Post-Hearing Questions

This page contains post-hearing questions and answers submitted as a part of a rulemaking on exemptions from prohibition on circumvention of technological measures that control access to copyrighted works (read more details). Following hearings held in April and May 2003, the U.S. Copyright Office asked follow-up questions of some of the witnesses who had testified at the hearings. The questions and responses appear below.


1. Filtering Software

Question:

Please clarify, as specifically as possible, the types of applications you believe should or should not be subject to an exception for the circumvention of access controls on filtering software lists, if such an exception is recommended.

Answers:

2. Red Book CDs and Ephemeral Copies

Questions:

  • Are the concerns expressed by webcasters in their proposal (Comment No. 41) addressed sufficiently by 17 U.S.C. §112(e)(8)? Why or why not?

  • Is there a basis in 17 U.S.C. §1201(a)(1)(B)-(D) or in the legislative history to conclude that an exemption could be limited to a particular group of users or to a particular type of use? Wouldn't the class proposed in DiMA's comment allow any noninfringing user to circumvent the access measures on all Red Book CDs? Please explain.

Answers:

3. Exemption for literary works/eBooks for persons with disabilities

Questions:

  • How many Ebooks are on the market that have the "read aloud" function disabled for which another audio source is not available on the market, e.g., audio book?


  • What is the default setting on the Adobe Reader -- read aloud on or read aloud off?


  • What percentage of all Ebook titles offer no read aloud function?


  • What percentage of those that do not offer the read aloud function are available in another accessible format such as talking books?


  • Is Bookshare an option for any published book that would serve accessibility needs?

Answers:

4. DVD-related question

Questions:

  • How many DVDs which are encrypted using CSS contain a compilation of works including both audiovisual works in the public domain and audiovisual works protected by copyright? (Please provide the specific titles in each such case.)


  • Can copyrightable works on a DVD be encrypted with CSS without also encrypting the public domain works contained on the same DVD? For example, if a public domain motion picture is placed on a DVD, can it be left unencrypted while the ancillary new works added, such as interviews, etc., are encrypted?


  • What is the estimated failure rate of DVDs? What is the average life span of a DVD? What is DVD “rot”? What are the specific marketing claims for works distributed on DVDs in terms of life span and are these claims different from the reality, if at all?


  • What are the differences between region coding and the newer “enhanced” region coding? How many DVDs embodying audiovisual works are currently using enhanced region coding? To what extent will the enhanced version be applied to DVDs embodying audiovisual works in the next three years? (Please provide any evidence you have to support that prediction.) To what extent will the enhanced version be applied to DVDs embodying video games in the next three years? (Please provide any evidence you have to support that prediction.)


  • Are there currently any devices on the market which use the Linux-based operating system and which will play DVDs? How is the availability of such devices likely to change (if at all) in the next three years?


  • Is CSS a “computer program”?


  • Which, if any, DVD-CCA licenses are available for public inspection? What licenses or parts of licenses are not publicly available for inspectionPlease clarify, as specifically as possible, the types of applications you believe should or should not be subject to an exception for the circumvention of access controls on filtering software lists, if such an exception is recommended.


  • How many DVDs which are encrypted using CSS contain a compilation of works including both audiovisual works in the public domain and audiovisual works protected by copyright?


  • Can region coding on DVDs embodying audiovisual works be changed or turned off without decrypting CSS? Can a licensed player be modified by an owner of that player to circumvent region coding without also circumventing CSS? If region coding cannot be changed or turned off without circumventing CSS, is it technically possible to design the protection system in a way that would make this possible? In other words, is it possible to place the region coding outside of the CSS shell?


  • Can the disabling of the fast-forward function or the UOP blocking commands of a DVD be reversed or altered, thus reactivating the fast-forward function, without decrypting CSS? If UOP blocking commands cannot be changed or turned off without circumventing CSS, is it technically possible to design the protection system in a way that would make this possible or does the nature of the DVD meduim preclude this?


