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Federal Register / Vol. 86, No. 168 / Thursday, September 2, 2021 / Proposed Rules
lotter on DSK11XQN23PROD with PROPOSALS1

LCA did not support such a proceeding and suggested that, if a claimant wishes to bring a claim against a library or archives that it believes is ineligible for the preemptive opt out, it can file a claim against the library or archives with the CCB, indicating that the library or archives does not meet the statutory requirements. 27 At that point, the CCB would review the claim to determine if the claimant has pled facts sufficient to indicate that the library no longer is eligible for the preemptive opt-out, and then the library or archives would be served with a notice and given the opportunity to either demonstrate that it still meets the requirements of section 108a2, and thus that its preemptive opt-out is still valid, or opt out of that specific proceeding before the CCB. 28
While taking no position on any process for a library or archives to claim status . . . for purposes of a blanket opt-out, the Motion Picture Association MPA, Recording Industry Association of America RIAA, and Software and Information Industry Association SIIA asked that the Office make clear that an entitys status as a library or archive for the purposes of opting out under CCB does not constitute a determination of that entitys status, and may not be cited as such, in any other context, including in any federal court litigation in which that entity is a party. 29
The Office appreciates parties comments on this issue and proposes that any library or archives that wishes to take advantage of the statutory preemptive opt-out option must submit a self-certification that it qualifies for the limitations on exclusive rights under section 108. 30 In doing so, the Office is seeking to balance the statutory goals of ensuring that only libraries and archives are eligible for a preemptive opt-out, but also that any such entities are not overly burdened in effecting that election. The proposed rule also requires that any library or archives that Comments at 1415 same; AIPLA NOI Initial Comments at 4 same.
27 LCA NOI Reply Comments at 2.
28 Id.
29 MPA, RIAA & SIIA NOI Reply Comments at 10.
LCA agreed that any status determination by the CCB should not be treated as conclusive in other contexts. LCA NOI Reply Comments at 12.
30 17 U.S.C. 1506aa4; see also Copyright Alliance et al. NOI Reply Comments at 13 n.7
opposing comments suggesting that the CCB
adopt a definition of libraries and archives other than the definition articulated in the statute. But see Authors Alliance NOI Initial Comments at 5
6 We support a broad definition of libraries and archives which encompasses public libraries, academic libraries, and other institutions serving the essential functions of preservation and sharing of knowledge and culture..

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has been found by a federal court not to qualify for the section 108 exemptions report this information to the CCB.
The Office will accept the facts stated in the opt-out submission unless they are implausible or conflict with sources of information that are known to the Office or the general public.31 If the Office believes, based on such information, that the entity does not qualify, it will communicate to the submitter that it does not intend to add the entity to the preemptive opt-out list, or that it intends to remove the entity from the list. The Office will then allow the submitter to provide evidence supporting the entitys eligibility for the exemption. If, after reviewing the submitters response, the Office determines that the entity does not qualify, the entity will not be added to, or will be removed from, the opt-out list. If the Office determines that the entity does qualify, it will be added to, or remain on, the opt-out list. Either determination will constitute final agency action under the Administrative Procedure Act.32
With respect to the requests to allow third-party challenges to an institutions eligibility for the preemptive opt-out, the Office does not believe it is necessary to establish a procedure for such objections that is separate from the CCBs adjudication of individual cases.
Such a process would seem an inefficient use of CCB resources, as it could require the Board to resolve disputes over an institutions status before any claim involving that entity has been made. As LCA notes, a party seeking to bring a claim against a library or archives that it believes is improperly on the opt-out list may file the claim with the CCB and include the basis for that conclusion in its statement of material facts. If, during its review of the claim for compliance, the CCB
determines that the claimant has alleged facts sufficient to support the conclusion that the entity is ineligible, and the claim is otherwise compliant, the claimant will be instructed to proceed with service on the respondent.
The respondent may then include in its response any information to demonstrate that it is in fact eligible, or may simply opt out of that specific proceeding. This process is reflected in the proposed rule.
31 See
U.S. Copyright Office, Compendium of U.S.
Copyright Office Practices sec. 309.2 3d ed. 2021
noting the Offices similar approach regarding registration materials.
32 5 U.S.C. 704 Final agency action for which there is no other adequate remedy in a court is subject to judicial review..

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2. Persons Allowed To Opt Out on Behalf of a Library or Archives The NOI noted the prevalence of libraries and archives being located within larger entities, including but not limited to colleges and universities or municipalities, and asked for comments addressing which entities, principals, or agents may opt out on behalf of a library or archive, as well as any associated certifications. 33 In response, LCA suggested that Office regulations should allow the preemptive opt-out to be exercised by any person with the authority to take legally binding actions on behalf of the library in connection to litigation. 34 In its view, because some institutions have many different libraries, an official with the appropriate authority should be able in a single process to exercise a preemptive opt-out with respect to all the eligible libraries within the institution. 35 Other commenters suggested that those with the authority to opt out on behalf of a library or archives could include a university agent e.g., a dean or associate dean or a law firm.36 In contrast, AMI contended that a blanket, institutional opt-out should not be permitted for institutions or entities containing multiple archives.37 It argued that otherwise, a complainant could have wasted money and time on bringing an action only to have it thrown out because of ignorance of institutional affiliation of the infringer. 38
The Copyright Alliance et al.
suggested that where a library or archives is a part of a larger entity or municipality, such that the library or archives itself does not have standing to act as a Claimant or Counterclaimant on its own, only the larger entity or municipality should be allowed to request the blanket opt-out on behalf of the library or archives. 39 They reasoned that because the blanket opt-out could have major implications on an entitys exposure to liability, only the larger entity should be allowed to make that decision. 40
The Office generally agrees with LCAs suggestion that the authority to exercise the preemptive opt-out option should belong to any person with the authority to take legally binding actions 33 86

FR at 16161.
NOI Initial Comments at 2.

34 LCA
35 Id.

36 AALL NOI Initial Comments at 2; Anthony Davis Jr. & Katherine Luce NOI Initial Comments at 2.
37 AMI NOI Initial Comments at 2.
38 Id.
39 Copyright Alliance et al. NOI Initial Comments at 20.
40 Id. at 2021.

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