38 The statute does not define what constitutes
a “class of works.” The Register sought comments on this issue in the 1999-2000
rulemaking39 and concluded that a “class of works” was to be defined in relation to
the categories of copyrighted works in § 102 of the Copyright Act of 1976,40 namely,
literary works; musical works; dramatic works; pantomimes and choreographic
works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual
works; sound recordings; and architectural works.41 However, the Register cited
legislative history that expressed the view that the § 102 categories were too broad
to serve as the basis for a “class of works.”42 After consulting this legislative history
and reviewing the statutory language, the Register determined that a “class of works”
was to be a subcategory of the § 102 categories that was “based upon attributes of the
works themselves, and not by reference to some external criteria such as the intended
36 House Committee on the Judiciary, 105th Cong., Section-by-Section Analysis of H.R. 2281
as Passed by the United States House of Representatives on August 4, 1998
, at 6 (“The
technological measures ... that this bill protects can be deployed, not only to prevent piracy
and other economically harmful unauthorized uses of copyrighted materials, but also to
support new ways of disseminating copyrighted materials to users, and to safeguard the
availability of legitimate uses of those materials by individuals.”).
37 17 U.S.C. § 1201(a)(1)(C). Based upon market factors, prior Assistant Secretaries have
promoted exemptions that the Register ultimately denied and questioned or opposed
exemptions that the Register ultimately granted. See, e.g., 1201(a)(1) Exemptions, 65 Fed.
Reg. 64555, 64562 (Oct. 27, 2000), available on Feb. 2, 2007, at [http://www.copyright.gov
/fedreg/2000/65fr64555.html] (Assistant Secretary advocating a “fair use” exemption that
was denied); 1201(a)(1) Exemptions, 70 Fed. Reg. 68,472, 68,476-77 (Nov. 27, 2006),
available on Feb. 2, 2007, at [http://www.copyright.gov/fedreg/2006/71fr68472.html]
(Assistant Secretary questioning the exemption for wireless telephone handsets granted in
2006).
38 17 U.S.C. §§ 1201(a)(1)(B)-(C). See also 17 U.S.C. § 1201(a)(1)(D) (noting that an
exemption can be for “any class of copyrighted works”).
39 1201(a)(1) Exemptions, 64 Fed. Reg. 66,139, 66,143 (Nov. 24, 1999), available on Feb.
2, 2007, at [http://www.copyright.gov/fedreg/1999/64fr66139.pdf].
40 17 U.S.C. §§ 102(a)(1)-(8).
41 1201(a)(1) Exemptions, 65 Fed. Reg. 64,555, 64,560 (Oct. 27, 2000), available on Feb.
2, 2007, at [http://www.copyright.gov/fedreg/2000/65fr64555.html].
42 H.Rept. 105-551, pt. 2, at 38 (1998) (“The Committee intends that the ‘particular class of
copyrighted works’ be a narrow and focused subset of the broad categories of works of
authorship [that are] identified in section 102 of the Copyright Act.”).

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use or users of the works.”43 The Copyright Office applied this definition of “class
of works” in terms of the works’ attributes in granting the 2000 and 2003
exemptions.44 It also described “class of works” in terms of works’ attributes when
seeking comments proposing exemptions for 2006.45
However, in granting the 2006 exemptions, the Copyright Office for the first
time expanded “class of works” to include classes defined in relation to their uses or
users.46 The Copyright Office implicitly justified this shift by describing how
adhering to the prior definition of “class of works” could harm either users or
copyright owners in situations where class definitions are necessarily broad but
harmed users are few in number.47 For example, in 2006, film and media studies
professors described how their inability to circumvent access controls in order to
make compilations of DVD clips for use with their students harmed their teaching.
The class here cannot be defined more narrowly than in terms of “motion pictures
and other audiovisual works” on DVD. However, granting such an exemption would
harm the copyright owners unduly by allowing anyone to copy any film on DVD.