  • We heard that region code flags for some DVD players can be reset a number of times to permit the playing of motion pictures from various regions. Can the region code flag be reset for video games as well? If so, please provide the details.

Answers:

5. Damaged, malfunctioning and obsolete technological protection measures

Question:

  • We would like to invite you to provide your response, if any, to the written submission from Joseph Montoro which we received at the May 2 hearing.

Answers:

6. Copy-protected CDs

Question:

  • Please identify all sound recordings that you or your members are aware of that have been released in the United States in the compact disc format with technological protection measures covered by 17 U.S.C. §1201(a) or (b).


    For each sound recording identified, please:

    1. State the title, artist and label.
    2. State the number of phonorecords distributed.
    3. Describe the technological protection measure. Such description should include whether the measure controls access to works, or copying, or both, and should provide the name (if any) of the technological protection measure and the creator or provider of the technological protection measure.

  • Do any of your members intend to release sound recordings in compact disc format with technological protection measures in the United States between now and October 28, 2006? If so, please

    1. Describe the technological protection measures that are intended to be employed, including whether the measures will control access to works, or copying, or both, and including the name (if any and if available) of the technological protection measure and the creator or provider of the technological protection measure (if available).

    2. State, either in terms of number of releases or percentage of overall releases, how many sound recordings to be released in compact disc format during this period are likely to be accompanied by such technological protection measures.


  • Are you or your members aware of any instances in which technological measures that control copying of sound recordings have prevented any devices that ordinarily can play compact discs from playing the content on any compact discs containing those technological measures? If so, please:

    1. Identify the title, artist and label of the sound recording(s).

    2. Describe the particular technological measure controlling copying, and provide the name (if any) of the technological protection measure and the creator or provider of the technological protection measure.

    3. Identify the devices that were unable to play the content on the compact discs.

    4. Explain the nature of the problem or restriction rendering the devices unable to play the content on the compact discs.

    5. State, either in terms of number of instances, or percentage of instances, or both, your understanding of the frequency of occurrence of this phenomenon.

    6. Explain whether, in any of the identified cases, it has been the intention of the manufacturer or distributor of the sound recording to prevent the playing of the content on any devices that ordinarily can play compact discs.

    7. Describe the extent to which your members intend to employ such measures between now and October 28, 2006.

    8. Explain whether you or any of your members consider such technological measures that control copying, but also happen to prevent the playing of sound recordings on certain devices, to be technological measures that “effectively control access to a work” as defined in 17 U.S.C. §1201(a)(3)(B). Please include an explanation of your legal reasoning.

Answers:

7. Access to replicas

Questions:

  • What specific technological protection measures has the Internet Archive encountered that have prevented the Internet Archive from preserving works, and what specific works have they been applied to? Please enumerate the identifiable works that are adversely affected by the prohibition and explain as specifically as possible exactly how the technological protection measures you identify operate to prohibit access.


  • Is the problem that the proposed exemption is meant to address one that is limited to the categories of works specified in your initial comment, or is it a problem that is likely to occur to all (or most) categories of works?


  • What is the purpose of the archival activity that has been prevented by technological protection measures? What does the Internet Archive do with the works it has preserved? Is your activity limited to verifying and maintaining the integrity of the archived work in a “dark archive,” or does it also involve dissemination of the migrated material to the public? If the latter, in what ways is the material disseminated or intended to be disseminated to the public?

Answers:

8. Region Coding of DVDs

Questions:

  • Assume that a person is the lawful owner of a copy of a motion picture on a CSS-encrypted DVD which is encoded for a region other than region 1.

