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.

Click-wrap restrictions on use of data archival mechanisms, if enforceable through the DMCA, can cripple the ability of businesses and individuals to move their own data to new computer systems. Access to one's own data is surely "fair use" of a copyrighted data archival mechanism, even if under circumstances which were not anticipated by the vendor at the time of sale. Copyrighted software code governing data archival and retrieval can be barred prevented, using technological means and click-wrap "contract" terms, from access to custodians' data for this legitimate purpose to the detriment and penury of data custodians seeking migration to new computing environments.

We have been given collections of copyrighted work in formats or on media that are degrading and becoming obsolete with time. To preserve these works, it is imperative that they be migrated to modern storage systems and that the reproductions be accessed to verify the accuracy and completeness of the transfer. This must be done before the formats or media become obsolete or damaged. This use is a non-infringing use protected by Sections 107, 108 and 117 of the Copyright Act. The proposed exemption is important to preserving the availability of the works and enabling archiving, future scholarship, and commentary. Furthermore, the proposed exemption is narrowly drawn and does not damage the market for the works. Without the ability to circumvent access controls in order to access archived reproductions, we have no way of ensuring this essential non-infringing use, and these works will vanish from the historical record of the 21st century.

The American Foundation for the Blind proposes an exemption for the class of works defined as "literary." We propose this exemption because currently deployed anti-copy technology does not support fair use of this class of works intended by Congress.

(2) Musical recordings and audiovisual works, protected by access control mechanisms whose circumvention is reasonably necessary to carry out a legitimate research project

The requested exemption would enable legitimate research relating to access control technologies. At present, much research of this type is impossible due to the prohibition on acts of circumvention in 1201(a)(1). The requested exemption would allow this research to proceed.
The current state of the art in access control technology is due in large part to past research on those technologies. Yet today’s state of the art does not provide the desired level of protection for copyrighted content, so future research is needed. Without an exemption for legitimate research, much of the needed research will not occur.
The requested exemption is not limited to encryption research but would cover all of the legitimate access control research that is being prevented by 1201(a)(1).
My account of the harms caused by 1201(a)(1) – harms that would continue to accrue absent an exemption – is based in part on my direct personal experience in performing access control research prior to the effective date of 1201(a)(1), and on my personal plans to resume such research should an exemption be granted. My account is also based on my general knowledge about my colleagues in the computer security research community, and my colleagues in other scholarly fields.
I realize that the Librarian might conclude that it is impossible, within the confines of the NOI to grant an exemption for legitimate research. The Librarian might, for example, reach such a conclusion based on a determination that the NOI does not allow the Librarian to create an exemption that is narrowly tailored to enable legitimate research. If the Librarian does conclude that the NOI does not allow an exemption to protect legitimate research, I ask the Librarian to state that conclusion clearly, so that it is clear that any legitimate-research exception to 1201(a)(1) would require Congressional action.

2. “Fair Use Works” – This class is meant to be a more flexible version of proposed exemption no. 1 above. The exemption would apply to “any lawfully acquired copy or phonorecord including a copyrighted work falling within any category in section 102 that, due to its nature and the users who typically use it, is likely to be lawfully used in particular environments under the fair use doctrine. The exemption shall apply only to such users in connection with such fair use” (e.g., the exemption would protect a university professor who circumvents a lock on a lawfully acquired e-book to use a short excerpt in a classroom setting, but would no longer protect the professor from suit under section 1201 if the professor then posts the (unlocked) e-book on the public Internet).

3. “Per se Educational Thin Copyright Works” – Thin Copyright Works are works that contain limited copyrightable subject matter, and which derive significant value from material in the public domain, such as facts, processes, ideas, or other elements that are beyond the scope of copyright protection. To satisfy concerns of vagueness, the Copyright Office should recommend a specific list of types of works that are subject to the exemption, i.e., a “per se” list. The list proposed herein is focused on those works most often lawfully used in research and education. Thus, this class of exempt works consists of “particular subcategories within section 102 and 103, namely databases, histories, statistical reports, abstracts, encyclopedias, dictionaries, and newspapers.”

4. “Thin Copyright works” – This category consists of “works that contain limited copyrightable subject matter, and which derive significant value from material in the public domain, such as facts, processes, ideas, or other elements that are beyond the scope of copyright protection.”

5. “Any work to which the user had lawful initial access (i) during the period of lawful access, or (ii) after any period of lawful access if the user has physical possession of a copy of the work.”

1. The works fall within a category set forth in section 102, and thus fall within the 2002 NOI’s stated preference that section 102 constitute a “starting point” for the exempt class. “Per se” Educational Fair Use Works, due to their nature and the users who typically use them, are highly likely to be used in educational environments for fair use purposes such as teaching and scholarly research. Thus, application of TPMs that prevent access to such works will adversely affect the ability of users to engage in such fair use. If the Copyright Office is concerned about potential abuses of the exemption, a “user and environment” restriction could be placed on this “per se” list, as described in proposed exemption no. 2.

