UNITED STATES OF AMERICA + + + + + LIBRARY OF CONGRESS

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UNITED STATES OF AMERICA

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LIBRARY OF CONGRESS

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U.S. COPYRIGHT OFFICE

SECTION 1201 ROUNDTABLE

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WEDNESDAY

APRIL 25, 2018

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The Section 1201 Roundtable met in the Room

1314, UCLA School of Law, 385 Charles E Young Drive

East, Los Angeles, California 90095 at 9:00 a.m.,

Regan Smith, Deputy General Counsel of the U.S.

Copyright Office, presiding.

PRESENT

REGAN SMITH, Deputy General Counsel, U.S.

Copyright Office

ANNA CHAUVET, U.S. Copyright Office

STACY CHENEY, National Telecommunications and

Information Administration

JOHN RILEY, U.S. Copyright Office

JULIE SALTMAN, U.S. Copyright Office

2

ALSO PRESENT

COREY DOCTOROW

JAY FREEMAN, SaurikIT

JOHANN GEORGE, OmniQ

KARIN GILFORD, Movies Anywhere

BRUCE JACKSON, Air Informatics LLC

SINA KHANIFAR, Electronic Frontier Foundation

ROBERT MIRANDA, SmarTeks

THOMAS MOONEY, Harman International

CYNTHIA REPLOGLE, iFixit

KIT WALSH, Electronic Frontier Foundation

KYLE WIENS, iFixit

J. MATTHEW WILLIAMS, Joint Creators II

MATTHEW ZIEMINSKI, Puls

3

CONTENTS

PROPOSED CLASS 7: Computer Programs -

Repair .................................. 5

PROPOSED CLASS 11: Computer Programs -

Avionics .............................. 123

Los Angeles Audience Participation .......... 160

Adjourn ..................................... 231

Exhibit No. Page

3-C Karin Gilford Presentation ............ 161

3-D Johann George Presentation ............ 284

4

P-R-O-C-E-E-D-I-N-G-S

1

9:00 a.m.

2

MS. SMITH: All right, great. We're

3

going to start. It's 9 o'clock, so thanks for being

4

here.

5

This is the section 1201 hearings, and

6

it's the last day. We're talking about Class 7,

7

which is repair.

8

My name is Regan Smith. I'm Deputy

9

General Counsel of the Copyright Office. And I see

10

some familiar faces, some not familiar faces.

11

So, just quickly, we're going to be

12

commenting and facilitating a discussion about

13

whether or not to expand the contours of the current

14

temporary exemption for a class of concerning

15

repair of motor vehicles.

16

If you'd like to speak, tip your placard

17

up and we'll call on you. And try to say your name

18

for the court reporter.

19

And I think we'll start by -- we'll

20

introduce ourselves. And then you can introduce

21

yourselves.

22

MR. CHENEY: I'm Stacy Cheney, Senior

23

Attorney-Advisor at NTIA, National

24

Telecommunications and Information

25

Administration. Good morning.

26

5

MR. RILEY: I'm John Riley,

1

Attorney-Advisor, Copyright Office.

2

MS. SALTMAN: Julie Saltman, Assistant

3

General Counsel at the Copyright Office.

4

MS. CHAUVET: Anna Chauvet, Assistant

5

General Counsel at the Copyright Office.

6

MS. SMITH: Mr. Miranda?

7

MR. MIRANDA: Robert Miranda, founder

8

and owner of SmarTeks.

9

MS. WALSH: Kit Walsh. I'm a Senior

10

Staff Attorney at the Electronic Frontier

11

Foundation here in support of the proposed

12

exemption.

13

MR. WIENS: Kyle Wiens, founder of

14

iFixit. I'm here in support.

15

MR. ZIEMINSKI: Matt Zieminski,

16

logistics and quality at Puls. In support.

17

MR. WILLIAMS: Matt Williams from MSK

18

representing AAP, ESA, MPAA, and RIAA.

19

MR. MOONEY: I'm Tom Mooney with

20

Harmon. I lead our global public affairs shop.

21

MS. SMITH: Great. Thank you.

22

MS. SALTMAN: Okay. Good morning.

23

Before we start, I just wanted to sort of let you

24

know how we're planning to proceed, because there

25

are a lot of issues at play in this particular

26

6

exemption.

1

So we sort of see that there are five

2

different categories of -- or we sort of like divided

3

the possible expansions into five categories. And

4

we're going to go through each one in turn. So, I

5

would appreciate it if you could sort of direct your

6

comments to the issues that we're talking about at

7

the time.

8

And also, because we have a lot to cover

9

in just two hours, please keep your responses as

10

sort of short and direct as possible.

11

So, I'd like to start with the EFF's

12

request to expand the exemption to cover

13

non-motorizing vehicle devices or other devices.

14

And also address the modification or tinkering

15

aspect that they raise. Then we'll talk about

16

telematics and entertainment systems after that

17

third-party repair. And then finally tools.

18

So, for -- wait, so I'm going to direct

19

my first question to Ms. Walsh.

20

You've asked for an exemption for

21

modification and repair of various types of devices

22

including internet of things devices, appliances,

23

computer peripherals, toys, are you limiting your

24

request to consumer devices?

25

MS. WALSH: No. Just as with the

26

7

security research exemption, it's important that

1

devices not necessarily intended for individual

2

consumers be repaired.

3

So, for instance, power generator

4

systems, control systems, computer systems are in

5

a wide variety of devices. I think probably some

6

of my colleagues could speak to more examples of

7

the non-consumer devices as well.

8

MS. SALTMAN: And what evidence is

9

there in the record that there's a need for an

10

exemption for those type of devices?

11

MS. WALSH: So I think I'd like to ask

12

my colleagues to address that.

13

MS. SMITH: Is there anything in the

14

record yet? Or is this going to be new?

15

MR. WIENS: I mean, we -- under the --

16

MS. CHAUVET: I'm sorry to interrupt.

17

For the court reporter, if you could please all say

18

your name before you start speaking.

19

MR. WIENS: Sure.

20

MS. CHAUVET: Thank you.

21

MR. WIENS: Kyle Wiens. The Copyright

22

Office found that there was standing for an

23

exemption for repairing agricultural equipment.

24

And I would refer to a lot of the discussions around

25

that.

26

8

MS. SALTMAN: Okay. So, in terms of the

1

devices discussed in your submissions, some of

2

these devices are devices that -- where the TPM would

3

control access to more expressive works. And some

4

of the devices seem like they are less likely to

5

control expressive works. How could the Office

6

craft an exemption that is supported by the

7

statutory analysis that covers both types of

8

devices?

9

MS. WALSH: Mm-hmm. So a lot of the

10

opposition to the class is oriented towards

11

concerns about infringement. So you might have --

12

and we had opposition in regard to video game

13

consoles and in regard to devices that entail

14

entertainment products.

15

So there are two ways that the exemption

16

as proposed is limited so that it doesn't speak to

17

those products.

18

The first is, it's about access to

19

software. So you're allowed to circumvent in order

20

to -- the class of works is software.

21

The second is, the proposal is that the

22

class will only cover non-infringing uses. So, to

23

the extent that there's concern about infringement,

24

that's still covered not only by ordinary copyright

25

law, but also not subject to the proposed exemption.

26

9

MS. SALTMAN: So, in terms of -- well,

1

let me start with video game consoles. How is

2

expanding this exemption to video game consoles

3

different than an exemption for jailbreaking video

4

game consoles, which the Register has rejected

5

twice out of concern for piracy and infringing uses

6

that could follow from that.

7

MS. WALSH: So there are two components

8

here. There's repair, which we've been using

9

broadly for repair, diagnosis, maintenance of video

10

game consoles.

11

Then there's modification. So, in

12

regard to modification, it would include the

13

ability to jailbreak a video game console.

14

MS. SMITH: So since we have decisively

15

rejected that in multiple past rulemakings, why

16

should we reconsider that conclusion?

17

MS. WALSH: You look like you're

18

champing at the bit.

19

MR. WIENS: Well, I would encourage,

20

maybe, Robert could explain a little bit of the

21

situation on the ground. He runs a repair shop in

22

Barstow that fixes games consoles.

23

MR. MIRANDA: Robert Miranda. Some of

24

the -- so we are a general electronics repair

25

company. If this may help. So, let's say a

26

10

consumer brings in a, let's say, a PS4, for example.

1

And their drive isn't working where the disc

2

inserts. If we wanted to replace that drive, we

3

couldn't just pull out the drive and put a new part

4

in as if it was a car. You can change the tire.

5

You're good to go.

6

The new drive is software-locked to the

7

motherboard which that plugs into. And it causes

8

the device, the drive not to work at all.

9

So, essentially, what you have to do is

10

you have to replace all the internals, which has

11

the economical impact that the repair price is

12

three, four hundred dollars more than what the

13

device is even worth.

14

And it goes into other, you know,

15

e-waste problems. Multiple problems like that.

16

Essentially, not having that software lock between

17

the devices would allow us to properly serve the

18

community. Because there's no near service centers

19

anywhere. It takes four weeks for someone to even

20

get a device repaired if they had to send it out.

21

MS. SMITH: So you know they can send it

22

out and get it repaired by the video game

23

manufacturers?

24

MR. MIRANDA: Yeah. But it's not

25

necessarily repaired. It's a console swap. They

26

11

would get something different. They wouldn't get

1

their old console. They would lose a lot of saved

2

data, content. So by us providing this service,

3

we'd be able to reduce costs. We'd be able to

4

prevent a lot of e-waste. We'd be able to, even as

5

far as just having the consumer be able to fix it

6

the same day versus waiting a long time for something

7

simple.

8

MS. SALTMAN: And aren't those consoles

9

generally covered by warranties, just in terms of

10

the cost of repair?

11

MR. MIRANDA: So, some -- yeah, there's

12

a one-year manufacture warranty on these devices.

13

But there's a lot of consumers that we serve that

14

don't have warranty, and they don't have any other

15

option.

16

MS. SALTMAN: Mr. Williams?

17

MR. WILLIAMS: Thank you. Matt

18

Williams. I wouldn't say they don't have any other

19

option. I think we have submitted evidence, both

20

in the 2015 proceeding and in this proceeding, that

21

shows that the console manufacturers can do

22

repairs.

23

There are one-year warranties. And

24

then there are also extended warranties available

25

as well. And then the pricing may vary depending

26

12

on what type of repair needs to be done. I don't

1

think it's accurate to say that, in all instances

2

of repair, all the content on the console would be

3

lost. But I would need to speak directly to the

4

console manufacturers about that.

5

But I don't think there's anything in

6

the record to this point at all that speaks to the

7

situation on the ground being any different than

8

it was three years ago. So I don't think there's

9

any grounds for making a different decision here.

10

MS. SALTMAN: Mr. Zieminski?

11

MR. ZIEMINSKI: Yeah. Matthew

12

Zieminski. Our organization represents 2,000

13

technicians that are mobile that promise a service

14

that can come to you and do a repair in 60 minutes

15

or less.

16

And right now, with game consoles and

17

certain smart phone repairs, we cannot guarantee

18

that because there are software locks that tie

19

components to each other that arbitrarily make it

20

so that we cannot complete that repair.

21

And it maybe was not as big of a problem

22

three years ago as it is now. But I think that the

23

problem right now is that more and more consumers

24

have these devices in places that these

25

manufacturers don't have service facilities,

26

13

whereas our technicians are in places like Omaha

1

or Lincoln, Nebraska, we can do that repair in a

2

customer's home and get them set up that same day.

3

Otherwise, they have to ship it out.

