OLL15341 S.L.C. 114TH CONGRESS 1ST SESSION S. ll To improve the process by which the Librarian of Congress considers requests for exemptions to section 1201(a)(1)(A) of title 17, United States Code, and to ease restrictions on the use of certain statutory exemptions to the Digital Millennium Copyright Act. IN THE SENATE OF THE UNITED STATES llllllllll llllllllll introduced the following bill; which was read twice and referred to the Committee on llllllllll A BILL To improve the process by which the Librarian of Congress considers requests for exemptions to section 1201(a)(1)(A) of title 17, United States Code, and to ease restrictions on the use of certain statutory exemptions to the Digital Millennium Copyright Act. 1 Be it enacted by the Senate and House of Representa- 2 tives of the United States of America in Congress assembled, 3 4 SECTION 1. SHORT TITLE. This Act may be cited as the ‘‘Breaking Down Bar- 5 riers to Innovation Act of 2015’’. 6 7 SEC. 2. SENSE OF CONGRESS. It is the sense of Congress that— OLL15341 S.L.C. 2 1 (1) the Librarian of Congress (referred to in 2 this section as the ‘‘Librarian’’) should ensure that 3 noninfringing uses of copyrighted works, as well as 4 activities unrelated to the copyrighted works, are not 5 unduly burdened by the application of section 1201 6 of title 17, United States Code; 7 (2) the Librarian should apply section 1201 of 8 title 17, United States Code, in a manner that 9 strikes a balance between the ability of persons to 10 make noninfringing use of copyrighted works and 11 the legitimate protection of intellectual property 12 rights; 13 (3) the Librarian, in considering whether to 14 grant exemptions to the prohibition on the cir- 15 cumvention of technological protection measures, 16 should recognize that such measures prevent persons 17 from undertaking activities unrelated to the use of 18 copyrighted works; and 19 20 21 (4) the Librarian— (A) should not impose undue burdens on proponents of exemptions; and 22 (B) should ensure that the rulemaking 23 process for considering exemptions is responsive 24 to changes in the technological landscape. OLL15341 S.L.C. 3 1 2 3 SEC. 3. CIRCUMVENTION OF COPYRIGHT PROTECTION SYSTEMS. (a) VIOLATIONS REGARDING CIRCUMVENTION OF 4 TECHNOLOGICAL MEASURES.— 5 6 7 8 9 (1) IN GENERAL.—Section 17, United States Code, is amended— (A) in subparagraph (A), by striking the second sentence; (B) in subparagraph (C)— 10 11 1201(a)(1) of title (i) in the matter preceding clause (i)— 12 (I) by striking ‘‘During the 2- 13 year period described in subparagraph 14 (A), and during each succeeding 3- 15 year period,’’ and inserting ‘‘Every 3 16 years,’’; and 17 (II) by striking ‘‘the Librarian 18 shall examine’’ and inserting ‘‘the Li- 19 brarian shall consider, if applicable’’; 20 (ii) in clause (i), by striking ‘‘the 21 availability for use of copyrighted works’’ 22 and inserting ‘‘any reduction in the avail- 23 ability for use of copyrighted works as a 24 result of the prohibition on the circumven- 25 tion of technological measures’’; OLL15341 S.L.C. 4 1 (iii) in clause (iii), by striking ‘‘or re- 2 search’’ and inserting the following: ‘‘re- 3 pair, recycling, research, or other fair uses, 4 and on access to information not subject to 5 copyright protection’’; and 6 (iv) by redesignating clauses (iv) and 7 (v) as clauses (vi) and (vii), respectively; 8 and 9 10 (v) by inserting after clause (iii) the following: 11 ‘‘(iv) the impact that the prohibition 12 on the circumvention of technological 13 measures has on the accessibility of works 14 and technologies for persons with disabil- 15 ities; 16 ‘‘(v) the impact that the prohibition 17 on the circumvention of technological 18 measures has on the furtherance of secu- 19 rity research;’’; 20 (C) by redesignating subparagraph (D) as 21 subparagraph (F); 22 (D) by striking subparagraph (E); 23 (E) by inserting after subparagraph (C) 24 the following: OLL15341 S.L.C. 5 1 ‘‘(D) In making a determination under subparagraph 2 (C), the Librarian— 3 4 5 ‘‘(i) shall consider the totality of the evidence available to the Librarian; and ‘‘(ii) may not assign the burden of proof to a 6 proponent of an exemption. 