Advanced Copyright Issues on the Internet - Fenwick & West LLP

[T]he statutory exemption found in §1201(f) not only permits circumvention oftechnological measures to analyze and identify interoperable elements of aprotected computer program, but also provides exemptions to the traffickingprovisions in §1201(a)(2) and 1201(b). Even if the Register had found a factualbasis for an exemption, it would only exempt the act of circumvention. It wouldnot exempt the creation and distribution of the means to circumvent or thedistribution of interoperable computer programs embedded in devices. Since it isclear that Static Control’s goal was not merely to privately circumvent, but ratherto facilitate the distribution of competitive toner cartridges to others, arecommendation for an exemption in this rulemaking would have little effect onthe intended use. 619Accordingly, the <strong>Copyright</strong> Office concluded that “Congress has comprehensivelyaddressed the important concern of interoperability for competition and functionality within itsown statutory exemption” and that an exemption through rulemaking was not necessary. 620Providing Information or Means for Interoperability to Others. Section 1201(f)(3)provides that the “information acquired through the acts permitted under paragraph (1), and themeans permitted under paragraph (2), may be made available to others if the person referred to inparagraph (1) or (2), as the case may be, provides such information or means solely for thepurpose of enabling interoperability of an independently created computer program with otherprograms, and to the extent that doing so does not constitute infringement under this title orviolate applicable law other than this section.”Section 1201(f)(3) contains ambiguities with respect to its scope that are similar to thosenoted with respect to Section 1201(f)(2). The legislative history for Section 1201(f)(3) states thefollowing:[Section 1201(f)(3)] recognizes that developing complex computer programsoften involves the efforts of many persons. For example, some of these personsmay be hired to develop a specific portion of the final product. For that person toperform these tasks, some of the information acquired through the permittedanalysis, and the tools to accomplish it, may have to be made available to thatperson. This subsection allows developers of independently created software torely on third parties either to develop the necessary circumvention tools or toidentify the necessary information to achieve interoperability. The ability to relyon third parties is particularly important for small software developers who do nothave the capability of performing these functions in-house. This provisionpermits such sharing of information and tools. 621619620621Id. at 180-81 (emphasis in original).Id. at 183.S. Rep. No. 105-190, at 33 (1998).- 149 -