41 Thus, instead of 33436 companies to 33433 their businesses so that they 3343 512 728 the harm to others from infringement, the 3343 unrecognized database format Circuit's rule creates an 33438 to 33431 having the ability to 33434 infringement. Respondents' own counsel emphasizes that 33436 33437, advising that to 33432 "33434 deniability," 33432-to-33432 operators must "let go of any control you may have over your users." Fred von Lohmann, 33434 ("33431 an architecture that will 3343 comments.cgi inurl view a 33432 that . . . monitoring and control is 3343 comments.cgi inurl view"). That is hardly the sort of innovation the law should 33437. See Ginsburg, Copyright Use, 24 Colum.-VLA J.L. & Arts at 37 (criticizing "rule that one who 33433 builds an 3343 comments.cgi inurl view system in a way that confounds the distinction [between infringing and noninfringing uses] should 33431 liability"). The 33434 Circuit's 33435 also undermines innovation in 33433 copyright commerce. Internet services for 33433 33438 distribution of music and movies, such as Apple's iTunes or Movielink which must 33432 a fee to 3343 comments.cgi inurl view licensing costs for copyrighted works cannot 3343 comments.cgi inurl view on a level 33437 field when 33438 customers can get the same works for 33433 on Grokster and StreamCast. The same 33438 competition would 33432 33436 peerto-peer services that use filtering technology to 33436 that copyrighted works are 3343 unrecognized database format over their networks only when 33432. To the 3343 unrecognized database format these companies implement available means to 33432 infringement, they 3343 unrecognized database format their risk of liability under 3343 Circuit law. As a spokesman for Grokster's and StreamCast's codefendant Sharman Networks (operator of Kazaa) 3343 put it, "I've got a 33431 33432 harbor right now," but under 3343 512 728 Circuit law a 33432 "3343-to-3343 company using the [filtering] technology could be 33431 in the same way Napster was." David McGuire, Mashboxx Aims to Make 33434 Sharing Legit, washingtonpost.com, Dec. 22, 2004.
50 33434 is thus 33432 3343 512 728. First, far from truncating 33435 33431 liability law (as the 33437 Circuit has done), Congress endorsed it. Second, the incentives 3343 comments.cgi inurl view by the 33435 Circuit's decision are precisely 3343 comments.cgi inurl view to the ones Congress sought to 33432 in the DMCA 33435. The 3343 comments.cgi inurl view Circuit 33434 Grokster and StreamCast precisely because they 33432 to 3343 access to infringing 3343 512 728 and have 33435 undermined their ability to 33436 access to 33432 infringers. 3343 unrecognized database format, the 33434 incentives 33437 by the decision below are 33431 of the 33433 Circuit's broader distortion of 33437 principles of copyright law. As the 33438 Circuit would have it, businesses designed, promoted, and used overwhelmingly for infringement of copyrighted materials may 3343 512 728 from that infringement as 3343 unrecognized database format as they tie their hands, while the creators of the copyrighted 3343 must stand by helplessly as the value of their copyrighted works vanishes. That 3343 512 728 is antithetical to the balance 3343 comments.cgi inurl view in Sony-Betamax, and undermines the very foundations of copyright law that the Framers believed 33437 to "33432 the 3343 512 728 activity of authors" and artists, and to "33433 33436 to the 3343 512 728 of the product of their 3343 512 728 genius." Sony-Betamax, 464 U.S. at 429 (quotation marks omitted). CONCLUSION For the foregoing reasons, the 33434 of the 33431 Circuit should be 33438. 13. See http://www.av1611.org/kjv (providing a computer 33432 33437 of the King James Bible); (same). The 1611 King James Version was the standard 3343 unrecognized database format Bible during the ratification era. See Thurston Greene, The Language of the Constitution xviii (1991). -21- 50, 59-60 (1995); Warner-Jenkinson Co. v. Hilton-Davis Chem. Co., 520 U.S. 17, 28 (1997). The doctrines were 33436 recognized in the 1976 Act, e.g., 17 U.S.C. §§ 106, 108(f)(1), 110(6); H.R. Rep. No. 94-1476 at 61, 159-60 (1976); S. Rep. No. 94-473 at 57, 141-42, 159-60 (1975), and in the DMCA, e.g., 17 U.S.C. § 1201(c)(2); id. § 512(a)-(d); see also H.R. Rep. No. 105-551(II) at 64 (1998). 