    1. Should that person be permitted to view that motion picture on that DVD in the United States?
    2. If that person uses a multizone DVD player in the United States to play that DVD, is that person engaging in a noninfringing use of the motion picture?
    3. Is that person's use of the multizone DVD player to play that DVD encoded for a region other than region 1 an act of circumvention prohibited by 17 U.S.C. §1201(a)(1)?
    4. Are your responses to questions 1.B and C. affected by whether the multizone player was manufactured in the US or in a foreign country where no prohibitions on the circumvention of technological measures that protect access exist? Would your responses be affected by whether a third-party intermediary modified a licensed and fully compliant DVD player to be a multizone player? Does it make any difference whether the manufacturer of the DVD player is licensed by DVD-CCA?
    5. If that person, in the United States, uses a non-region 1, single-zone DVD player which is set to play DVDs from the region encoded on the DVD, is that person engaging in a noninfringing use of the motion picture?
    6. Is that person's use of the non-region 1, single-zone DVD player set to play DVDs from the region encoded on that DVD an act of circumvention prohibited by 17 U.S.C. §1201(a)(1)?
    7. Would your responses to questions 1.E. and F. be affected by whether the non-region 1, single-zone player was manufactured in the US or in a foreign country where no prohibitions on the circumvention of technological measures that protect access exist? Would those responses be affected by whether a third-party intermediary modified a licensed and fully compliant DVD player to be a non-region 1, single zone player? Does it make any difference whether the manufacturer of the DVD player is licensed by DVD-CCA

  • Are multizone DVD players (other than DVD drives for computers) easily available for purchase by consumers in the United States? If so, please provide details including typical costs and marketing channels for multizone players.

  • Are DVD players (other than DVD drives for computers) set to regions other than region 1 easily available for purchase by consumers in the United States? If so, please provide details including typical costs and marketing channels for multizone players.

  • It is our understanding that the region on a DVD drive for a computer may be reset up to 5 times.
    1. Are there authorized DVD players other than DVD drives for computers for which the region may similarly be reset? If not, why not?
    2. Is the failure (if any) to make such a feature available on DVD players other than DVD drives for computers based in whole or in part on a legal analysis that finds a relevant distinction between the two types of DVD players? If so, please described that analysis.
    3. What are the typical costs associated with resetting the region code on a DVD drive for a computer? Please describe how the region is reset.

  • Is it technologically possible for a person to modify a licensed DVD player to ignore the UOP blocking commands in order to reactivate the fast-forward function of a lawful copy of a DVD? If so, would the performance of the CSS-encrypted motion picture on that lawful DVD be affected or prevented by such a modification? Does such a modification of the player affect the legal status of the performance of the motion picture on the DVD, either under section 106 or section 1201(a)(1)? Please explain fully.

Answers:

9. Printer and Toner Cartridges

Questions:

  • Are the prices for toner cartidges provided at pp. 5-6 of the reply comment by the Electronic Frontier Foundation accurate? If not, please explain the provide the most accurate information available to Lexmark.

  • For each Lexmark printer for which Prebate toner cartridges are sold, what are Lexmark's prices for:
    1. original Prebate cartridges
    2. remanufactured Prebate cartridges
    3. original non-Prebate cartidges
    4. remanufactured non-Prebate cartidges

  • For each printer for which Prebate cartidges are sold, what percentage of toner cartridges that are sold are:
    1. original Prebate cartridges
    2. remanufactured Prebate cartridges
    3. original non-Prebate cartidges
    4. remanufactured non-Prebate cartidges

  • For each printer for which Prebate cartidges are sold, how many of the following toner cartridges have been sold since the introduction of Prebate cartidges:
    1. original Prebate cartridges
    2. remanufactured Prebate cartridges
    3. original non-Prebate cartidges
    4. remanufactured non-Prebate cartidges

  • Since the introduction of the Prebate cartridges, how many Prebate cartridges have been returned to Lexmark for remanufacturing or recycling? For each printer for which Prebate cartridges are sold, how many non-Prebate cartridges have been returned to Lexmark for remanufacturing or recycling?

  • Please provide information on the rate of return for remanufacture of Prebate cartridges, as well as the rate of return for remanufacture of toner cartridges in general.

  • Please provide Lexmark's reponse to the question raised on page 122 of the May 9, 2003 transcript regarding whether Static Control's use of remanufactured cartridge with a competing chip containing an original and noninfringing toner

Answers: