Copyright Office elaborated that the statutory exemptions of Section 1201(f) afford broader
exemptions than even the Copyright Office itself could grant by virtue of rulemaking. In
particular, the Copyright Office’s exemptions are limited to individual acts of exemption
prohibited by Section 1201(a)(1), whereas the statutory exemptions of Section 1201(f) include
the distribution of the means of circumvention into the marketplace:
[T]he statutory exemption found in §1201(f) not only permits circumvention of
technological measures to analyze and identify interoperable elements of a
protected computer program, but also provides exemptions to the trafficking
provisions in §1201(a)(2) and 1201(b). Even if the Register had found a factual
basis for an exemption, it would only exempt the act of circumvention. It would
not exempt the creation and distribution of the means to circumvent or the
distribution of interoperable computer programs embedded in devices. Since it is
clear that Static Control’s goal was not merely to privately circumvent, but rather
to facilitate the distribution of competitive toner cartridges to others, a
recommendation for an exemption in this rulemaking would have little effect on
the intended use.^982Accordingly, the Copyright Office concluded that “Congress has comprehensively
addressed the important concern of interoperability for competition and functionality within its
own statutory exemption” and that an exemption through rulemaking was not necessary.^983
Providing Information or Means for Interoperability to Others. Section 1201(f)(3)
provides that the “information acquired through the acts permitted under paragraph (1), and the
means permitted under paragraph (2), may be made available to others if the person referred to in
paragraph (1) or (2), as the case may be, provides such information or means solely for the
purpose of enabling interoperability of an independently created computer program with other
programs, and to the extent that doing so does not constitute infringement under this title or
violate applicable law other than this section.”
Section 1201(f)(3) contains ambiguities with respect to its scope that are similar to those
noted with respect to Section 1201(f)(2). The legislative history for Section 1201(f)(3) states the
following:
[Section 1201(f)(3)] recognizes that developing complex computer programs
often involves the efforts of many persons. For example, some of these persons
may be hired to develop a specific portion of the final product. For that person to
perform these tasks, some of the information acquired through the permitted
analysis, and the tools to accomplish it, may have to be made available to that
person. This subsection allows developers of independently created software to
rely on third parties either to develop the necessary circumvention tools or to
identify the necessary information to achieve interoperability. The ability to rely(^982) Id. at 180-81 (emphasis in original).
(^983) Id. at 183.