4

MS. SALTMAN: Does the lock on that you

5

have to circumvent to repair like a physical piece,

6

like the disc port or whatever, by circumventing

7

that lock do you have access to creative content

8

as well, to the actual games?

9

MR. ZIEMINSKI: No. The only thing

10

when we do a repair that we are actually doing is

11

taking a new component that -- you know, taking the

12

old, broken component out, putting the new

13

component in. And maybe firing it up, turning it

14

on with the customer to verify that it works with

15

them.

16

MS. SMITH: What types of devices are

17

you repairing?

18

MR. ZIEMINSKI: As an organization, we

19

repair iPhones, Google Pixel devices, Samsung

20

devices. We're starting to do TV installations and

21

smart home appliances. And we've, you know, done

22

some odd jobs for game consoles as well.

23

MS. SMITH: And in what instances have

24

you, you know, needed to undergo to circumvent TPMs

25

or, you know, been prohibited because it would have

26

14

required circumventing a TPM?

1

MR. ZIEMINSKI: Sure. So, primarily we

2

do smartphone repairs. And there's--- on an

3

iPhone, for example, if you have a home button that

4

has touch ID, that is digitally paired with the logic

5

board.

6

It's very common, the way that these

7

phones were designed, that like on the iPhone 5S

8

for example, as soon as you open it up, you tear

9

that cable. It's very easy if you open it up too

10

far. Because we don't have access to certain things

11

that would make that repair viable, we essentially

12

cannot complete the repair if that cable is torn.

13

You've now lost that capability of having your touch

14

ID.

15

So what we have to do is either tell the

16

customer, hey, you have to get a new device from

17

the manufacturer, or we can replace it and you can

18

just restore functionality of your basic home

19

button.

20

This was an issue a couple of years ago

21

in the news where it actually ended up shutting down

22

devices entirely just for this lone reason. It was

23

a solvable reason, but it happened.

24

MS. SMITH: Do you have any other

25

examples?

26

15

MR. ZIEMINSKI: For us, specifically,

1

no, not immediately.

2

MS. SMITH: Thank you. Mr. Williams?

3

MR. WILLIAMS: Thank you. Matt

4

Williams. I think Mr. Zieminski referred to the

5

locks as arbitrary. And I think the record's been

6

established that, with video game consoles

7

specifically, they are not arbitrary, they are

8

integral to the overall design that's intended to

9

protect the copyrighted content that's accessible

10

through the consoles.

11

MS. SALTMAN: So, on that point, if an

12

access control to repair some physical component

13

of the console were circumvented, are you saying

14

that could allow for access to creative content?

15

MR. WILLIAMS: Yes. My understanding

16

is that most of the repairs that have been talked

17

about would result in a jailbroken console.

18

MS. SALTMAN: And so then like a

19

subsequent user, like not the repair person, but

20

the user when they get the device back, would then

21

have sort of like enhanced access to the creative

22

content. Is that what you're saying?

23

MR. WILLIAMS: Yes. They could play

24

unauthenticated copies of games. So, pirate copies

25

of games.

26

16

MS. SALTMAN: Okay. Thank you. I

1

didn't mean to cut you off if you had more.

2

MR. WILLIAMS: No. No, that was the

3

main point that I wanted to make. Some of these

4

other devices that are coming up kind of for the

5

first time really in the record, it's hard to respond

6

to whether each type of device would involve the

7

same type of problems that I'm describing.

8

But I don't think that there's anything

9

in the written record that establishes that really

10

any kind of device can't be repaired through the

11

same types of channels that video game consoles can

12

be repaired.

13

And I think that when you are talking

14

about devices that are designed to access

15

expressive works, that the countervailing interest

16

of preventing the unauthorized access outweighs the

17

need to get to independent repair.

18

If you're dealing with motor vehicles,

19

you've decided that's not the case. If you set

20

aside entertainment systems, and maybe there's some

21

other device that is more in that line that's not

22

designed to access expressive material, but I don't

23

think I've even seen an example like that in the

24

record anywhere.

25

MS. SALTMAN: Mr. Wiens, if you have any

26

17

examples of what Mr. Williams was just describing?

1

MR. WIENS: Sure. Yeah. Kyle Wiens.

2

I'd love to -- okay, we want to give the customer

3

the device back in the exact state that they give

4

it to us, which means the device absolutely should

5

not be jailbroken, it should be locked down. There

6

shouldn't be any additional ability to pirate

7

content.

8

The goal is not to expand the

9

functionality of the device in any way. The goal

10

is to -- I have a physical optical drive that's

11

broken. That's one of the most common things that

12

fails. It's mechanical. It spins around. It's

13

got a laser. It fails. We want to be able to

14

replace that drive for people. Or repair the drive

15

in place.

16

MS. CHAUVET: Well, would it be

17

reasonable then to have a limitation in the

18

exemption to that? Like basically having it be

19

returned to the state that it was in before the

20

repair was attempted to be made?

21

MR. WIENS: I believe EFF's language is

22

in that vein, yes.

23

MS. WALSH: Well, I'd also stress the

24

importance of modification. So, that includes many

25

of the examples that we put into the record about

26

18

you need to modify to use competitive light bulbs,

1

to use competitive cat litter, printer cartridges,

2

et cetera. That sort of consumables market is one

3

where modification is necessary in order to get the

4

value out of the thing that you paid for and prevent

5

unfair monopolies from being the result of leverage

6

of DRM.

7

I see a question. There are other

8

examples of enhanced functionality of drones and

9

radios and other devices that we put in.

10

MS. SALTMAN: And just on the first

11

point, relating to Ms. Chauvet's question, do you

12

think the definition of repair in section 117(d)

13

is consistent with what you're seeking with respect

14

to repair? I understand it doesn't include

15

modification.

16

MS. WALSH: So, section 117(d) sort of

17

breaks-out the concepts of maintenance and repair.

18

And the concept of repair that we're all talking

19

about includes maintenance. It also includes a

20

diagnosis component.

21

And it should be clear. I think under

22

that definition it's clear. But it should be clear

23

that if you're repairing a bug or a vulnerability

24

or something in the original device, that that's

25

repaired, even if it's not authorized by the

26

19

manufacturer.

1

MR. WIENS: I'd also note that this

2

really comes down to the design of the device. We

3

don't want repair of these devices to have to impinge

4

on the copy protection mechanism.

5

It just so happens that the way that a

6

couple of manufacturers decided to design their

7

product meant that the component that was most

8

likely to fail cannot be replaced without also

9

replacing the most expensive part of the console.

10

And that was an explicit design decision

11

that absolutely did not need to happen. It should

12

be very possible to swap out the optical drive

13

without compromising the authentication function.

14

MS. SMITH: What do you say to what Mr.

15

Williams just said, which is that 1201 exists in

16

part to encourage copyright owners to disseminate

17

their works digitally? They've designed the lock

18

in this way because I guess they've determined this

19

is what they need to do in order to incentivize them

20

making this available in the first place.

21

MR. WIENS: If you think about every

22

person that has a failed console and has to go out

23

and spend four hundred dollars on a new console,

24

that's four hundred dollars that they aren't

25

spending on games.

26

20

MS. SMITH: But I think we just

1

established that it could be repaired under

2

warranty, right? Is that not --

3

MR. WIENS: I mean, these consoles --

4

and this is credit to the manufacturers. I have an

5

Xbox. I've had it for four years. The warranty

6

only covered the first 25 percent of the time that

7

I've had it.

8

So, the warranty -- usually these

9

failures, particularly the optical drive, it's a

10

wear component. It's a mechanical component.

11

They don't generally fail within the first 12

12

months. They fail two, three, four years out.

13

MS. SMITH: Mr. Williams, did you want

14

to respond?

15

MR. WILLIAMS: Thank you. I credit

16

that Mr. Wiens doesn't necessarily want to enable

17

any kind of infringement through engaging in the

18

repair. But I don't think there's anything in the

19

record to show that the consoles have been designed

20

in the way that they are for any reason other than

21

copyright protection and, you know, basic

22

functionality of the consoles.

23

I don't think I've heard yet an

24

affirmative representation that they can repair the

25

consoles in all instances and put the copyright

26

21

protection scheme back in place to avoid returning

1

a jailbroken console.

2

We did say in our comments that it would

3

be far preferable if a repair exemption included

4

the 117 language that requires you to get back to

5

the original functionality.

6

Of course, this proposal goes way beyond

7

that and goes even to modification and to

8

jailbreaking. But, even if that was included in a

9

repair exemption, I would have a lot of concern.

10

And I know it's a separate bucket today, but when

11

you get into the repair shop scenario, not everyone

12

might be as well intentioned as Mr. Wiens.

13

And if you've got all these repair shops

14

that are supposedly returning consoles back to

15

their original functionality, trying to go out and

16

police all of that would be very, very difficult.

17

And I think it would be prone to a lot of abuse.

18

MS. SMITH: So if there were an

19

exemption which was crafted around repair and

20

maintenance in 117(d) more tightly, and not

21

extending to third parties -- and now understand

22

we're going to talk about other things after this.

23

But what is the concern from the point of view of

24

your clients in terms of the statutory factors?

25

MR. WILLIAMS: Sure. So, number one,

26

22

I'm not very confident that they can actually

1

restore the copyright protection system that's on

2

the consoles.

3

MS. SMITH: Maybe they can't. Maybe

4

they can't make use of the exemption. But 117(d)

5

says this is a non-infringing use if you can restore

6

functionality.

7

MR. WILLIAMS: Well, 117(d) says that's

8

a non-infringing use if you're an owner of the

9

software. In this instance that would not be the

10

case.

11

I understand that sometimes you've gone

12

beyond that when you've determined that in specific

13

instances the record justified it. But our

14

position would be that 117 would not cover this

15

activity because it's limited to owners of copies

16

of software.

17

Setting that to the side, in the past,

18

when you've looked at this issue, because of the

19

potential harms involved, you've said that the

20

activity involved with copying of the software is

21

a different analysis under the fair use factors and

22

under the 1201 factors. The potential harm that

23

could be caused is much greater.

24

So, I just think they're a very

25

different category of devices. I don't think

26

23

there's anything in the record to establish that

1

they can restore these devices to their

2

functionality. I think a lot of what we're hearing

3

today we're hearing for the first time.

4

And if you're going to kind of go back

5

on some of what you've decided in the past in this

6

space, which is a very sensitive space, I feel like

7

there should have been a much bigger record built

8

and a much stronger attempt to prove up what they're

9

now testifying to.

10

MS. SALTMAN: Ms. Walsh, could you

11

speak to that? Because, you know, the record is

12

pretty thin on the different types of devices

13

mentioned in your comment. And the sort of fair use

14

and statutory factor analysis is done sort of

15

wholesale, not device specific. And I think that

16

the -- could you speak to Mr. Williams' concern?

17

And also how the Office could --- would have the

18

authority to craft a broad exemption that includes,

19

for example, both devices that do have access to

20

creative content and devices that don't.

21

MS. WALSH: Sure. So, this is an area

22

that's been subject to your prior rulemaking with

23

regard to cars, subject to an extensive study by

24

the Office that found that Congress should consider

25

getting 1201 out of the way of repair activities.

26

24

We have a record that stretches back in that regard.

1

And we introduced a variety of devices, you know,

2

of different types, different uses that illustrate

3

that this is not an issue that's restricted to any

4

particular technology.

5

We have an opposition that says, well,

6

we're concerned that this isn't appropriate for

7

video game consoles or devices where there's a risk

8

of copyright infringement. There's nothing in the

9

record that proves that there's a risk of copyright

10

infringement. So the idea that the record is thin

11

--

12

MS. SMITH: Are you talking outside of

13

Video game consoles? Or --

14

MS. WALSH: Mm-hmm. Right. In this

15

class.

