USCA Case #21-5195 Document #1931386 Filed: 01/19/2022 Page 1 of 48
`ORAL ARGUMENT NOT YET SCHEDULED
`
`No. 21-05195
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`Matthew D. Green, et al.,
`Appellants,
`
`v.
`United States Department of Justice, et al.,
`Appellees.
`
`
`
`
`
`
`
`On Appeal from Rulings of the
`United States District Court for the District of Columbia
`Case No. 1:16-cv-01492-EGS, Judge Emmet G. Sullivan
`
`
`CORRECTED AMICUS BRIEF OF ACCESSIBILITY, SECURITY,
`AND REPAIR FAIR USERS IN SUPPORT OF APPELLANTS
`AND REVERSAL
`
`
`Jonathan Skinner-Thompson
`COLORADO LAW
`CLINICAL PROGRAMS
`Blake E. Reid
`SAMUELSON-GLUSHKO
`TECHNOLOGY LAW & POLICY
`CLINIC AT COLORADO LAW
`Counsel for Amici Curiae
`404 UCB, Boulder, CO 80309-
`0404
`303-492-1324
`jonathan.skinnerthompson@color
`ado.edu
`
`
`January 19, 2022
`
`

`

`USCA Case #21-5195 Document #1931386 Filed: 01/19/2022 Page 2 of 48
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`Corporate Disclosure Statement
`Pursuant to Circuit Rule 26.1, amici curiae state that they have no
`
`parent corporations and that no publicly held corporation or other
`
`publicly held entity owns ten percent (10%) or more of any amicus
`
`organization.
`
`Certificate as to Parties, Rulings Under Review,
`and Related Cases
`Parties and Amici. The following were parties in the district court
`
`proceeding from which this appeal was taken and are the parties before
`
`this Court:
`
`a. Matthew D. Green
`
`b. Andrew Bunnie Huang
`
`c. Alphamax, LLC
`
`d. United States Department of Justice
`
`e. Library of Congress
`
`f. United States Copyright Office
`
`g. Carla Hayden
`
`h. Maria A. Pallante
`
`i. Loretta E. Lynch
`
`j. Digital Content Protection, LLC (amicus)
`
`ii
`
`

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`USCA Case #21-5195 Document #1931386 Filed: 01/19/2022 Page 3 of 48
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`k. Intel Corporation (amicus)
`
`l. Advanced Access Content System Licensing Administrator, LLC
`
`(amicus)
`
`m. DVD Copy Control Association (amicus)
`
`n. Association of American Publishers, Inc. (amicus)
`
`o. Entertainment Software Association (amicus)
`
`p. Motion Picture Association, Inc. (amicus)
`
`q. Recording Industry Association of America, Inc. (amicus)
`
`Ruling Under Review. The rulings under review are the district
`
`court’s:
`
`a. Order Granting in Part and Denying in Part Defendants’
`
`Motion to Dismiss (Dkt. Nos. 24, 25); and
`
`b. Memorandum Opinion Order Denying Plaintiffs’ Motion for
`
`Preliminary Injunction (Dkt. Nos. 51, 52).
`
`Both rulings were entered by Emmet G. Sullivan, United States
`
`District Judge for the District of Columbia, on June 27, 2019 and July
`
`15, 2021 in Case No. 1:16-cv-01492-EGS.
`
`Related Cases. There are no related cases before this court, or any
`
`other court.
`
`iii
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`

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`USCA Case #21-5195 Document #1931386 Filed: 01/19/2022 Page 4 of 48
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`
`
`Table of Contents
`Corporate Disclosure Statement ....................................................... ii
`Certificate as to Parties, Rulings Under Review, and Related
`Cases ........................................................................................................ ii
`Table of Authorities ............................................................................. vi
`Glossary of Abbreviations .................................................................. ix
`Statutes and Regulations ................................................................... ix
`Statement of Identity, Interest in Case, and Source of
`Authority to File..................................................................................... 1
`Statement of Authorship and Financial Contributions ................. 2
`Argument ................................................................................................. 3
`I. The Copyright Office has sought to deny or effectively deny
`Section 1201 exemptions for accessibility fair uses. .......................... 6
` The Office has consistently recognized that accessibility-
`focused exemptions entail fair use. .............................................. 8
` The Office has sought to deny or effectively denied Section
`1201 exemptions for accessibility fair uses. ............................... 11
`II. The Office has routinely narrowed Section 1201 exemptions for
`security fair uses. .............................................................................. 15
` The Office has consistently recognized that security-focused
`exemptions entail fair use. ......................................................... 16
` The Copyright Office has routinely narrowed Section 1201
`exemptions for security fair uses. .............................................. 18
`III. The Office has routinely denied or narrowed Section 1201
`exemptions for repair-focused fair uses. ........................................... 21
` The Copyright Office has routinely recognized that repair-
`focused exemptions entail fair use. ............................................ 22
`
`iv
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`

