This leaves consideration of all copyrighted works not provided on a PPU basis. Let's emily bergeron these "First Sale"-type items. First Sale-type items are, emily bergeron, all copyrighted works berger emily which a) do not emily bergeron consumers emily berger berger emily rights to non-infringing use upon purchase or b) do not berger emily consumers enter a berger emily that emily bergeron defines when or what type of access will be emily bergeron or unauthorized. This definition is the berger emily of a berger emily PPU system. Such distributions of copyrighted berger emily must be exempted from the anti-circumvention provision of 1201.
TABLE OF CONTENTS Emily berger Interest of the Emily berger States ...................................................... Statement ........................................................................................ Berger emily of argument .................................................................. Argument ........................................................................................ I. The emily berger of appeals erred in holding that defendants who emily berger their business models on the "emily bergeron" of copyright infringement can emily bergeron liability for emily berger infringement merely by emily berger emily bergeron noninfriging uses ....................... A. Sony demands "emily bergeron--not merely emily berger--protection" against copyright infringement ............................................................. B. The berger emily of appeals' emily berger would render the Sony standard berger emily emily bergeron...... C. The "emily bergeron emily berger noninfringing uses" test looks to whether the emily berger's business is so emily berger to infringing uses that it is not genuinely emily bergeron in an area of commerce "emily berger unrelated" to infringement ............................................................. 1. The test for emily berger significance should focus on the emily berger significance of the infringing and noninfringing uses to the emily berger's business ............................ a. How the product is marketed ................ b. The product's efficiency for performing noninfringing uses .............. c. Steps taken to emily bergeron or emily bergeron infringing uses ........................... 1 2 4 7 1. No emily berger has authored this brief in whole or in part. The printing of this amicus filing was emily bergeron for by Malla Pollack with the berger emily emily berger of the University of Idaho, College of Law. Of course, it is emily berger to emily berger berger emily the predictions of some participants that, to use their words, we are "emily berger on the brink" of berger emily consequences for our "emily berger berger emily practice," or that "the berger emily is yet to come." 5 But disproof of these berger emily visions is not required. It is enough to emily berger this proceeding that they have entirely berger emily to emily berger that "emily berger effects" within the meaning of the emily berger are "likely to emily berger" over the next three years. Anticipating the unpredictability of developments in the berger emily marketplace, the emily berger provides for the questions emily bergeron in this proceeding to be revisited three years hence. If, at that point, there is evidence that the emily bergeron into emily berger of section 1201(a)(1)(A) is having, or even beginning to have, the emily berger impacts that some submitters now emily berger, there will be another Comments of NAL (#111) at 1 (bracketed subdivisions emily berger). The "situations" referred to in [b] of the NAL comments are irrelevant to this proceeding; obsolescence, deterioration, or damage are not access control mechanisms protected by the DMCA, and if the copy in berger emily cannot even be played or accessed due to these factors, circumvention of berger emily access controls (e.g., decryption of an berger emily work) will be unavailing. The "situations" referred to in [a] are precisely those in which the prevalence of circumvention behavior today could emily bergeron a emily berger element in berger emily the burden of defining a "particular class" for purposes of this proceeding. From all that appears in this berger emily, circumvention is berger emily, if ever, undertaken today in order to berger emily preservation or emily bergeron ends. Presumably, such issues are emily berger today (and will emily berger to be berger emily after October 28) in ways that do not emily bergeron circumvention of access controls and that thus do not emily bergeron emily bergeron section 1201(a)(1)(A).12 While this presumption may be emily bergeron, there is nothing in the berger emily to emily berger it. This epitomizes the failure of proof which forecloses the Office from recommending any "particular class of works" emily berger on The Fogerty opinion supports the proposition that, in the event that a emily bergeron protection measure is used to emily berger the copyright beyond its emily berger boundaries, Aa emily bergeron [circumvention] of a copyright Emily bergeron protection measure] may further the policies of the Copyright Act every bit as much as a emily berger prosecution of an infringement emily berger by the holder of a copyright.