On October 25, 2024, the Librarian of Congress, upon the recommendation of the Register of Copyrights, issued a final rule adopting temporary exemptions to the statutory prohibition on circumvention of technological measures that control access to copyrighted works under section 1201 of the Digital Millennium Copyright Act ("DMCA"). The rule became effective on October 28, 2024.
For this triennial rulemaking, the Register received 11 petitions seeking new exemptions or expansion of existing exemptions, as well as 37 petitions seeking renewal of exemptions adopted in prior rulemakings. The Register recommended renewal of all exemptions adopted in the previous section 1201 rulemaking, where renewal petitions were filed. For new exemption requests and requests to expand exemption classes from previous rulemakings, the Register organized the petitions into seven exemption classes. Based on the legal standards and evidentiary record, the Register recommended granting proposed exemptions, in whole or in part, in three of the seven classes.
Summaries of the exemptions adopted under the current rule, and those not recommended for adoption, are below.
Background on Section 1201 and the Rulemaking Process
Section 1201 generally makes it unlawful to circumvent technological measures used to prevent unauthorized access to copyrighted works, including copyrighted books, movies, videos, video games, and computer software. When enacting section 1201, Congress created a procedure to grant exemptions on a temporary basis to the prohibition on circumvention so that protection against circumvention would not be used to diminish the public's access to copyrighted works for lawful uses, including activities protected by the fair use doctrine.
Accordingly, every three years, the Librarian, upon the recommendation of the Register, determines through a rulemaking proceeding whether the bar on circumvention is having, or is likely to have, an adverse effect on users' ability to make noninfringing uses of a particular class of copyrighted works. If so, the Librarian may adopt temporary exemptions waiving the prohibition for such users for the ensuing three‐year period.
The Ninth Triennial Rulemaking
Renewed Exemptions
The Register received petitions to renew all but one of the exemptions adopted in the eighth triennial rulemaking. After considering the renewal petitions and comments submitted in response, the Register recommended renewing all exemptions for which petitions were filed:
- Excerpts of audiovisual works,
- For criticism or comment,
- For use in nonfiction multimedia e-books
- For use in documentary films and other films where the use is in parody or for a biographical or historically significant nature
- For use in noncommercial videos
- For educational uses,
- By college and university or K–12 faculty and students, or employees acting at the direction of faculty
- By faculty and employees of massive open online courses ("MOOCs") offered by eligible educational institutions By educators and participants in digital and literacy programs offered by libraries, museums, and other nonprofits
- For criticism or comment,
- Audiovisual works, for the provision of captioning and/or audio description by disability services offices or similar units at educational institutions for students, faculty, or staff with disabilities
- Audiovisual works, for the purpose of lawful preservation or creation of a replacement copy by eligible libraries, archives, or museums
- Literary works or previously published musical works that have been fixed in the form of text or notation, for use with assistive technologies for persons who are blind or visually impaired, or who have print disabilities
- Literary works consisting of compilations of data generated by medical devices and corresponding personal monitoring systems
- Computer programs that enable wireless devices to connect to a wireless telecommunications network ("unlocking")
- Computer programs that operate the following types of devices,
to allow the device to interoperate with or to remove software
applications ("jailbreaking"):
- Smartphones
- Tablets and portable all-purpose mobile computing devices
- Smart TVs, including video streaming devices
- Voice assistant devices
- Routers and dedicated network devices
- Computer programs that operate the following types of devices,
to allow diagnosis, maintenance, and repair:
- Motorized land vehicles, marine vessels, and agricultural vehicles or vessels
- Devices primarily designed for use by consumers, except video game consoles that do not contain optical drives
- Medical devices and systems
- Computer programs, for purposes of good-faith security research
- Video games for which outside server support has been discontinued, to allow individual play by gamers and lawful preservation of games by libraries, archives, and museums (as well as necessary jailbreaking of console computer code for preservation uses only), and lawful preservation of discontinued video games that never required server support
- Computer programs other than video games, for the lawful preservation of computer programs and computer program-dependent materials by libraries, archives, and museums
- Computer programs that operate 3D printers, to allow use of alternative material
- Computer programs, for purposes of investigating potential infringement of free and open-source computer programs
New and Expanded Exemptions
In addition to three new exemption requests, the Copyright Office received requests to amend or expand existing exemptions, and new exemptions requests, which it organized into seven classes based on the categories of work and the types of activity at issue. The Librarian adopted the Register's recommendations that exemptions be adopted or expanded, in whole or in part, in those classes as follows:
- Expansion of the exemption for audiovisual and literary works, for the purpose of text and data mining for scholarly research and teaching by allowing researchers affiliated with other nonprofit institutions of higher education to access corpora for independent research and by modifying the provisions concerning security measures and viewing the contents of copyrighted works within a corpus.
- New exemption for computer programs that control retail-level commercial food preparation equipment for purposes of diagnosis, maintenance, and repair.
- New exemption for computer programs, for purposes of accessing, storing, and sharing operational data, including diagnostic and telematics data, of motorized land vehicles, marine vessels, and commercial and agricultural vehicles or vessels.
Denied Exemption Requests
The Register recommended denying the following new or expanded exemption proposals:
- Revision of the text of the exemption for excerpts of audiovisual works to incorporate language used in the fourth triennial section 1201 rulemaking.
- Expansion of the exemption for audiovisual works for educational purposes in massive open online courses to allow circumvention by online educational entities to include for-profit and unaccredited entities.
- New exemption for computer programs, for purposes of good-faith artificial intelligence ("AI") trustworthiness research.
- Expansion of the exemption for preservation of computer programs and video games, except with respect to clarifying the single-user limitation in the current computer program preservation exemption to reflect that preservation institutions can allow a copy of a computer program to be accessed by as many individuals as there are circumvented copies legally owned.
Takeaway
The temporary exemptions under the current rule will remain in effect for the next three years (i.e., until October 28, 2027). The Copyright Office is expected to initiate its next triennial rulemaking in June 2026.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