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`USCA Case #21-5195 Document #1931386 Filed: 01/19/2022 Page 5 of 48
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` The Copyright Office has denied or limited Section 1201
`exemptions for repair fair uses. ................................................. 25
`IV. The Office conducts the triennial rulemaking in a highly
`burdensome fashion that causes additional procedural harms to
`the First Amendment rights of fair users. ....................................... 27
`Appendix: List of Amici ...................................................................... 36
`Certificate of Compliance .................................................................. 38
`Certificate of Service .......................................................................... 39
`
`
`
`
`
`
`
`v
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`

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`USCA Case #21-5195 Document #1931386 Filed: 01/19/2022 Page 6 of 48
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`Table of Authorities
`
`Cases
`Authors Guild v. HathiTrust, 755 F.3d 87 (2d Cir. 2014) ........................ 9
`Eldred v. Ashcroft, 537 U.S. 186 (2003) .................................................... 4
`Golan v. Holder, 565 U.S. 302 (2012) ........................................................ 4
`Harper & Row v. Nation, 471 U.S. 539 (1985) ......................................... 4
`Sony v. Universal City Studios, 464 U.S. 417 (1984) ............................... 9
`Statutes
`17 U.S.C. § 1201 ............................................... ix, 1, 3, 4, 5, 27, 29, 30, 33
`17 U.S.C. § 1203 ...................................................................................... 28
`17 U.S.C. § 1204 ...................................................................................... 28
`Administrative Materials
`2nd (Second) Triennial Rulemaking, Recommendation of the
`Register of Copyrights (2003) ................................................... 7, 9, 11
`3rd (Third) Triennial Rulemaking, Recommendation of the Register
`of Copyrights (2006) ................................................ 7, 9, 11, 15, 16, 18
`4th (Fourth) Triennial Rulemaking, Recommendation of the
`Register of Copyrights (2010) ........................... 7, 9, 11, 12, 15, 16, 19
`5th (Fifth) Triennial Rulemaking, Recommendation of the Register
`of Copyrights (2012) ........................................................ 7, 8, 9, 10, 13
`6th (Sixth) Triennial Rulemaking, Recommendation of the Register
`of Copyrights (2015) ..... 7, 10, 13, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25
`7th (Seventh) Triennial Rulemaking, Recommendation of the Acting
`Register of Copyrights (2018) .. 7, 10, 13, 15, 17, 19, 20, 21, 22, 23, 26
`
`vi
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`

`

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`8th (Eighth) Triennial Rulemaking, Ex Parte Communications
`(2021), https://www.copyright.gov/1201/2021/ex-parte-
`communications.html ........................................................................ 32
`8th (Eighth) Triennial Rulemaking, Opposition Comments (Feb. 9,
`2021),
`https://www.copyright.gov/1201/2021/comments/opposition/ .......... 32
`8th (Eighth) Triennial Rulemaking, Petitions for Newly Proposed
`Exemptions (Sept. 8, 2020),
`https://www.copyright.gov/1201/2021/petitions/proposed/ ............... 31
`8th (Eighth) Triennial Rulemaking, Petitions to Renew Prior
`Exemptions (July 22, 2020),
`https://www.copyright.gov/1201/2021/petitions/renewal/ ................ 31
`8th (Eighth) Triennial Rulemaking, Post-Hearing Questions, (May
`14, 2021), https://www.copyright.gov/1201/2021/post-hearing/ ....... 32
`8th (Eighth) Triennial Rulemaking, Recommendation of the
`Register of Copyrights (Oct. 19, 2021) .... 7, 8, 9, 10, 11, 13, 14, 15, 20,
`21, 22, 23, 24, 25, 26, 33
`8th (Eighth) Triennial Rulemaking, Reply Comments (March 10,
`2021), https://www.copyright.gov/1201/2021/comments/reply/ ........ 31
`8th (Eighth) Triennial Rulemaking, Round 1 Comments (Dec. 14,
`2020), https://www.copyright.gov/1201/2021/comments/ ................. 31
`8th (Eighth) Triennial Rulemaking, Transcripts of Public Hearings
`(Apr. 5–21, 2021), https://www.copyright.gov/1201/2021/hearing-
`transcripts/ ........................................................................................ 31
`Exec. Order No. 14,036, 86 Fed. Reg. 36,987 (2021) .............................. 26
`Librarian of Congress, Exemption to Prohibition on Circumvention
`of Copyright Protection Systems for Access Control Technologies,
`75 Fed. Reg. 43,825 (July 27, 2010) .................................................. 12
`
`vii
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`