2. Contrary to the Librarian’s determination as reflected in the 2000 Final Rule, the relevant section 1201 “classes of works” may be defined with reference to the users of such works as well as the type of use to which such works are put. The statute, in defining the scope of the exemption, expressly references the “persons who are users” of the copyrighted work at issue, 17 U.S.C. § 1201(a)(1)(B). Similarly, the statutory provision that provides for this rulemaking refers to the “users” who are adversely affected in their ability to make “noninfringing uses,” 17 U.S.C. § 1201(a)(1)(C), and the provision that provides for publication of exempt classes of works refers to the “users” to whom the prohibition shall not apply. 17 U.S.C. § 1201(a)(1)(D).

This proposed category of “Fair Use Works” does nothing more than permit users to engage in their legal right of fair use, unimpeded by access control technologies. As Congress expressed throughout the legislative history, the triennial rulemaking was specifically meant to permit such activity.

3. Works in the above category most likely derive significant value from material in the public domain, such as pure facts, or other elements beyond the scope of copyright protection, such as ideas. Thus, the application of an effective TPM to such works would preclude users from obtaining access to elements of a work that are not protected by copyright law. While the Librarian noted in the 2000 Final Rule that such works also include copyrightable elements, the use of such elements remain subject to copyright law remedies (e.g., infringement suits) notwithstanding the proposed exemption. Copyright owners should not be able to preclude the public from accessing non-protectible features of a “Thin Copyright” work. The scope of 1201 was not meant to extend beyond copyrightable features of a work, and it is well established that the raw facts and ideas in a work may be copied at will. See, e.g., Feist Pubs., Inc. v. Rural Telephone Service Co., 499 U.S. 340, 348, 350 (1991).

4. Because the “per se” list in exemption no. 3 could leave out significant categories of Thin Copyright works, this more flexible exemption also should be adopted. Although not necessary, a limitation as to the types of users (professors, staff, and students) and context of use (education and research) could be applied to this category.

5. Congress intended to distinguish between access control and use control TPMs. The content community has made clear that it intends to use technologies that it classifies as “access control” to implement use control, effectively eliminating the distinction Congress intended to preserve. Recent multi-industry consortia concerned with protection of content on CDs (“Secure Digital Music Initiative” (SDMI)), DVDs (“DVDCCA Call for Proposals” on a watermarking technology), and digital broadcast television (“Broadcast Protection Discussion Grouop” (BPDG)) confirm the major content owners’ goals of end-to-end technological control over all uses of their content. The proposed exemption no. 5 prevents this result and preserves the rights of users to engage in lawful uses of lawfully acquired content. The scope of the exemption is appropriate, because the exemption does not apply after the initial, lawful access unless the user possesses a physical copy (in which case the user should be entitled to continue accessing the work, while his use thereof will be subject to copyright law and, in appropriate cases, license).

2. Those literary works representing computer software programs and databases, for which a person has lawfully obtained a right of use, that operate to control access to works protected under the Copyright Act but contain features, flaws or vulnerabilities that (a) expose (i) the works to be protected or (ii) other assets of the users of such measures--including computers, computers systems or computer networks or the data or other protected works used with them--to infringement, compromise, loss, destruction, fraud and other adverse actions or (b) permit the privacy of such users to be compromised.

3. Compilations consisting of lists of websites blocked by filtering software applications.

4. Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness.

1. Access control mechanisms that fail to provide adequate security to the works they are intended to protect are also likely to expose the authorized user of a computer, computer system, or network to damage or loss, including the loss of privacy. The presence of these flawed mechanisms exposes other protected works on related computers, computer systems, and networks, to unauthorized access. The requested exemption permits those with a lawful right of access to conduct additional research, scholarship and criticism regarding the adequacy of the control mechanisms, as well as protected works, within the scope of fair use. Prohibiting circumvention relating to the proposed exempt class of works is estimated to cost the American economy significant amounts per year (although precise cost estimates are, for a variety of reasons including underreporting of losses and the existence of indirect losses, !
virtually impossible to ascertain) due to (a) unauthorized access through defective control mechanisms, (b) costs incurred by consumers and businesses to repair features, flaws or vulnerabilities in such control mechanisms and (c) lost revenues from users who avoid expenditures on protected works and related computer-based expenses out of concern for security and privacy risks associated with the related access controls. The proposed exemption will have no adverse impact upon the owners of the classes of works for which the exemption is requested.

