Advanced Copyright Issues on the Internet - Fenwick & West LLP

potential harm had been submitted in the second rulemaking proceeding. 490 The Librariandefined “obsolete” as “no longer manufactured or reasonably available in the commercialmarketplace.” 4913. Computer programs and video games distributed in formats that have become obsoleteand which require the original media or hardware as a condition of access. A format shall beconsidered obsolete if the machine or system necessary to render perceptible a work stored inthat format is no longer manufactured or is no longer reasonably available in the commercialmarketplace. The Librarian determined that this exemption is necessary to allow archiving orcontinued use of computer programs and video games that are subject to “original media only”restrictions, are stored on media no longer in use, such as 5.25” floppy disks, or require use of anobsolete operating system. 4924. Literary works distributed in ebook format when all existing ebook editions of thework (including digital text editions made available by authorized entities) contain accesscontrols that prevent the enabling of the ebook’s read-aloud function and that prevent theenabling of screen readers to render the text into a specialized format. The Librarian defined“specialized format,” “digital text” and “authorized entities” to have the same meaning as in 17U.S.C. § 121. 493 The Librarian determined that this exemption is necessary in response toproblems experienced by the blind and visually impaired in gaining meaningful access to literaryworks distributed as ebooks. 494For the <strong>Copyright</strong> Office’s rationale for rejecting an exemption for a host of otherproposed classes of works, see 68 Fed. Reg. at 62014-18. One of the more interesting proposedexemptions that the <strong>Copyright</strong> Office rejected was one submitted by Static Control Components,Inc. in response to the district court’s ruling in the case of Lexmark International, Inc. v. StaticControl Components, Inc., 495 discussed in Section II.G.1(o)(1) below. In that case, the districtcourt ruled on a motion for a preliminary injunction that Static Control violated Section1201(a)(2) by distributing microchips that were used to replace the microchip found in plaintiffLexmark’s toner cartridges so as to circumvent Lexmark’s authentication sequence thatprevented the printer engine software on the Lexmark printer from allowing the printer tooperate with a refilled toner cartridge. In view of this ruling, Static Control submitted aproposed exemption to the <strong>Copyright</strong> Office to permit circumvention of access controls oncomputer programs embedded in computer printers and toner cartridges and that control theinteroperation and functions of the printer and toner cartridge. The <strong>Copyright</strong> Office concludedthat the statutory exemption set forth in Section 1201(f), discussed in Section II.G.1(g) below,490491492493494495Id. at 62013-14.Id. at 62018.Id. at 62014.Id.Id.253 F. Supp. 2d 943, 948-49 (E.D. Ky. 2003), rev’d, 387 F.3d 522 (6 th Cir. 2004), reh’g denied, 2004 U.S.App. LEXIS 27,422 (Dec. 29, 2004), reh’g en banc denied, 2005 U.S. App. LEXIS 3330 (6rh Cir. Feb. 15,2005).- 120 -