Access to material in the public domain needs to be assured, even if the publisher restricts access by technological mechanisms used also for copyrighted works.

Music that is used by natural-born persons in the United States and other nations which we have treaties with should be exempted for all personal uses involving medium transfer or backup archival methods, as our Constitution and our Nation do not permit Congress or any Administration from removing those liberties granted naturally to us. This specifically includes transferring any music bought, licensed, or rented being transferred from any specific format to any other, so long as such transfer is limited to non-commercial uses and is not intended to be resold except as constitutionally guaranteed irony, parody, or collage (30 seconds or less) uses.

We need to ensure an individual's access to works they create or purchase.

First: Current encription and digital watermarking prohibit an individual from making as many digital copies of their own created muscal works as they want. I record my music on Minidisk. I digitally copy it to a CD Recorder. I then try to make dupes of that master CD in the CD recorder but this is impossible. I am disallowed access to my own music through the implimentation of SCMS "bits" that mark one an original, another a copy and prohibit any copies of copies. If I lose my original, I cannot access my music for any digital duplication because of the hardware restrictions that already exist in the market.

Secondly, when I purchase musical works or motiopn pictures (for example), I fully expect to be able to access that music on any and all means available to me. However, current CD "protection" schemes actually inhibit the playback of said CDs on my Macintosh. The simply do not work, and caused the computer to be unable to eject the CD. Another example: I purchase a DVD for home enjoyment, but do not have a DVD for the children to watch in the car. I would like to make a VHS copy of the DVD but copy protection means I, and my children, cannot access the movie in the car. I am forced to purchase the motion picture twice. Another consideration: For convenience I prefer a single CD of 150 MP3 songs (that I legally own) to having to bring along 10-15 different CD's with 10-15 songs each and change them every hour in the car. I don't want to deal with CD cases, swapping disks and all that while on the road. It is safer and more convenient for me to access my music on one MP3 CD I create of my own music. I paid for the right to access my media, I should be allowed to access it where, and how, I see fit.

1. Motion pictures stored on DVDs are usually encrypted.
2. Encryption of motion picture on a DVD prevents fair uses of the motion picture.
3. Fair uses of a copyrighted work are legal, so circumvention of encrpytion for these purposes should be exempt.

Current technologies to prevent misuse also can prevent "Fair Use" applications, Eg: many CD's with copy protection cannot be played on the cd player in my computer, which is where I, and many other professional programmers, do the majority of our listening. The use of "Cracking" programs to enable fair use should not be subject to criminal penalties. While "Trading" (Stealing) or sale of physical reproductions of such works should clearly be illegal, the current regulations, which consist of a blanket ban against the breaking of digital copy protection methods inhibit fair use of products legally purchased in the following ways.

1) Copy protection methods currently in force can prevent the legal playing of protected works in most computer's sound systems, and occasionally in Auto CD players, and even more rarely in some makes and models of dedicated Home CD players.

2) Current regulations make illegal any methods of compressing such copy protected files for otherwise legal listening on commercially available "MP3 Players" (much like a "walkman", or Automobile sound system MP3 decks.) Such compression allows the user to carry with them a much larger number of songs than would be practicable in the native cd format.

3) Current rules are the logical equivalent of executing all of the residents of a town to make sure you get the one serial killer among them. This alone classifies the current regulations as "Not in the public interest"

4) Copying digital media for legal, "Fair Use", purposes is not an exercise in "Interstate Commerce" and is therefore not subject to Federal Regulation.

I would add, as an aside, that I am both a musician and a professional software publisher. As such I most certainly do not approve of the pirating of Copyrighted materials. None the less, preserving the legal concept of "Fair Use" is beneficial not only to the end users of such products, but to the producers of those products as well.

any written expression, even that which documents ways of violating laws, is protected speech under the first amendment. The DCMA can be interpreted as making the publishing of information related to security flaws that if exploited would lead to circumventing some protection mechanism illegal. This is not consistant with the first amendment, nor is it consistant with common sense - we need the flaws to be identified so they can be fixed, particularly when they relate to the protection of computer systems from malicious exploitation. Therefore, it is important to exempt and exclude these text documents. An executable computer program whose purpose is the circumvention of a protection measure would not be included in the class, but a description of how such a program could be written would be included.

The access control measures used for secure electronic books by nature prevent a user from upgrading his hardware without losing access to the books. They also preclude use of the secured electronic books by certain types of researchers, and by locking out accessibility software also prevent the blind and visually impaired from making use of the secured electronic books.

1.Works in the Public Domain may not be copyrighted. Circumvention of access controls for Public Domain works can not be a violation of 17 U.S.C. 1201(a)(1)(C) since that section refers only to copyrighted works.