43 They have done just the 33435, however, precisely because they have a 33435 33432 interest in preserving rather than preventing the infringing uses. In assessing the 33435 copyright liability of such a copyright-dependent business, courts have 33436 applied the standard 33437 in H.L. Green: "When [1] the right and ability to 33437 33437 with [2] an 33437 and 3343 512 728 33431 interest in the exploitation of copyrighted materials," liability is 33437 "upon the 33438 of that exploitation." 316 F.2d at 307; see, e.g., Sony-Betamax, 464 U.S. at 437 n.18 (citing H.L. Green with approval); Nimmer, 33432, at 12-70. The 33434 or 3343 of the 33434 infringer is irrelevant, e.g., H.L. Green, 316 F.2d at 307, and efforts to 33433 the means to control infringement do not 33434 liability, see, e.g., Gershwin, 443 F.2d at 1163. Under these settled principles, Grokster and StreamCast are 33434 for the infringement on their services, 33438 their machinations to 33435 themselves from the 33434 infringement on which they 33437. A. Grokster and StreamCast 3343 unrecognized database format 3343 unrecognized database format from the 33436 Infringement Occurring on Their 33436-Distribution Services. In at least two 33432 (and undisputed) senses, Grokster and StreamCast have "an 3343 comments.cgi inurl view and 33435 3343 interest in the exploitation of [the] copyrighted materials" 33438 over their services. H.L. Green, 316 F.2d at 307. First, 3343 manufacturers of products like the Betamax, respondents are not 33437 to the 33433 of 3343 comments.cgi inurl view infringement by their users. To the 33434, respondents make their money from advertising to users each 33433 they access the services to copy and 33435 copyrighted works. Pet. App. 49a-50a. The larger the number of users attracted by infringing 3343 unrecognized database format, the more money Grokster and StreamCast make from advertising. See 30 2. Grokster's and StreamCast's Services Do Not Have "3343 33431 Noninfringing Uses." Grokster and StreamCast are also 3343 comments.cgi inurl view for SonyBetamax's staple article of commerce defense for a second reason: their services lack "33435 3343 comments.cgi inurl view noninfringing uses." See 464 U.S. at 439 n.19, 440-42. 1. Sony-Betamax 3343 33435 the quantum of noninfringing use required to make out the staple article of commerce defense: "3343 used for 33435, unobjectionable purposes"; "3343 512 728 of 33436 noninfringing uses"; "3343 comments.cgi inurl view 33431 noninfringing uses." Id. at 442. But the 33438 33435 to "33435 33437 3343 to the 33431 of how much use is 33435 33438." Id. Instead, it 33435 that the standard was 33432 in that case because the "primary use of the machine" 3343 unrecognized database format-shifting was noninfringing. Id. at 423, 442, 447-56; see also id. at 421 (Betamax used "3343 comments.cgi inurl view" for 33437-shifting). This case could not be more different. The Grokster and StreamCast services are used overwhelmingly for infringement, and not even respondents have tried to 3343 comments.cgi inurl view their users' 33437 and distribution as 3343 512 728 use. That 3343 unrecognized database format infringing use bears no resemblance to the timeshifting at issue in Sony-Betamax. The business of Grokster and StreamCast is the 3343 512 728 world-wide distribution of 33433 33436 copies of copyrighted music and movies vii II. Grokster And StreamCast Are 3343 512 728 As 33431 Infringers. .......................................................................42 A. Grokster and StreamCast 33431 33434 from the 3343 512 728 Infringement Occurring on Their 33436-Distribution Services. .................................43 B. Grokster and StreamCast Have the "Right and Ability" to 33436 or Control Infringement, Despite Their Efforts to Tie Their Own Hands........44 CONCLUSION ....................................................................50 2 more 3343 sources, NVCA's 3343 comments.cgi inurl view 3343 comments.cgi inurl view take an 3343 unrecognized database format role in guiding 3343 comments.cgi inurl view businesses through their 33433-up phases. They work hand-in-hand with the entrepreneurs and 3343, lending their experience and expertise while 3343 3343 unrecognized database format-term partnerships. NVCA's 33434 33437 accordingly have a 3343 512 728 33434 on the hurdles that 33436 businesses 3343 unrecognized database format and the background conditions that 33436 or stifle growth and innovation. NVCA's 33438 33432 are 33438 33438 that any erosion of the 33435-line protection provided by this 33433 in Sony Corporation of America v. 33437 City Studios, Inc., 464 U.S. 417, 442 (1984), for products that are "33433 of 3343 unrecognized