2. Computer software programs and databases that operate to control access to works protected under the Copyright Act can contain features, flaws or vulnerabilities that expose the computers, systems, networks and other assets of authorized users to damage or loss, including the loss of privacy. In furtherance of the exemptions relating to circumvention available under Section 1201(e), 1201(g) and 1201(j), the proposed exemption permits authorized users to vigorously research, test and verify the functionality of the class of works to which the proposed exemption relates, and to publish related results and criticisms regarding such works, within the scope of fair use. The costs of prohibiting circumvention of the proposed exempt class of works are enormous. The failure to be able to test, and subsequently remediate, security flaws in software and databases is estimated to cost the American economy significant dollar amounts per year due to (a) unauthorized access through de!
fective control mechanisms, (b) costs incurred by consumers and businesses to repair features, flaws or vulnerabilities in such control mechanisms and (c) lost revenues from users who avoid expenditures on protected works and related computer-based expenses out of concern for security and privacy risks associated with the related access controls. These costs are matched by the continued risks of substantial harms not yet realized from future adverse events related to the inability to circumvent and test access controls protecting the class of work.

3. The proposed exemption is fully supported by the rationale adopted by the Register in the initial exemption rulemaking under Section 1201(1)(a)(3). There have been no changes in the marketplace or in the related technologies or business practices that mitigate against the necessity for continuing the exemption.

4. The proposed exemption is fully supported by the rationale adopted by the Register in the initial exemption rulemaking under Section 1201(1)(a)(3). There have been no changes in the marketplace or in the related technologies or business practices that mitigate against the necessity for continuing the exemption.

Identification of Class 2:
Sound recordings and audiovisual works (including motion pictures) embodied in copies and phonorecords, protected by access control mechanisms which require the use of a computer operating system, media player, codec or digital rights management system specified by the copyright holder in order to gain lawful access.

Identification of Class 3:
Sound recordings and audiovisual works (including motion pictures) embodied in copies and phonorecords, protected by access control mechanisms employed by or at the request of the copyright holder which tether the lawfully made copies and phonorecords to a particular digital playback device.

Identification of Class 4:
Sound recordings, audiovisual works and literary works (including computer programs) protected by access control mechanisms employed by or at the request of the copyright holder which require, as a condition of gaining access, that the prospective user agree to contractual terms which restrict or limit any of the limitations on the exclusive rights of that copyright holder under the Copyright Act.

Identification of Class 5:
Sound recordings, literary works (including computer programs and databases), and audiovisual works (including motion pictures), protected by access control mechanisms by or at the request of the copyright holder which require, as a condition precedent to granting access, that the user directly or indirectly disclose personally identifiable information to the copyright holder other than such information as is reasonably necessary to complete a bona fide business transaction.

Identification of Class 6:
Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness.

Identification of Class 7:
Works embodied in copies or phonorecords that have been lawfully acquired by users or their institutions who subsequently seek to make noninfringing uses thereof.

Summary of Argument for Class 1 Exemption:
This proposed class is narrowly crafted to permit lawful use of access control technology (hereafter “ACT”) to protect exclusive rights or the copyright holder while providing a public safety valve in the event a copyright holder uses ACT to prevent the access needed to perform a work privately, thereby extending copyright-holder control beyond the limits of the copyright grant and infringing upon lawful (and noninfringing) uses encouraged by the Copyright Act.

The exclusive right to perform a work privately has never been granted any copyright owner. It is always a non-infringing use. The performance right is specifically limited in subsections 106(4) and 106(6) to the exclusive right to perform a work “publicly.” As a result, it can never constitute copyright infringement to perform a work privately. Nevertheless, many copyright owners are making the right to perform their works privately exclusive to themselves by using ACTs to condition the grant of a license to reproduce a work into copies or phonorecords on the licensee’s conveyance to the copyright holder of control over private performances. This conveyance may be carried out in part by a required End-User License Agreement (“EULA”) (see proposed Class 4) and carried out by the use of ACTs.

When copyright holders employ ACTs to control lawful uses of works – uses that fall outside of the scope of the exclusive rights of the copyright holders – they are misusing ACTs to expand the scope of their copyrights and infringe upon rights reserved to the public. Since such use of ACTs does nothing to protect copyrights from infringement, but has the sole purpose and effect of capturing for the copyright holder a right Congress reserved to the public, it would serve the public interest without impairing the rights of the copyright holder to permit the lawful circumvention of such ACTs for the purpose of privately performing these works.

Summary of Argument for Class 2 Exemption:
Since the beginning of copyright law, authors have relied upon the creativity, ingenuity, business skill, invention, and competition of others to disseminate their works to the public. Until just recently, authors generally had no means to distribute their works to the masses themselves. Indeed, copyright law must have been invented precisely because reliance upon private contractual terms in which the author attempted to maintain privity of contract with each person receiving a work was a very poor method of promoting science and the useful arts, or even serving the author’s economic interests. Copyright law lifted the “business” burden from authors, and provided for a careful balance of public rights that served authors as a means of serving the public.