2.Commercially distributed software that is distributed with the intention of gathering information on users surreptitiously without their knowledge or consent is called "Spyware" by computer security specialists. While obstensively the Spyware program is distributed to perform one function, it is actually a Trojan Horse collecting information about the user of the software without their knowledge and relaying it back to the distributer of the software. It uses the same technology and means of distribution as computer viruses. The only difference is that Spyware is less malicious than many computer viruses which may collect passwords and credit card numbers to commit fraud. Computer viruses may use encryption to change their appearance and hide their true operations. Spyware also uses encryption to hide the information collected, transmitted, or to prevent reverse engineering of the code to determine just what it truly is doing. Since Spyware is a computer program it is also a copyrighted work that may also claim to be using encryption to control access to its workings or as a part of a copy protection "technology." The prohibition on circumvention affects the ability of computer security specialists to determine what is or is not Spyware and what information has been compromised.

1. Users are heavily restricted from playing foreign DVDs, playing DVDs on Linux, or using features such as skipping commercials that are locked out by licensed DVD players, without circumvention.
2. Users are restricted from running unauthorized software and playing import games without being able to circumvent.

Several companies are using well-known encoding schemes, rather than strong encryption, as access control. Tools that can circumvent these access controls already exist. Those tools should be exempt from the anti-circumvention clauses, as should any updates to those tools.

- There are many foreign forms of entertainment such as Anime (from Japan) which has gained popularity among audiences in the United States

- Many of these works are slow to be introduced into the United States, and when they are have been subjected to various forms of censorship, editing, changing the content of what is contained in them. This has followed at times controversy which is brought forth by the Christian right or "moral majority"

- Though it would be legal to BUY a DVD from Japan, due to region coding, this could not be played on a region 1 DVD bought in the United States. (Japan is in region 3.)

- The US Supreme Court has been absolutely explicit concerning the seperation of church and state, and in their defence of such clauses of the First Amendment to the United States Constitution such as the non-establishment clause and freedom of speech and the press.

- People should be free to exercise their First Amendment rights to view forms of entertainment they might enjoy. The enforcement of copyright law should not have the effect of supporting censorship and the imposition of the will of a certain segment of highly political individuals (the "Christian Right" for instance) upon the rest of the populace.

- Given that the editing has taken place, people who want access to the original shows, minus all the editing (including that which could tend to "Christianize" a show from a foreign culture such as Japan), people should be able to see the original work if desired.

Where the encryption needs to be circumvented due to unavailability of password(s) caused by absence, death, or termination.

Technological measure- Source code rendered into binary form effectively encrypts the source code.

Non infringing use prevented - evaluation of the security of software packages. In particular, security audits assessing the likelihood that unauthorized users can utilize installed software to illegally hijack the resources of the computer system in which this software is installed.

How this circumvents the encryption - the testing process unencrypts portions of the binary translation by describing any potentially dangerous and/or subversive behaviors the software possesses that may pose a threat to system integrity.

Why this is otherwise protected - "Clean room" implementations of software (precise descriptions of software behavior which exactly duplicate the behavior of another system created without access to the original software's unencrypted content) are protected under fair use (IBM lawsuit to prevent i386 clones). In addition, the quoting of portions of content for reporting purposes is explicitly permitted under fair use doctrine.

Harm 1- Encourages non-US security researchers to explicitly prevent US citizens from accessing their work. (See RedHat advisory board for RHLinux for details of one such example (1)) This is done to protect researchers in countries that do not accept the validity of the DMCA within their borders from potential lawsuits in the US. This places US system administrators at a disadvantage against potential attackers since they are denied access to descriptions of how attackers can hijack their systems resources (preventing the deployment of countermeasures) while criminal attackers have full access.

Harm 2- Discourages prompt reporting of system flaws to system administrators. Since those reporting flaws can experience (and have been threatened with) legal retaliation by software manufacturers, there is a significant disincentive to provide the information necessary to enact effective countermeasures. These information disclosures are typically unpaid. When a significant potential financial burden is attached, the rewards of providing the needed information are dwarfed by potential liabilities.

Harm 3- Encourages complacency by software providers. Prior the DMCA's circumvention provision, companies with defective software were compelled by bad publicity to release well-tested patches quickly. Evidence provided below indicates that at least some companies are abusing the DMCA’s anti-circumvention clause to prevent their customers from discovering their vulnerability to criminals by threatening legal action against those individuals who publish this information(2).

