Advanced Copyright Issues on the Internet - Fenwick & West LLP

controls that prevent the enabling either of the book’s read-aloud function or of screen readersthat render the text into a specialized format.” 502 This exemption is similar to the fourth class inthe 2003 ruling, except that the two requirements in the description of the access controls isphrased in the disjunctive, whereas in the 2003 ruling it was phrased in the conjunctive.5. “Computer programs in the form of firmware that enable wireless telephone handsetsto connect to a wireless telephone communication network, when circumvention is accomplishedfor the sole purpose of lawfully connecting to a wireless telephone communication network.” 503This is a new exemption, and is another one defined by reference to a particular type of use. Thepurpose of this exemption is to address the use of software locks that prevent customers fromusing their handsets on a competitor’s network, even after all contractual obligations to theoriginal wireless carrier have been satisfied, by controlling access to the firmware that operatesthe mobile phone. The <strong>Copyright</strong> Office justified the exemption by noting that “in this case, theaccess controls do not appear to actually be deployed in order to protect the interests of thecopyright owner or the value or integrity of the copyrighted work; rather, they are used bywireless carriers to limit the ability of subscribers to switch to other carriers, a business decisionthat has nothing whatsoever to do with the interests protected by copyright. … When applicationof the prohibition on circumvention of access controls would offer no apparent benefit to theauthor or copyright owner in relation to the work to which access is controlled, but simply offersa benefit to a third party who may use § 1201 to control the use of hardware which, as isincreasingly the case, may be operated in part through the use of computer software or firmware,an exemption may well be warranted.” 504 The rationale underlying this class is an importantone, and may be applied to justify more exempted classes in future rulemakings by the <strong>Copyright</strong>Office.TracFone Cases.a. Scope of the Network Connection Exemption – TheIn TracFone Wireless, Inc. v. Dixon, 505 the court ruled that this exemption did not applyto the defendants’ resale of unlocked TracFone phones that would work on wireless servicesother than TracFone’s, because the defendants’ unlocking activity “was for the purpose ofreselling those handsets for a profit, and not ‘for the sole purpose of lawfully connecting to awireless telephone communication network.’” 506 Thus, under this court’s view, the exemptionappears to be targeted to acts by individual owners of handsets who circumvent the phone’s lockto enable their personal use of their own handset on another wireless network. It is unclear fromthe court’s brief analysis whether the exemption would cover those who sell the “computerfirmware” referenced in the exemption (and not the unlocked phone itself) that enables anindividual to accomplish unlocking of his or her phone. It also unclear whether the reference in502503504505506Id.Id. at 68476.Id.475 F. Supp. 2d 1236 (M.D. Fla. 2007).Id. at 1238.- 122 -