As made clear by Section 1201(a)(1)(C), while focusing on whether the implementation of technological measures has an adverse impact on the ability of users to make lawful uses of protected materials, the rulemaking proceeding shall take account of the following factors:
- the availability for use of copyrighted works;
- the availability for use of works for nonprofit archival, preservation, and educational purposes;
- the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research;
- the effect of circumvention of technological measures on the market for or value of copyrighted works; and
- such other factors as the Librarian considers appropriate.
As a consequence of such temporal limitation, in each rulemaking proceeding the Register and the Librarian review the proposed classes de novo, as previous designation of a class creates no presumption that this will be confirmed. Moreover, it is not sufficient that use could be non-infringing, as the Register does not apply a “rule of doubt” when it is unclear whether a proposed use is likely to be fair or otherwise non-infringing.
Upon recommendation of the Register of Copyrights, the Librarian has determined that the following classes of works shall be exempt from the prohibition against circumvention of technological measures:
|Merpel spends rainy days |
downloading the latest apps
Contrary to the request of the proponents (such as the Electronic Frontier Foundation), tablets, e-readers and similar portable devices have not been included. The reason is that the Register found significant merit to the opposition's concerns that (too) many devices could have been considered tablets, notwithstanding the significant distinctions among them in terms of the way they operate, their intended purposes, and the nature of the applications they can accommodate. This said, Merpel thinks that this class will have to be expanded soon, as the so called app economy is growing at an impressive rate: just in 2011 in the US the mobile app revenue was almost $10 billion, but by 2016 it’s expected to be more than $46 billion, as is explained here]
|Criticism in progress|
The report also includes a section dedicated to classes of works which, although considered, have been left outwith Section 1201(a)(1)(B) exemption.
Interestingly enough, one of these classes concerns literary works in the public domain. The Register concluded that an exemption to access public domain works would be beyond the scope of the rulemaking proceeding.
Other classes considered but not recommended for an exemption related to video game consoles and personal computing devices for the sake of software interoperability, and films and other works on DVDs and other media for the sake of space shifting.