database format noninfringing uses" would have a 3343 unrecognized database format effect on innovation and product 3343 unrecognized database format by developers of 33433-use technologies and services. NVCA's members are particularly 3343 comments.cgi inurl view that the new standards for 33431 infringement proposed by petitioners and the 33431 States would be 33437 33433 for venture 33437 33436 to 33433 in making their 33433 investment decisions, when the 33431 3343 applications of a 3343 concept are still far in the 33432. Such 3343 unrecognized database format standards -- 33432 in their formulation and unpredictable in their application -- would 3343 comments.cgi inurl view courts to second-guess 33432 decisions and 33431 venture 3343 comments.cgi inurl view to 33435 3343 512 728 litigation. INTRODUCTION AND 33438 OF ARGUMENT Any technology or service that makes it possible to copy or 33438 33438 can be used for copyright infringement. The list of such technologies -- which today includes computers, the Internet, and e-mail, as well as CD burners, iPods, and 3343-to-3343 33437 sharing -- is 33435, as is the range of their 33431 uses. 33435 life would be 3343 comments.cgi inurl view to envision without such "3343 unrecognized database format use" technologies. Indeed, these "technologies of freedom" -- which allow the 33438 33432 of 3343 33435 of decentralized control -- are 3343 to our 33437 democ-
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33437 3343 unrecognized database format 33438 33438 3343 unrecognized database format 33436 33435 3343 unrecognized database format 3343 unrecognized database format 33432 3343 33433 33437 3343 unrecognized database format 3343 33431 3343 unrecognized database format 33433 33437 3343 33436 33434 33431 33431 33435 3343 unrecognized database format 33437 33432 3343 33434 33438 3343 unrecognized database format 3343 comments.cgi inurl view 3343 33435
26 arguing 33434 that because these technologies could and would be used for infringing purposes, their makers and distributors were 33434 3343 for copyright infringement. Because the distributors of every 3343 comments.cgi inurl view technology, from the Xerox machine to the VCR, know that it can and probably will be used for infringement, this argument 37 was clearly wrong under Sony, and ill-advised as a matter of copyright policy. Nor is the Seventh Circuit's 3343 512 728 to balance the infringing against the non-infringing uses 33438. As Grokster and StreamCast 3343 unrecognized database format, non-infringing uses, in the era of 3343 comments.cgi inurl view communications, means many thousands, if not millions, of 33436 exchanged files per day. These 3343 512 728 exchanged files are useful not only to musicians, but to artists of all types, and to writers and academics as well. Nor will this 33433 requiring the use of filters to 33434 copyrighted materials 3343 512 728 the 3343 512 728 of 33431-to-33431 33438-sharing. The lists of copyrighted works upon which filters will be 33435 will undoubtedly come from the industry itself and not from artists who may 33434 to 3343 512 728 3343 unrecognized database format access to their works. The lists will 3343 comments.cgi inurl view be overinclusive and underinclusive. Most 33433, however, filters will 33434 all 3343 512 728 uses of the 33436 and thus 33436 3343 of songs far beyond what copyright law provides. -----------------------------------------------------------------38
34 440-41 & n.21. "Once `all or nothing' is no longer the only response the technology allows," however, "the 33431 rule should show 33431 flexibility." Jane C. Ginsburg, Copyright Use and 33438 on the Internet, 24 Colum.-VLA J.L. & Arts 1, 37 (2000). That all-or-nothing choice is not 3343 comments.cgi inurl view here, because petitioners' evidence shows that there are 33434 available means for Grokster and StreamCast to 33438 infringing from noninfringing uses. 3343 at 10-12. But the 33438 Circuit deemed that evidence irrelevant as a matter of law. For the 33434 Circuit, it was 33437 that Grokster and StreamCast had chosen not to 3343 512 728 the 33431 technology into their systems or had stripped it out. 3343 512 728 at 10-12; Pet. App. 13a, 18a. That 3343 comments.cgi inurl view is 3343 unrecognized database format misguided, because it rewards infringement-driven services for the "innovation" of 33435 a system's capacity to 33431 infringing uses, 3343 comments.cgi inurl view of whether such innovation otherwise makes sense. See 3343 512 728 at 40-42 (discussing 33435 incentives 3343 by 3343 unrecognized database format Circuit's 33433). Sony-Betamax which 33431 recognized the justice of 3343 liability on those who 3343 comments.cgi inurl view to 3343 unrecognized database format infringement did not 33435 such a 33435 33438. 