Thus, even as major companies amassed large copyright holdings, it has long been the case that they relied upon delivery systems owned or controlled by others. Book publishers profited most by not trying to also be printers, paper mills or bookstores, music publishers profited most by not having to become (or control) vinyl record or record player manufacturers, radio and television broadcasters relied upon radio and television manufacturers, and so on. Today, that trend continues, even as the digital dissemination of copyrighted works relies upon ever more complex systems, including electronic devices (computers, routers, servers, drives, sound cards, speakers) and computer software (media players, codecs and security software).

This system of keeping the exclusive rights of copyright holders within strict limits has served us well. There is absolutely no “copyright interest” to be advanced by permitting copyright holders to leverage their lawful copyright monopolies into dictating which computer operating systems, media players, codecs or digital rights management systems must be used by those exercising licensed exclusive rights of reproduction or public performance or, worse, by those exercising rights that have never belonged to the copyright holder, such as the right to perform a work privately.

Recognizing this, our judiciary has produced a long line of cases condemning the use of one copyright to bolster the value of other material, copyrighted or not. Provision of an exemption is a necessary corollary to respect for the limits upon the copyright established by Congress. Allowing competition in the development of competing technologies used in the dissemination of copyrighted works serves, rather than hinders, the public interest in copyright law. Allowing such competition in no way impairs the exclusive rights of copyright holders. Suppression of such competition, in contrast, can serve no public interest. Accordingly, where copyright holders seek to use technological devices to enlarge their limited rights into control over broader non-exclusive areas of public and private discourse, over technology, over various distribution systems, over media channels, and over the Internet itself, the public must have at its disposal the freedom to use its own technological devices to break free.

Summary of Argument for Class 3 Exemption:
Copyright holders are increasingly employing technological devices to deny access to works which, once lawfully made, are attempted to be played on devices other than the one to which the copyright holder has “tethered” the copy or phonorecord. As in the case of proposed Classes 1 and 2, such tethering does nothing to advance any legitimate interest of the copyright holder. More importantly, tethering serves to deny downstream users the ability to access the works, completely voids application of the first sale doctrine and the operation of Section 109 of the Copyright Act, destroys all lawful trade and commerce competing sales, rentals, lending and gifts that might compete with “original” access in a monetized transaction benefiting the copyright holder, and denies access to copyrighted works to those millions of Americans who, due to lack will or means to pay full price for a “new” reproduction, rely upon the used market, public libraries, private lending and gift economies to satisfy their thirst for learning, art and entertainment.

Summary of Argument for Class 4 Exemption:
With increasing frequency, copyright holders are using ACTs to require assent to EULAs as a condition precedent to gaining access to copyrighted works. Some EULAs can have public and private benefits if they spell out rights of the copyright holder that are being licensed (or not) to the end user. Others, however, require users to agree to give the copyright holder additional rights denied to them in the Copyright Act.

In some cases, the copyright holder may use the ACT to require the user to give the copyright holder control over noninfringing uses that fall entirely beyond the scope of the copyright. Such would be the case of EULAs giving the copyright holder control over non-exclusive rights such as nonpublic performances of a work, for example. In other cases, the ACT will be used to require assent to waiving limitations placed upon the copyrights, such as the limitations in sections 107-122 to which all section 106 rights are subject. An ACT used to require assent to terms preventing the lawful redistribution (meaning redistribution of physical objects) of lawfully made copies and phonorecords would be but one example.

When the purpose and effect of an ACT is to enlarge the scope of the copyright beyond the limits imposed by Congress, the EULAs themselves should be void as against public policy. Naturally, any use of ACTs to require assent to such EULAs should be considered copyright misuse. It would serve the public interest without harming any rights of the copyright holder to permit circumvention of ACTs used by copyright holders to leverage the licensing of lawful rights into assent to copyright-enlarging EULAs.

Summary of Argument for Class 5 Exemption:
The courts have already recognized the application of the First Amendment to the protection of anonymous speech. Congress has further extended such protection to the private sector by prohibiting private disclosure of personally identifiable information concerning users of audiovisual works, literary works and other materials used by library patrons. This proposed class furthers the dual objectives of the Copyright Clause of the Constitution and the First Amendment to the Constitution by allowing users of copyrighted works to circumvent efforts by copyright holders to require that they disclose personally identifiable information as a condition precedent to obtaining access.

Just to be clear what this class does not do, this exemption would not invalidate a requirement that persons seeking access disclose personally identifiable information where necessary to complete a bona fide business transaction, such as in the provision of credit card information or account-holder information for payment. Rather, this exemption would only mean that everyday actions such as preventing a DRM from reporting to the copyright holder the identity of the user of a lawful reproduction as part of separate data-mining activities of the copyright holder would not be actionable as a violation of Section 1201(a).