Failing to grant such an exemption would harm the professors and their students,
though.48 Thus, the Copyright Office reached a compromise consistent with the
congressional intent in enacting § 1201(a)(1) by allowing a “class of works” to be
defined in terms of its uses or users.49 While several commentators noted that the
Copyright Office essentially changed the meaning of “class of works” in the middle
43 1201(a)(1) Exemptions, 65 Fed. Reg. 64,555, 64,559 (Oct. 27, 2000), available on Feb.
2, 2007, at [http://www.copyright.gov/fedreg/2000/65fr64555.html].
44 Id. at 64,572 (rejecting an exemption for materials that cannot be archived or preserved
because it did not correspond to any class of works); 1201(a)(1) Exemptions, 68 Fed. Reg.
62,011, 62,014 (Oct. 31, 2003), available on Feb. 2, 2007, at [http://www.copyright.gov/
fedreg/2003/68fr2011.pdf] (rejecting an exemption for “per se educational fair use works”
because it defined the class of works in reference to its uses and users).
45 1201(a)(1) Exemptions, 70 Fed. Reg. 57,526, 57,529 (Oct. 3, 2005), available on Feb. 2,
2007, at [http://www.copyright.gov/fedreg/2005/70fr57526.html].
46 1201(a)(1) Exemptions, 70 Fed. Reg. 68,472, 68,473 (Nov. 27, 2006), available on Feb.
2, 2007, at [http://www.copyright.gov/fedreg/2006/71fr68472.html].
47 Id.
48 Id.
49 In fact, when arriving at its narrowed definition of “class of works” in terms of the works’
attributes in 1999-2000, the Copyright Office noted that the DMCA statute apparently
allowed a broader definition of “class of works” in terms of the works’ uses and users. See
1201(a)(1) Exemptions,
65 Fed. Reg. 64,556, 64,559 (Oct. 27, 2000), available on Feb. 2,
2007, at [http://www.copyright.gov/fedreg/2000/65fr64555.html] (“[T]he statutory language
is arguably ambiguous, and one could imagine an interpretation of section 1201(a)(1) that
permitted a class of works to be defined in terms of criteria having nothing to do with the
intrinsic qualities of the works.”).

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of the rulemaking process,50 its doing so will likely not affect the status of the
exemptions.51
The 2006 Exemptions
Exemptions Granted. As a result of the most recent § 1201(a)(1)
rulemaking process, the Librarian of Congress granted the following six exemptions.
1. Audiovisual works included in the educational library of a
college or university film or media studies department when
circumvention is for the purpose of compiling portions of these works
for educational use in the classroom.
52 Before this exemption, film and media
studies professors who wanted to show segments of DVDs to their students could not
create compilations of those segments because copying them into a compilation
would require bypassing the content scrambling systems (CSSs) protecting DVDs.
Thus, professors and students previously lost 30 seconds of class time, or more, every
time a new DVD was loaded and displayed its introductory materials.53 Under the
exemption, professors can copy segments to other presentation media that allow
seamless transitions between materials originally from different DVDs.
2. Preservation or archival reproduction, by libraries or archives,
of computer programs and video games that were distributed in
formats that have become obsolete and that require the original media
or hardware as a condition of access.
54 Computer programs and video games
constitute important parts of modern American cultural history, and archives and
museums are thus interested in preserving them for future generations. However,
where these programs are protected by access control devices, such as hardware-
authentication, the DMCA precludes archivists from circumventing those devices
50 See, e.g., Alex Curtis, DMCA Exemptions 2006: The Good, the Bad, and the Bewildering
(Nov. 27, 2006), available on Feb. 2, 2007, at [http://www.publicknowledge.org/node/734].
51 As long as the Copyright Office’s interpretation is reasonable, courts will grant it
deference if it were challenged as a rulemaking action. Courts consider whether (1) the
statute permits or forbids an agency’s interpretation and (2) if the statute is unclear, whether
the agency’s interpretation is reasonable or permissible. If the agency’s interpretation is
reasonable, the court will defer to it. Chevron U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837 (1984). If the Copyright Office’s interpretation is challenged as an
adjudicative action, courts consider (1) the thoroughness of the evidence in the agency’s
decision; (2) the validity of its reasoning; (3) its consistency with earlier and later
pronouncements; and (4) “all those factors which give it power to persuade.” Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944).
