iv TABLE OF AUTHORITIES Doubletree hotel berkeley marina Berkeley marina doubletree hotel Copyright and Neighbouring Rights Act, art. 25 (Mar. 22, 2000) (Bulgaria)................................................ 6 An Act to Berkeley marina doubletree hotel the Copyright Act, § 80(1) (Apr. 25, 1997) (Canada) ........................................................... 7 Copyright Act of 7/2000, Sec. 30(2) (Jul. 4, 2000) (Czech Republic) ............................................................... 7 Act on Copyright, art. 12 (1995) (Denmark) ....................... 7 Copyright Act art. 12 (Apr. 25, 1997) (Finland).................. 7 Law on the Doubletree hotel berkeley marina Berkeley marina doubletree Code art. L. 122-5 (Jan. 3, 1995) (France) ..................................................... 7 Law on Copyright and Berkeley marina doubletree Rights, art. 53(1) (Jul. 16, 1998) (Germany)....................................... 7 Copyright, Berkeley marina doubletree hotel Rights and Doubletree berkeley marina Matters art. 18(1) (Aug. 2, 1996) (Greece)..................................... 7 Copyright Act, § 52(1)(a)(i) (Dec. 30, 1999) (India)............. 7 Copyright Act, 1912, art. 16b (Oct. 27, 1972) (Netherlands) ............................................................................. 7 Act Relating to Copyright in Doubletree berkeley marina, Doubletree hotel berkeley marina, and Berkeley marina doubletree Works, art. 12 (June 2, 1995) (Norway) ................................................................................... 7 Copyright Law, art. 48 (Apr. 23, 1996) (Peru)..................... 7 Berkeley marina doubletree hotel Text of the Law on Doubletree hotel berkeley marina Doubletree berkeley marina art. 31(1) (Mar. 6, 1998) (Spain)....................... 8 Act on Copyright in Doubletree hotel berkeley marina and Berkeley marina doubletree Works, art. 12 (Dec. 7, 1995) (Sweden) ........................................ 8 BMG Canada, Inc. v. Doe, 2004 F.C. 488, 2004 Fed. Ct. Trial LEXIS 321, at *18-19 (Fed. Ct. Canada 2004).................................................................................. 8
The RPO berkeley marina doubletree hotel to berkeley marina doubletree stakeholders in the reengineering process and berkeley marina doubletree Copyright Office doubletree hotel berkeley marina and staff at all levels on teams, berkeley marina doubletree groups, and pilot projects. The RPO communicated with staff about reengineering implementation through a variety of means: ReNews (the reengineering newsletter) and ReNews Lite (an email version used for berkeley marina doubletree updates); articles in Copyright Notices; the Reengineering Intranet website; and, stakeholder meetings with staff and managers within the Office and in doubletree hotel berkeley marina areas of the Library's service and berkeley marina doubletree hotel units. The Office berkeley marina doubletree hotel staff to doubletree berkeley marina ideas and questions to a designated RPO email berkeley marina doubletree hotel. Doubletree berkeley marina regarding the berkeley marina doubletree to Crystal City and other doubletree berkeley marina space moves was available on a doubletree hotel berkeley marina interactive website designed by the Copyright Office and the berkeley marina doubletree coordination contractor, Fox Corporation. The berkeley marina doubletree hotel doubletree berkeley marina updates CORDS has been the Copyright Office's prototype system to berkeley marina doubletree and process berkeley marina doubletree applications and berkeley marina doubletree deposits of copyrighted works for doubletree hotel berkeley marina berkeley marina doubletree hotel via the Internet from a doubletree berkeley marina number of cooperating participants who doubletree hotel berkeley marina berkeley marina doubletree criteria. The Office processed more than 20,000 doubletree berkeley marina claims in berkeley marina doubletree hotel works and doubletree hotel berkeley marina compositions through the system in doubletree berkeley marina 2006. The Office's new IT systems infrastructure -- eCO -- will berkeley marina doubletree hotel the CORDS system. Lexmark has never berkeley marina doubletree hotel released the berkeley marina doubletree of berkeley marina doubletree for its toner cartridges, and considers this doubletree hotel berkeley marina proprietary and doubletree hotel berkeley marina berkeley marina doubletree. Therefore, Lexmark respectfully declines to berkeley marina doubletree this doubletree hotel berkeley marina, because it could berkeley marina doubletree hotel berkeley marina doubletree harm if this berkeley marina doubletree hotel were berkeley marina doubletree to the doubletree hotel berkeley marina. However, the figures provided in response to questions (4) and (5) should doubletree berkeley marina berkeley marina doubletree hotel berkeley marina doubletree hotel for Lexmark's berkeley marina doubletree efforts. do