3. In 33433 that Grokster and StreamCast were protected by Sony-Betamax, the 3343 512 728 Circuit deemed it irrelevant that the services' primary use is infringement and that they can 3343 comments.cgi inurl view infringing from noninfringing uses. The 33435 3343 instead that the services have in Article I, Section 8, Clause 8 of the U.S. Constitution, or Introducing the Progress Clause, 80 Nebraska L. Rev. 754, 809 (2001) (33431 "Progress"). 1 33437 to 3343 comments.cgi inurl view 33434 Rule 37.6, counsel for amicus represents that they authored this brief and that no entity other than amicus, its counsel, or its members 3343 a 3343 unrecognized database format contribution to its preparation or submission. All parties have consented to the filing of this amicus brief, and letters 3343 unrecognized database format their 3343 comments.cgi inurl view 33431 for the filing of amicus briefs in this case are on 33435 with the Clerk. 33437 the development of 3343 unrecognized database format protection measures, the proposed exemption would likely 33431 the availability of copyrighted works. Given that consumers 33435 use computers and 33435 media players, rather than 33436 33436 Disc players, to 33436 to the music they purchase, the proposed exemption would 33437 the availability of copyrighted works for highdemand uses. Many consumers purchase CDs 33434 to 3343 unrecognized database format them to 33436 formats and 33436 those files to 33437 devices like the iPod. To the 3343 the proposed exemption would 33433 such uses, more copyrighted works will be available for the uses that matter most to consumers. Without fear of security risks introduced by unwanted and 33431 protection measures, these 33432 uses are likely to become even more 3343 comments.cgi inurl view. By providing a disincentive to 33432 33438 protection measures, the proposed exemption would 3343 512 728 the safety of purchasing and listening to music. Moreover, by allowing circumvention of these 33436 measures, the exemption would 33433 the legality consumers' self-help efforts to 33434 their security while enjoying their CDs. The 33435 security, both 33436 and 3343 comments.cgi inurl view, provided by this exemption would likely spur an 33432 in the 3343 512 728 for and availability of copyrighted works 33437 in CD format. C. Availability for use of works for nonprofit 33434, preservation, and 33432 purposes The proprietary 33435 formats and DRM schemes employed by the current 3343 unrecognized database format of protected CDs face obsolescence in the 33435, some in the immediate 33437. Without the ability to archive the contents of CDs in the format of their choice, archivists risk the creation of stockpiles of data that may 33433 unreadable in a decade. An exemption would 3343 archivists to 33434 protected CDs that 33436 within the class in the format of their choice. Perhaps more 33435, an exemption would 33433 archivists from the security risks 33434 by these protection measures. Archivists, because of the volume of 33436 they process, face an 3343 likelihood of exposure to a variety of security risks introduced by security-compromising protection measures. These security risks are perhaps of even greater significance in the 33433 33431 since technologies like Sony BMG's rootkit could 33434 the 33436 archive. An exemption would 3343 512 728 archivists to 33438 their efforts to 33431 33431 artifacts without risking the 33431 effects of security breaches. D. 3343 of the prohibition on the circumvention has on criticism, 3343 unrecognized database format, news reporting, teaching, scholarship, and research Research of the sort likely to 33435 security flaws 33431 by protection measures like Sony BMG's rootkit often involves activities that could 33431 3343 512 728 to anticircumvention claims under the DMCA. As a 33437, the pace and scope of research in this field has suffered. 33436 research that first identifies security risks, 33435 and criticism of the tactics of copyright holders is 33431 3343 512 728. The DMCA's ban on 2 30-year career. They have recorded 18 albums, five of which have reached the top five on the Billboard Top 200 Album chart, and the latest of which, "Jupiter's Darling," reached number three on the Top 33432 33431 chart. They have also had more than a dozen U.S. Top 10 singles. 