7 ‘‘(E) The Librarian, at the discretion of the Librar- 8 ian, may conduct a rulemaking proceeding under subpara9 graph (C) outside of the 3-year review process described 10 in that subparagraph if the Librarian determines that it 11 is substantially likely that persons who are users of a copy12 righted work which is in a particular class of works are, 13 or are likely to be in the succeeding 3-year period, ad14 versely affected by virtue of the prohibition under subpara15 graph (A) in their ability to make noninfringing uses of 16 that particular class of works under this title.’’; 17 18 19 20 (F) in subparagraph (F), as redesignated— (i) by striking ‘‘The Librarian’’ and inserting ‘‘(i) The Librarian’’; 21 (ii) by striking ‘‘adversely affected, 22 and the prohibition’’ and inserting the fol- 23 lowing: ‘‘adversely affected. 24 ‘‘(ii) The prohibition’’; and OLL15341 S.L.C. 6 1 2 3 (iii) by adding at the end the following: ‘‘(iii) At the end of each 3-year period described in 4 subparagraph (C), the Librarian shall renew for the ensu5 ing 3-year period each exemption granted under subpara6 graph (C) unless the Librarian determines that, as a re7 sult of changed circumstances, it is unlikely that any per8 sons who are users of a copyrighted work in the class of 9 copyrighted works to which the exemption relates will be 10 adversely affected by virtue of the prohibition under sub11 paragraph (A) in their ability to make noninfringing uses 12 of that particular class of works under this title.’’; and 13 (G) by inserting after subparagraph (F), 14 as redesignated, the following: 15 ‘‘(G) For purposes of this paragraph— 16 ‘‘(i) persons are ‘adversely affected’ if a techno- 17 logical measure that effectively controls access to a 18 work which is in a particular class of copyrighted 19 works diminishes the ability of the persons to make 20 noninfringing uses of that particular class of works 21 under this title; 22 ‘‘(ii) if a technological measure inhibits non- 23 infringing uses of a work which is in a particular 24 class of copyrighted works relating to improving ac- 25 cessibility of works or technologies for persons with OLL15341 S.L.C. 7 1 disabilities, there shall be a presumption that per- 2 sons who use that particular class of work are likely 3 to be adversely affected; and 4 ‘‘(iii) the Librarian may find that a use of a 5 work is noninfringing based upon the totality of the 6 circumstances, including— 7 8 9 10 ‘‘(I) the presence of supporting judicial precedent; ‘‘(II) the absence of contrary judicial precedent; 11 ‘‘(III) the intent of Congress; and 12 ‘‘(IV) any other factors relevant to— 13 14 ‘‘(aa) assessing the applicability of copyright protection; or 15 16 ‘‘(bb) exceptions to or limitations on copyright protection.’’. 17 (2) REPORT.