Harm 4- Recent reports from the Bush administration have reaffirmed the role rank and file system administrators have in securing the nations internet infrastructure against assault by terrorist organizations and rouge states. The DMCA's circumvention clause in relation to source code provides a significant hindrance to protection of the internet from hostile attack. System administrators are not only highly decentralized, but are scattered throughout a wide range of private and public enterprises. Effectively disseminating the information necessary to predict and prevent large scale assaults on the infrastructure are only possible if the information needed to prevent these assaults is protected against legal retaliation. Evidence that this threat is real is provided by the recent large-scale assaults against the DNS root servers in the past month (3).

Specific examples cited in this work-

(1)Descriptions of vulnerabilities discovered in software packages utilized in the Red Hat Linux operating system are published by foreign researchers in a fashion that bars US citizens from accessing this information. The researchers explicitly state that their decision to ban access by US citizens was motivated by fears of legal retaliation in the US under the DMCA’s anti-circumvention clause.

(2)On July 19, 2002 HP sends legal notice to Adriel T. Desautels of Secure Network Operations, Inc. that they intend to prosecute under the DMCA’s circumvention clause unless they make every possible effort to retract publication of the security flaws in HP’s True64 Unix operating System – full text of this letter provided below.

(3)Sophisticated attack against dns root servers - Recently, a massive denial of service attack was launched against the 'root dns' servers - those computers that provide the means to translate word based internet addresses into raw IP addresses. The attack was both of exceptionally sophisticated and conducted in a manner suggesting of a test. The system was attacked for a brief time, then the attack was stopped by the attacker before the underlying structure of the internet could be significantly degraded. Both the unusually high degree of sophistication in the attack and the exploratory nature of the attack lend credibility to the threat of a future sophisitcated large scale assault against critical internet resources on which the economy is now dependant.

CLASS 2: Sound recordings restricted by access controls that tether the recording to a specific device or platform, thereby preventing a lawful possessor from using the work on an unsupported system in a non-infringing way.
Example: Access-Restricted CDs

CLASS 3: Motion pictures and other audiovisual works restricted by access controls that tether the work to a specific device or platform, thereby preventing a lawful possessor from using the work on an unsupported system in a non-infringing way.
Example: DVDs

CLASS 4: Literary works restricted by access controls that limit lawful access to and post-sale uses of the work, where circumvention allows a lawful possessor to use the work in a non-infringing way.
Example: E-books

CLASS 5: Sound recordings restricted by access controls that limit lawful access to and post-sale uses of the work, where circumvention of the technology allows a lawful possessor to use the work in a non-infringing way.
Example: Copy-restricted CDs

CLASS 6: Motion pictures and other audiovisual works restricted by access controls that limit access to and post-sale uses of the work, where circumvention of the technology allows a lawful possessor to use the work in a non-infringing way.
Example: DVDs

Class 1: Literary works restricted by access controls that tether the work to a specific device or platform, thereby preventing a lawful possessor from using the work on an unsupported system in a non-infringing way.
Example: E-books

Summary:
When a publisher distributes an E-book tethered to a specific device or platform, the DMCA prevents purchasers from reading content they lawfully acquire on the devices of their choosing. An exemption for this class of works would allow purchasers of E-books to lawfully circumvent access controls for the lawful purpose of reading a literary work on multiple devices or platforms.

Facts:
Literary works distributed in electronic format, often called E-books, are increasingly restricted by technological access controls that prevent owners from reading the book on the system they choose. For example, some Adobe E-books employ access control measures that prevent users from reading an E-book on any machine other than the one it was first downloaded onto. This is a problem for E-book purchasers who upgrade their computers or switch operating systems and are unable to read the E-books they had lawfully purchased on their new machine. It is also a problem for E-book purchasers who choose to read their E-books on a different computer or device, such as a laptop or PDA, from the one onto which it was originally downloaded.

Argument:
There is a legitimate need for purchasers to be able to move their E-books from a desktop to a laptop, from an IBM to a Macintosh, or from a Tablet to a PDA. Consumers have long exercised the option to read books on planes and on trains and in their backyard and in bed. Copyright law has never been construed to allow authors to prevent a reader's freedom to read a lawfully purchased literary work where and how they choose. No less opportunity should be available because the reader purchases an electronic book. E-books that employ technological restrictions that deny someone in lawful possession from accessing it where and how and on which device they choose allow content creators much greater ability to control reader's choices than they have ever had under copyright law.

Furthermore, tethering literary works to a specific device limits an E-book owner's ability to exercise the full bundle of property rights long associated with ownership of a book. For example, the First Sale doctrine allows a reader to resell a book after she has finished it. Access controls that restrict the platforms on which an E-book can be read interfere with that right. If an E-book is tethered to a platform that becomes obsolete, the owner can no longer exercise her option to resell or otherwise dispose of the Ebook according to her choosing. Since the First Sale Privilege is a limitation on a copyright holder's ability to control distribution of that work, circumvention should be permitted on technological control measures that restrict redistribution of an E-book by tethering it to a particular device or system.