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`USCA Case #21-5195 Document #1931386 Filed: 01/19/2022 Page 8 of 48
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`U.S. Copyright Office, Section 1201 of Title 17 (2017),
`https://www.copyright.gov/policy/1201/section-1201-full-
`report.pdf ..................................................................................... 24, 29
`U.S. Copyright Office, Software-Enabled Consumer Products (2016),
`https://www.copyright.gov/policy/software/software-full-
`report.pdf ........................................................................................... 25
`Rules
`37 C.F.R. § 201.40 ................................................................................... 32
`Other Materials
`Jacobus tenBroek, The Right to Live in the World, 54 Cal. L. Rev.
`841 (1966) .......................................................................................... 14
`Jonathan Band, The Complexity Dialectic: A 2021 Update,
`PolicyBandwidth (Nov. 19, 2021),
`http://infojustice.org/archives/43776................................................... 5
`Laffey Matrix, http://www.laffeymatrix.com/see.html............................ 29
`Marrakesh Treaty to Facilitate Access to Published Works for
`Persons Who Are Blind, Visually Impaired, or Otherwise Print
`Disabled (June 27, 2013) .............................................................. 9, 13
`Reply Comments of GitHub, Eighth Triennial Rulemaking (March
`10, 2021),
`http://www.copyright.gov/1201/2021/comments/reply/Class%201
`3_Reply_GitHub.pdf .......................................................................... 20
`Testimony of Prof. Blake E. Reid, Are Reforms to Section 1201
`Needed and Warranted?, U.S. Senate Committee on the
`Judiciary, Subcommittee on Intellectual Property at (Sept. 16,
`2020), https://www.judiciary.senate.gov/download/reid-
`testimony ....................................................... 27, 28, 29, 30, 31, 32, 33
`
`viii
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`U.S. PIRG, The costs of the digital divide are higher than ever.
`Repair can help, (Apr. 15, 2021),
`https://uspirg.org/blogs/blog/usp/costs-digital-divide-are-higher-
`ever-repair-can-help .......................................................................... 27
`
`
`Glossary of Abbreviations
`
`Term
`
`Digital Millennium Copyright Act
`
`Technological Protection Measure
`
`Abbreviation
`
`DMCA
`
`TPM
`
`Statutes and Regulations
`Except for the following, all applicable statutes and regulations are
`
`contained in the addendum to the Brief for Plaintiffs-Appellants
`
`Matthew D. Green, et al. This brief contains references to the
`
`recommendations of the U.S. Copyright Office in each of the triennial
`
`rulemakings promulgating exemptions from 17 U.S.C. § 1201; the
`
`recommendations are not available in the Federal Register or fully
`
`codified in the Code of Federal Regulations but can be referenced in full
`
`at the Copyright Office’s website dedicated to the rulemakings,
`
`https://www.copyright.gov/1201/, via the links labeled “[year]
`
`Recommendation.”
`
`ix
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`

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`Statement of Identity, Interest in Case, and
`Source of Authority to File
`Amici are organizations and individuals who promote functional
`
`fair uses of copyrighted works for socially beneficial accessibility,
`
`security, and repair purposes.1 While amici range widely in their
`
`missions, they share membership in communities whose First-
`
`Amendment-protected activities do not infringe copyright but have
`
`nevertheless been chilled by the anti-circumvention provisions of the
`
`Digital Millennium Copyright Act (DMCA) and harmed by the failure of
`
`the Copyright Office to protect their rights through the triennial
`
`rulemaking promulgating exemptions from Section 1201.2
`
`Amici include organizations who advocate for equitable access to
`
`copyrighted works—including books, movies, television programming,
`
`software, educational materials, video games, and web content—for the
`
`tens of millions of Americans with disabilities. Equitable access
`
`requires ensuring that third parties can take the actions necessary—
`
`including circumvention of technological protection measures (TPMs)—
`
`to remediate inaccessible copyrighted works into accessible formats,
`
`
`1 A full list of amici appears as in the appendix to this brief.
`2 See 17 U.S.C. § 1201.
`
`1
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`