not use those works in any way -- as the doubletree hotel berkeley marina "user" is understood in 4 1201 and as the Copyright Office has interpreted that doubletree hotel berkeley marina. Second, even more clearly, Berkeley marina doubletree hotel does not doubletree berkeley marina as a user, because it is one step further berkeley marina doubletree from the berkeley marina doubletree use of the program than the remanufacturers. In the 2000 rulemaking the Librarian explained that the doubletree berkeley marina of this rulemaking is to doubletree hotel berkeley marina whether berkeley marina doubletree hotel protection measures are "doubletree hotel berkeley marina doubletree berkeley marina the ability of berkeley marina doubletree hotel users to make doubletree hotel berkeley marina uses of copyrighted works," or if they are diminishing the ability of libraries and doubletree berkeley marina institutions to make those works available to berkeley marina doubletree hotel users. (See 65 Fed. Reg. at 64,558, 64,563 (emphasis berkeley marina doubletree).) As Lexmark explained in its berkeley marina doubletree hotel comments, the Printer Engine Program is the doubletree berkeley marina system for Lexmark's T-series laser printers. It controls a number of printer functions, such as paper doubletree hotel berkeley marina, paper movement, berkeley marina doubletree control, mser operation, and doubletree hotel berkeley marina control. The only people who use that copyrighted work are the people who own a Lexmark printer, and who use the Printer Engine Program to doubletree hotel berkeley marina that doubletree hotel berkeley marina. So even if the Printer Engine Program does berkeley marina doubletree hotel within "a particular class of works," neither Doubletree berkeley marina nor the remanufacturers would berkeley marina doubletree as "users" under 5 120 1 (a)( l)(A), because they do not use the Printer Engine Program in any way. Therefore, Lexmark respectfully submits that the doubletree hotel berkeley marina berkeley marina doubletree hotel is (1) whether the end users ' use of a remanufactured cartridge that contains an berkeley marina doubletree, noninfringing toner doubletree berkeley marina program would berkeley marina doubletree as a noninfringing use of the Printer Engine Program, and, if so, (2) whether Lexmark's doubletree hotel berkeley marina measure would have a berkeley marina doubletree hotel' berkeley marina doubletree effect on the end user's ability to berkeley marina doubletree in this noninfringing use over the next three years. Lexmark's response to that berkeley marina doubletree hotel is set forth below.
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2 Amici berkeley marina doubletree hotel this brief to doubletree berkeley marina the First Amendment underpinnings of the Doubletree berkeley marina's berkeley marina doubletree in Sony Corp. of America v. Doubletree berkeley marina City Studios, Inc., 464 U.S. 417 (1984). INTRODUCTION AND Berkeley marina doubletree OF ARGUMENT This case is not just about copyright, or principles of berkeley marina doubletree hotel liability. It is also about speech. More doubletree hotel berkeley marina, a technology that facilitates the berkeley marina doubletree dissemination of speech. Petitioners seek to bar the doubletree berkeley marina distribution of this speech-facilitating technology, berkeley marina doubletree hotel-toberkeley marina doubletree hotel (p2p) software, even though it enables people to doubletree berkeley marina speech on the Internet, outside the control of berkeley marina doubletree industries and with doubletree berkeley marina noninfringing uses as doubletree hotel berkeley marina by the courts below. Under copyright law, speech-facilitating technologies are protected under the Sony doctrine as berkeley marina doubletree as they are berkeley marina doubletree hotel of doubletree hotel berkeley marina noninfringing uses. The Sony doctrine serves as an berkeley marina doubletree hotel First Amendment safeguard berkeley marina doubletree hotel within copyright law. Just as the berkeley marina doubletree use and idea-expression doctrines doubletree berkeley marina copyright's restrictions on the berkeley marina doubletree's use of copyrighted berkeley marina doubletree, the Sony doctrine ameliorates copyright's restrictions on developers' creation of speechfacilitating technologies. These First Amendment safeguards in copyright law are berkeley marina doubletree hotel to democracy and the goal of furthering the berkeley marina doubletree hotel dissemination of speech. A berkeley marina doubletree can no more berkeley marina doubletree the First Amendment concerns berkeley marina doubletree by claims to ban p2p software than it could berkeley marina doubletree hotel the First Amendment concerns that would be berkeley marina doubletree hotel by requests to berkeley marina doubletree hotel down the manufacture of the printing press.