Circumvention of access control measures that tether E-books to specific devices or platforms is necessary to allow purchasers to read and resell literary works with the same ease and versatility that they have historically exercised. By preventing circumvention of this class of access controls, the DMCA both denies purchasers of literary works the rights they retained under copyright's historic balance and endows creators with new rights to restrict how literary works are used in a manner never before contemplated or permitted. We urge the Librarian to recommend an exemption to the DMCA's general ban on circumvention of access control measures to permit owners to lawfully circumvent access control measures that tether literary works to specific platforms or devices.

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CLASS 2: Sound recordings restricted by access controls that tether the recording to a specific device or platform, thereby preventing a lawful possessor from using the work on an unsupported system in a non-infringing way.
Example: Access-Restricted CDs

Summary:
The DMCA prevents CD purchasers from listening to recordings they lawfully acquire on the devices of their choosing, when copyright holders distribute CDs that are tied to a specific device or platform. An exemption for this class of works would allow purchasers of CDs to lawfully circumvent access controls for the lawful purpose of listening to their recordings on multiple devices or platforms.

Facts:
Compact Discs (CDs), music downloaded from the Internet, and other types of sound recordings are increasingly restricted by technological access controls that prevent owners from listening to their own recordings on the system they choose. For example, some distributors tether sound recordings to CD players, preventing lawful possessors from listening to the music on a computer (See: "IBM Updates Copy-Protection Software" by Tom Spring, CNN, April 10, 2002, at http://www.cnn.com/2002/TECH/ptech/ 04/10/copyright.software.idg/index.html, describing how the latest CD release by pop star Celine Dion employed access controls that prevented playback on a personal computer, and "Sony: Downbeat For a New Online Music Battle" by Laura Rohde, CNN, Sept. 27, 2001 at http://www.cnn.com/2001/TECH/industry/09/27/sony.music.battle.idg/index.html, describing how Sony Music employed access controls to certain Michael Jackson CDs that prevented playback on computers and CD-ROMs). Other distributors tether sound recordings downloaded from the Internet onto the device they are originally downloaded (See: "Music So Nice, You Pay Twice" by Brad King, Wired News, Feb. 4, 2002 at http://www.wired.com/news/mp3/0,1285,49188,00.html describing how Universal Music Group employed access control measures on the downloadable recording of "Fast & Furious -- More Music").

Argument:
There are many reasons why consumers want to be able to move their sound recordings from their computer to CD player, from their CD player to their Diamond Rio, or just from their living room to their car. Some users want to download music onto a portable MP3 player to listen to it while jogging. Others want the ability to wirelessly "beam" music from one device to another for easier or continued use. There is also a cultural heritage of making mix-tapes for one's girlfriend, or to listen to on road trips. Today, digital technology enables people to access their music collection in unprecedented new ways. Transportability is one of the chief consumer benefits of digital technology, giving consumers the ability to "space-shift" or "place-shift" their music from one physical location to another. This versatility and portability has historically been part of the rights of ownership of a sound recording and copyright law has always been construed to empower users to 'rip, mix, burn, and create'. Content owners have never been allowed to control where and how and in what order a user listens to her lawfully owned music. The DMCA changed that by preventing circumvention of access control measures that tether works to specific devices. To return copyright law's traditional balance between creator and users, listeners should be permitted to circumvent access controls that restrict lawful listening to sound recordings on the users' chosen platforms.

As further evidence of the desirability and support for such an exemption, many of these portability fact-patterns prevented by the DMCA had previously been found by courts to be protected uses. Adopting this class exemption would be in line with the many court decisions that have upheld space or time-shifting. Most recently, in RIAA v. Diamond Multimedia Systems, Inc., 180 F.3d 1072 (9th Cir.1999), a court held that "space-shifting" of sound recordings between different devices is considered a lawful personal use. Most famously, in Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984), the US Supreme Court held that "time- shifting" an entire copyrighted television show using the VCR constituted fair use under the Copyright Act, and thus was a protected act.

Circumvention of access control measures that tether CDs to specific devices or platforms is necessary to allow purchasers to listen to their music with the same ease and versatility that they have historically exercised. By preventing circumvention of this class of access controls, the DMCA both denies purchasers of music the rights they retained under copyright's historic balance and endows creators with rights to restrict how sound recordings are used in a manner never before contemplated or permitted. We urge the Librarian to recommend an exemption to the DMCA's general ban on circumvention of access control measures to permit owners to lawfully circumvent access control measures that tether sound recordings to specific platforms or devices.