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`such as creating audio versions of e-books or adding closed captions to
`
`video programming.
`
`Amici also include organizations and individuals who engage in and
`
`advocate for the ability for good-faith security researchers to identify,
`
`diagnose, and fix security flaws and vulnerabilities in copyrighted
`
`software. Enabling good-faith security research requires ensuring that
`
`researchers can circumvent TPMs without fear of legal risk.
`
`Finally, amici include organizations and individuals that advocate
`
`for consumers’ and independent organizations’ right to repair lawfully
`
`obtained devices that use software. Amici advocate for the right to
`
`repair—which often includes circumvention—to reduce costs, reduce
`
`environmental impacts, and help marginalized communities access
`
`technology.
`
`Statement of Authorship and Financial Contributions
`All parties have consented to timely-filed amicus briefs. No counsel
`
`for a party authored this brief in whole or in part.3 No party, counsel to
`
`
`3 The Samuelson-Glushko Technology Law and Policy Clinic at
`Colorado Law, part of the Colorado Law Clinical Programs, counsel to
`amici, represented plaintiff-appellant Matthew Green before the
`Copyright Office during the 2015 triennial rulemaking evaluating
`petitions for exemption from the anti-circumvention measures of
`
`
`2
`
`

`

`USCA Case #21-5195 Document #1931386 Filed: 01/19/2022 Page 12 of 48
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`any party, or any person other than amici curiae contributed money to
`
`fund preparation or submission of this brief.
`
`Argument
`Amici urge this Court to reverse the district court’s order granting
`
`the motions for dismissal by defendant-appellees Department of Justice,
`
`et al. and conclude that plaintiff-appellants Matthew D. Green, et al.
`
`are likely to succeed in their facial First Amendment challenge to
`
`Section 1201.4 Section 1201 violates the First Amendment by effectively
`
`chilling a wide range of socially beneficial and uncontroversial fair uses,
`
`including accessibility, security, and repair. Section 1201’s triennial
`
`exemption rulemaking has failed to remedy Section 1201’s fatal
`
`
`Section 1201, but the Clinic’s representation of Dr. Green was limited to
`the rulemaking itself and ended after the completion of the rulemaking.
`The representation specifically did not extend to the litigation that is
`the subject of this appeal.
`4 See 17 U.S.C. § 1201. As plaintiff-appellants explain, one way the
`Court can reach this result is to apply the canon of constitutional
`avoidance by construing Section 1201 “to be bounded by the traditional
`contours of copyright doctrine . . . [and] requiring a nexus to copyright
`infringement for 1201 liability to attach.” Pl.-Appellants’ Br. At 46–47
`(internal citations omitted). We likewise concur with plaintiff-
`appellants that Section 1201’s triennial rulemaking is not severable
`from the statute. Id. at 43–44.
`
`
`3
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`

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`USCA Case #21-5195 Document #1931386 Filed: 01/19/2022 Page 13 of 48
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`constitutional problems—particularly with respect to accessibility,
`
`security, and repair fair uses.5
`
`The right to engage in fair use is protected by the First Amendment.
`
`The Supreme Court has concluded that fair use is one of copyright law’s
`
`essential “built-in First Amendment accommodations” and serves as a
`
`“traditional First Amendment safeguard.”6 The Supreme Court has
`
`conceptualized fair use as a safety valve that prevents copyright law
`
`from suppressing the exercise of First Amendment rights.7
`
`Section 1201 eliminates fair use’s capacity to serve as a First
`
`Amendment safeguard when copyrighted works are encumbered with
`
`TPMs. It does so by effectively prohibiting fair uses that require the
`
`circumvention of TPMs.8
`
`The triennial rulemaking has failed to rectify Section 1201’s
`
`substantive First Amendment problems. For two decades, the Copyright
`
`
`5 See 17 U.S.C. § 1201(a)(1)(C)–(D).
`6 Eldred v. Ashcroft, 537 U.S. 186, 219–20 (2003); Golan v. Holder, 565
`U.S. 302, 328 (2012) (citing Eldred, 537 U.S. at 219; Harper & Row v.
`Nation, 471 U.S. 539, 558 (1985)).
`7 See id.
`8 See 17 U.S.C. § 1201(a)(1)(A).
`
`
`4
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`