16

MS. SMITH: Okay. So, those video game

17

consoles, put the consoles to the side.

18

MS. WALSH: Yep. So, we have devices

19

from across the spectrum where we have examples of

20

non-infringing uses. And we have a sort of narrow

21

opposition. And I think the approach of -- you

22

know, we think the entire exemption is warranted,

23

that it's been demonstrated that there are likely

24

to be adverse effects on these non-infringing uses

25

over the next three years.

26

25

And to the extent that there's a desire

1

to carve out a video game console or devices that

2

are primarily about the playback of audiovisual

3

works or sound recordings, that's something that

4

we can talk about how to scope that so that it's

5

limited.

6

But we're talking about balancing the

7

right to make these non-infringing repairs and

8

modifications that are in the record that are being

9

described further here, against an unproven

10

assertion that copyright infringement is going to

11

result for a narrow category of those devices.

12

MS. SMITH: Well, I would like to

13

discuss how to scope it so it's limited. Because

14

this is something we asked questions about in the

15

study and didn't get a tremendous amount of

16

feedback. We also asked questions in the NPRM.

17

For example, the study asked about language that

18

the United Kingdom has for its own

19

anti-circumvention law, which is, I think, somewhat

20

similar to what the MPAA has suggested. I mean, can

21

you build upon that now?

22

MS. WALSH: Come back to me. Give me a

23

moment.

24

MS. SMITH: All right. Mr. Williams?

25

MR. WILLIAMS: Yeah. Thank you. I

26

don't think the record has established, especially

1

with respect to modification, that there's a lot

2

of non-infringing uses at issue here.

3

We talked some in Washington about, you

4

know, wanting to modify a robotic dog. That's not

5

a non-infringing use. Just because you wish that

6

the copyright owner designed something differently

7

doesn't give you the right to start redesigning it.

8

So, I don't think, especially with

9

modification, that there's a lot of examples of

10

non-infringing uses that are being impeded.

11

You know, I'm thankful to hear that

12

they're open to carving out expressive works. I

13

think that drafting is going to be very, very

14

difficult to do. And I do think it's their burden

15

to try to come up with a way to do it that doesn't

16

put expressive works at risk. And I'm happy to

17

engage in that exercise.

18

I do want to say, hopefully we can set

19

video games to the side. But I want to say it's a

20

little surprising how much time we spent talking

21

about this, because I think the only example

22

involving a video game console is jailbreaking it

23

to run Linux on it. And that's just --- that's been

24

dealt with previously. And so there's not anything

25

about repairing consoles.

26

27

MS. SMITH: So, I appreciate that we're

1

focusing on consoles because it was an item that

2

the proponents set out. But if we set aside the

3

consoles, are the concerns you articulated, I

4

think, in response to the last question you were

5

called upon about the record, are they there in these

6

instances of, you know, consumer devices that might

7

not in turn play a video game or music or audiovisual

8

work? Or do you think that they're lessened in

9

terms of the infringement risk or concerns you

10

raised before?

11

MR. WILLIAMS: I mean, in terms of our

12

interest, yes, I think they're lessened. I think,

13

in some ways, EFF raised a good point by saying that

14

there are devices that do more than just that, but

15

that also do that, also access expressive works.

16

And that when you're talking about modification

17

especially, but also repair, you could put works

18

at issue even if you're talking about a laptop, for

19

example.

20

And I don't think there's any

21

explanation in the record as to why you have to

22

engage in circumvention to repair a laptop, why you

23

can't go through the normal channels to repair.

24

There's just an off reference to wishing to repair

25

a personal computer. And so there's really no

26

28

record.

1

And so, you know, part of our

2

participation every three years, while we are

3

focused on, of course, trying to preserve our

4

interests, is also to make sure we preserve the

5

procedural kind of rules of the road here. Because

6

once you do something in one area out of the desire

7

to try to address a concern that's been raised, if

8

you do that even though the record's not been built,

9

that precedent gets set. And over time, the

10

exceptions start to swallow the rule and the

11

procedures don't have real meaning.

12

And so I do have that concern, that I

13

don't feel the record's been built, even if you are

14

going to exclude things that get to expressive

15

materials. But that would greatly lessen our

16

concern if you figured out a good way to do that.

17

MS. SMITH: Mr. Wiens, do you want to

18

speak about that? And perhaps Mr. Williams'

19

questioning of personal computers specifically

20

and, I guess, his sense of the record has not been

21

built.

22

MR. WIENS: Sure. I mean, we're

23

looking at electronics moving into every possible

24

product. And the ability to build a record across

25

every single product that's out there being

26

29

repaired --

1

MS. SMITH: Well, but there's a

2

difference, right, between building a record across

3

every single product and building a record across

4

a large amount of products. And the written

5

submissions here were, honestly, quite short.

6

MR. WIENS: Sure. And I can -- I mean,

7

I'm happy to share like the -- I was just looking

8

at our Xbox 360 "red ring of death" repair. And

9

we've had over a million people follow our

10

instructions to repair that console. And there's

11

a huge amount of interest out there in the public.

12

The challenge is that, frankly, the

13

repair world are not also IP lawyers. And there's

14

a very narrow bench to draw on of repair shops that

15

can afford to -- I mean, Robert doesn't have a

16

lawyer. Right? He's a small shop that's employing

17

-- you've got three people that work for you? Five?

18

So he's up to five employees in Barstow.

19

But, I mean, the repair industry is oftentimes

20

holding on by our fingertips.

21

MS. SMITH: And we appreciate you all

22

being here. So, since we do have the benefit of your

23

presence, can you give us some specific examples?

24

MR. WIENS: Around game consoles? Or

25

around other products?

26

30

MS. SMITH: Outside of consoles.

1

MR. WIENS: Sure. That have TPMs,

2

you're looking for?

3

MS. SMITH: Mm-hmm.

4

MR. WIENS: Yeah. We're increasingly

5

seeing, as you start seeing security threats, there

6

was a casino that was hacked through a temperature

7

sensor in a fish tank in the lobby.

8

And so every single product, as

9

electronics is added to it, it also is having some

10

kind of security mechanism that's added to it. It

11

turns out it's not sufficient to add WiFi to your

12

fish tank monitor. Now you also need to add

13

security to it.

14

And so you're going to see, across every

15

product, some elements of security being added to

16

it. LG, since the beginning of 2017, hasn't sold

17

any appliances that aren't WiFi connected. And in

18

LG's opposition they filed on the right to repair

19

bill, they've said that they don't want people

20

modifying and tinkering with or repairing their

21

appliances because of the security implications.

22

So that shows that we're starting to see

23

TPMs being added across every kind of product. Not

24

necessarily to prevent repair, but to secure the

25

product. But the side effect is that it really starts

26

31

to limit repair.

1

MS. SALTMAN: But for a lot of those

2

products, like LG home appliances, I mean, those

3

are generally covered by warranties and are --

4

there's not necessarily a need for circumvention

5

outside of those channels.

6

MR. WIENS: So your typical warranty is

7

12 months. The anticipated life span of an

8

appliance would be in the ten-year range.

9

A recent study by WRAP, a waste

10

reduction agency, found that 70 percent of

11

consumers were dissatisfied with the life span of

12

their appliances.

13

If you take game consoles for an

14

example, they've manufactured hundreds of millions

15

of game consoles. If everyone is five, ten pounds,

16

you're talking about literally over a billion

17

pounds of e-waste is being generated.

18

This is massive amounts of raw material.

19

A warranty is nice. It's a nice idea. But,

20

overwhelmingly, products don't break within the

21

first 12 months. They break after that. And

22

that's where you need the repair ecosystem.

23

Whether that's owners or -- you know, the

24

manufacturers have a great repair mechanism, but

25

it's insufficient. It's always going to be

26

32

insufficient.

1

The car manufacturers know that they can

2

only perform about a quarter of the repairs that

3

happen on cars themselves. The rest is performed

4

by the independent repair industry.

5

MR. RILEY: So, why is it insufficient?

6

Is it price? Is it something else?

7

MR. WIENS: Why is the warranty

8

insufficient?

9

MR. RILEY: No. Why is LG's repair

10

service insufficient?

11

MR. WIENS: Sure. Yeah, so let's talk

12

about Apple's battery situation. So, Apple was

13

slowing down phones with older batteries. People

14

realized all of a sudden that your battery needs

15

to be replaced.

16

Apple has manufactured around a billion

17

iPhones. Of those billion iPhones, most of them are

18

more than two years old and need a new battery.

19

Apple has five --

20

MS. CHAUVET: But you don't need to

21

circumvent to replace a battery. Or do you?

22

MR. WIENS: At the moment, no. But it's

23

very possible that could -- well, actually --

24

actually, yes. So, Apple rolled out a new software

25

tool that lets you monitor the battery's health.

26

33

Only Apple's genuine batteries will report battery

1

health to the software. So we're going to have to

2

find some way -- and there may be a TPM. We don't

3

know. But it's very possible that --

4

MS. SMITH: That sounds a little

5

speculative. There may be a TPM, but you don't

6

know, and you can replace the battery without

7

circumvention. I mean, can you come up with a

8

concrete example of where you need to circumvent

9

for repair?

10

MR. WIENS: Sure. Well, the home

11

button situation. So, right now you have two iPhone

12

8s. You cannot swap the home buttons on the iPhone

13

8s without circumventing the TPM. And it's not the

14

same TPM as jailbreaking the phone. It's a

15

different one.

16

MS. SALTMAN: Mr. Zieminski, did you

17

want to speak to cell phone?

18

MR. ZIEMINSKI: Yeah. I just wanted to

19

comment that, you know, when we're doing these types

20

of swaps with the home button or an optical drive,

21

we're not even taking another, you know, a non-Sony

22

or a non-Samsung or a non-Apple part.

23

We may in fact take from what we call a donor device,

24

right, that's already broken for another reason and

25

inoperable and we're just trying to transfer it over

26

34

to make a salvage, workable device, for a variety

1

of reasons.

2

And what we find is that even using an

3

OEM -- original equipment manufacturer -- part, it

4

does not work. And that, you know, kind of causes

5

major issues. So, even when we try to use original

6

parts, we still find these roadblocks to performing

7

successful repair for the consumer.

8

And then, further, the second point

9

would just be that a lot of times these services

10

are not even acknowledged, to a certain point.

11

So, with Apple and the home button, the

12

error 53 issue, this was ignored, for, I believe,

13

two years. It took, you know, Kyle writing a blog

14

post. And then, a year later, it took, you know,

15

a news outlet picking it up before, even a year after

16

that when class action lawsuits were filed, that

17

Apple said, "okay, this is an actual issue and we'll

18

start to do service from our centers for this issue."

19

MS. SMITH: Do you ever reach out to

20

Apple or Sony or any of these manufacturers and get

21

permission for repair? Or do you understand that

22

it's prohibited? Is it -- what's the relationship

23

there like?

24

MR. ZIEMINSKI: Yeah. We do. I mean,

25

we try. Obviously, we always try to work with them

26

35

rather than against them or alongside them.

1

And in most cases --

2

MS. SMITH: Did you typically have

3

success?

4

MR. ZIEMINSKI: What's that?

5

MS. SMITH: Is there typically success?

6

MR. ZIEMINSKI: Off and on. It depends

7

on the manufacturer. So, our organization, for

8

example, we work very closely with Google to do Pixel

9

repairs, right? And as a result, we're able to do

10

more repairs locally -- or regionally for the Google

11

Pixel customers.