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CLASS 3: Motion pictures and other audiovisual works restricted by access controls that tether the work to a specific device or platform, thereby preventing a lawful possessor from using the work on an unsupported system in a non-infringing way.
Example: DVDs

Summary:
The DMCA prevents DVD purchasers from watching motion pictures they lawfully acquire on the device of their choosing, when the movie studios distribute the DVD tethered to a specific device or platform. An exemption for this class of works would allow purchasers of DVDs to lawfully circumvent access controls for the lawful purpose of watching their motion pictures on multiple devices or platforms.

Facts:
Motion pictures in Digital Versatile Disc (DVD) format are increasingly restricted by technological access controls that prevent owners from watching the movie on the platform they choose. For example, under the Hollywood movie studios' region coding system, consumers cannot play DVDs purchased in one region, such as Japan, India, or Europe on machines they purchased in another region, such as the United States. Also, DVDs can be tethered to a single platform, preventing users from playing the same DVD on a computer and a stand- alone DVD player, or on a Macintosh and an IBM. The DMCA prevents users from circumventing the technology tethering a DVD or DVD player to the region where it was purchased or tethering a DVD to a designated platform or device.

Argument:
There are many reasons why consumers may want to play DVDs purchased in one region on a device manufactured in another region. They could be planning time abroad, have been given a gift from an overseas relative, or have purchased a souvenir movie of a vacation spot. And there are equally as many reasons why consumers might want to watch a movie on multiple platforms. They could have different DVD player in different rooms of their house, wish to upgrade their technology, or want to play a favorite movie for their children on a computer on a long plane ride. Without a new specific exemption from the Librarian, the public will be prevented from accessing their DVDs on their own equipment in perfectly lawful and previously protected ways.

The DMCA permitting movie studios to have total control over a DVD's use contrasts vividly with copyright's history of balancing the interests of publishers, creators, and users. First, copyright owners' use of tethering to enforce region coding conflicts with 17 U.S.C. Section 602(a), which states that consumers do not infringe a copyright owner's exclusive rights if they import single copies of copyrighted works for personal, noncommercial uses. Second, the alienability of copyrighted works is restricted because owners are limited in acquiring and disposing of works that are not playable on local devices or on current device models. Third, innovation is limited because movie studios have a de facto legal monopoly over who can build DVD players. This unprecedented new power permits Hollywood to enforce anti-competitive practices, such as requiring a substantial cash bond upfront to build a software DVD player, and anti-competitive license terms, which by their very conditions, do not permit open source software development of DVD playing software. Together with the monopoly on who can build DVD players, functionality and design restriction choices of major studios prevent many lawful uses of a motion picture.

The practice of tethering DVDs allows copyright owners to legally enforce region coding and consequently, price discrimination. It also allows copyright owners to increase revenues by forcing consumers to purchase multiple copies of movies to play on their various platforms, devices and operating systems. This interferes with numerous non-infringing uses of motion pictures and other audiovisual works distributed in digital format. It is particularly troublesome as the copyright owners uses the DVD format as its sole means for delivering motion pictures to users. DVDs can only be accessed on devices or systems authorized and licensed by the copyright owners through its licensing entity DVD-CCA. This means that the copyright owners can control both who makes the devices and what kinds of devices and features are available for viewers to watch their lawfully purchased movies. By preventing users from circumventing access control measures on either DVDs or DVD players, the DMCA allows copyright owners an unprecedented amount of control over which devices enter the market, how much DVDs and players cost, what functions and features are forbidden to include on a DVD player, and where and how users watch their motion pictures.

This is most famously demonstrated by the continued lack of any device to watch movies on the Linux operating system. Besides stand-alone DVD players, computer software can also be written which allows for viewing a DVD on a personal computer. Despite Hollywood's years of promises and press releases, there is still no licensed DVD player for the Linux operating system available for consumer purchase (See: "Corporate Paws Grab for Desktop" by Brad King, Wired News, Sept. 9, 2002 at http://www.wired.com/news/business/0,1367,54941,00.html). Because of the DMCA's restriction on circumventing access controls, users cannot circumvent the technology tethering movies to a Microsoft operating system in order to play those movies on a Linux operating system. And they cannot purchase content designed for a Linux machine, as the copyright owners do not market movies for that platform. Thus users of the Linux operating system are de facto prevented from viewing their legally obtained movies on their computers.

Circumvention of access control measures that tether DVDs to specific devices or platforms is necessary to allow purchasers to watch motion pictures with the same ease and versatility that they have historically exercised. By preventing circumvention of this class of access controls, the DMCA both denies purchasers of movies the rights they retained under copyright's historic balance and endows creators with new rights to restrict how movies are used in a manner never before contemplated or permitted. We urge the Librarian to recommend an exemption to the DMCA's general ban on circumvention of access control measures to permit owners to lawfully circumvent access control measures that tether motion pictures to specific platforms or devices.