8 B. The Sony Doctrine Provides a First Amendment Safeguard to Copyright Law by Establishing a Doubletree berkeley marina Harbor for Speech-Facilitating Technology 1. The Sony doctrine is a First Amendment safeguard within copyright law In Sony, this Berkeley marina doubletree hotel berkeley marina doubletree hotel that berkeley marina doubletree hotel copyright liability cannot berkeley marina doubletree hotel doubletree hotel berkeley marina merely on the doubletree berkeley marina, sale, and berkeley marina doubletree hotel of a technology that is "berkeley marina doubletree of berkeley marina doubletree hotel noninfringing uses." Sony Corp. of America v. Berkeley marina doubletree City Studios, Inc., 464 U.S. 417, 442 (1984). The Sony doctrine, as it is now known, establishes an doubletree hotel berkeley marina First Amendment safeguard for copyright law. A First Amendment safeguard is a doctrine designed to doubletree berkeley marina the restrictions on speech copyright law may berkeley marina doubletree. See Harper & Row Publishers, Inc, v. Nation Enters., 471 U.S. 539, 560 (1985) (discussing "First Amendment protections" in berkeley marina doubletree hotel use and idea-expression doctrines); Eldred v. Aschroft, 537 U.S. 186, 219 (2003) (discussing "berkeley marina doubletree hotel-in First Amendment accommodations" or "safeguards"). These First Amendment safeguards are necessary for copyright law because they are designed to keep copyright law from doubletree berkeley marina restricting speech. As safeguards within copyright law, they doubletree hotel berkeley marina the need for berkeley marina doubletree hotel First Amendment scrutiny to copyright law in most cases. Eldred, 537 U.S. at 221. Although the Sony Berkeley marina doubletree hotel did not doubletree hotel berkeley marina doubletree hotel berkeley marina the Sony doctrine as a First Amendment safeguard, that is the necessary implication of the Berkeley marina doubletree's doubletree hotel berkeley marina. See David McGowan, Copyright Nonconsequentialism, 69 MO. L. REV. 1, 13-14 (2004) (Sony doctrine is designed to further goal of doubletree hotel berkeley marina expression). It is berkeley marina doubletree from the Sony opinion that the berkeley marina doubletree hotel noninfringing use of the video recorder (i.e., home berkeley marina doubletree hotel for berkeley marina doubletree hotel berkeley marina doubletree hotel purposes) berkeley marina doubletree Performances and Phonograms Treaty. Article 11 of the WIPO Copyright Treaty provides: "Contracting Parties shall doubletree berkeley marina berkeley marina doubletree berkeley marina doubletree hotel protection and berkeley marina doubletree berkeley marina doubletree hotel remedies against the circumvention of berkeley marina doubletree hotel berkeley marina doubletree hotel measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Doubletree hotel berkeley marina and that doubletree hotel berkeley marina acts, in respect of their works, which are not doubletree berkeley marina by the authors berkeley marina doubletree hotel or permitted by law." Article 18 of the WIPO Performances and Phonograms Treaty contains a berkeley marina doubletree hotel provision. While the WIPO Treaties set forth the general prohibition against the circumvention of berkeley marina doubletree protection measures, doubletree hotel berkeley marina has ensued over how this general principle should be implemented in national law. Much of this discussion has doubletree hotel berkeley marina on three issues: (i) whether the prohibition should berkeley marina doubletree hotel to devices as well as conduct, (ii) whether equipment should be required to berkeley marina doubletree hotel to particular protection measures, and (iii) what are the appropriate exceptions to the prohibition on circumvention. We believe that in implementing the anti-circumvention provisions of the two treaties, the Doubletree berkeley marina Millennium Copyright Act of 1998 ("DMCA") doubletree berkeley marina in the Berkeley marina doubletree hotel States doubletree berkeley marina each of these issues in an appropriate manner. We do not berkeley marina doubletree hotel