—Not later than 1 year after the 18 date of enactment of this Act, the Librarian of Con- 19 gress, in consultation with the Register of Copy- 20 rights and the Assistant Secretary for Communica- 21 tions and Information of the Department of Com- 22 merce, shall— 23 24 (A) conduct a study, including by soliciting public comment, on— OLL15341 S.L.C. 8 1 (i) ways to ease the burden on persons 2 requesting an exemption under section 3 1201(a)(1)(C) of title 17, United States 4 Code, as amended by paragraph (1); 5 (ii) how the process for requesting 6 and granting exemptions described in 7 clause (i) can be used to foster security re- 8 search; and 9 (iii) how the process for requesting 10 and granting exemptions described in 11 clause (i) can be expanded to enable the 12 sale and dissemination of circumvention 13 tools, as described in subsections (a)(2) 14 and (b)(1) of section 1201 of title 17, 15 United States Code, for the sole purposes 16 of enabling circumventions with respect to 17 the classes of copyrighted works that the 18 Librarian has published under subpara- 19 graph (F) of subsection (a)(1) of such sec- 20 tion, as redesignated by paragraph (1); 21 and 22 (B) shall submit to Congress a report on 23 the study conducted under subparagraph (A) 24 that includes— OLL15341 S.L.C. 9 1 (i) proposed legislation to achieve the 2 goals described in clauses (i) and (ii) of 3 subparagraph (A); and 4 (ii) a description of any obstacles to 5 the expansion described in clause (iii) of 6 subparagraph (A) and proposed legislation 7 for achieving such an expansion. 8 (b) REVERSE ENGINEERING.—Section 1201(f) of 9 title 17, United States Code, is amended— 10 (1) in paragraph (1), by striking ‘‘for the sole 11 purpose’’ and all that follows through ‘‘engaging in 12 the circumvention’’ and inserting the following: ‘‘for 13 the sole purpose of undertaking activities aimed at 14 achieving interoperability of an independently cre- 15 ated computer program with other programs’’; 16 (2) in paragraph (2), by striking ‘‘in order to 17 enable’’ and all that follows through ‘‘achieve such 18 interoperability’’ and inserting the following: ‘‘for 19 the activities described under paragraph (1), or for 20 the purpose of enabling interoperability of an inde- 21 pendently created computer program with other pro- 22 grams’’; and 23 (3) in paragraph (3), by striking ‘‘if the per- 24 son’’ and all that follows through ‘‘other programs, 25 and’’. OLL15341 S.L.C. 10 1 (c) ENCRYPTION RESEARCH.—Section 1201(g) of 2 title 17, United States Code, is amended— 3 (1) in paragraph (1)(A)— 4 (A) by striking ‘‘activities necessary to 5 identify and analyze flaws’’ and inserting ‘‘ac- 6 tivities relating to the identification and anal- 7 ysis of flaws’’; and 8 (B) by striking ‘‘to advance the state of 9 knowledge in the field of encryption technology’’ 10 and inserting ‘‘for research purposes’’; 11 (2) in paragraph (2)— 12 (A) in subparagraph (B), by striking ‘‘nec- 13 essary to conduct’’ and inserting ‘‘undertaken 14 in the course of conducting’’; and 15 (B) in subparagraph (D), by striking all 16 that follows ‘‘infringement under this title’’ and 17 inserting a period; 18 (3) by striking paragraphs (3) and (5); 19 (4) by redesignating paragraph (4) as para- 20 graph (3); and 21 (5) in paragraph (3)(B), as redesignated, by 22 striking ‘‘with whom he or she is working collabo- 23 ratively’’. OLL15341 S.L.C. 11 1 (d) PROTECTION 2 FORMATION.—Section OF PERSONALLY IDENTIFYING IN- 1201(i)(1)(D) of title 17, United 3 States Code, is amended— 4 (1) by striking ‘‘solely’’; and 5 (2) by striking ‘‘who seeks to gain access to the 6 work protected, and is not in violation of any other 7 law’’. 8 (e) SECURITY TESTING.—Section 1201(j) of title 17, 9 United States Code, is amended— 10 (1) in paragraph (2), by striking all that follows 11 ‘‘infringement under this title’’ and inserting a pe- 12 riod; 13 (2) by striking paragraph (3); 14 (3) by redesignating paragraph (4) as para- 15 graph (3); and 16 (4) in paragraph (3), as redesignated, by strik- 17 ing ‘‘subsection (2)’’ and all that follows and insert- 18 ing ‘‘paragraph (2)’’.