Advanced Copyright Issues on the Internet - Fenwick & West LLP

already adequately addressed the concerns of toner cartridge re-manufacturers. 496 The rationalefor the <strong>Copyright</strong> Office’s conclusion is discussed further in Section II.G.1(g) below.The Exemptions of 2006. On Nov. 27, 2006, the <strong>Copyright</strong> Office issued the thirddetermination of the classes of copyrighted works that the Librarian decided should have anexemption, with the exemption to be in effect until Oct. 27, 2009. 497 In previous rulemakings,the <strong>Copyright</strong> Office had determined that an exempted class must be based primarily onattributes of the work itself and not the nature of the use or the user. In its 2006 ruling, the<strong>Copyright</strong> Office determined for the first time that in certain circumstances it would bepermissible to refine the description of a class of works by reference to the type of user who maytake advantage of the exemption or by reference to the type of use of the work that may be madepursuant to the exemption, and the <strong>Copyright</strong> Office applied this refinement to some of theclasses of works exempted. 498The exempted classes of works in the 2006 ruling are the following:1. “Audiovisual works included in the educational library of a college or university’sfilm or media studies department, when circumvention is accomplished for the purpose ofmaking compilations of portions of those works for educational use in the classroom by mediastudies or film professors.” 499 This exemption was the first one to define the class by referenceto particular types of uses and users.2. “Computer programs and video games distributed in formats that have becomeobsolete and that require the original media or hardware as a condition of access, whencircumvention is accomplished for the purpose of preservation or archival reproduction ofpublished digital works by a library or archive. A format shall be considered obsolete if themachine or system necessary to render perceptible a work stored in that format is no longermanufactured or is no longer reasonably available in the commercial marketplace.” 500 Thisexemption is the same as the third class in the 2003 ruling, except that a definition of whatrenders constitutes an obsolete format was added.3. “Computer programs protected by dongles that prevent access due to malfunction ordamage and which are obsolete. A dongle shall be considered obsolete if it is no longermanufactured or if a replacement or repair is no longer reasonably available in the commercialmarketplace.” 501 This exemption is the same as the second class in the 2003 ruling.4. “Literary works distributed in ebook format when all existing ebook editions of thework (including digital text editions made available by authorized entities) contain access49649749849950050168 Fed. Reg. at 62017.71 Fed. Reg. 68472 (Nov. 27, 2006).Id. at 68473-74.Id.Id. at 68474.Id. at 68475.- 121 -