Request for Comments on Section 1201(g) of the Digital Millennium Copyright Act

DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

LIBRARY OF CONGRESS

Copy Right Office

[Docket No. 990428110-9110-01]

RIN 0660-ZA09

Request for Comments on Section 1201(g) of the Digital Millennium

Copyright Act

AGENCIES: The National Telecommunications and Information

Administration, United States Department of Commerce; and the United

States Copyright Office, Library of Congress.

ACTION: Request for public comment.

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SUMMARY: The National Telecommunications and Information Administration

of the United States Department of Commerce and the United States

Copyright Office invite interested parties to submit comments on the

effects of Section 1201(g) of Title 17, United States Code, as adopted

in the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat.

2860 (Oct. 28, 1998) (``DMCA'') on encryption research and the

development of encryption technology; the adequacy and effectiveness of

technological measures designed to protect copyrighted works; and the

protection of copyright owners against unauthorized access to their

encrypted copyrighted works.

The DMCA, enacted on October 28, 1998, directs the Register of

Copyrights and the Assistant Secretary for Communications and

Information of the Department of Commerce to prepare a report for the

Congress examining the impact of Section 1201(g) on encryption research

and including legislative recommendations--if any--no later than one

year after enactment of the DMCA. This Federal Register Notice is

intended to solicit comments from interested parties on the effects of

section 1201(g) of the DMCA. More specifically, how will the provisions

of section 1201(g) of the DMCA affect encryption research?

The DMCA defines ``encryption research'' as identification and

analysis of flaws and vulnerabilities of encryption technologies

applied to copyrighted works. This activity must promote understanding

of encryption technology or advance the development of encryption

products.

DATES: Comments must be received by July 26, 1999.

ADDRESSES: The Department of Commerce and the Copyright Office invite

the public to submit written comments in paper or electronic form.

Comments may be mailed to Paula J. Bruening, Office of Chief Counsel,

National Telecommunications and Information Administration (NTIA), Room

4713, U.S. Department of

[[Page 28803]]

Commerce, 14th Street and Constitution Avenue, N.W., Washington, DC

20230; and Jesse M. Feder, Office of Policy and International Affairs,

U.S. Copyright Office, Copyright GC/I&R, P.O. Box 70400, Southwest

Station, Washington, D.C. 20024. Paper submissions should include a

version on diskette in PDF, ASCII, Word Perfect (please specify

version), or Microsoft Word (please specify version) format. Comments

should be sent to both the Department of Commerce and Copyright Office

addresses.

Comments submitted in electronic form should be sent to

[email protected] and [email protected]. Electronic comments should be

submitted in the formats specified above and should be sent to both the

Department of Congress and Copyright Office addresses.

FOR FURTHER INFORMATION CONTACT: Paula J. Bruening, National

Telecommunications and Information Administration (202) 482-1816; and

Jesse M. Feder, Office of Policy and International Affairs, US

Copyright Office, Library of Congress (202) 707-8350.

SUPPLEMENTARY INFORMATION: The National Telecommunications and

Information Administration, United States Department of Commerce and

the United States Copyright Office, Library of Congress invite

interested parties to submit comments on the effects of the Digital

Millennium Copyright Act (DMCA) on encryption research and development

of encryption technology; the adequacy and effectiveness of

technological measures designed to protect copyrighted works; and,

protection of copyright owners against unauthorized access to their

encrypted copyrighted works.

The objective of Title I of the Digital Millennium Copyright Act

was to revise U.S. copyright law to comply with two recent World

Intellectual Property Organization (WIPO) Treaties and to strengthen

copyright protection for motion pictures, sound recordings, computer

software and other copyrighted works in electronic formats. The DMCA

establishes a prohibition on the act of circumventing technological

measures that effectively control access to a copyrighted work

protected under the U.S. Copyright Act. The prohibition, found in

Section 1201 of Title 17, U.S. Code, takes effect October 28, 2000, two

years from the date of enactment of the DMCA.

The DMCA also makes it illegal for a person to manufacture, import,

offer to the public, provide, or otherwise traffic in any technology,

product, service, device, component or part thereof which is primarily

designed or produced to circumvent a technological measure that

effectively controls access to or unauthorized copying of a work

protected by copyright, has only a limited commercially significant

purpose or use other than circumvention of such measures, or marketed

for use in circumventing such measures.

Despite the general prohibitions of Section 1201, the DMCA permits

certain specified activities that include the circumvention of access

control technologies in limited circumstances. One such specified

activity is good faith encryption research. The DMCA defines

``encryption research'' as identification and analysis of flaws and

vulnerabilities of encryption technologies applied to copyrighted

works. This activity must promote understanding of encryption

technology or advance the development of encryption products.

The DMCA exempts from the general prohibition certain good faith

activities of circumvention when: (a) The person circumventing the

protection system lawfully obtained the encrypted copy of the work; (b)

circumvention is necessary to conduct the encryption research; (c) the

person circumventing the protection system made a good faith effort to

obtain authorization prior to the circumvention; and, (d) such

circumvention does not constitute copyright infringement or a violation

of any otherwise applicable law. The DMCA also lists additional factors

to be considered when determining whether a person qualifies for the

exemption.

The DMCA also includes several additional exemptions from the

general prohibition or circumvention. One such exemption is for

security testing. Section 1201(j) of Title 17, U.S. Code permits

circumvention of access control technologies in order to test the

effectiveness of a security measure. Comments on Subsection 1201(j),

the exemption for ``security testing,'' and comments on exemptions

other than the exemption for encryption research, are not being

solicited by this Notice and will not be considered.

Information collected from responses to this Federal Register

Notice will be considered when preparing the required report for

Congress.

Kathy D. Smith,

Acting Chief Counsel, National Telecommunications and Information

Administration.

Marybeth Peters,

Register of Copyrights, United States Copyright Office.

[FR Doc. 99-13439 Filed 5-26-99; 8:45 am]

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