12

MS. SALTMAN: Mr. Williams?

13

MR. WILLIAMS: Just very quickly. I

14

wanted to note again that there are extended

15

warranty options as well. So it's not always a

16

12-month warranty. I think Microsoft, I think they

17

call it the complete warranty. I think it's three

18

years. And includes things like if you spill a

19

drink on your console and it breaks. Things like

20

that. So, I just wanted to say it's not always 12

21

months.

22

MS. SALTMAN: Ms. Walsh, could you also

23

address, in your submission you argued that you

24

didn't think 1201(f) was sufficient covered for the

25

kind of modification that you're looking to do.

26

36

Could you expound on that argument a

1

little bit? And explain why you think 1201(f)

2

doesn't cover the kinds of modifications that

3

you're seeing here.

4

MS. WALSH: Sure. So, first of all, I

5

want to talk about why a modification generally can

6

be expected to be a fair use in this context, the

7

context that we've been talking about.

8

MS. SMITH: That would be helpful.

9

MS. WALSH: And one reason is that this

10

is modification of the functionality of software

11

in order to achieve new functional things. It's

12

transformative. It's not using any expressive

13

copyrightable elements of the software in an

14

expressive -- MS. SMITH: How are we

15

to know that? I mean, that seems like a broad

16

assertion, that it's not using the software. Or it

17

seems like you're --

18

MS. WALSH: No, no. It's --

19

MS. SMITH: -- talking about creating a

20

derivative work.

21

MS. WALSH: Right. Well, what we're

22

talking about -- all of these uses that we're talking

23

about, we're doing the fair use analysis on a

24

potential derivative work.

25

MS. SMITH: Right.

26

37

MS. WALSH: And so, in the sense that it

1

is an alteration of the copyrighted work, then the

2

copyrighted work is involved.

3

MS. SMITH: Right.

4

MS. WALSH: But these are copyrighted

5

works that are primarily functional. So, both

6

under the second factor, we're talking about things

7

with a thin copyright whose significance is

8

functional, that's no something you can get a

9

monopoly on under copyright law.

10

The transformations that we're talking

11

about are about adding new functionality or even

12

new expression in the example of, you want the iVo

13

to say the things that you want it to say, instead

14

of the things that it's originally programed to say.

15

That's not -- that's a transformative use. And it's

16

even more clear when we're talking about, you know,

17

light bulbs and other devices, where it's entirely

18

about the functionality.

19

MS. SALTMAN: But it seems like the

20

fourth factor is really sort of the most -- well,

21

I mean, you know, generally it's the most probative

22

one. And here there isn't, in your submissions, an

23

analysis of the fourth factor with respect to these

24

different types of devices.

25

MS. WALSH: So the fourth factor is

26

38

often in favor of a fair use in this case because

1

you have software that's tied to a particular

2

device. You can't upload just the firmware that

3

runs the device and get the benefit of owning that

4

device. There's a physical product that it's tied

5

to.

6

So it's very unlikely that there's going

7

to be market substitution as a result of these works

8

where the work's utility and market value is

9

connected to a physical device.

10

MR. WIENS: Right. There's nobody out

11

there selling this firmware. We were talking about

12

the cellular unlocking, and no one -- you're not

13

seeing Broadcom concerned about piracy of the

14

software that runs on their chips. So the

15

commerciality of the firmware is purely tied to the

16

functionality of the physical device.

17

MS. SMITH: Mr. Williams, did you want

18

to --

19

MR. WILLIAMS: Yeah. Thank you. Matt

20

Williams. I just disagree with the fair use

21

analysis that Ms. Walsh presented. And I think,

22

number one, it's impossible to do it as one big

23

analysis that covers all modifications of all

24

devices that include software. But even setting

25

that to the side --

26

39

MS. SALTMAN: Well, can you tease that

1

out a little bit?

2

MR. WILLIAMS: Sure.

3

MS. SALTMAN: So, why is it impossible

4

to do it sort of in like a broad fair use analysis?

5

MR. WILLIAMS: Well, sure. So, okay,

6

there's a few reasons. First, as you've

7

acknowledged in previous rulemakings, game

8

consoles, for example, it's a different analysis

9

because of what's involved with modifying that

10

software.

11

The modifications in that instance not

12

only alter the firmware, but also decrease its value

13

because it no longer can protect the copyrighted

14

works that it was designed to protect. And that

15

changed the way you viewed those types of

16

modifications under the fourth factor, because the

17

firmware value was harmed. In each device, things

18

like that can come up.

19

The second part of it is, what is the

20

modification you're trying to accomplish? I

21

mentioned the robotic dogs. I don't think that that

22

is a non-infringing use. I think that that is the

23

ways that someone might modify a robotic dog are

24

ways that the copyright owner might choose to market

25

new versions of that dog in the future. And when

26

40

you do that you avoid paying the customary price

1

for that potential modification that's going to

2

come out in the future.

3

So, I think that it's very hard to just

4

say blanket, across the board -- and this is what

5

the 1201 study concluded as well -- all

6

modifications are fair use.

7

And if you look at the Oracle opinion

8

and the way that they analyzed the previous

9

interoperability cases there, I mean, they say that

10

even in those previous cases which involved the

11

creation of entirely new works that didn't include

12

any of the expressive elements of the preexisting

13

software, that that was only a moderately

14

transformative activity.

15

And, here, I think what's being

16

described, in every instance, would not be the

17

creation of entirely new work, that they're not just

18

wanting to analyze the preexisting software and

19

build an interoperable add-on to it. They're

20

wanting to actually modify the existing software

21

and create a derivative work, as you said.

22

And to make a blanket conclusion about

23

that, in the abstract, I just don't think is

24

possible.

25

MS. SMITH: Ms. Walsh?

26

41

MS. WALSH: Yeah. So, it's not

1

abstract. There are a lot of examples that we've

2

given to which the analysis applies. And the

3

objections that we're hearing are, well, maybe it

4

doesn't apply to video games and dogs. But we've

5

demonstrated that it's likely that there are going

6

to be adverse effects on non-infringing uses over

7

the next three years.

8

And by creating an exemption that

9

authorizes those uses, the non-infringing

10

modifications for these devices, then you're doing

11

your -- you're fulfilling the statutory mandate of

12

creating space for these non-infringing activities

13

to take place.

14

So the analysis that we've given, there

15

aren't a lot of objections to applying that to the

16

examples that are in the record.

17

Also, Oracle v. Google was wrongly

18

decided. It's not the law anywhere. If we go by

19

what the Federal Circuit says, then 1201 requires

20

an access to infringement. It doesn't get the

21

analysis of the factors right in terms of

22

transformativeness or the nature of the work.

23

MS. SMITH: Would you say the most

24

helpful case law to your position is Sega v. Accolade

25

and the Sony v. Connectix case?

26

42

MS. WALSH: Mm-hmm.

1

MS. SMITH: Are there other cases you

2

would point to?

3

MS. WALSH: We refer you to our record.

4

MS. SMITH: Okay. That's what I saw in

5

there. Okay.

6

MS. SALTMAN: And can you address the

7

1201(f) question I asked earlier?

8

MS. WALSH: Yeah. Absolutely. So

9

1201(f) has, to my knowledge, never been

10

successfully raised as a defense to anything

11

because of limitations that are sort of well-known

12

to the Copyright Office and have been briefed over

13

and over.

14

In particular, a very significant

15

limitation is that it's about making one piece of

16

software interoperable with another piece of

17

software. And we've been talking a lot about

18

hardware interoperability. That's the closest

19

sort of case to 1201(f). And it likely -- you know,

20

a rightsholder would argue it gets knocked out

21

because it's not just about software and software.

22

So 1201(f) --

23

MS. SMITH: Can you cover the Gimbal

24

example or the radio example from your submissions?

25

MS. WALSH: Mm-hmm. So, the --- both of

26

43

the -- the Gimbal example involves additional

1

hardware.

2

MS. SMITH: If it also involves

3

software, it might cover it, right?

4

MS. WALSH: Yeah, I think there's

5

sufficient legal uncertainty, given this defense

6

that's never been successfully applied, that people

7

are chilled from engaging in these activities and

8

relying on that exemption, as we've seen repeatedly

9

for other exemptions over the rulemakings.

10

MS. SMITH: Do you have more

11

information on what the circumvention activities

12

-- I kind of want to walk through a lot of the

13

examples, but the radio and the Gimbal examples to

14

start with.

15

MS. WALSH: Yeah. So, we provided

16

links to the descriptions that the technologists

17

gave of their process, as well as a short summary.

18

So, which example would you like to start with?

19

MS. SMITH: I just want to start with the

20

winch.

21

MS. WALSH: The Cat?

22

MS. SMITH: Yes. The Cat.

23

MS. WALSH: The Cat tractor. So this is

24

--

25

MS. SMITH: Because I didn't find the

26

44

explanation in the video of what the circumvention

1

activity was. I thought maybe you could talk about

2

that.

3

MS. WALSH: Okay. So, the step, the

4

user had to brute force the encryption on a file

5

from the firmware's RAM and decrypt the firmware

6

blocks in order to achieve control over the Gimbal

7

and reprogram the motors for any uses. So the

8

description step would be the step where a TPM was

9

most likely to be involved.

10

MS. SMITH: And what are the TPMs on the

11

consumable examples that you gave?

12

MS. WALSH: So, let's see. So, we

13

referred to ink, coffee, juice, a cat litter box,

14

cleaning fluid.

15

I understand also that, since this has

16

happened, there have been consumables for use with

17

artificial pancreases. So, actually a medical

18

device use where there is a technological

19

restriction on making third party life-sustaining

20

medicine work with the device that you've been

21

given.

22

MR. WIENS: The cat litter DRM, I mean

23

you can just use soapy water to refill your cat

24

litter. But the DRM was -- I mean, it was very

25

similar to what you see on the ink cartridge. It

26

45

was just a little -- it was just a little chip in

1

the replacement.

2

MS. SMITH: Okay. So the Lexmark case

3

concluded maybe that the TPM wasn't effectively

4

protecting the copyrighted work. So that's part of

5

why I'm asking this line of questions.

6

MS. WALSH: So, yeah --

7

MS. SMITH: Yeah, I mean, does it work

8

like the Lexmark printer cartridges? Does it work

9

differently?

10

MS. WALSH: So I think for all of these

11

I would have to -- so you're saying that you took

12

a look at the cited references and they didn't

13

provide an answer to that information?

14

MS. SMITH: I'm just trying to

15

understand more. Yeah.

16

MS. WALSH: Okay. So, for an ink

17

cartridge, Lexmark is one example of how it worked.

18

And that was contingent on the way that they had

19

designed it then. So the company could decide that

20

they're going to design it to include, you know,

21

a poem in the chip as well, or something that is

22

more, arguably, copyrightable. And create -- to

23

add section 1201 as a legal barrier.

24

One of the obstacles is, you don't know

25

what's in there until you bypass the TPM. So, from

26

46

the perspective of a user who wants to make their

1

cat litter box work, they can't know beforehand if

2

bypassing that TPM is going to lead to a section

3

1201 claim.

4

MR. WIENS: I pulled up the source code

5

for the cat litter hack just to see. And it looks

6

like there's an RFID chip on the cat litter module.

7

And so I guess you could have probably cut out the

8

RFID chip and put it on his new cartridge, but

9

instead what he did was create a custom firmware.

10

So he took the existing firmware, decompiled it,

11

made modifications, and removed the chip. And then

12

loaded it onto the cat litter robot.