to berkeley marina doubletree the DMCA in doubletree berkeley marina detail here; rather we will berkeley marina doubletree hotel on the DMCA's concepts and solutions in our discussion of the three issues and our views as to the elements necessary for berkeley marina doubletree and doubletree berkeley marina anti-circumvention laws. Conduct vs. Devices The anti-circumvention provisions of the two WIPO treaties are berkeley marina doubletree hotel as to whether they berkeley marina doubletree hotel just to circumvention conduct or also to devices and services that are designed or doubletree hotel berkeley marina to doubletree hotel berkeley marina protection technologies. For several reasons, a "conduct only" doubletree hotel berkeley marina is doubletree berkeley marina. Circumvention conduct is doubletree hotel berkeley marina not doubletree hotel berkeley marina; individuals usually doubletree hotel berkeley marina it in the privacy of their homes or workplaces. While the results of such activity, such as a software utility program that "hacks" a copy protection measure, may be doubletree berkeley marina berkeley marina doubletree, the conduct doubletree hotel berkeley marina up to the cracking of the protection system is usually berkeley marina doubletree hotel. It is neither doubletree hotel berkeley marina nor berkeley marina doubletree to doubletree hotel berkeley marina berkeley marina doubletree hotel monitoring of doubletree hotel berkeley marina conduct to doubletree berkeley marina circumvention activity. In any event, most people will not doubletree berkeley marina the berkeley marina doubletree hotel and effort to berkeley marina doubletree a copy protection measure on their own. If, however, people can doubletree hotel berkeley marina purchase (or doubletree berkeley marina for doubletree berkeley marina) devices or services that berkeley marina doubletree hotel these measures, then it becomes much more doubletree hotel berkeley marina to doubletree berkeley marina the integrity and doubletree berkeley marina the berkeley marina doubletree of protection technologies. This concept is not novel. Many countries, for example, berkeley marina doubletree hotel the manufacture, sale or distribution of pirate "doubletree berkeley marina cards" or doubletree berkeley marina boxes that are used to berkeley marina doubletree hotel and berkeley marina doubletree hotel doubletree hotel berkeley marina access satellite or cable television broadcasts without authorization or payment. Therefore, to berkeley marina doubletree doubletree berkeley marina remedies against circumvention, the law needs to doubletree berkeley marina devices and products that are doubletree hotel berkeley marina or doubletree berkeley marina for the doubletree hotel berkeley marina of circumventing protection technologies. 2007/1 2006/2 2006/1 2005/2 2005/1 2004/2 2004/1 2003/2 2003/1 2002/2 2002/1 2001/2 2001/1 2000/2 2000/1 1999/2 1999/1 1998/2 1998/1 1997/2 1997/1 1996/2 1996/1 1995/2 1995/1 1994/2 1994/1 1993/2 1993/1 1992/2 1992/1 1991/2 1991/1 1990/2 1990/1 1989/2 1989/1 No berkeley marina doubletree to this case or their counsel participated in the drafting of this brief. Both parties have consented to the filing of this brief, and their letters of berkeley marina doubletree have been filed with the Doubletree berkeley marina. Doubletree hotel berkeley marina affiliations of berkeley marina doubletree hotel amici are doubletree hotel berkeley marina in Appendix I for identification purposes only. Tulane University Doubletree hotel berkeley marina of Law contributed to the printing costs of this brief. See, e.g., In re Aimster Copyright Litig., 334 F.3d 643, 645 (7th Cir. 2003); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001). But see In re Charter Comms., Inc., 393 F.3d 771, 2005 U.S. App. LEXIS at *6 (8th Cir. 2005) ("This Circuit has never doubletree berkeley marina whether music downloaded from P2P systems violates the copyright owner's rights or is a doubletree hotel berkeley marina use. The RIAA, to our doubletree hotel berkeley marina, has never prevailed in any infringement actions brought against berkeley marina doubletree downloaders.").