52 1201(a)(1) Exemptions, 70 Fed. Reg. 68,472, 68,473-74 (Nov. 27, 2006), available on Feb.
2, 2007, at [http://www.copyright.gov/fedreg/2006/71fr68472.html].
53 Id.
54 Id. at 68,474-75.

CRS-10
even to make a copy for preservation purposes. Under this exemption, archivists can
now work around such access control devices to make preservation copies.55
3. Computer programs protected by “dongles” that prevent access
due to malfunction or damage and that are obsolete.56 Some manufacturers
restrict access to their copyrighted works by relying on “dongles,” or hardware locks
attached to computers that interact with software to prevent unauthorized access.57
But when the locks malfunction and the manufacturer is unresponsive or no longer
in business, consumers are unable to use these programs because the DMCA bars
them from bypassing the dongle to access the program. This exemption ensures that
consumers facing problems with dongles can still use their software.
4. Literary works distributed in e-book format when all existing e-
book editions contain access controls that prevent enabling the read-
aloud function or screen readers.
58 People who are blind or visually impaired
rely on read-aloud programs and screen readers to turn eye-readable text into audible
speech. However, some manufacturers distribute e-books with their read-aloud and
screen reader functions disabled through access control devices. People who are
blind or visually impaired cannot circumvent these access control devices to “read”
the books’ content. With this exemption, they can circumvent access control devices
when no version of the e-book works with the read-aloud or screen reader
functions.59
5. “Firmware” computer programs that connect cellular telephones
to a particular communication network, when the circumvention is done
to connect the telephone to another network.
60 Cell phone companies
prevent customers from “recycling” their cell phones, or using them with other
carriers once their contracts have expired, by using “software locks” to block access
to the operating system that connects the phone to the carrier’s network.61 While the
DMCA prohibits circumventing software locks, this exemption allows cell phone
users to bypass the software locks and change their phones over to other networks.62
55 Id.
56 Id. at 68,475.
57 Id.
58 1201(a)(1) Exemptions, 70 Fed. Reg. 68,472, 68,475-76 (Nov. 27, 2006), available on Feb.
2, 2007, at [http://www.copyright.gov/fedreg/2006/71fr68472.html].
59 Id.
60 Id. at 68,476-77.
61 See TracFone Wireless, Inc. v. Sol Wireless Group, Inc.,Complaint No. 05-23279 (S.D.
Fla., Dec. 21, 2005), available on Feb. 2, 2007, at [http://www.copyright.gov/1201/2006/
reply/14granick_WA.pdf], at ¶ 42-49 (alleging a violation of 17 U.S.C. § 1201(a)(1) against
a cell phone recycling company).
62 However, this exemption does not extend to trafficking in devices that help consumers
change their cell phones over to other networks, because such trafficking is covered in a
section of the DMCA to which the exemptions do not apply. See also id. at ¶ 50-58
(continued...)

CRS-11
6. Good faith testing for correcting of security flaws or
vulnerabilities in sound recordings and audiovisual works distributed
in CD format.
63 In November 2005, many consumers were unhappy to learn that
Sony-BMG had sold them Celine Dion, Neil Diamond, and other music compact
discs that secretly installed rootkit software on their computers.64 Rootkit is software
designed to conceal running processes, files, or systems data from a computer’s
operating system. Researchers attempting to determine the extent of the problem and
potential fixes for it were stymied in their efforts by the DMCA’s prohibition on
circumvention, which kept them from bypassing access controls on the CDs to figure
out how the rootkit installation worked.65 With this exemption, researchers will be
able to investigate and correct similar problems in the future.