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`USCA Case #21-5195 Document #1931386 Filed: 01/19/2022 Page 14 of 48
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`Office has conducted the triennial rulemaking9 with a predictable
`
`pattern of denying or narrowing proposed exemptions10 intended to
`
`enable accessibility, security, and repair fair uses, among others. The
`
`Office’s conduct of the rulemaking has effectively codified Section 1201’s
`
`chill on accessibility, security, and repair fair uses that even the Office
`
`has consistently recognized are fair uses.
`
`Moreover, the Office’s conduct of the triennial rulemaking as a trial-
`
`like speech licensing inquiry has imposed significant procedural harms
`
`atop Section 1201’s chilling effects on accessibility, security, and repair
`
`
`9 As a formal matter, Section 1201 obliges the Librarian of Congress to
`make the determination of exemptions following the triennial
`rulemaking in consultation with the Register of Copyrights and the
`Assistant Secretary for Communications and Information of the
`Department of Commerce. See 17 U.S.C. § 1201(a)(1)(C). As a practical
`matter, the Copyright Office exercises primary responsibility over
`conducting the proceeding and the Register’s recommendations are
`typically approved without modification by the Librarian, though the
`Librarian overruled the Register in one notable instance involving e-
`book accessibility discussed infra, Part I.B & n.26. For convenience, this
`brief refers primarily to the Copyright Office as the effective
`superintendent of the triennial rulemaking even though each
`recommendation by the Register of Copyrights corresponds to a formal
`rulemaking action by the Librarian to grant and codify the
`recommendation in the Code of Federal Regulations.
`10 See generally Jonathan Band, The Complexity Dialectic: A 2021
`Update, PolicyBandwidth (Nov. 19, 2021),
`http://infojustice.org/archives/43776 (analyzing the complexity of the
`regulations released during the triennial rulemaking).
`
`5
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`