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II. Dual Purpose Technology

CLASS 4: Literary works restricted by access controls that limit lawful access to and post-sale uses of the work, where circumvention allows a lawful possessor to use the work in a non-infringing way.
Example: E-books

Summary:
When a publisher distributes an E-book in a format where one technology limits access to and limits post-sale uses of the book, the DMCA's restriction on circumventing an access control technology prevents the user from circumventing the post-sale control technology. An exemption for this class of works would allow purchasers of E-books to lawfully circumvent access controls for the lawful purpose of exercising the full bundle of their post-sale rights.

Facts:
Literary works distributed in electronic format, often called E-books, are increasingly restricted by technological controls that both prevent owners from accessing their book and limit owner's post-sale non-infringing use of their book. For example, Adobe's E-book access-restriction technology allows publishers to disable many post-sale lawful uses of the book, such as printing a single page, reading the text aloud, or 'space-shifting' an E-book to a hand-held device for more convenient reading. Since it is often the same technology that restricts access to an E-book that also restricts its post-sale use, the DMCA's ban on bypassing access controls allows E-book publishers to also control the consumer's use of the E-book by technology that cannot be lawfully circumvented (See: "Digital Copyright Overkill" by the Economist, Dec. 5, 2002 at http://www.economist.com/business/displayStory.cfm?story_id=1482259 and "Security Technologies Could Backfire Against Consumers" by Robert Lemos, CNET News, Nov. 7, 2002 at http://news.com.com/2009-1001-964628.html describing how dual-purpose technologies inhibit post-sale uses of literary works).

Argument:
Ebook readers have a legitimate need to be able to circumvent and disable certain post-sale access controls in order to exercise the traditional rights of book ownership. These post-sale access controls, colloquially termed Digital Rights Management Systems (DRMS), allow E-book publishers to prevent a wealth of fair uses, including the right to print, parody, space shift, sell, and trade the book. Together with the rights protected under the DMCA, DRMs give E-book publishers unprecedented control over an individual's reading experience. The traditional copyright balance has tipped dramatically against the consumer and must be corrected if readers are to retain their lawful rights to use books in the digital realm.

The exemption is also necessary to satisfy Congress' intent in passing the law. In enacting the DMCA, Congress specifically intended to permit the circumvention of access controls where it was necessary for users to exercise fair uses. E-book publishers and technology companies are 'circumventing' Congress' clear intent by applying dual use technologies to E-books. By doing so, they prevent readers from bypassing any of the post-sale use restrictions lawfully, because to do so would also mean bypassing the access controls which is forbidden by the DMCA.

Circumvention of dual use technologies that limit both access and post-sale use is necessary to allow purchasers to read, print, use and resell literary works with the same ease and versatility that they have historically exercised. By preventing circumvention of this class of access controls, the DMCA both denies purchasers of literary works the rights they retained under copyright's historic balance and endows creators with rights to restrict how literary works are used in a manner never before contemplated or permitted. We urge the Librarian to recommend an exemption to the DMCA's general ban on circumvention of access control measures to permit owners to lawfully circumvent technological measures that limit both access and post-sale use of the work, where the post sale use is protected under copyright law.

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CLASS 5: Sound recordings restricted by access controls that limit lawful access to and post-sale uses of the work, where circumvention of the technology allows a lawful possessor to use the work in a non-infringing way.
Example: Copy-restricted CDs

Summary:
When a recording company distributes a sound recording in a format where one technology limits access to and limits post-sale uses of the recording, the DMCA's restriction on circumventing an access control technology prevents the user from circumventing the post-sale control technology. An exemption for this class of works would allow purchasers of CDs to lawfully circumvent access controls for the lawful purpose of exercising the full bundle of their post-sale rights.

Facts:
Compact Discs (CDs), music downloaded from the Internet, and other types of sound recordings are increasingly restricted by technological controls that both prevent owners from listening to their music and limit owners' post-sale use of their music. Growing numbers of copy-restricted CDs are distributed to the public treated with a technology that disable consumers ability to copy or otherwise use CDs in various lawful ways. If music CDs are only available in a restricted format, then individuals will not be able to engage in many lawful uses, including fair use of the work, whether for review and criticism or for personal, noncommercial copying. For example, users' ability to copy their music so that they can listen to it on other devices is being increasingly restricted by the release of CDs protected by access control technologies (See: 'No more music CDs without copy protection', claims BMG Unit', John Lettice. The Register, November 6, 2002 at http://www.theregister.co.uk/contents/54/27960.html, and 'All CDs will be protected and you are a filthy pirate´, John Lettice. The Register, November 8, 2002 at http://theregister.co.uk/content/54/28009.hyml, describing the types of post-sale access controls that are being placed on CDs).