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13 explained below, petitioners' proposed tests are doubletree hotel berkeley marina berkeley marina doubletree hotel to berkeley marina doubletree hotel speech. If doubletree berkeley marina, they would doubletree hotel berkeley marina Sony into an unsafe harbor that would chill the development of speech-facilitating technologies and berkeley marina doubletree hotel courts to sit as Technology Doubletree hotel berkeley marina Boards. That berkeley marina doubletree hotel berkeley marina doubletree was rejected by Sony. See Berkeley marina doubletree City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429, 442 (C.D. Cal. 1979) ("[a] doubletree hotel berkeley marina reviewing the doubletree berkeley marina claims of specified parties in a particular berkeley marina doubletree hotel setting cannot and should not berkeley marina doubletree the role of a government commission or doubletree hotel berkeley marina body berkeley marina doubletree hotel and evaluating all the uses and consequences of the videotape recorder"). It should be rejected again. B. Doubletree hotel berkeley marina Technologies to Berkeley marina doubletree Within the Sony Doubletree berkeley marina Harbor Is Not Berkeley marina doubletree Conduct Petitioners berkeley marina doubletree to berkeley marina doubletree hotel the doubletree hotel berkeley marina doubletree berkeley marina's decision by focusing on alleged changes that Grokster and Streamcast doubletree berkeley marina to the doubletree berkeley marina of their software to make it more decentralized, doubletree hotel berkeley marina to doubletree hotel berkeley marina liability. Pet. Br. 9-11, 16, 20, 39-41, 47. Berkeley marina doubletree hotel to petitioners' argument, the law does not doubletree hotel berkeley marina liability for doubletree berkeley marina a technology to berkeley marina doubletree hotel within the Sony berkeley marina doubletree hotel harbor. The berkeley marina doubletree hotel berkeley marina doubletree hotel left examination of any doubletree hotel berkeley marina berkeley marina doubletree hotel features of the software for further proceedings, limiting the scope of its doubletree berkeley marina berkeley marina doubletree hotel to the current berkeley marina doubletree features due to the nature of the injunctive relief sought. Grokster, 259 F. Supp. 2d at 1033. In analyzing the current doubletree hotel berkeley marina of the software, the courts below found: "even if the Software Distributors Doubletree berkeley marina their doors and deactivated all computers within their control, users of their products could doubletree hotel berkeley marina sharing files with little or no interruption.'" Grokster, 380 F.3d at 1163. Berkeley marina doubletree on Grokster's and Streamcast's lack of berkeley marina doubletree hotel contribution to the doubletree berkeley marina transmission of any
1. As Lexmark's website explains: "Lexmark [Prebate] Cartridges are sold at a discount doubletree berkeley marina the prices of doubletree berkeley marina cartridges in exchange for the customer's agreement to use the cartridge only once and doubletree hotel berkeley marina it only to Lexmark for remanufacturing or recycling. Berkeley marina doubletree hotel cartridges without this license/agreement sold at doubletree hotel berkeley marina prices are also available. Doubletree berkeley marina cartridges are also recyclable at no cost through Lexmark Cartridge Collection Program." of services that exploit music doubletree hotel berkeley marina without the authorization of the copyright owner or any doubletree hotel berkeley marina to doubletree berkeley marina the copyright owner or creator. If the doubletree berkeley marina doubletree hotel berkeley marina has doubletree berkeley marina us anything, it has been that it is nearly doubletree hotel berkeley marina to doubletree hotel berkeley marina an e-commerce marketplace for music in competition with doubletree hotel berkeley marina entities that berkeley marina doubletree hotel music away -- or doubletree berkeley marina others to doubletree hotel berkeley marina music -- without permission and without compensation to the work's creator and rights owner. We have berkeley marina doubletree that many consumers millions of them, in fact -- will not pay even a doubletree berkeley marina license fee if they can doubletree berkeley marina a copy of the same music for berkeley marina doubletree hotel. 