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`USCA Case #21-5195 Document #1931386 Filed: 01/19/2022 Page 15 of 48
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`fair uses. The Office routinely and unfairly has interrogated and
`
`dismissed the legitimacy of the constitutional rights of people with
`
`disabilities, disability services organizations and libraries, security
`
`researchers, and ordinary consumers and repair professionals to engage
`
`in uncontroversial fair uses protected by the First Amendment.
`
`I. The Copyright Office has sought to deny or effectively deny
`Section 1201 exemptions for accessibility fair uses.
`Accessibility advocates representing various disability communities,
`
`including several amici, have participated in every triennial rulemaking
`
`evaluating Section 1201 exemption proposals since 2003. Disability
`
`communities have advocated for three key categories of accessibility-
`
`focused exemptions:
`
`• Right to Read: Organizations representing people who are
`
`blind, visually impaired, or print-disabled11 have appeared
`
`before the Office seven times to secure, renew, and expand an
`
`exemption that permits people with disabilities and
`
`accessibility-focused organizations to circumvent TPMs on
`
`
`11 A print disability is any disability that prevents a person from
`effectively reading print material in any format.
`
`
`6
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`USCA Case #21-5195 Document #1931386 Filed: 01/19/2022 Page 16 of 48
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`inaccessible e-books to transform them into Braille, large-print,
`
`audio, and other accessible formats.12
`
`• Disability Services: Organizations representing educational
`
`disability services professionals have appeared before the Office
`
`twice to secure, renew, and expand an exemption that permits
`
`circumvention of TPMs on copyrighted videos used in K-12 and
`
`higher education contexts to add closed captions and audio
`
`descriptions and ensure equitable access for students, faculty,
`
`and staff who are deaf, hard of hearing, blind, visually
`
`impaired, or DeafBlind.13
`
`
`12 See Second Triennial Rulemaking, Recommendation of the Register of
`Copyrights at 64 (2003) (“2003 Recommendation”); Third Triennial
`Rulemaking, Recommendation of the Register of Copyrights at 37
`(2006) (“2006 Recommendation“); Fourth Triennial Rulemaking,
`Recommendation of the Register of Copyrights at 246 (2010) (“2010
`Recommendation”) ; Fifth Triennial Rulemaking, Recommendation of
`the Register of Copyrights at 17 (2012) (“2012 Recommendation”) ;
`Sixth Triennial Rulemaking, Recommendation of the Register of
`Copyrights at 127 (2015) (“2015 Recommendation”) ; Seventh Triennial
`Rulemaking, Recommendation of the Acting Register of Copyrights at
`22–23 (2018) (“2018 Recommendation”); Eighth Triennial Rulemaking,
`Recommendation of the Register of Copyrights at 128-30 (Oct. 19, 2021)
`(“2021 Recommendation”).
`13 2018 Recommendation at 89; 2021 Recommendation at 64.
`
`
`7
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`USCA Case #21-5195 Document #1931386 Filed: 01/19/2022 Page 17 of 48
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`• General Accessibility Purposes: In 2021, a broad coalition of
`
`disability rights organizations proposed a general accessibility
`
`exemption that would have broadly permitted circumvention for
`
`efforts intended to remediate inaccessible copyrighted works
`
`into accessible formats.14
`
`In each triennial rulemaking, the Office has acknowledged that each of
`
`these exemption categories entails fair use, but has variously denied or
`
`narrowed them and, as a result, reinforced substantial barriers to the
`
`civil rights of people with disabilities. The Office has effectively ensured
`
`that people who have disabilities cannot participate equitably in society
`
`simply because a work they seek to access is encumbered with a TPM.
`
` The Office has consistently recognized that accessibility-
`focused exemptions entail fair use.
`In evaluating accessibility-focused exemption proposals, the Office
`
`consistently has concluded that they entail fair use. The Office has
`
`relied on explicit statements from Congress in the legislative history of
`
`
`14 2021 Recommendation at 311. In 2012, the Office also considered and
`largely rejected a proposed exemption to permit circumvention of TPMs
`applied to video for the purpose of creating, improving, and displaying
`captions and descriptive audio tracks to enable people with disabilities
`to perceive such works, and for the purpose of conducting accessibility
`research and development. See 2012 Recommendation at 143-56.
`
`8
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`the Copyright Act and well-established precedent from the Supreme
`
`Court and the Second Circuit to recognize the uncontroversial
`
`proposition that making books, movies, and other copyrighted works
`
`accessible to people with disabilities is an unequivocal, archetypical fair
`
`use.15
`
`E-book accessibility efforts consistently have been recognized as fair
`
`uses across two decades of the triennial rulemaking. From the
`
`successful initial petition for an exemption, to its subsequent evolution
`
`and renewal, to its later expansion to harmonize Section 1201’s
`
`exemption structure with the United States’ entry into the Marrakesh
`
`Treaty to Facilitate Access to Published Works for Persons Who Are
`
`Blind, Visually Impaired, or Otherwise Print Disabled, the Office has
`
`consistently recognized that people who are blind, visually impaired, or
`
`print disabled circumventing TPMs to engage in self-help remediation
`
`of an inaccessible e-book entails fair use.16
`
`
`15 See 2021 Recommendation at 318 (citing Sony v. Universal City
`Studios, 464 U.S. 417, 455 n.40 (1984) (discussing the legislative history
`of the Copyright Act); Authors Guild v. HathiTrust, 755 F.3d 87, 101–02
`(2d Cir. 2014)) (additional internal citations omitted).
`16 2003 Recommendation at 70; 2006 Recommendation at 38; 2010
`Recommendation at 248; 2012 Recommendation at 17, 22 (implicitly
`
`
`9
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`

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`USCA Case #21-5195 Document #1931386 Filed: 01/19/2022 Page 19 of 48
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`Similarly, the Office has consistently recognized that the efforts of
`
`educational disability services professionals to remediate inaccessible
`
`video through the addition of captions and audio description are fair
`
`use. From the initial proposal granted in 2018 through the hard-fought
`
`refinement of the exemption to address a wide range of pandemic-
`
`related changes in the educational use of video in 2021, the Office
`
`consistently concluded the accessibility uses enabled by the exemption
`
`were likely to be uncontroversial fair uses.17
`
`Finally, the Office even conceded in the most recent triennial
`
`rulemaking that a broad, categorical accessibility exemption, which
`
`would have exempted circumvention for any activity undertaken for the
`
`purpose of creating an accessible version of any kind of copyrighted
`
`work, was directed toward at least some likely fair uses.18 In particular,
`
`
`recognizing fair use); 2015 Recommendation at 134–35; 2018
`Recommendation at 22–23 (renewing the 2015 exemption and adopting
`its analysis); 2021 Recommendation at 128–30.
`17 2018 Recommendation at 95-101; 2021 Recommendation at 318–21.
`Another exemption focused on captioning and description research was
`largely rejected in 2012. See 2012 Recommendation at 143-56. See
`discussion supra, note 14.
`18 2021 Recommendation at 318–21.
`
`
`10
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`