Argument:
The DMCA distinguishes between circumventing access controls and circumventing copy controls and allows circumvention of copy controls in order to engage in fair use. In passing the DMCA, Congress clearly intended the public to continue to enjoy the right to circumvent copy controls on sound recordings for lawful purposes. While in theory, consumers continue to enjoy the right to circumvent copy controls to make fair use or to engage in other lawful uses of sound recordings, the law still forbids bypassing access technology, and since its not possible to bypass copy controls without also bypassing access controls with dual use technologies, consumers are prevented from exercising the right to bypass the copy controls on sound recordings in order to make lawful use of their music.

Copyright holders only have the right to control public performances of works under copyright law. But the private performance of a work -- the private experiencing of a work -- is intended to remain under the control of the individual. In total disregard to thiis clear limitation of rights, copyright owners are usurping the individual's private performance right through the use of technological access controls that "double" as use controls. Circumvention of dual use technologies that limit both access and post-sale use is necessary to allow purchasers to enjoy their sound recordings with the same ease and versatility that they have historically exercised. By preventing circumvention of this class of access controls, the DMCA both denies purchasers of music the rights they retained under copyright's historic balance and endows creators with rights to restrict how sound recordings are used in a manner never before contemplated or permitted. We urge the Librarian to recommend an exemption to the DMCA's general ban on circumvention of access control measures to permit owners to lawfully circumvent technological measures that limit both access and post-sale use of the sound recordings, where the post sale use is protected under copyright law.

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CLASS 6: Motion pictures and other audiovisual works restricted by access controls that limit access to and post-sale uses of the work, where circumvention of the technology allows a lawful possessor to use the work in a non-infringing way.
Example: DVDs

Summary:
When a movie studio distributes a movie in a format where one technology limits access to and limits post-sale uses of the audiovisual work, the DMCA's restriction on circumventing an access control technology prevents the user from circumventing the post-sale control technology. An exemption for this class of works would allow purchasers of movies to lawfully circumvent access controls for the lawful purpose of exercising the full bundle of their post-sale rights.

Facts:
Motion pictures distributed in Digital Versatile Disc (DVD) format are increasingly restricted by technological access controls that both prevent owners from accessing their movies and limit owners' post-sale uses of their movies. For example, many DVDs are distributed with an access control technology called the Content Scrambling System (CSS) that also controls post-sale use of the movie (See: "'Tarzan' DVD forces viewers through a jungle of previews" Greg Sandoval, CNET News March 2, 2000 at
http://news.search.com/click?sl,news.43.282.1278.0.1.%22
fast+forward%22+dvds.0,http%3A%2F%2Fnews%2Ecom%2Ecom%2F2100%2D1017%2D237585%2Ehtml describing how Disney's "Tarzan" DVD prevents the consumers from fast-forwarding through the DVD's initial advertisements).

Argument:
The DMCA distinguishes between circumventing access controls and circumventing copy controls and permits circumvention of copy controls in order to engage in fair use. In passing the DMCA, Congress clearly intended the public to continue to enjoy the right to circumvent copy controls on motion pictures for lawful purposes. However, by exploiting the DMCA's ban on bypassing technological access controls, copyright owners are gaining greater control over the post-sale experience and use of a motion picture. This is beyond what copyright law grants or that the First Amendment permits. By using the same technology to regulate access to, and to regulate use of a DVD, the movie studios have created the de facto right to control private performances where a de jure right never existed.

Furthermore, by refusing to license the creation of DVD players that permit copying or allow other lawful post-sale uses, copyright owners are using the DMCA to eliminate consumers' control over their own experience of audio-visual works. Without the ability to circumvent use controls, individuals are forced to experience motion pictures in a manner controlled by the movie industry. For example, parents who want to fast-forward through age-inappropriate movie-previews are prevented from that legitimate activity by CSS access controls and consumers are forced to watch advertisements, since bypassing the technology that prevents fast-forwarding during those ads would be a DMCA violation.

Circumvention of dual use technologies that limit both access and post-sale use is necessary to allow purchasers to view movies with the same ease and versatility that they have historically exercised. By preventing circumvention of this class of access controls, the DMCA both denies purchasers of movies the rights they retained under copyright's historic balance and endows creators with rights to restrict how motion pictures and other audiovisual works are used in a manner never before contemplated or permitted. We urge the Librarian to recommend an exemption to the DMCA's general ban on circumvention of access control measures to permit owners to lawfully circumvent technological measures that limit both access and post-sale use of their movies, where the post sale use is protected under copyright law.