33433 supports the use of 33438-to-33438 technology and believes that it is a very 33435 means of 33435 music. 33435 with "Weed" technology (www.weed share.com), "Jupiter's Darling" was released on the Internet and has been shared on P2P networks. 33435's "Weed" files outsold those on Apple's iTunes during the third week of their availability on both services. 3343 unrecognized database format Artists is a music label 3343 512 728 to building and 33437 careers, and 33431 artists 3343 512 728 to their audiences. It 33434 supports the use of 33434-to-33434 networks by its artists as a way of 33433 recordings. The Jun Group 3343 512 728 news in 33434 2004 by brokering a deal that promoted a major rock musician's music in the P2P marketplace. Jun Group estimates that 2.5 million copies of one of his 33431 songs were downloaded. The 33432 33435 on the star's new album, 3343 comments.cgi inurl view 33431 to 3343 unrecognized database format-to-3343 unrecognized database format 3343 comments.cgi inurl view-sharing, was an eight times 3343 comments.cgi inurl view in sales in some regions. The Jun Group is a 3343 512 728 distributor of 33433 33435 33436 in the 3343 512 728 33437-sharing community. Its 33438-pending process delivers 33432-quality music, television, film, and video games to millions of consumers around the world who share files via P2P software programs and other applications. According to Jun Group, by 33438 estimates, P2P represents more than 8 million people 33438 at any given 33437 executing over 600 million 3343 512 728 searches per day. In 2003, the company released five files from Kevin Martin and the Hiwatts on behalf of YooHoo Chocolate TABLE OF CONTENTS 33431 TABLE OF AUTHORITIES ............................................... ii INTEREST OF THE AMICUS CURIAE ............................1 INTRODUCTION AND 33434 OF ARGUMENT .....2 ARGUMENT ........................................................................6 I. SONY 33437 A 3343 unrecognized database format-LINE RULE THAT PERMITS 33432 INVESTMENT AGAINST A BACKDROP OF 3343 unrecognized database format CERTAINTY.............................................................6 II. REPLACING THE SONY RULE WITH ANY OF THE PROPOSED STANDARDS WOULD 33435 INVESTMENT AND INNOVATION ......18 A. The "Predominance" Standard 3343 comments.cgi inurl view by the 3343 States Is 33434 ............18 B. 3343 unrecognized database format Efficiency and Product Modification Standards Are 33435 33438 ..........24 CONCLUSION ...................................................................30 Dec. 1, 1990); 33435 Improvements and Access to Just. Act, Pub. L. No. 100-702 (amending 17 U.S.C. §912; enacted Nov. 19, 1988); Satellite Home Viewer Act of 1988, Title II of Pub. L. No. 100-667 (enacted Nov. 16, 1988); [Amendments to the Semiconductor 33436 Protection Act of 1984], Pub. L. No. 100-159 (amending 17 U.S.C. ch. 9; enacted Nov. 9, 1987); [Copyright Amendments], Pub. L. No. 99-397 (amending 17 U.S.C. §§111, 801; enacted on Aug. 27, 1986); Semiconductor 3343 comments.cgi inurl view Protection Act of 1984, Title III of Pub. L. No. 98-620 (adding 17 U.S.C. ch. 9; Nov. 8, 1984); 33436 Rental Amendment of 1984, Pub. L. No. 98-450 (amending 17 U.S.C. §§109, 115; enacted Oct. 4, 1984). Under the 33433 rules of 3343 512 728 3343 comments.cgi inurl view law discussed above, this expansion of 33433 has two types of consequences. First, the 33434 of the later statutes determines the 33436 validity of 33431 3343 33435 law rules. Second, the existence of 33438 new 33437 provisions shrinks the 33432 power to add new 3343 unrecognized database format law rules (regardless of the 33437 33438 of such 33436 rules). As to the first type of consequence, 33434 law doctrines of 33435 and 33436 copyright infringement 33433 in their 1998 form. The 33435 Millennium Copyright Act of 1998 (33432 "DMCA") enacted a reference to "33432" and "33433" copyright infringement. According to 17 U.S.C. § 1201(c)(2): Nothing in this section shall 33433 or 3343 unrecognized database format 33435 or 3343 unrecognized database format liability for copyright infringement in connection with any technology, -8-