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`USCA Case #21-5195 Document #1931386 Filed: 01/19/2022 Page 20 of 48
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`the Office emphasized that “creating accessible versions of inaccessible
`
`copyrighted works . . . is a favored purpose for fair use.”19
`
` The Office has sought to deny or effectively denied
`Section 1201 exemptions for accessibility fair uses.
`Notwithstanding the fair uses entailed by the numerous
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`accessibility-focused exemption proposals to the Office, the Office has
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`routinely limited or denied proposed exemptions on grounds that ignore
`
`the First Amendment and the civil rights of people with disabilities. In
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`2010, despite concluding that the proposed e-book accessibility
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`exemption entailed fair use,20 having granted essentially the same
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`exemption in 2003 and 2006,21 and “agree[ing] that as a matter of
`
`policy, access to e-books for the visually impaired should be
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`encouraged,”22 the Office recommended denying an exemption allowing
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`people who are blind, visually impaired, or print disabled to engage in
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`self-help to remediate inaccessible e-books.23
`
`
`19 Id.
`20 See 2010 Recommendation at 248.
`21 2003 Recommendation at 70; 2006 Recommendation at 38. See
`generally 2010 Recommendation at 252–53 (describing the Office’s 2010
`perspective on the 2003 and 2006 rulemakings).
`22 2010 Recommendation at 261.
`23 Id. at 260.
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`Rejecting the blind community’s own assertions about its members’
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`needs, the Office complained that exemption proponents, including
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`some amici, had not sufficiently demonstrated that renewing the
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`exemption to ensure the right to read was warranted.24 Expressing
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`skepticism that blind people really lacked access to TPM-encumbered e-
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`books, the Office concluded that the contentions of leading blind
`
`organizations, the sound policy arguments in favor of the exemption
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`(with which the Office agreed), and the indisputably fair uses at issue
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`were all simply not enough to meet the bar for an exemption under
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`Section 1201.25
`
`Even after the Librarian of Congress ultimately rejected the
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`Register’s recommendation,26 the Office continued over the next four
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`triennial rulemakings to demand burdensome justification of the
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`proposed disability services exemption and modest, incremental
`
`
`24 Id. at 256-266.
`25 See id. at 259-262.
`26 The Librarian noted that the Office had ignored statements from the
`blind community, failed to develop the record, and recommended
`rejecting the exemption despite literally “no one oppos[ing]” it.
`Librarian of Congress, Exemption to Prohibition on Circumvention of
`Copyright Protection Systems for Access Control Technologies, 75 Fed.
`Reg. 43,825, 43,838–39 (July 27, 2010).
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`updates to both accessibility exemptions. 27 These demands required
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`extensive briefing and negotiation over changes including issues as
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`uncontroversial as the removal of ableist language from the Office’s
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`regulations codifying the exemptions and bringing the e-book exemption
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`into compliance with the Marrakesh Treaty, into which the United
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`States had already entered.28
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`The Office caused the most significant substantive harm to
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`accessibility uses in 2021 when it effectively denied the general
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`accessibility exemption that disability organizations proposed to
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`mitigate the burden of repeatedly appearing before the Office.29 The
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`Office concluded that Section 1201 precluded it from exempting
`
`
`27 See 2012 Recommendation at 16–25 (lengthy analysis of expansions
`to e-book exemption); 2015 Recommendation 127–37 (lengthy analysis
`of renewal of e-book exemption); 2018 Recommendation at 89-111
`(lengthy analysis of the disability services exemption); 2021
`Recommendation at 64-79 (lengthy analysis of expansions to the
`disability services exemption), 125-34 (lengthy analysis of expansions to
`the e-book exemption); see also 2012 Recommendation at 143–56
`(lengthy analysis of the largely rejected accessibility research
`exemption discussed supra, note 14).
`28 2021 Recommendation at 126; see also 2015 Recommendation at 132-
`34 (acknowledging the Marrakesh Treaty).
`29 2021 Recommendation at 315-34 (rejecting the proposed exemption
`for all accessibility uses except for a token carveout for circumvention
`related to video game controllers).
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