The Content Scrambling System (CSS) is an access control device for ancillary audiovisual works distributed on Digital Versatile Discs (DVDs), a fact affirmed by the 2nd Circuit Court of Appeals. CSS prevents quotation of ancillary audiovisual works distributed on DVDs for purposes of commentary and criticism, which is a noninfringing use under current law. Consideration of the factors enumerated in § 1201(a)(1)(C) supports the conclusion that an exemption is warranted. An exemption will have no effect on the availability for use of copyrighted works: the vast number of ancillary audiovisual works are not available in unprotected formats; CSS access control on DVDs does not support a model beneficial to the public; and, availability of ancillary works on DVDs is driven by consumer demand and filmmaker enthusiasm. The effect on the availability for use of copyrighted works for nonprofit archival, preservation, and educational purposes is negative. The impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism and comment is highly negative: fair use criticism and comment are a core concern of the First Amendment and must be granted special solicitude; the DMCA is a criminal statute and effects on free speech concerns must be scrutinized with particular care; ancillary materials are particularly important elements to quote for purposes of comment and criticism; the mere possibility of copying without violating § 1201(a)(1) is not sufficient to protect strong First Amendment rights; and, there is significant harm to an amateur reviews website and its contributors. The effect of circumvention of technological measures on the market for or value of copyrighted works is slightly positive, with no negative effects. In the alternative, the Librarian of Congress may determine that CSS is not an access control device because it does not control access to a work. This interpretation is supported by Congressional intent and statutory analysis, at best CSS is copy protection.

The most important works in this class are scientific and scholarly journal articles, at least when the copyright is retained by the author or transferred to an open-access journal. (When the author's copyright is transferred to a traditional journal, the new copyright holder will virtually never consent to open access, so we're not talking about that case.)

Scientific and scholarly journal articles are in this class because scholarly authors are not paid for journal articles and do not expect payment. They are paid by their employers and share their research articles freely for the sake of advancing knowledge. They write for impact and not for money. When they retain copyright, or transfer it to an open-access journal, then the copyright holder will typically consent to open access. Access-blocking DRM would frustrate this intention.

For the purpose of this rule-making, it shouldn't matter whether copyright-holder consent to open access is rare or frequent (hence, whether this class is small or large). In fact, the class is small but growing larger every day. The exemption is needed on the merits and in order to give this class a better chance of growing larger.

The argument: When copyright holders consent to relinquish revenue, or consent to open access, then the copyright statute should not stand in their way. Copyright holders have a right to waive their rights, just as much as they have a right to enforce them. When authors sacrifice revenue in order to reach a larger audience, or in order to share and advance knowledge, then readers ought to get the benefit of the author's sacrifice. At the very least, access-blocking DRM will thwart, not serve, this class of copyright holders.

For this class of works, an exceptionless anti-circumvention clause threatens readers with criminal penalties for gaining the kind of access that the copyright holder desires to make available. When authors consent to open access, then all use is non-infringing use. Preventing readers from taking advantage of this gift from authors not only frustrates copyright holders who wish to make this gift, but negates their sacrifice in relinquishing revenue, obstructs the free exchange of scientific ideas, and impedes research.

For these reasons, most works in this class will be published in open-access archives or open-access journals, without DRM, and consequently circumvention will never be an issue. But the exemption is needed for the occasional works of this class for which user access is hindered by DRM barriers. Here are some examples:

1. A scholar makes a point of publishing her research in an open-access journal. But several years later, the journal is sold to a publisher who changes the business model of the journal, and makes back issues accessible only to paying customers. The copyright holder's consent to provide open access has not changed.

2. A scholar's work is published online by an open-access journal. But that journal is indexed by a search engine that also indexes many priced and access-restricted journals. Rather than discriminate and give free access to the free articles and priced access to the priced articles, it charges for full-text access to any article that comes up in response to a search.

3. A government agency decides to outsource its publishing, bypassing the GPO and its open-access policies. The private-sector publisher makes the (public-domain) papers and other documents of the agency available only to paying customers.

The general principle behind this request for an exemption was also asserted in a public statement by France's Académie des Sciences on December 6, 2001. The French Académie called on the European Commission not to apply ordinary copyright rules to scientific publications for which the authors seek no payment.
http://www-mathdoc.ujf-grenoble.fr/DA/

For more on open access, see the Budapest Open Access Initiative. (For example, the BOAI makes clear that many authors consenting to open access wish to retain copyright rather than put their works into the public domain.)
http://www.soros.org/openaccess/

I believe there now exists a very real danger of losing data due to obsolete software or even file format versions.