These six exemptions are effective through October 27, 2009.66 They are the
largest group of exemptions the Librarian has granted to date, although three of these
(preservation or archival reproduction of computer programs and video games,
computer programs protected by dongles, and e-books) essentially correspond to
prior exemptions.67 The 2003 and 2006 e-book exemptions were slightly different
in that the 2003 exemption allowed circumvention only where all existing editions
of the work prevented enabling the e-book’s read-aloud function and screen reader,
whereas the 2006 exemption allows circumvention where all existing editions of the
work prevent enabling the e-book’s read-aloud function or screen reader.68 See
Appendix A for a comparison of the exemptions granted in 2000, 2003, and 2006.
Exemptions Denied. The 2006 rulemaking denied all but 6 of the 74
proposed exemptions.69 Among those denied were exemptions for
62 (...continued)
(alleging a violation of 17 U.S.C. § 1201(a)(2) against a cell phone recycling company).
63 1201(a)(1) Exemptions, 70 Fed. Reg. 68472, 68477 (Nov. 27, 2006), available on Feb. 2,
2007, at [http://www.copyright.gov/fedreg/2006/71fr68472.html].
64 Electronic Frontier Foundation, Are You Infected with Sony-BMG’s Rootkit? EFF
Confirms Secret Software on 19 CDs
(Nov. 9, 2005), available on Feb. 2, 2007, at
[http://www.eff.org/news/archives/2005_11.php#004146].
65 1201(a)(1) Exemptions, 70 Fed. Reg. 68,472, 68,477 (Nov. 27, 2006), available on Feb.
2, 2007, at [http://www.copyright.gov/fedreg/2006/71fr68472.html].
66 Id. at 68,472.
67 1201(a)(1) Exemptions, 65 Fed. Reg. 64,556, 64,564 (Oct. 27, 2000), available on Feb.
2, 2007, at [http://www.copyright.gov/fedreg/2000/65fr64555.pdf]; 1201(a)(1) Exemptions,
68 Fed. Reg. 62,011, 62,013 (Oct. 31, 2003), available on Feb. 2, 2007, at
[http://www.copyright.gov/fedreg/2003/68fr2011.pdf].
68 1201(a)(1) Exemptions, 70 Fed. Reg. 68,472, 68,476-77 (Nov. 27, 2006), available on Feb.
2, 2007, at [http://www.copyright.gov/fedreg/2006/71fr68472.html]; 1201(a)(1) Exemptions,
68 Fed. Reg. 62,011, 62,014 (Oct. 31, 2003), available on Feb. 2, 2007, at
[http://www.copyright.gov/fedreg/2003/68fr2011.pdf].
69 Rulemaking on Exemptions from Prohibition on Circumvention of Technological
Measures that Control Access to Copyrighted Works
(Nov. 16, 2006), available on Feb. 2,
(continued...)

CRS-12
! space-shifting, which would have allowed circumvention in order to
copy a lawfully obtained audiovisual or musical work from the
medium or device on which it was intended for use onto other media
or devices;70
! region-coded DVDs, which would have allowed users to play DVDs
that are engineered to work only on players coded for one
geographic region on players with different region-codes;71
! works protected by access control devices that prevent the creation
of back-up copies, which would have allowed consumers to make
copies of lawfully obtained works to prevent their damage or
destruction;72 and
! audiovisual works and sound recordings protected by broadcast
flags, which could in the future allow users to time-shift, format-
shift, and record for personal use television and radio programs.73
Many exemptions were denied because there was no evidence of harm, or no harm
involving access control devices, and their proponents complained only of
insubstantial inconvenience.74
The 2006 rulemaking also marked the first time that the Copyright Office and
the Librarian rejected a preexisting exemption proposed for renewal. The exemption
for compilations consisting of lists of Internet programs blocked by filtering software,
which had been granted in 2000 and 2003, was rejected in 2006 because its
69 (...continued)
2007, at [http://www.copyright.gov/1201/2006/comments/index.html].
70 1201(a)(1) Exemptions, 70 Fed. Reg. 68,472, 68,478 (Nov. 27, 2006), available on Feb.
2, 2007, at [http://www.copyright.gov/fedreg/2006/71fr68472.html].