13

So, it's almost more in the category of

14

modification than repair, I would say.

15

MS. SALTMAN: Ms. Walsh, just to

16

clarify, your initial submission limited

17

modification -- so, not repair, modification -- to

18

device owners. Is that your position, that that the

19

class of people who are exempted for modification

20

are the owners of the devices?

21

MS. WALSH: Well, I think it would be

22

appropriate to use language like "users of the

23

copyrighted work."

24

The third party issue has surfaced in

25

the rulemaking. So, for the same reasons, it's not

26

47

necessarily just the device owner who would

1

legitimately be making these modifications.

2

MS. SMITH: So, the current exemption

3

was adopted, in part, upon a finding that 117 might

4

provide a basis for non-infringing uses. And that

5

would go away if it changed to user from owners,

6

correct?

7

MS. WALSH: Section 117 requires that

8

someone be the owner of the copyrighted work, but

9

I believe that they can authorize someone else to

10

do it. Is that -- let me double check that.

11

MS. SMITH: Yeah, you can make or

12

authorize the making.

13

MS. WALSH: Yeah. So that would be my

14

answer to that. But I would also say that the fair

15

use analysis for activities that are aligned with

16

section 117 is bolstered by the presence of section

17

117, even if you are not the owner of the copyrighted

18

work.

19

And I'd also say that there isn't

20

evidence in the record for most of the devices that

21

we're talking about to counter the presumption that

22

the person who purchased the device is the owner

23

of that copy, of the copyrighted work.

24

MS. SMITH: Would you find that the

25

authorization of the owner of the device might be

26

48

an important consideration in the analysis of

1

whether these activities are likely to be

2

non-infringing?

3

MS. WALSH: Can you give an example?

4

MS. SMITH: Well, as opposed to just the

5

user. The authorization of an owner is language

6

that's in 117. So, I'm wondering whether that would

7

be --

8

MS. WALSH: Oh, I see. It provides an

9

additional basis for finding that it's

10

non-infringing. But it's also non-infringing as a

11

fair use.

12

MS. SMITH: Mr. Williams, did you want

13

to respond?

14

MR. WILLIAMS: Yeah, I just wanted to

15

respond. Ms. Walsh said there's a presumption that

16

everyone owns the copies of the software unless

17

somehow in the record it's been proven otherwise.

18

And I don't know that there's any basis

19

for such a presumption. I think the proponents have

20

the burden of establishing that the consumers do

21

own this software. And I don't think they've even

22

tried to do that.

23

MS. WALSH: When you buy a device,

24

unless there's some documentation that alters your

25

legal status with regard to that device, then you're

26

49

the owner of that copy of the software that's in

1

the device.

2

MR. WILLIAMS: This is Matt Williams.

3

There's a multi-factor analysis depending on which

4

court you look at. But in all instances that we've

5

seen in the rulemaking, there are terms of service

6

associated with acquisition of copies of software.

7

Sometimes people are the owners of them

8

and sometimes they are not. But I don't think the

9

burden shifts in this rulemaking to us under some

10

kind of presumption that if we don't establish lack

11

of ownership that they have successfully

12

established ownership. I don't think they've

13

introduced any of the terms of purchase or terms

14

of use for any of the software in the record.

15

MS. WALSH: So it's absolutely not the

16

case that all the examples of purchased products

17

that have been subject to rulemaking come with the

18

terms of service.

19

I don't know if that's what you intended

20

to say, but that's not the case.

21

And the multi-factor analysis that Mr.

22

Williams invoked comes after there's some document

23

that purports to restrict the rights of the user.

24

It's also not an issue that needs to be

25

deeply probed in the sense that fair use provides

26

50

a basis for finding these activities non-infringing

1

without resort to section 117.

2

But section 117 bolsters that.

3

MS. SMITH: Mr. Williams?

4

MR. WILLIAMS: Yeah. Thank you. I

5

understand that in certain instances the Copyright

6

Office has concluded that it's going to go outside

7

the boundaries of section 117.

8

But I think to just completely discard

9

it and pretend that it's not there, would be an

10

improper way to proceed in this proceeding.

11

Just because in some specific instances

12

it might be non-infringing under fair use to copy

13

or modify software, doesn't mean that in every

14

instance it should be.

15

And to just say that it never matters

16

whether you own the copy, would really be to ignore

17

section 117. I don't think that that would be a

18

proper way to proceed.

19

MS. SMITH: Do you think whether you're

20

the owner of a device is relevant to the first factor

21

or other factors in 107?

22

I think that was something we considered

23

with the current exemption for motor vehicles.

24

MR. WILLIAMS: So whether you own the

25

device, does that impact the nature of the use? I

26

51

think it could.

1

I think it might depend on what activity

2

you're talking about. I think for example, if you

3

clearly weren't the owner of a device and you went

4

into someone else's computer system and started

5

playing around with it that that could negatively

6

impact you under the first factor.

7

MS. SMITH: Even if you had

8

authorization?

9

MR. WILLIAMS: Well, if you had

10

authorization by the owner of a device, then under

11

117, if they own the software as well, then you would

12

be -- you would potentially be covered if you met

13

all the other requirements of 117.

14

Under section 107 I again, think it

15

would depend on the activity. And I think to say

16

that in every instance, if the activity is repair,

17

it is therefore fair use, would again read section

18

117 out of the statute.

19

MS. SALTMAN: Mr. Wiens, I know your

20

placard was up. But I want to hear Ms. Walsh's

21

response to that.

22

MS. WALSH: Sure. So, I'd add that

23

under the appropriate analysis of section 117, even

24

if there is a EULA in place, the person who owns

25

the device is typically also the owner of that copy

26

52

of the software.

1

So, under Krause, you look at indicia

2

like are they free to dispose of it, et cetera. And

3

that is generally, you know, I don't think there's

4

a counter example in the record of the way that users

5

are -- exercise the indicia of ownership over that

6

physical copy and ought to be considered for

7

purposes of their 117 rights to be owners.

8

MS. SMITH: I think Mr. Williams must

9

have questioned it in the context of video game

10

consoles. And also just in general trying to

11

understand the devices.

12

Do you see any merit to this position?

13

MS. WALSH: I'm sorry, what's the

14

question?

15

MS. SMITH: What about video game

16

consoles? Is that right, Mr. Williams? Did you

17

question whether the owner of a video game console

18

owns the software in that console?

19

MR. WILLIAMS: Yes. My understanding

20

is that those are licensed copies of software.

21

And I think that under Vernor for

22

example, the fact that the console manufacturers

23

are providing ongoing support and repair services,

24

and requiring that those avenues be used, actually

25

weighs in favor of a conclusion that it's a licensed

26

53

copy of software.

1

Because one of the Vernor factors is

2

that additional restrictions are placed on the use

3

beyond just calling it a license. And with game

4

console software, I think those additional

5

restrictions are in place.

6

MS. WALSH: But you're free to resell

7

your video game console. You're free to dispose of

8

it. You don't return it to the manufacturer at the

9

end.

10

For purposes of 117 you're the owner of

11

the software that operates the video game console.

12

MS. SALTMAN: Mr. Wiens?

13

MR. WIENS: Yes. I wrote an article

14

about this. Because in the last triennial, John

15

Deere said that the farmer is not the owner of the

16

copy of the software on the device.

17

And so I wrote an article explaining

18

their position. And I got thousands of annoyed

19

emails from farmers saying, of course I own the

20

software.

21

The overwhelming expectation of

22

consumers is that they own the copy of the software

23

on the device. And we've seen this from the public

24

reaction.

25

We see this in our discussion, I bought

26

54

my Xbox used. There was never any license agreement

1

that I signed when I bought that Xbox.

2

So, the -- this is, as we see electronics

3

move into more and more products, I would say the

4

overwhelming majority of products have no license

5

-- that have software in them, have no license

6

agreement associated with them.

7

When I buy, you know, a flashlight that

8

has software in it, there's no license agreement

9

associated with that. I'm assuming that I'm buying

10

the flashlight and all that's contained therein.

11

MS. SALTMAN: Ms. Walsh?

12

MS. WALSH: Yeah. So I wanted to refer

13

back. I apologize. I wasn't able to find the

14

language in the notice of proposed rulemaking that

15

you were asking for comment on a while ago.

16

Could you point me to the specific

17

language involving a UK definition?

18

MS. SMITH: That might have been

19

specifically in the 1201 study. But it vaguely also

20

in the NPRM raised a question of whether we should

21

-- you can put all the devices on one hand, or certain

22

types of devices that are more likely to fall within

23

the category of adverse effect of non-infringing

24

use for modification.

25

MS. SALTMAN: But that --

26

55

MS. SMITH: So I know that UK was

1

specifically mentioned in the rulemaking

2

impairment.

3

MS. WALSH: Okay.

4

MS. SALTMAN: I think we're just trying

5

to figure out whether and to what extent the Office

6

would have authority to grant, you know, a broad

7

or a narrower exemption.

8

And based on what record evidence, is

9

the fundamental question. Okay.

10

But maybe we should move on, because we

11

have a lot to cover. So, let's talk about the

12

telematics in entertainment systems in motorized

13

land vehicles.

14

So, I have some technical questions.

15

And we talked about these a little bit the other

16

day in the unlocking context.

17

But, in most car systems, the

18

submissions discuss telematic systems in cars. And

19

also the entertainment systems in cars.

20

Does the same TPM control access to both

21

of those systems? Are there layers of TPMs? Are

22

there separate TPMs?

23

Can anyone talk about how that works

24

technically?

25

MR. WIENS: Maybe I'll take a stab at it.

26

56

And then I'll let Mr. Mooney explain their

1

perspective.

2

MS. SALTMAN: Mr. Mooney.

3

MR. WIENS: Yeah, so it was -- it's

4

interesting. I mean, if you look at the way they

5

describe it. They're describing it as the

6

telematics and infotainment system.

7

And the way that many vehicles are

8

designed right now, the telematics and infotainment

9

systems are the same computer.

10

That's actually unfortunate, because

11

telematics -- increasingly what's happening is, the

12

diagnostics on vehicles used to come out through

13

the OBD port, or the onboard diagnostic port.

14

It's right underneath your steering

15

wheel. There's a little port you can plug a reader

16

in. It's a standardized interface across most

17

vehicles.

18

And that's been the primary interface

19

historically for accessing all of the -- like I just

20

fixed my wife's car last weekend. It was giving me

21

error code PO715.

22

It turns out that's the transmission

23

speed sensor. So I bought the sensor, fixes the

24

car.

25

Now, as these things are getting more

26

57

sophisticated, we're moving from the diagnostic

1

data coming out through the OBD port, and it's going

2

over the wireless. And so that's the shift between

3

diagnostics from a physical port to diagnostics

4

over the air, over telemetry.

5

Unfortunately, the way that the

6

manufacturers are deciding to do that is the same

7

module that has the cellular connectivity say for

8

downloading new maps or new videos, or streaming

9

music, they're using that same modem for

10

transmitting the telemetry data.

11

And so, it puts all of you in an

12

unfortunate situation where the world of repair and

13

the world of entertainment systems are like,

14

colliding. Because of maybe, an accidental or a

15

choice of efficiency of combining telematics and

16

infotainment into the same unit.

17

MS. SALTMAN: So, the telematics data

18

you're talking about, is that data that is needed

19

to repair sort of other parts of the car? Or --

20

MR. WIENS: Yes.

21

MS. SALTMAN: Is circumvention just

22

needed to repair the telematics system or that

23

modem?

24

MS. WIENS: No. I mean, this is where

25

you'd be getting access to diagnostics like, your

26

58

oil needs changing.