Summary of Argument for Class 6 Exemption:
This exemption is identical to an exemption currently in effect, 37 C.F.R. § 201.40(b)(2). Because there are already market examples of such malfunction, damage or obsolescence that prevent noninfringing use for which the product was intended, this exemption should be extended for another term.

Summary of Argument for Class 7 Exemption:
This proposed class follows the proposal of the National Telecommunications and Information Administration (“NTIA”) in its September 29, 2000 letter to the Register of Copyrights. As the Assistant Secretary for Communications and Information explained at the time on page 4 of the letter, “this construction is appropriate because the definition of classes of works [in Section 1201(a)(1)(B)] is not bounded by limitations imposed by Section 102(a) of the Copyright Act, but incorporates an examination of ‘noninfringing uses’ of the copyrighted materials.”
The greatest appeal of this Class 7 is its simplicity (making it easy for the average citizen to understand), its comprehensiveness (covering all noninfringing uses), its furtherance of the pubic interest (by encouraging unfettered use of lawfully acquired content), and its incentive for copyright holders to facilitate lawful uses rather than to impede them (by discouraging copyright holders or their licensees from using access control technologies to infringe upon the public’s rights).

A major substantive difference in Class 7 as previously proposed by the NTIA from the other classes proposed herein is that this exemption would apply without regard to whether the ACT was imposed by or at the request of the copyright holder. The other proposed classes would not create an exemption for competitive business models offered independent of the copyright holder and which do not unlawfully extend the scope of the copyright holder’s copyright monopoly through use of ACTs.

Discovering what is truly banned by censorware has been a matter of public debate. Such evidence has played an important role in
litigation such as the _Mainstream Loudoun v. Loudoun County Library_ library censorware case, or the Children's Internet Protection Act (CIPA) case. Studies of censorware blacklists are vastly hindered by not being able to access those blacklists. In particular, studying structural, architectural issues, such as "loophole" sites, requires
access to the decrypted blacklist.

2. Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness.

3. Literary works, including computer programs and databases, protected by access control mechanisms that are at high risk of failure in the near-term future because of malfunction, damage or obsoleteness. In order to invoke this case, the potential malfunction, damage, and/or failure must not be due intentional damage meant to invoke this clause.

4. Literary works, including computer programs and databases, that can only be accessed indirectly via an access control.

5. Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of the copyright owner and/or their designated agent fail to provide the necessary support means.

6. Literary works (including computer software and databases), musical works, and motion picture works which are region encoded, and for which the nearly identical product except for being keyed for a region containing the United States does not exist for mass-market consumption within the United States.

1. Previously, the Librarian of Congress decided to exempt this class of works from the access provisions of the Digital Millennium Copyright Act (DMCA). Research done under this exemption has resulted in a number of findings, many of which are of interest to the general public. It is therefore requested that this class be considered for renewal.

2. The Librarian of Congress previously decided to exempt "literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness" from the access provisions of the Digital Millennium Copyright Act's access previsions for the current exemption period. And just like the previous period, literary works are still subject to malfunction, damage, or obsoleteness. It is therefore requested that this class be considered for renewal.

3. The Librarian of Congress previously decided to exempt "literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness" from the access provisions of the Digital Millennium Copyright Act's access previsions for the current exemption period. But during my personal reading of the Library's explanations, I did not notice any discussion on how to handle works that are likely to fail in the near-term future.
It is therefore requested that the Librarian of Congress either renew the previous exemption case with an additional clause permitting, or to add an additional allowed case to allow recovery of works likely to fail in the near term future, when such failure is not intentionally aggravated to invoke this clause.

4. Sometimes, access control mechanisms only allow a user indirect access to a work. A literary work may be sealed away in a vault, stored on a medium sealed inside another, accessed only indirectly via an interpreter, etc.

Such situations often leave the work's owner/licensor no clue as to the health of the literary work itself. It is therefore critical that a user be able to access a work itself as well as its storage medium in order to determine its status. This case is meant to compliment case #3.

5. This case was contained within case #2 as a permissible reason to bypass an access control for the current period. But the fact that this was allowed was only made clear by the Library's comments. When a copyright holder, company, or other party in charge of maintaining an access control fails to support users of said access control means, the access control technically has not malfunctioned, been damaged, or become obsolete; rather, the access control provider is just being stubborn.

It is therefore requested that the Librarian of Congress renew case #2 as before, but also clarify it by adding this case. Since the final report in response to the previous comment period covered this contingency, adding this case (assuming case #2 is renewed) should be a trivial matter.

6. Previously, the Librarian of Congress decided that this class of works did not qualify for an exemption. However, the Librarian did admit that this situation will have to be revisited should the situation change.