71 Id. at 68,478.
72 Id. U.S. copyright law generally provides users with the right to create backup copies of
computer programs, see 17 U.S.C. § 117, but users may not circumvent an access control
device to exercise their rights under 17 U.S.C. § 117.
73 1201(a)(1) Exemptions, 70 Fed. Reg. 68,472, 68,479 (Nov. 27, 2006), available on Feb.
2, 2007, at [http://www.copyright.gov/fedreg/2006/71fr68472.html]. Because broadcast
flags are not currently mandated for either television or radio broadcasts, as the Copyright
Office noted in the 2006 rulemaking, it is hard to assess exactly what granting this
exemption would allow users to do. Id. For more information about broadcast flags, see
CRS Report RL33797, Copyright Protection of Digital Television: The Broadcast Video
Flag
, by Brian T. Yeh, and CRS Report RS22489, Copyright Protection of Digital Audio
Radio Broadcasts: The “Audio Flag,”
by Jared Huber and Brian T. Yeh.
74 See, e.g., 1201(a)(1) Exemptions, 70 Fed. Reg. 68,472, 68,478 (Nov. 27, 2006), available
on Feb. 2, 2007, at [http://www.copyright.gov/fedreg/2006/71fr68472.html] (rejecting an
exemption for region-coded DVDs because “[r]egion coding imposes, at most, an
inconvenience rather than an actual or likely harm”).

CRS-13
proponents relied on the record from three years earlier.75 Because proponents did
not address the current market conditions or demonstrate that the exemption had been
used, it was denied.76
Public Responses and Reactions. Supporters of the 2006 exemptions
characterized them as beneficial to consumers generally, or to specific user groups.
Because the Librarian granted more exemptions in 2006 than in prior years, some
predicted that this year’s exemptions “will open ‘big chinks’ in DMCA authority.”77
Others focused specifically on the cell phone exemption, calling it “good news for
consumers. Consumers pay dearly for their phones. It’d be nice if they can keep
them working with other carriers.”78 The Chronicle of Higher Education similarly
described the exemptions allowing film and media professors to create compilations
and computer scientists to research the security flaws of sound recordings and
audiovisual works distributed on CD as “wins” for scholars.79
Some critics of the exemptions faulted the exemptions for not going far enough
in protecting consumers. Pro-consumer groups noted that a number of the
exemptions are tailored to narrow user groups not made up of “average” consumers
(e.g., the exemptions for film studies professors and archiving computer programs),
and that the exemptions that would have been most beneficial to consumers (e.g.,
space-shifting) were rejected.80 They also objected that the exemptions are too
limited to counteract the negative effects of the DMCA, which “block[s] good
technologies.”81 In contrast, some industry groups criticized the exemptions for their
potential to harm specific industries. The cell phone exemption, in particular,
generated significant opposition from cell phone carriers and industry associations.82
75 Id. at 68,477-78.
76 Id.
77 New Exemptions Loosen DMCA Circumvention Ban, COMMUNICATIONS DAILY, Nov. 28,
2006 (2006 WLNR 20716497) (quoting Information Week blogger David DeJean).
78 TracFone Seeks Reversal of Library of Congress Ruling, TELECOMMUNICATIONS
REPORTS, Dec. 15, 2006 (2006 WLNR 21440416) (quoting Jeannine Kenney, senior policy
analyst for the Consumers Union).
79 Scott Carlson, Scholars Win Exemptions to Digital-Copyright Act, CHRON. OF HIGHER
EDUC., Dec. 8, 2006, at A31.
80 Alex Curtis, DMCA Exemptions 2006: The Good, the Bad, and the Bewildering (Nov. 27,
2006), available on Feb. 2, 2007, at [http://www.publicknowledge.org/node/734]. See also
Jason H. Tokoro, “Stuffing” the DMCA “Turkey” with 6 New Exemptions a Day before
Thanksgiving
, Nov. 23, 2006, available on Feb. 2, 2007, at [http://www.chillingeffects.org/
anticircumvention/weather.cgi?WeatherID=572] (quoting Fred von Lohmann, an attorney
for the Electronic Frontier Foundation, as saying that the Copyright Office “may not have
done enough to benefit consumers”).