1

All of the diagnostic data from all of

2

the -- and there might be 25 different computers

3

in the car, are funneled through the telematics

4

system.

5

MR. CHENEY: Can I ask just a -- I'm

6

sorry to --

7

MS. SALTMAN: No. Go ahead.

8

MR. CHENEY: Can I ask just -- because

9

normally with the port, right, you would just go

10

into an auto repair store and they would plug in

11

their device. And you would get that data out.

12

And then you could buy the part right

13

there in any auto repair store.

14

MR. WIENS: Right.

15

MR. CHENEY: Now, with that change,

16

where does that telematics go? And is that where

17

the problem lies?

18

MR. WIENS: Right. Yeah, so this is the

19

challenge. And it's -- so that same OnStar kind of

20

signal. So the diagnostic data is going straight

21

back to the manufacturer.

22

It's the same thing on tractors. The

23

diagnostic data is going to John Deere. You log

24

into your online John Deere account and then you

25

can see the error code for your tractor.

26

59

MR. CHENEY: So you can't go to the auto

1

repair store now and have them plug into that port.

2

MR. WIENS: Right.

3

MR. CHENEY: And get that data out.

4

MR. WIENS: Right.

5

MR. CHENEY: That's no longer available

6

as a service?

7

MR. WIENS: And this is why AAA feels so

8

threatened by the shift to telemetry. Because it's

9

cutting out the independent repair world.

10

And it moves -- by virtue of this TPM,

11

it moves all of the control over who can access all

12

that diagnostic information to being in control of

13

the manufacturer and not third parties.

14

MS. SALTMAN: But does the consumer

15

have control? Like you said, the consumer could log

16

into his John Deere account and see the telematics

17

data.

18

So could, I mean, could a consumer log

19

in, get the data, give it to a repair person who

20

could then do the repair?

21

MR. WIENS: Unfortunately that's not

22

the way most of them are designed. John Deere's

23

system maybe is a little bit friendlier with other

24

cars like a Tesla for example.

25

You don't see independent repair shops

26

60

fixing Teslas. Because they don't have access to

1

that information, just the Tesla service.

2

So what you'd want to do is go into the

3

telematics chip and say, hey, this server that

4

you're sending all the data to, send it to my

5

personal server instead. Or send it to AAA instead.

6

That would be the kind of modification

7

the user would want to do. It might be as simple

8

as changing an IP address.

9

MS. SALTMAN: Mr. Mooney?

10

MR. MOONEY: Yeah. I was about to say,

11

I can't speak to what's unfortunate or not. I feel

12

like that's pretty speculative.

13

You know, I think there were some

14

statements about the unfortunate design versus what

15

was done in the past. And I can't speak to that and

16

say that's --- that adds any kind of weight to this

17

discussion.

18

The other piece there is the OBD-II port

19

is certainly very much still in effect. That has

20

not been removed from vehicles.

21

That is still an option for all repair.

22

MS. SALTMAN: And that's -- you can get

23

the same telematics data off the OBD?

24

MR. MOONEY: Yeah. So, the difference

25

in -- the difference between an OBD-II, depending

26

61

on what the functionality is, versus some sort of

1

a wireless or over the air option is that the OBD-II

2

has to kind of physically plug in.

3

When you're talking about a wireless

4

system, it's more in a real time manner. But the

5

same data exists.

6

MS. SALTMAN: And is there -- do you need

7

to circumvent any kind of access control to use the

8

OBD-II as an unauthorized repair?

9

MR. MOONEY: Yes. I mean, you know,

10

there -- and this starts to wade into a different

11

discussion.

12

But, I mean, right now there are options

13

for owners of the vehicle to plug in things like

14

a Progressive dongle that kind of tracks how you

15

drive in order kind of -- you reap the benefits of

16

safe driving on your insurance premiums. Right?

17

So there's ways to access it now. It's

18

not physically protected in any way where you would

19

have to go to the manufacturer.

20

Again, that's not Harman's domain. I

21

just want to be very clear about that. That's the

22

OEM, the automakers' onus there.

23

We simply provide the system that

24

enables certain functionality.

25

MS. SMITH: Do you know if this

26

62

diagnostics data -- maybe someone else does, if you

1

don't. If it were obtained after circumvention, is

2

it coming in a structured or an unstructured way?

3

I'm trying to determine if it's a

4

factual -- you know, if you're just getting facts,

5

or if it's likely to be a copyrightable compilation

6

of data.

7

MR. MOONEY: Yeah. So, I think the

8

point there is that -- and it was made, that there's

9

this blending. Right?

10

And that's the infotainment, when you

11

talk about infotainment, we're talking about the

12

entertainment and the telematic system kind of

13

blended together.

14

There's a whole host of, you know, when

15

you're looking at that there's PII involved.

16

There's also, in terms of position, navigation, and

17

timing. States have different statutes around what

18

that means.

19

But then there's also the copyrightable

20

works that are in existence on the system. Or in

21

effect, the system is enabling the streaming of the

22

transmission, the viewing on that entertainment

23

system.

24

Some things come preloaded --

25

MS. SALTMAN: Aren't those works

26

63

covered by other TPMs as well? Like for example,

1

wouldn't you have to like log into your Spotify

2

account to stream it on your car?

3

MR. MOONEY: Correct. It depends on

4

what's preloaded and what's -- you know, so yes.

5

There are ways that you can log in and access those

6

things.

7

However, some things do come preloaded.

8

Like a Waze, or a Sirius XM, where they are kind

9

of part and parcel with the infotainment system.

10

MS. SALTMAN: Ms. Walsh?

11

MS. WALSH: Yeah. So, I just want to

12

remind us all that one of the big harms here is a

13

lack of competition.

14

And so when we think about like well,

15

isn't there an authorized repair service that you

16

can go to? Sure.

17

There could be the monopolist that you

18

can go to and get higher prices and lower quality

19

of service than if you had a competitive market.

20

MR. CHENEY: Ms. Walsh, I just want to

21

push back a little bit though. Mr. Mooney just

22

indicated that that port still is available.

23

That means I can go to any repair shop.

24

If that's the case, I can go to any repair shop and

25

they can plug in their authorized device and give

26

64

me the code that I need to fix it.

1

If that's the case, then this monopoly

2

argument doesn't work. So tell me, if that port is

3

actually still working, then tell me how this is

4

an issue.

5

MS. WALSH: Sure. So, I'm going to

6

answer that question and then also, on the other

7

vehicle-specific stuff, defer to folks that looked

8

like they were excited about it.

9

But, last time around we talked about

10

the market for the creation of those diagnostic

11

tools. And so maybe you move the monopoly to, you

12

know, if there's something that can be achieved over

13

OBD, you move the monopoly to the market for

14

providing diagnostic tools.

15

So you mentioned, it's an authorized

16

diagnostic tool. This is something that we talked

17

about last cycle with regard to cars is the need

18

for competition so that someone can make a

19

diagnostic tool that's better or more affordable

20

than the one that the manufacturer authorizes.

21

It's about preventing an illegitimate

22

monopoly at any step in the road. So the reason I

23

raise this point is not necessarily to make a

24

vehicle-specific point.

25

But just to talk about as we say well,

26

65

you know, isn't there -- isn't there service from

1

the original manufacturer?

2

That's not addressing the harm to

3

competition that's created by a barrier to repair

4

or modification.

5

MS. SALTMAN: Mr. Wiens?

6

MR. WIENS: Yeah. The OBD port does not

7

provide all the same information that happens over

8

the telematics data feed.

9

It used to be that was where you got all

10

the information. Increasingly, there's less and

11

less available on those OBD ports.

12

Effectively, what they make available

13

--

14

MS. SALTMAN: I'm sorry, can you --

15

yeah, can you specifically ---

16

MR. WIENS: Sure.

17

MS. SALTMAN: --- talk about what's

18

available ---

19

MR. WIENS: Yeah. So the car

20

manufacturers are behaving in a regulated

21

environment.

22

So, the information that they provide

23

over OBD is the minimum that's legally required that

24

they provide. And the requirement that they

25

provide the information actually goes back to the

26

66

Clean Air Act, which said that vehicle

1

manufacturers have to provide information relating

2

to the emission system of the vehicles, so that

3

independents can maintain the emission system of

4

the vehicle.

5

So you have Tesla, the Tesla Model S has

6

an OBD port. And if you plug into it, it gives you

7

almost no information.

8

Because the Tesla doesn't do anything

9

with regard to emissions. And so like the

10

transmission speed sensor error that I was talking

11

about on my wife's car, Tesla doesn't have an

12

automatic transmission. And so any information

13

relating to how to repair the various subsystems

14

on a Tesla are almost not coming -- there's almost

15

no information on the OBD port and instead it's all

16

coming over the telemetry data that's encrypted.

17

MS. SMITH: So if you circumvent the

18

Tesla and get the telemetry data, does it come to

19

you as -- in a structured manner or an unstructured

20

manner?

21

MR. WIENS: Yeah. That's a great

22

question. That goes over my skill level.

23

MS. SALTMAN: Ms. Walsh, do you know?

24

MS. WALSH: Well, I have a comment about

25

compilations, which doesn't directly answer that

26

67

question.

1

But it is, the Ford v. Autel lawsuit

2

involved an assertion under section 1201 that the

3

set of diagnostic codes and what they meant was a

4

protected copyrightable compilation. And that

5

circumvention of encryption on that was an issue

6

in that case.

7

That's what I have to add on the

8

compilation discussion.

9

MS. SALTMAN: Mr. Mooney?

10

MR. MOONEY: Yeah. I'd just like -- oh,

11

this is Tom Mooney. I'd just like to add that --

12

so I think we're sort of inferring with this, you

13

know, speculative lack of information that's coming

14

out of the OBD-II port, is that there's some sort

15

of one-way communication.

16

There are sensors on that vehicle that

17

kind of talk to the user in real time. And back to

18

the manufacturer. And back to third parties. I

19

mean, there's a lot of communication going on in

20

that vehicle. The manufacturer wants you to know

21

if there is an issue on that vehicle.

22

So the fact that, you know, there's a

23

statement here that you're sort of blinded by what

24

is going on in the vehicle because you can't access

25

telematics data, I think isn't correct.

26

68

The other piece is, you know, when you

1

think about what telematics data is, I mean, and

2

you think about fair use, the consumer can already

3

sort of do what they need to do with the data.

4

I mean, there's nothing that stops you

5

from say, plugging into Waze and using that position

6

navigation and timing of your vehicle. There's a

7

-- the use case is very small for why you would be

8

circumventing security controls around a very

9

complex system on telematics and infotainment.

10

MS. SALTMAN: So you're saying that

11

sort of without having to circumvent anything,

12

consumers have access to most of the telematics

13

data?

14

MR. MOONEY: Well, I mean, in terms of

15

how, you know, if you -- this isn't an Xbox, right?

16

And it's not a cell phone.

17

It's a vehicle moving at 70 miles an hour

18

down the road. There are safety implications

19

around that, but I'm just going to try to kind of

20

stay away from that.

21

But, it's a different beast. And what

22

you would be using telematics data for in terms of

23

fair use can already sort of be accomplished without

24

circumventing any kind of system or security

25

controls.

26

69

MS. SALTMAN: And earlier you mentioned

1

that some of this data is PII. And that this

2

implicates various state laws.

3

Can you give a concrete example of that?

4

MR. MOONEY: Give me one second. It

5

might not be concrete, but I know -- so I know when

6

you start to corroborate information in terms of

7

users' location, where they're going, their home

8

address and all of that, it becomes a personally

9

identical -- identifiable information issue.