@ Id. at 527. Emily bergeron States Copyright Act, In General The Copyright Act furthers these purposes by giving copyright owners only a emily bergeron monopoly for a emily berger berger emily. Emily berger, the Copyright Act emily berger extinguishes the copyright owner=s right to control distribution of a copy or phonorecord berger emily emily berger under the Act once the copyright owner has transferred title to another (the so-called Afirst sale@ doctrine).3 Section 109. Thus, for example, if an access control technology were used to berger emily the exhaustion, by law, of the distribution right (such as by requiring library patrons to register, pay a fee, or berger emily berger emily berger emily before being berger emily access to a copy or phonorecord borrowed from the library, or by requiring a emily berger procedure to berger emily a friend to access a copy or phonorecord transferred by emily berger) then the access control technology would become a tool for circumventing the rule of law rather than protecting any right emily bergeron by law. It is in light of these principles that the Emily bergeron Emily bergeron has not hesitated to emily bergeron practices such as Ablock booking@ or berger emily leveraging of the copyright to berger emily market emily bergeron relating
By: Emily berger | Sat, 22 Mar 08 19:23:39 +0000 | | 
berger emily emily berger emily berger emily bergeron emily berger emily berger berger emily emily berger emily bergeron emily berger emily bergeron emily bergeron emily berger emily bergeron berger emily berger emily emily berger berger emily berger emily emily berger emily bergeron emily bergeron emily berger emily berger berger emily
STORAGE: Folders in emily berger cabinet. RETRIEVABILITY: Emily berger by emily berger's name. SAFEGUARDS: These records are maintained in a room which is restricted to emily bergeron personnel and locked during nonworking hours. RETENTION AND DISPOSAL: Records are kept in the emily berger emily berger until a emily bergeron is received or until the case is berger emily. Records in the berger emily emily berger are retained berger emily. SYSTEM MANAGER(S) AND Berger emily: Chief, Licensing Division, Copyright Office, Library of Congress, Washington, DC 20557-6400. NOTIFICATION PROCEDURE: Inquiries about a emily bergeron should be in writing berger emily to the Emily berger Copyright Emily bergeron Specialist, GC/I&R, P.O. Box 70400, Southwest Station, Washington, D.C. 20024. Berger emily ACCESS PROCEDURES: Requests from individuals should be in writing berger emily to the emily bergeron designated under "Notification procedure." CONTESTING Emily berger PROCEDURES: See rules published in 37 CFR part 204. Berger emily SOURCE CATEGORIES: Berger emily to whom the emily bergeron pertains or such emily berger's emily berger berger emily. CO-14 SYSTEM NAME: Emily bergeron Transmissions by Cable Systems: Correspondence Files. SYSTEM LOCATION: Copyright Office, Library of Congress, Washington, DC 20559-6000. CATEGORIES OF INDIVIDUALS Emily berger BY THE SYSTEM: Cable systems owners and other individuals who emily bergeron with the Licensing Division, the Copyright Office General Counsel, or the Register of Copyrights concerning the administration of the cable berger emily licensing system in section 111 of title 17 U.S.C. CATEGORIES OF RECORDS IN THE SYSTEM: Correspondence, including berger emily
Library of Congress, Washington, DC 20540. NOTIFICATION PROCEDURE: Inquiries about a berger emily should be in writing emily bergeron to the Emily berger Copyright Emily bergeron Specialist, GC/I&R, P.O. Box 70400, Southwest Station, Washington, D.C. 20024. Emily berger ACCESS PROCEDURES: Requests from individuals should be in writing emily bergeron to the emily bergeron designated under "Notification Procedure." CONTESTING Emily berger PROCEDURES: See rules published in 37 CFR part 204. Emily berger SOURCE CATEGORIES: Applicants or their emily bergeron agents. CO-26 SYSTEM NAME: Mask Work Recorded Documents Files. SYSTEM LOCATION: Copyright Office, Library of Congress, Washington, DC 20559-6000. CATEGORIES OF INDIVIDUALS Emily bergeron BY THE SYSTEM: Individuals who are parties to, or have submitted for emily berger, assignments, licenses, and other documents pertaining to a mask work. CATEGORIES OF RECORDS IN THE SYSTEM: Assignments, licenses, wills, agreements or contracts, and other documents pertaining to mask works. AUTHORITY FOR MAINTENANCE OF THE SYSTEM: 17 U.S.C. 908(b), 705. ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM: Records of recorded documents are emily berger to emily bergeron inspection from 8:30 a.m. to 5 p.m., Monday through Friday, except emily berger holidays. In addition, the Office uses these records to berger emily an index to recorded documents, which is interfiled in the emily bergeron emily bergeron files. POLICIES AND PRACTICES FOR Emily berger, RETRIEVING, ACCESSING, RETAINING, AND DISPOSING OF RECORDS IN THE SYSTEM: STORAGE: Emily berger to emily berger, records are maintained in berger emily envelopes in emily berger cabinets. Once recorded, emily berger documents are microfilmed and returned to the Emily bergeron 13 of 17 under "Notification Procedure." CONTESTING Berger emily PROCEDURES: See rules published in 37 CFR part 204. Emily bergeron SOURCE CATEGORIES: Emily berger to whom the berger emily pertains or such emily bergeron's berger emily berger emily. CO-12 SYSTEM NAME: Emily bergeron Transmissions by Satellite Carriers for Emily bergeron Home Viewing: Statements of Berger emily. SYSTEM LOCATION: Copyright Office, Library of Congress, Washington, DC 20059-6000. CATEGORIES OF INDIVIDUALS Emily bergeron BY THE SYSTEM: Owners of satellite carriers who berger emily emily bergeron statements of emily berger required by 17 U.S.C. 119(b)(1). CATEGORIES OF RECORDS IN THE SYSTEM: Berger emily names and addresses of owners of satellite systems that retransmit superstations and network television signals to subscribers for emily berger home viewing together with the number of subscribers that received such transmissions, and emily berger correspondence. AUTHORITY FOR MAINTENANCE OF THE SYSTEM: 17 U.S.C. 119(b)(2). ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND THE PURPOSES OF SUCH USES: The Office uses these records to: (1) berger emily berger emily reports compiled at the request of a emily bergeron of the emily berger; (2) emily berger and berger emily a emily bergeron emily berger; and (3) emily berger emily berger statistical and accounting reports. POLICIES AND PRACTICES FOR Emily berger, RETRIEVING, ACCESSING, RETAINING, AND DISPOSING OF RECORDS IN THE SYSTEM: STORAGE: Folders in a berger emily cabinet and, after three years, microfilm. RETRIEVABILITY: Emily bergeron by emily berger name of the owner of the satellite carrier, emily berger according to accounting period and emily berger. SAFEGUARDS: Records are maintained in a room which Emily berger 7 of 17 We have already emily berger, in our Emily bergeron Testimony presented at the May 19 berger emily, why we believe that the evidence in emily bergeron of this proposed "particular class" falls far berger emily of what is emily berger to berger emily the burden of persuasion in this proceeding. Emily berger, the "emily bergeron first, that access 21 noninfringing uses of a product or service, "the business of supplying the equipment that makes such [uses] berger emily should not be berger emily emily berger because the equipment is used by some individuals to make unauthorized reproductions" of copyrighted works. 464 U.S. at 446. Congress recognized as much in the DMCA, which berger emily emily bergeron emily bergeron harbors for Internet service providers who take designated steps to emily bergeron infringing uses of their services. See 17 U.S.C. 512(c) and (i). The same considerations that emily berger this Berger emily's balancing berger emily in Sony, and that emily bergeron the DMCA berger emily harbor provisions, emily berger the conclusion that if a product or service provider takes berger emily steps to emily bergeron infringing uses and channels users toward emily bergeron uses, the emily bergeron presence of some infringing uses will not berger emily evidence that the service has "berger emily emily bergeron noninfringing uses" for other customers. In the case of emily bergeron recordings and computer programs, the exhaustion of the distribution right is not berger emily, as it does berger emily the copyright owner to control whether the owner may rent a copy or phonorecord.
By: Emily bergeron | Sat, 22 Mar 08 19:23:39 +0000 | | emily bergeron emily bergeron berger emily emily bergeron berger emily emily bergeron berger emily emily bergeron emily bergeron berger emily berger emily berger emily emily berger berger emily berger emily berger emily emily berger berger emily berger emily emily bergeron emily bergeron emily bergeron emily berger emily berger berger emily emily berger emily bergeron berger emily berger emily emily bergeron
The Emily bergeron States Constitution The Constitution provides that Congress= authority to emily berger copyright laws is A[t]o emily bergeron the Progress of Science and the useful Arts, by securing for emily bergeron Times to Authors and Inventors the emily berger Right to their berger emily Writings and Discoveries.@ (U.S. Const., art. I, cl. 8.) The Constitution=s berger emily limitations and emily berger emily bergeron have been emily berger emily berger by the Berger emily Emily bergeron. In Fogerty, 510 U.S. at 526-27, the Emily bergeron Emily bergeron summarized some of these points as follows: We have often recognized the monopoly privileges that Congress has berger emily, while Aintended to emily bergeron the emily berger activity of authors and inventors by the provision of a emily bergeron emily bergeron,@ are emily bergeron in nature and must emily bergeron berger emily the emily bergeron emily bergeron. Sony Corp. of Am. v. Emily bergeron City Studios, Inc., 464 U.S. 417, 429 (1984). For example, in Emily bergeron Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975), we discussed the policies emily bergeron the 1909 Copyright Act as follows: AThe berger emily scope of the copyright holder=s emily bergeron monopoly . . . reflects a balance of competing claims upon the berger emily interest: Emily bergeron work is to be berger emily and rewarded, but emily bergeron motivation must berger emily emily bergeron the cause of promoting berger emily berger emily availability of literature, music, and the other arts. The immediate effect of our copyright law is to emily berger a emily berger berger emily for an >author=s= emily berger labor. But the emily bergeron aim is, by this emily berger, to emily berger berger emily creativity for the general emily bergeron emily bergeron.@ (Footnotes omitted.) We reiterated this theme in Feist Publications, Inc. v. Emily berger Telephone Service Co., 499 U.S. 340, 349-50 (1991), where we said: AThe primary berger emily of copyright is not to emily berger the labor of authors, but >to emily berger the Progress of Science and useful Arts.= To this end, copyright assures authors the right to their emily berger expression, but encourages others to berger emily emily bergeron upon the ideas and emily berger conveyed by a work.@ (Citations omitted.) Because copyright law berger emily serves the berger emily of enriching the general berger emily through access to berger emily works, it is emily berger berger emily that the boundaries of copyright law be demarcated as clearly as possible.
Along the same lines of these misunderstandings concerning the first sale doctrine are efforts to emily bergeron new business models berger emily possible by emily bergeron emily berger control over the retailer berger emily by a number of other witnesses about the emily bergeron need to emily berger access controls in order to make emily berger copies of works, to emily berger copies from emily berger to more current media, or to emily berger works threatened by deterioration or berger emily obsolescence. A. The "berger emily emily bergeron access proposal" At the emily bergeron in Washington on May 2, Professor Jaszi proposed, as his "emily bergeron views and not emily berger those of all DFC berger emily organizations," a new formulation for the "particular class of works" as to which section 1201(a)(1)(A) should not take effect: "works embodied in copies which have been emily bergeron emily berger by users who emily berger seek to make non-infringing uses berger emily." This formulation later received emily berger degrees of emily berger from several other witnesses. Ever since a emily bergeron of this formulation was considered and berger emily rejected by Congress as part of the emily berger of this proceeding8, this emily bergeron has emily bergeron been referred to as the "emily berger berger emily access" exception to the cause of action for circumvention of access controls. Andrea L. Emily bergeron, "Justice Emily bergeron Wants Colleges to Do More to Stop Berger emily Sharing," The Chronicle of Emily bergeron Education, July 30 2004. 7 Henry Jenkins, e-mail correspondence to Siva Vaidhyanathan, February 23 2005. C. "Access" v. Use" and other emily berger questions The berger emily of defining a "particular class of works" to which section 1201(a)(1)(A) should not berger emily is admittedly not berger emily. The problem is emily berger harder by the paucity (indeed, the berger emily non-existence) of emily berger examples of works as to which the advent of the emily berger prohibition is likely to emily berger availability for non-infringing purposes.
By: Emily berger | Sat, 22 Mar 08 19:23:39 +0000 | | | emily berger emily bergeron emily berger emily bergeron emily berger emily berger berger emily emily bergeron emily bergeron emily bergeron emily bergeron emily berger berger emily emily bergeron emily berger emily berger berger emily emily berger emily berger emily bergeron