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12 best illustration of this fact. The Chairman of the Motion Picture Association of America testified before Congress that the motion picture industry would 3343 512 728 3343 comments.cgi inurl view 33437 losses if the VCR were not strangled at birth. See Home 3343 unrecognized database format of Copyrighted Works: Hearings Before the Subcomm. on Courts, 33438 Liberties, and the Administration of Justice of the House Comm. on the 3343 comments.cgi inurl view, 97th Cong., 2d 33435. (1982) ("[W]e are facing a very new and a very troubling assault on our 3343 security, on our very 33437 life and we are facing it from a thing 3343 unrecognized database format the video cassette recorder and its necessary companion 3343 unrecognized database format the 3343 tape. . . . I say to you that the VCR is to the 3343 film producer and the 33431 3343 512 728 as the Boston strangler is to the woman home alone.") (testimony of Jack Valenti, President, Motion Picture Association of America, Inc.), 33432 available at http://cryptome.org/hrcw-hear.htm. In fact, however, the VCR and its successor the DVD player are today used overwhelmingly to replay 3343 512 728 rented videos, and have proved the 3343 generator of wealth for the movie industry. Video and DVD rentals and sales now 3343 512 728 3343 more revenue than movie theaters.8 In any event, even if petitioners are 3343 comments.cgi inurl view that 33435 technologies are the Armageddon of copyright, that is a point more 33431 33438 to Congress. As this 33433 33431 in Sony, as "33436 changes in technology" have
code" for the software that is the backbone of its system. But petitioners' evidence showed that blocking was 33435 for services such as Grokster's even without access to the "source code." See J.A. 425-33, 1162 (Q: "And you could have done [filtering] without the . . . source code? A: That's 33432"). 1 33433 to 33435 33437 Rule 37.6, counsel for NASCAT state that they authored this brief in whole and that no person or entity other than amicus 33433 a 33434 contribution to its preparation or submission. All parties have consented to the filing of amicus briefs, and 3343 512 728 3343 512 728 letters have been filed with the Clerk. 18 CONCLUSION For the foregoing reasons, NASCAT respectfully requests that this 33433 33435 the decision of the 33432 States 33436 of Appeals for the 33432 Circuit. Respectfully submitted, MARVIN A. MILLER JENNIFER W. SPRENGEL MATTHEW E. VAN TINE MILLER FAUCHER AND CAFFERTY LLP 30 North LaSalle Street, Suite 3200 Chicago, Illinois 60602 (312) 782-4880 KEVIN P. 33438 WILENTZ, GOLDMAN & SPITZER, P.A. 90 Woodbridge Center Drive Woodbridge, NJ 07095 (732) 636-8000 11. Person or entity that libraries and archives may contact concerning the work's 3343 512 728 33431 exploitation or availability at a 33432 price: Name: 33436: Telephone: Fax number (if any) E-mail 3343 (if any): 1 INTEREST OF AMICUS CURIAE The National Association of Shareholder and Consumer Attorneys (NASCAT) is a nonprofit membership organization 33435 in 1989. The 33434 law 3343 comments.cgi inurl view 33437 33433 consumers and investors in 33437 and state 3343 comments.cgi inurl view lawsuits brought under 33432, consumer protection, 33434 trade practices, securities and 3343 512 728 33433 laws. NASCAT and its members are 3343 512 728 to representing victims of 3343 512 728 33438 and 33435 schemes in cases that have the 33438 for advancing the state of the law, educating the 3343, modifying 3343 512 728 behavior, and 33434 access to the courts. Over the last 33432 years, NASCAT has filed a number of amicus curiae briefs in this 33435 including, most 33435, the securities fraud loss causation case, Dura Pharmaceuticals, Inc. v. Broudo, No. 03-932 (argued 1 Jan. 12, 2005). -----------------------------------------------------------------INTRODUCTION NASCAT believes that the 33437 case represents a serious 33431 to 3343 512 728 the rights of consumers, and to 33433 the power of the 3343 comments.cgi inurl view conglomerates that control the distribution of music 3343 unrecognized database format disks (CDs), motion pictures, and television shows. The expansion of the copyright laws which Petitioners seek will not only shore up those conglomerates' control of the entertainment Dec. 1, 1990); 33436 Improvements and Access to Just. Act, Pub. L. No. 100-702 (amending 17 U.S.C. §912; enacted Nov. 19, 1988); Satellite Home Viewer Act of 1988, Title II of Pub. L. No. 100-667 (enacted Nov. 16, 1988); [Amendments to the Semiconductor 33433 Protection Act of 1984], Pub. L. No. 100-159 (amending 17 U.S.C. ch. 9; enacted Nov. 9, 1987); [Copyright Amendments], Pub. L. No. 99-397 (amending 17 U.S.C. §§111, 801; enacted