Since the time of the previous rulemaking, a number of factors have occurred that changed the situation. Major retailers have announced they are discontinuing and/or decreasing sales of non-region encoded products offerings in favor of region encoded ones. General sales estimates have shown sales of some of these to exceed those of the non-region encoded forms, with the likelihood of the variety of certain non-region encoded items to be shortly cut back and/or discontinued.

Region coded works, while providing the copyright holder with some benefits, also provide the consumer with significant drawbacks. Only "mass marketable" items tend to be sold in any given market, restricting those whose tastes do not match the average person’s. Prior to the DMCA, those with different tastes from the mainstream were able to import works from other countries. Region coding, combined with other existing legislation, prohibits this in many cases.

An argument was made during the previous comment round that people wishing to use foreign works that contained region-code access controls could simply purchase products capable of playing them. But given these products are typically sold in foreign markets, they may not meet U.S. standards for import and/or sale. Products that can handle works from multiple regions often limit the number of times they can switch between regions, severely hampering owners of multi-region collections of works. Furthermore, the cost to purchase all the necessary support equipment can be orders of magnitude higher than the cost of importing the work itself, when there is no difference in storage formats other than that due to the region access code.

"Compilations consisting of lists of websites blocked by filtering software applications."

II. "Literary works, including eBooks, which are protected by technological measures that fail to permit access, via a 'screen reader' or similar text-to-speech or text-to-braille device, by an otherwise authorized person with a visual or print disability."

I. Absent evidence that the problems which originally warranted the exemptions have been corrected by the marketplace, the exemption issued in 2000 for "literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage, or obsoleteness" and the exemption for "compilations consisting of lists of websites blocked by filtering software applications" should be extended into the three-year period from October 28, 2003 to October 28, 2006.

II. Technological measures designed to control access to and use of eBooks and other literary works in electronic media are currently being implemented in a manner which fails to permit access by individuals with visual or print disabilities who utilize "screen readers" or similar text-to-speech or text-to-braille devices as aids to perception. Fewer than 10% of books published in the United States are ever made available to such individuals in accessible formats (such as braille or "talking books") that are not subject to access controls. Moreover, the availability of works in such formats is typically delayed until months after a work is first released to the general public. For these reasons, and because circumvention to facilitate access by individuals with visual or print disabilities is not likely to result in cognizable harm to the market for or value of copyrighted works, and exemption should be granted for "Literary works, including eBooks, which are protected by technological measures that fail to permit access, via a 'screen reader' or similar text-to-speech or text-to-braille device, by an otherwise authorized person with a visual or print disability."

The development of the technology and software industry has evolved such that the dissemination of copyrighted works often relies upon delivery systems or software programs owned or controlled by others. Historically, book publishers relied upon printers and paper mills, player piano roll manufacturers relied upon player piano manufacturers, vinyl record manufacturers relied upon record player manufacturers, radio and television broadcasters relied upon radio and television manufacturers, and so on. This paradigm persists today as the digital dissemination of copyrighted works relies upon increasingly complex systems, including electronic hardware (computers, routers, servers, drives, video and sound cards, monitors, speakers) and computer software (operating systems, browsers, media players, codecs and security software).

However, the goals of copyright are not advanced when copyright holders are permitted to leverage their lawful copyright monopolies into control over which computer operating systems, browsers, media players, codecs or digital rights management systems must be used by those exercising licensed exclusive rights of reproduction or public performance or, worse, by those exercising rights that have never belonged to the copyright holder, such as the right to perform a work privately.

American jurisprudence is replete with cases condemning the use of copyright to leverage market power in related or adjacent markets for other products or services, copyrighted or not. Although the question whether prosecutors or private parties may obtain relief from such abusive practices is not before us, provision of an exemption is a necessary corollary to respect for the limits upon the copyright established by Congress and reaffirmed in the courts. Allowing competition in the development of competing technologies used in the dissemination or use of copyrighted works serves, rather than hinders, the public interest in copyright law. Allowing such competition in no way impairs the exclusive rights of copyright holders and inherently benefits consumers and innovation.

“Copy-protected” CDs are intended to prevent the unauthorized reproduction of sound recordings. Unfortunately, the technological protection measures involved can malfunction so as to make the copy-protected CDs unplayable in certain playback equipment. A consumer should be entitled to take steps to restore the playability of such a CD. To the extent this activity may constitute a violation of Section 1201(a)(1), consumers should be exempted from liability.

DVDs are region coded, so they can only be played on a DVD player coded to the same region as the DVD. A substantial and growing number of Americans wish to view foreign DVDs that are not available in Region 1 versions. An exemption is required to allow these consumers to modify their DVD players to view their legitimately obtained foreign DVDs.