81 Scott Brader, Copyright Law: Tiny Changes, NETWORK WORLD, Dec. 1, 2006, at 36.
82 TracFone Seeks Reversal of Library of Congress Ruling, TELECOMMUNICATIONS REPORTS
(Dec. 15, 2006) (2006 WLNR 21440416).

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In fact, TracFone Wireless, Inc., has filed suit in federal district court in Florida
challenging this exemption.83
Conclusion
The 2006 exemptions to the DMCA’s prohibition on circumvention of
technological measures controlling access to copyrighted works will, under certain
circumstances, allow users to circumvent those access controls in order to (1) make
compilations of video clips for film and media studies courses; (2) archive obsolete
computer programs or games; (3) bypass “dongles,” or hardware locks, that are
obsolete; (4) use read-aloud functions or screen readers with e-books; (5) connect
wireless telephone handsets to communication networks; and (6) test for or correct
security flaws in works distributed on CD. These exemptions are effective for the
next three years, at the end of which time they will be superseded by new exemptions
issued by the Librarian of Congress, on the recommendation of the Register of
Copyrights, following a notice-and-comment rulemaking proceeding conducted
pursuant to 17 U.S.C. § 1201(a)(1).
83 TracFone Wireless, Inc. v. Billington, Complaint No. 06-22942 (S.D. Fla., Dec. 5, 2006),
available on Feb. 2, 2007, at [http://www.granick.com/blog/wp-content/uploads/2006/
12/Gibson,%20Annette%20-%2012-05-06%20-%20B7WJ388.pdf]. TracFone argues, first,
that this exemption was promulgated in violation of the Administrative Procedure Act
because the Copyright Office failed to provide adequate notice and opportunity to comment;
acted arbitrarily, capriciously, in abuse of discretion, and not in accordance with the law;
and granted a vague and overly broad exemption. Id. at ¶ 37-38. TracFone further argues
that the DMCA’s delegation of rulemaking authority to the Librarian of Congress and the
Register of Copyrights is either an unconstitutional intra-branch delegation of Congress’s
legislative power or an unconstitutional exercise of executive power by the legislative
branch. Id. at ¶ 46-47.

CRS-15
Appendix A. Exemptions Granted under 17 U.S.C. §§
1201(a)(1)(B)-(C) in 2000, 2003, and 2006

2000
2003
2006
1. Compilations consisting of
1. Compilations consisting
1. Audiovisual works included
lists of websites blocked by
of lists of Internet programs in the educational library of a
filtering software applications. blocked by filtering
college or university’s film or
software.
media studies department when
2. Literary works, including
circumvention is accomplished
computer programs and
2. Computer programs
for the purpose of making
databases, protected by access
protected by dongles that
compilations of portions of
control mechanisms that fail to prevent access due to
these works for educational use
permit access because of
malfunction or damage, or
in the classroom.
malfunction, damage or
which are obsolete.
obsoleteness.
2. Preservation or archival
3. Computer programs and
reproduction of computer
video games distributed in
programs and video games
formats that have become
distributed in formats that have
obsolete and require
become obsolete and that
original hardware or media
require the original media or
as a condition of access.
hardware as a condition of
access.
4. Literary works in e-book
format, when all existing
3. Computer programs
editions of the work contain protected by dongles that
access controls that prevent prevent access due to
enabling the e-book’s read-
malfunction or damage and
aloud function and screen
which are obsolete.
readers to read the text into
specialized format.
4. Literary works distributed in
e-book format when all
existing e-book editions
contain access controls that
prevent enabling the read-
aloud function or screen
readers.
5. Computer programs in the
form of firmware enabling
wireless telephone handsets to
connect to communication
networks, when the
circumvention is for the
purpose of connecting to a
communication network.
6. Good faith testing,
investigating or correcting of
security flaws or
vulnerabilities in sound
recordings and AV works
distributed in CD format.
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