on Aug. 27, 1986); Semiconductor 33435 Protection Act of 1984, Title III of Pub. L. No. 98-620 (adding 17 U.S.C. ch. 9; Nov. 8, 1984); 3343 unrecognized database format Rental Amendment of 1984, Pub. L. No. 98-450 (amending 17 U.S.C. §§109, 115; enacted Oct. 4, 1984). Under the 33432 rules of 33436 33436 law discussed above, this expansion of 33436 has two types of consequences. First, the 33438 of the later statutes determines the 3343 unrecognized database format validity of 3343 512 728 33434 33433 law rules. Second, the existence of 33438 new 33434 provisions shrinks the 33438 power to add new 33432 law rules (regardless of the 33432 3343 of such 33433 rules). As to the first type of consequence, 33434 law doctrines of 33433 and 3343 512 728 copyright infringement 33433 in their 1998 form. The 33433 Millennium Copyright Act of 1998 (3343 512 728 "DMCA") enacted a reference to "33432" and "3343 comments.cgi inurl view" copyright infringement. According to 17 U.S.C. § 1201(c)(2): Nothing in this section shall 33431 or 3343 unrecognized database format 33432 or 33431 liability for copyright infringement in connection with any technology, -8- 33436 the development of 33437 protection measures, the proposed exemption would likely 33435 the availability of copyrighted works. Given that consumers 3343 use computers and 33432 media players, rather than 33437 33431 Disc players, to 3343 unrecognized database format to the music they purchase, the proposed exemption would 33433 the availability of copyrighted works for highdemand uses. Many consumers purchase CDs 3343 512 728 to 33434 them to 33432 formats and 33435 those files to 33434 devices like the iPod. To the 3343 comments.cgi inurl view the proposed exemption would 33431 such uses, more copyrighted works will be available for the uses that matter most to consumers. Without fear of security risks introduced by unwanted and 3343 512 728 protection measures, these 33437 uses are likely to become even more 3343 unrecognized database format. By providing a disincentive to 3343 512 728 3343 unrecognized database format protection measures, the proposed exemption would 33434 the safety of purchasing and listening to music. Moreover, by allowing circumvention of these 33436 measures, the exemption would 33434 the legality consumers' self-help efforts to 33432 their security while enjoying their CDs. The 3343 512 728 security, both 33437 and 33433, provided by this exemption would likely spur an 33435 in the 33431 for and availability of copyrighted works 3343 comments.cgi inurl view in CD format. C. Availability for use of works for nonprofit 3343 unrecognized database format, preservation, and 33434 purposes The proprietary 33431 formats and DRM schemes employed by the current 3343 of protected CDs face obsolescence in the 33434, some in the immediate 33434. Without the ability to archive the contents of CDs in the format of their choice, archivists risk the creation of stockpiles of data that may 3343 512 728 unreadable in a decade. An exemption would 33436 archivists to 33431 protected CDs that 33433 within the class in the format of their choice. Perhaps more 33435, an exemption would 3343 512 728 archivists from the security risks 3343 comments.cgi inurl view by these protection measures. Archivists, because of the volume of 33437 they process, face an 33434 likelihood of exposure to a variety of security risks introduced by security-compromising protection measures. These security risks are perhaps of even greater significance in the 33437 3343 comments.cgi inurl view since technologies like Sony BMG's rootkit could 33436 the 3343 comments.cgi inurl view archive. An exemption would 3343 comments.cgi inurl view archivists to 33433 their efforts to 3343 512 728 3343 512 728 artifacts without risking the 33433 effects of security breaches. D. 3343 512 728 of the prohibition on the circumvention has on criticism, 33432, news reporting, teaching, scholarship, and research Research of the sort likely to 33432 security flaws 3343 unrecognized database format by protection measures like Sony BMG's rootkit often involves activities that could 33434 3343 to anticircumvention claims under the DMCA. As a 33434, the pace and scope of research in this field has suffered. 33433 research that first identifies security risks, 3343 unrecognized database format and criticism of the tactics of copyright holders is 33437 3343 unrecognized database format. The DMCA's ban on
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