Movie studios are able to make certain DVD content “unskippable” during playback. Some studios have abused this feature by preventing the skipping of advertising shown prior to the start of the feature presentation. DVD owners should be entitled to eliminate these mandatory ads, or, in the alternative, defeat the “UOP blocking” feature, and should enjoy an exemption from DMCA liability when they do so.

Public domain works are increasingly being released or re-released only on CSS-protected DVDs, which preclude consumer access to, and use of, these works for a range of non-infringing purposes. To the extent that the Librarian considers that public domain works which are stored on CSS-protected DVDs fall within the prohibition in Section 1201(a), an exemption to circumvent CSS is required for consumers to access and use these public domain works.

The exemption requested is to permit circumvention of the region coding mechanism.

Audiovisual works on DVD video discs currently are released with a "regional locking" mechanism that prevents discs manufactured in one part of the world from being played on DVD players or DVD-ROM drives sold in other parts of the world. This region coding functions as an access control as per subsection 1201(a)(1)(A). We argue that this access control causes substantial adverse impact on devotees and students of foreign cultures or languages since a significant quantity of foreign audiovisual material is available for purchase only on DVDs coded for use outside the United States. Specific markets are discussed and examples offered. Such individuals are forced to spend hundreds of dollars on specialized yet essentially redundant equipment in order to view the material they have purchased. The remedy proposed is to allow such individuals to circumvent the region locking mechanism on their DVD playback device for the purpose of noninfringing viewing of materials in the exempted class.

The Library's reasons for rejecting such an exemption in 2000 are reexamined in light of marketplaces changes.

See attached

(2) Video - including DVDs, laser disc, CDs, VCR tapes, streaming technologies (such as, but not restricted to "realmedia" or quicktime), all file formats (such as but not restricted to mpeg, divx), and any other storage device (such as but not restricted to PVRs, PDAs, computer hard drives, mp3players, solid state storage) and any other recorded media (analog or digital)

(1) This section of the DMCA [17 U.S.C. 1201(a)(1)(A) (1998)] is written such that it restricts the rights of a person who legitimately obtained the audio recording and therefore all classes of media for an audio format should be exempt if the abuses of this restriction cannot be curtailed.

TITLE 17: CHAPTER 1: Sec. 117(a)(1) of the US Code.
This section properly covers the essential processes of utilizing programs on computers (complex electronic devices that arguably anything with microprocessors [most playback devices and appliances] would have such status).

Why is the DMCA circumventing the law on copyright? Playing audio involves this exact process of decoding (and copying the data to a buffer) prior to directing the audio to its output (usually speakers). The copyright law allows for this essential need. While it would be better to have this section of the DMCA repealed, the only other logical choice is make audio information exempt.

TITLE 17: CHAPTER 1: Sec. 107(4) of the US Code.
The fair use clause allows for reproduction of a work under certain conditions. Subsection 4 is arguably the most important as it requires the consideration of the effect of this copy on the value of the work.

If the work was properly purchased, what possible negative effect is placed on the work by allowing the purchaser to play this same recording on the player of his/her choosing for the sole purpose of his/her private use? The answer is it has no negative effect... even if the listener has to copy it from the original recording to the audio playing device (like an ipod).

I am not arguing that music should be free, that there shouldn't be copyrights or anything of the like. I am arguing that the rights of the purchaser are being removed by my government! If I chose not to buy records from some draconian and bullying entertainment conglomerate, a small company could grow and fill the niche of leaving me with the rights due a legitimate customer. However, this is no longer possible since I am subject to the DMCA even if company concerned with my rights and preserving my freedoms is selling me a recording.

Imagine for a moment that you lose all rights related to recordings. You have to play it on a specific player. The player licensed to decode it might be sold only by the recording vendor or perhaps it is only sold through one computer software company. It would be illegal to play the recording on a player or the PC I own, I'd have to get a different one. THAT is ridiculous. If you think this isn't going to happen, you are mistaken. This law is written such that the player can be dictated to the consumer as it is the only method allowed to decode the work. Legally the consumer won't be able to use a different player and manufacturers of alternative players will likely get sued for circumvention of the "protections" put in place.

The only way to preserve fair use is to support the exemption of all media from the DMCA bill which tries to supersede other, better written, laws like those of copyright law.

(2) same as reason number 1.

(2) Video - including DVDs, laser discs, VCR tapes, streaming technologies, any other recorded media and any other storage devices

(1 & 2) "Subsection 1201(a)(1) applies when a person who is not authorized by the copyright owner to gain access to a work does so by circumventing a technological measure put in place by the copyright owner to control access to the work. See the Report of the House Committee on Commerce on the Digital Millennium Copyright Act of 1998, H.R. Rep. No. 105-551, pt. 2, at 36 (1998)"

As worded above, this provision is far too vague and all-encompassing in scope to allow for fair use by individuals who have PURCHASED the media listed above. For example, if I buy a compact disc, it should be within my rights to make a copy for my cassette player, my .mp3 player, or any other format for which I own the hardware. Trying to prevent such use infringes on my property and privacy rights. The section must be reworked to cover only cases where actual piracy, the resale of such copies, is attempted.