10

And it weighs into privacy.

11

MS. SALTMAN: But, I guess I mean,

12

doesn't -- if it's data about the person who's

13

accessing -- if the person is accessing data about

14

themselves, is that still a PII issue?

15

And if it is, like under what state law?

16

MR. MOONEY: No. I don't -- you know,

17

if it's again, fair use for the vehicle, I think

18

-- I don't think it's a PII issue.

19

I mean, if you're saying that you need

20

to access this information or allowing a third party

21

software, like a Waze for example to access it, or

22

Sirius XM for example to access it, that in turn

23

in my mind is fair use.

24

MS. SMITH: So you suggested that

25

there's a small use case of where you need to

26

70

circumvent something. And you give an example of

1

Waze.

2

But Mr. Wiens suggested that you need

3

to circumvent, I guess, the same log in order to

4

get diagnostics about the oil system. Is that your

5

example Mr. Wiens?

6

MR. WIENS: Sure.

7

MS. SMITH: I mean, do you agree with him

8

or disagree with him?

9

MR. MOONEY: Well, but what I -- I

10

question why you would need to do that. I mean, that

11

is -- well, not why but why it's not already

12

available to you via the warning systems on the

13

vehicle.

14

Again, this is OEM territory. But, in

15

my mind when I think about this, there are display

16

options across your dash, infotainment screen that

17

tell you that things are happening.

18

And that you should go seek a licensed

19

provider for service and repair.

20

MS. SMITH: Mr. Wiens?

21

MR. WIENS: Sure. I can give you an

22

example. I was in Dallas the other day, rented a

23

car, it was 2:00 a.m. Got out on the freeway, I was

24

driving five miles down the freeway. And got a

25

warning that flashed up, your engine is

26

71

overheating, shutting off.

1

I pull off to the side of the road and

2

I realize that this particular Toyota vehicle

3

actually did not have any readout on the dashboard

4

at all to tell you the coolant temperature.

5

Which is like, it's one of the

6

fundamental dials that's been on vehicles. And I

7

went through the manual, I went through everything.

8

And it turns out that this car, the

9

manufacturers decided that the user should not know

10

the coolant temperature. That's an example of the

11

kind of thing that I as an owner would like to know.

12

It might have given me -- it was

13

certainly a safety issue. I couldn't believe they

14

shut the car off on the highway without giving me

15

any advanced notice. The engine just shut off.

16

So, that would be one example where I

17

would like to be able to know that information.

18

MR. MOONEY: Yeah. Again, this is --

19

again. I feel like this is where you're getting

20

into, but, this is OEM territory.

21

MR. WIENS: Sure.

22

MR. MOONEY: And I'm not an automaker.

23

But what I can say, is if you pop -- in most vehicles,

24

when you pop the hood, there's something that tells

25

you the temperature of coolants and other liquids

26

72

inside the engine compartment.

1

MR. WIENS: No, I mean, you can open it

2

and have steam come up. And that will tell you. But

3

there's no -- if it doesn't have a physical dial,

4

you're out of luck.

5

Let me give you an example of another

6

fair use. There's a company called Comma.ai that

7

was started by one of the founders of the iPhone

8

jailbreaking ecosystem.

9

And it's an aftermarket add-on to your

10

vehicle that makes it autonomous. And he's -- it

11

plugs into the CAN bus.

12

He pulls in as much information as he

13

possibly can from the vehicle to add on and make

14

the car autonomous, which is a pretty cool extension

15

of a vehicle.

16

And it's building on top of all the

17

software. He -- the more sensors that that system

18

has access to, the safer it will be.

19

And so by being able to tap into

20

additional telemetry, additional sensor data,

21

you're going to take this from a system that is

22

reasonably safe to very safe.

23

MS. SALTMAN: Can you address the point

24

that Harman raised in their submissions that

25

allowing people to access telematics data creates

26

73

a security concern, and that for example, a fleet

1

of Jeeps was hacked by security research through

2

-- researchers through the telematics TPM?

3

MR. WIENS: Sure. And that was Charlie

4

Miller who testified in the last triennial. And I

5

think he was actually in this room.

6

And he told us that he had a

7

circumvention for a major motor vehicle

8

manufacturer. But he was afraid to talk about it

9

because of the concerns of being prosecuted under

10

1201.

11

And so it turns out he responsibly

12

disclosed the vulnerability. This is a -- you have

13

-- the moment that you add a wireless interface to

14

anything, you're adding a security implication.

15

And this is a challenge. Unfortunately,

16

we also need access to these systems to repair, and

17

this shows the tension between, as we continue to

18

secure these devices and add TPMs, we also need to

19

be able to get in to perform repairs.

20

It's very possible, we've seen this with

21

a number of abandoned devices, we see this with

22

appliances all the time where the manufacturer adds

23

wireless to a device, abandons it, stops running

24

security updates. The user has to come and break

25

through their TPM to just turn the wireless off so

26

74

that they can secure their device.

1

And certainly that would be, if I was

2

buying a modern vehicle, Matt has a brand-new Subaru

3

with a Harman system. The first thing that I would

4

do is go into the telematics system and turn off

5

every wireless interface.

6

But, I think I would -- that would be

7

-- I would be violating 1201 to do that, but I don't

8

want a car with any wireless signal in it whatsoever.

9

Because I don't trust it.

10

So, it would be a way that I would secure

11

a vehicle. Because I understand Mr. Mooney has a

12

lot of very talented security engineers that work

13

for you. But, I don't trust them with my life.

14

MR. MOONEY: And again -- this is Tom.

15

I don't understand how that's relevant to -- what

16

was just stated, I don't know if it's relevant to

17

what we're kind of getting at here in the heart of

18

copyrighted works.

19

There -- so yes, there are safety

20

implications and security implications, most

21

definitely. And that is our concern.

22

Yes, Charlie Miller and Chris Valasek

23

performed some research. And it -- the jury's still

24

out on how responsibly it was disclosed at the end

25

of the day.

26

75

However, that is our concern is that

1

there are safety issues. I mean, it is when you

2

start to weigh it outside of the Copyright Office's

3

purview.

4

When you start talking about privacy and

5

vehicle safety, which would, you know, fall under

6

NTSA for example. But again, the scope of that

7

challenge is so large.

8

And it is so complex and so hard that

9

you sort of don't want to leave it to -- and the

10

systems that are on the vehicle that do touch a

11

Harman system potentially or a Panasonic system

12

potentially, or an LG system potentially, interface

13

with the rest of the vehicle.

14

And in some instances it's a safety

15

critical functionality of the vehicle. Steering,

16

throttle, and breaking.

17

When you start to circumvent things

18

willy nilly, it becomes an issue yes, for safety.

19

I wholeheartedly agree.

20

And it's a challenge that faces the

21

entire industry, in a step above the entire internet

22

of things, business.

23

MS. SALTMAN: Thank you. So Mr.

24

Williams, I wanted to ask you a question that we

25

sort of discussed in the D.C. hearing on repair,

26

76

because I wanted to hear responses from these

1

proponents.

2

And it relates to my question, the

3

question I asked Mr. Mooney, I mean in terms of the

4

expressive works that are contained in

5

entertainment systems, are those protected by their

6

own TPMs, so that privacy really isn't a concern

7

if people are just circumventing the modem TPM to

8

repair -- to get telematics information to repair

9

the car?

10

MR. WILLIAMS: So, I can't speak across

11

the board for every type of service, because I don't

12

know the technical specs for every type of service.

13

But, yes. My understanding is they are

14

frequently protected by their own, at least a

15

separate log-in. Although I think Mr. Mooney just

16

referenced that sometimes that might not be the

17

case. If a service is kind of built in from the

18

purchase date of the car, you never necessarily have

19

to go and log in until your temporary subscription

20

runs out. And then you get a communication saying,

21

do you want to pay to stay and keep continuing.

22

We introduced the statement from Chris

23

Bell about some of the ways that we're concerned

24

opening up the TPMs on the entertainment systems

25

could expose those types of services to

26

77

unauthorized access, even if they do require a

1

log-in.

2

And one of those ways is spoofing. And

3

so if you had multiple vehicles within a family for

4

example, if you can get into the system, as Mr. Bell

5

described it, you could potentially get access to

6

the code that identifies the authorized vehicle and

7

spoof it into other vehicles.

8

That's just one example. He was also

9

concerned, and we discussed this in the Class 6 panel

10

as well, about whether you could attach a peripheral

11

device and start downloading copies of content that

12

you only have subscription access to.

13

I don't -- I can't speak to whether the

14

telematics data is sometimes --- that you have to,

15

you know, hack the same TPM to get to the telematics

16

data as you would to the entertainment system.

17

Mr. Mooney can speak better to that than

18

I could.

19

MS. SMITH: I actually had the same

20

question for Mr. Mooney, is that you referred to

21

the Harman system or the Panasonic system.

22

Are those protected by their own TPMs,

23

or is that not the right way to think of it?

24

MR. MOONEY: Yes, so that comes down

25

from the OEM. That is based on requirements.

26

78

So, just to kind of put it in

1

perspective, we don't go out and design, you know,

2

say an infotainment system that would go into a Chevy

3

Volt or a Tesla Model S on our own. Right?

4

Those things are designed in advance at

5

the manufacturer level and pushed down to the supply

6

chain. Harman, being at the top of that supply chain,

7

would then source out and just, you know, build that

8

system based on those requirements.

9

MS. SALTMAN: Mr. Mooney, in your

10

submissions you refer to an FCC rule mandating the

11

lockdown of various parameters controlling radio

12

frequency devices.

13

Do you have more information on what the

14

FCC rule is? Like what is the cite for that rule?

15

And how exactly does it -- is it

16

implicated by this?

17

MR. MOONEY: Can you give me one second?

18

MS. SALTMAN: Yeah. Sure. Mr. Wiens?

19

MR. WIENS: Sure. And maybe I can

20

answer that too. I think that the best way to think

21

of these infotainment systems is, it's a general

22

purpose computer that's running lots of apps on it.

23

And one of the apps might be the Sirius

24

XM app. On my PC I have the Spotify app. Just

25

because my PC is jailbroken, I have root level access

26

79

to the PC, does not mean that I have access to the

1

Spotify app.

2

The Spotify app itself has its own TPMs.

3

And it's protected. And I think that you can think

4

of these infotainment systems the same way.

5

Just being able to --

6

MS. SMITH: I'm sorry. Are you

7

thinking of it as the app? Or are you thinking of

8

it as the operating system of the PC?

9

MR. WIENS: The infotainment system is

10

effectively an operating system. It's a computer

11

running an operating system.

12

On top of that operating system you have

13

various apps. And so one of those apps would be

14

Sirius. And so each of these entertainment apps are

15

running on top of that common infotainment

16

substrate.

17

But just being able to access the

18

infotainment system does not mean that I can

19

immediately break into the app and get access to

20

the copyrighted content.

21

And I think that thinking of these

22

systems as general purpose computers is probably

23

a better framework as we move into more and more

24

sophisticated vehicles than thinking of it as once

25

you get into the locked box that is the infotainment

26

80

system, all of a sudden you're going to be able to

1

pull off Taylor Swift, and ---

2

MS. SMITH: Well, what do you think

3

about Mr. Bell's submission, which was a little bit

4

more specific in terms of how you might be able to

5

exceed the bounds of a subscription, whether it is

6

for permanent downloads or, you know, I guess have

7

it on more vehicles then would have been permitted.

8

Because you can get the authorized code, I think

9

is what Mr. Williams just said.

10

MR. WIENS: Right.