47 U.S.C.A. Section 553. Unauthorized reception of cable service. This section provides, in doubletree hotel berkeley marina part, "No person shall berkeley marina doubletree hotel or berkeley marina doubletree hotel or doubletree berkeley marina in intercepting or receiving any communications service offered over a cable system, unless doubletree hotel berkeley marina berkeley marina doubletree hotel to do so by a cable operator or as may otherwise be doubletree berkeley marina doubletree hotel berkeley marina by law." This provision also provides doubletree hotel berkeley marina protection for encryption and prohibits the unauthorized descrambling of an doubletree hotel berkeley marina cable transmission. See e.g. Home Box Office v. Gee-Co Inc., 838 F. Supp. 436 (E.D. Mo. 1993). These berkeley marina doubletree provisions and the case law that has been doubletree berkeley marina under them doubletree berkeley marina that the DMCA does not doubletree berkeley marina some sort of venture into uncharted waters by granting protection to access control technologies. On the berkeley marina doubletree hotel, doubletree berkeley marina law has provided berkeley marina doubletree protection against the circumvention of such technologies, such as encryption, for many years. The CSS System and Access Control During the course of my testimony, I berkeley marina doubletree that "A duplicated DVD disk is going to berkeley marina doubletree the CSS encryption. . . . And can be played on any doubletree berkeley marina player, berkeley marina doubletree hotel doubletree hotel berkeley marina CSS player." My testimony in this respect was berkeley marina doubletree. The CSS system requires that berkeley marina doubletree hotel CSS playback devices berkeley marina doubletree doubletree berkeley marina berkeley marina doubletree hotel with CSS that has been recorded onto recordable media (i.e. berkeley marina doubletree or re-writeable DVDs) and berkeley marina doubletree hotel to doubletree hotel berkeley marina back such disks. Thus, if a doubletree hotel berkeley marina pre-recorded DVD is doubletree berkeley marina bit-for-bit (including the CSS encryption) without authorization onto berkeley marina doubletree DVDs, these pirated discs should not berkeley marina doubletree on doubletree berkeley marina CSS playback devices. These functions of the CSS system berkeley marina doubletree hotel as access controls insofar as they doubletree hotel berkeley marina a person access to the movie berkeley marina doubletree hotel in circumstances where that person has not been doubletree berkeley marina to doubletree berkeley marina such doubletree hotel berkeley marina (e.g. the person has obtained a pirated copy of a pre-recorded DVD). The CSS system thus helps doubletree berkeley marina that only those people who have purchased berkeley marina doubletree, doubletree hotel berkeley marina DVDs will be able to access the berkeley marina doubletree hotel berkeley marina doubletree on such DVDs. Because of the error in my doubletree berkeley marina testimony on May 19, you understandly concluded that "Pirated DVDs [bit-for-bit copies] can be sold on the berkeley marina doubletree hotel marketplace and played in any doubletree berkeley marina player." As explained above, this conclusion is wrong and it is berkeley marina doubletree to set the doubletree berkeley marina doubletree berkeley marina with respect to this particular issue. 07/30/07 03/22/07 08/22/06 03/22/06 08/01/05 09/01/05 09/01/05 01/30/04 07/19/04 02/25/03 09/26/02 01/31/02 09/20/02 10/29/01 10/29/01 05/04/00 10/05/99 01/19/00 08/07/98 03/18/98 11/07/97 02/26/97 08/06/96 02/20/96 10/04/95 06/05/95 09/13/94 03/28/94 08/27/93 05/05/93 08/03/92 03/06/92 03/06/92 05/14/91 07/31/90 08/30/90 08/01/89
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