USACM has found section 1201(a)(1) to have substantial negative impacts on the conduct of basic research in the U.S., particularly in cryptography and other computer security areas. The section interferes with many legal, non-infringing uses of digital computing and prevents scientists and technologists from circumventing access technologies in order to recognize shortcomings in security systems, to defend patents and copyrights, to discover and fix dangerous bugs in code, or to conduct forms of desired educational activities. Examples are cited.

Technological controls applied to Red Book Audio format Compact Discs preclude licensed (including under a statutory license) and exempt transmitting organizations from exercising their otherwise lawful right to make multiple ephemeral recordings pursuant to section 112(e) of the Copyright Act, 17 U.S.C. § 112(e). Making such ephemeral recordings to computer servers is necessary for most Internet webcasting. As Congress recognized in enacting the section 112(a) exemption to liability for circumvention for the purpose of making of a single ephemeral recording, the circumvention capability requested by DiMA implicates section 1201(a)(1). An exemption therefore is justified for the narrow purposes of making permitted multiple ephemeral recordings, so as to facilitate Internet webcasting.

Factual and legal support for this exemption is set forth in the attached document.

The DMCA gives too much power to copyright holders, allowing
them to accuse you and have your internet access cut off, without a trial or proof. You can also be held liable for even discussing defeating copy protection, or for defeating copy protection that would otherwise be legal. In other industries this isn't tolerated, you cannot be arrested for owning a set of lockpicks, for breaking into your own car, or telling someone how a lock works in an academic text.

BLIND ALBERT, RAFFI DER SIMONIAH, DANIEL BRADSTREET... Heard of them? Probably not. They are all (very) local Maine artists that I have played on my radio shows on our 110-watt college music station. The artists get little-to-no exposure beyond our college station's broadcasts. They can potentially benefit immensely from a wider (internet) audience. Please consider an exemption for college radio stations. The artists benefit. The "harm" is the denial of an expanded exposure for these struggling artists and the loss (by the potential listeners) who will never get to hear these artists.

Sincerely
Brock Manville

Digital media commonly used to distribute motion pictures and other audiovisual works have a finite lifespan. There is yet no experience that the lifespan of digital media equals or exceeds the lifespan of familiar analog media used for analog motion pictures and other audiovisual works.

"Refreshing" digitally recorded motion pictures and other audiovisual works on to new digital media is therefore necessary for the comsumer. Without such "refresh" capability any right to use digital musical recordings amounts to a limited time or finite use agreement.

"Refreshing" digital media that contains motion pictures and other audiovisual works should be made permissible for anyone who purchases a legal copy of a digital motion picture and other audiovisual work. Until manfacturers of digital motion pictures and other audiovisual works provide a reasonable and inexpensive way to "refresh" digital media, the transfer of motion pictures and other audiovisual works from one digital medium to another (of the same of differnt kind) must be allowed without penalty.

One class of work, sound recordings, is being proposed for exemption.

Digital media commonly used to distribute sound recordings have a finite lifespan. There is yet no experience that the lifespan of digital media equals or exceeds the lifespan of familiar analog media used for analog sound recordings.

"Refreshing" digitally recorded sound recordings on to new digital media is therefore necessary for the comsumer. Without such "refresh" capability any right to use digital musical recordings amounts to a limited time or finite use agreement.

"Refreshing" digital media that contains sound recordings should be made permissible for anyone who purchases a legal copy of a digital motion picture and other audiovisual work. Until manfacturers of digital sound recordings provide a reasonable and inexpensive way to "refresh" digital media, the transfer of sound recordings from one digital medium to another (of the same of differnt kind) must be allowed without penalty.

Digital media commonly used to distribute musical works have a finite lifespan. There is yet no experience that the lifespan of digital media equals or exceeds the lifespan of familiar analog media used for analog musical works.

"Refreshing" digitally recorded musical works on to new digital media is therefore necessary for the comsumer. Without such "refresh" capability any right to use digital musical recordings amounts to a limited time or finite use agreement.

"Refreshing" digital media that contains musical works should be made permissible for anyone who purchases a legal copy of a digital motion picture and other audiovisual work. Until manfacturers of digital musical works provide a reasonable and inexpensive way to "refresh" digital media, the transfer of musical works from one digital medium to another (of the same of differnt kind) must be allowed without penalty.

Video/Audio Enhancement

The ability to apply enhancement techniques to photos/video/audio for forensic or analytical purposes
is an essential public right, requires direct access to the cleanest form of the data, and is compromised by any restriction of its application to degraded forms of data such as analog conversions.