11

MS. SMITH: I don't want to paraphrase

12

incorrectly, but ---

13

MR. WIENS: Yeah, and I don't recall the

14

exact specifics of that. I would say, just like I

15

have on my computer, I can have Spotify. I can save

16

some of those offline.

17

It's still encrypting those offline --

18

that offline media. So, I would just leave the

19

protection of that copyrighted work to -- in the

20

control of that app that should be designed to

21

protect the media.

22

And we don't want access to be able to

23

go in and break the Spotify DRM on the infotainment

24

system. We just want to get into the system so we

25

can read the telemetry data.

26

81

MS. SALTMAN: Do you want to respond,

1

Mr. Williams?

2

MR. WILLIAMS: Sure. I'm not a

3

technologist. I think the way I understand it from

4

talking to Mr. Bell and from Mr. Hughes who testified

5

on Class 6, is that there are additional protections

6

in place on a PC that are not necessarily in place

7

on a voice assistant or an entertainment system in

8

a vehicle.

9

And that they believe that Mr. Wiens was

10

referring to the way Spotify intends you to access

11

copies, which is to temporarily download them while

12

you have a subscription and to no longer retain them

13

when you do not have a subscription.

14

I don't know that that would actually

15

be enabled in a vehicle entertainment system. I've

16

never tried to do it with my Spotify account.

17

But, I do know that Mr. Bell believed

18

that once you got root access to the entertainment

19

system, you could likely extract, and actually at

20

a rapid pace, copies of your playlist essentially

21

from Spotify.

22

MS. SALTMAN: Ms. Walsh?

23

MS. WALSH: I think what we just heard

24

from Mr. Wiens is that if you could do that, that

25

would be circumvention of another TPM.

26

82

So, this exemption does not grant the

1

ability to do that.

2

MR. WILLIAMS: That's not my

3

understanding from Mr. Bell's statement.

4

MS. CHAUVET: Mr. Mooney?

5

MR. MOONEY: Well, yeah. I'd just like

6

to say that I can't -- I mean, I can't make that

7

assertion broadly across every system and every

8

manufacturer.

9

In the life cycle of a vehicle the --

10

you know, how these systems are designed from a

11

security perspective or an architecture

12

perspective changes.

13

You know, when you go through the

14

quarters of, let's say of a calendar. And you look

15

at on the surface what looks the same to you and

16

I, is the same Volkswagen Passat rolling out over

17

the course of that year has actually changed, you

18

know, for lack of a better term, the brains or the

19

guts of that vehicle has switched from providers

20

to suppliers, depending on costs and other issues

21

that kind of weigh into how that vehicle is

22

manufactured.

23

I can't say blanketly that, you know,

24

because of this then that when it comes to protection

25

and security.

26

83

MS. SMITH: Do you think that knowledge

1

is in the hands of the OEMs? Or who would have that

2

knowledge?

3

MR. MOONEY: Yeah. At the end of the

4

day the OEMs are the ones who are designing it and

5

setting those requirements.

6

MS. SMITH: Ms. Walsh?

7

MS. WALSH: There are a couple of

8

points. So, like Tesla for instance uses a variant

9

of Ubuntu, which is a general purpose test operating

10

system for general purpose computers.

11

Microsoft is the provider of technology

12

for a lot of these things. There's not a technical

13

reason why, if indeed there's not a layer of TPM

14

on these apps, why they couldn't be designed to

15

include it.

16

That's in the hands of the

17

manufacturers. So, it's up to them how they design

18

their software with or without that second layer

19

of TPM.

20

What -- we've heard sort of conflicting

21

information about whether it's there now or not.

22

But there's no reason they couldn't include it.

23

MS. SMITH: Okay. I'm not sure that's

24

helpful to you. Because if they designed it so that

25

the first layer of the TPM is what's supposed to

26

84

protect the entertainment content, then that would

1

seem to go -- be a negative in terms of granting

2

this exemption.

3

MS. WALSH: If it's -- well, let's say

4

that it's entirely within their power to design it

5

one way or the other, that would create a pretty

6

perverse incentive to have fewer layers of

7

protection for your content so you can sweep up less

8

sensitive information like software.

9

MR. WIENS: If I was to design these

10

systems, and I was responsible for protecting the

11

IP that was given to me by the movie studios, I

12

absolutely would be wanting to design that well and

13

not rely on the thin protection of relatively weak

14

TPM on that infotainment system. I'd use my

15

industrial strength standard encryption that we've

16

been hearing about from AACS over the last few days.

17

MS. SALTMAN: Do you mean the

18

protection would come from -- like do you mean the

19

sublayer of protection?

20

MR. WIENS: Right. I would build it

21

into the movie player app that's running on the

22

Ubuntu Tesla player.

23

I'd build it into the Spotify app or the

24

-- again, I wouldn't trust the overall system. I

25

would want any given media player to have its own

26

85

protection.

1

MS. SMITH: Mr. Williams, do you want to

2

respond? And in particular thinking about Mr.

3

Hughes, I can't frankly exactly recall whether the

4

RIAA felt like it was within their control or not.

5

Do you -- what do you think about what

6

Ms. Walsh and Mr. Wiens were saying?

7

MR. WILLIAMS: Sure. Just let me note

8

quickly so I don't forget what I wanted to get back

9

to. And then I'll respond to that.

10

So, I mean, without getting into the

11

individual commercial contracts between any

12

individual label and any individual service

13

provider or device manufacturer, I think the

14

general picture that Mr. Hughes described is that

15

the record companies make efforts when they

16

negotiate with service providers to try to ensure

17

themselves a certain level of protection.

18

Sometimes they might actually be

19

involved in discussions about the specs of how a

20

TPM will be implemented. Sometimes they may not

21

have that leverage.

22

So not every negotiation is the same.

23

But it is true that in any negotiation related to

24

a subscription service, they are going to be asking

25

for some representations that protections are going

26

86

to be in place because the entire design of the

1

service, if it's not advertising-supported, is that

2

you only get a certain level of access depending

3

on how much you pay.

4

And even if it's advertising-supported,

5

if you're not intended to make copies, then there

6

are TPMs that are supposed to be in place for that.

7

But they don't have control over every

8

aspect of the design. And they don't necessarily

9

have control over the agreement between the service

10

provider and whatever device manufacturer the

11

service provider chooses to allow the service to

12

run on, assuming there is an agreement there.

13

So, I think they do make best efforts

14

to try to protect their content. They have every

15

motivation to do so. But they can't completely

16

control the entire design of every system. I think

17

-- just two more quick points.

18

I think you're right to question the

19

notion that, well, my client's members should be

20

required to have 16 layers of protection in place.

21

They do have probably that many in some instances

22

for different types of choices the consumers are

23

allowed to make within a service.

24

But, each one of those things is

25

important. And Mr. Bell's statement speaks to the

26

87

fact that from his point of view, the lock on the

1

firmware is part of that overall system.

2

And that it's not that every single

3

piece of the pie falls apart if you get through that

4

lock, but that -- in his view some pieces of the

5

pie become exposed.

6

And so, it is still a danger. And I

7

think when you compare what we're discussing with

8

what's in the record with respect to the need to

9

repair or modify entertainment systems, there's

10

virtually nothing.

11

I think the one thing that I can recall

12

is a suggestion that someone should be able to turn

13

their entertainment system into a storage unit. I

14

don't even understand if that's to store the content

15

that someone wants to record off of a subscription

16

service, or whether it's to port content from

17

outside the vehicle into the system. But that's the

18

only thing I can recall.

19

And I don't think that's enough to

20

justify risking the harm that you identified three

21

years ago and that caused you to design the current

22

exemption.

23

MS. SALTMAN: I mean, I think what I'm

24

understanding, and correct me if I'm wrong, from

25

the proponents is that the TPM for the infotainment

26

88

-- the entertainment system is linked to the system

1

for telematics and so that TPM has to be circumvented

2

just to get telematics data to repair the car.

3

And I think there is evidence of that

4

in the record.

5

MR. WILLIAMS: I think, if I understood

6

Mr. Wiens, he said that there are instances of that.

7

I don't think he said that that was universally true.

8

But he can correct me if I'm wrong.

9

MS. SMITH: Can one of the proponents

10

speak to -- are there times when, to your knowledge,

11

someone tried to make use of the current temporary

12

exemption and was unable to do so to repair the

13

vehicle or engage in diagnostic lawful

14

modification, et cetera, because it would have

15

involved the telematic system sort of

16

unintentionally? Or as a side effect, if that makes

17

sense?

18

MR. WIENS: Yeah. I don't have any

19

specific example of that. I can just say the trend,

20

the shift, I think that's a better question for

21

Dorman. Because I think in D.C. they did provide

22

some examples of that.

23

Increasingly what they're seeing is

24

that there are -- there are significant challenges.

25

I'd refer you to the current case, Dorman -- or GM

26

89

v. Dorman, where they're suing them for 1201

1

infringement. Clearly GM does not feel that the

2

current exemption is covering what they're doing.

3

MS. SALTMAN: Since we're running low

4

on our time, let's move onto third party repair.

5

The Office in its 1201 study said that Congress

6

should consider a legislative clarification to

7

allow for third party assistance.

8

Can one of you proponents address why

9

a proposed expansion to allow for third party repair

10

would not violate or at least sort of trigger the

11

anti-trafficking provisions in section 1201?

12

MS. WALSH: Sure. So --

13

MS. SALTMAN: Ms. Walsh. The court

14

reporter.

15

MS. WALSH: So, there are two reasons.

16

So the Office doesn't need to write limiting

17

language into the exemption about, you know, the

18

type of user.

19

The question is whether people who are

20

users of the copyrighted work are adversely

21

affected in their ability to make non-infringing

22

uses.

23

So, sort of off the bat, the exemption

24

doesn't need to say you need to be this kind of user

25

or another kind of user. When we get to the

26

90

trafficking, there is a specific list of

1

requirements for what kinds of activities rise to

2

the level of unlawful trafficking so that primarily

3

circumvention services are marketed in that way or

4

having limited commercial significance other than

5

for circumvention.

6

And for repair services, they are

7

primarily repair services. They're not

8

circumvention services.

9

They're not -- or at least there is a

10

universe of repair services that don't rise to that

11

level. You can imagine one that is marketed in that

12

way.

13

But, there's clearly space between, you

14

know, there's clearly space in the universe of

15

repair services for things that don't necessarily

16

fall under any of those three categories for

17

prohibited trafficking.

18

So, the exemption shouldn't foreclose

19

people who are in that space. Where they're

20

offering a service that doesn't rise to the level

21

of trafficking, the exemption shouldn't foreclose

22

them from engaging in that legitimate activity.

23

And it shouldn't foreclose courts from figuring out

24

where that line is precisely.

25

So, if someone, you know, offers a

26

91

service where it's in the gray area, then in order

1

to get the full scope of what the trafficking is

2

supposed to allow people to do, it shouldn't be

3

foreclosed by denying them an exemption under

4

1201(a)(1), because doing -- that person, their

5

activities potentially implicate both.

6

So, an exemption under 1201(a)(1) gets

7

it out of the way so that the scope that's not

8

prohibited under (a)(2) can be explored in the

9

market.

10

MS. SMITH: What would you say to the

11

Joint Creators’ concern that, I guess, I don't know,

12

it's certainly a slippery-slope concern that it's

13

something -- that active circumvention is always

14

for another purpose.

15

And so it's difficult to say whether

16

something is primarily designed for circumvention

17

or primarily designed for repair.

18

MS. WALSH: Well, I think we could look

19

at -- we could -- so the statute suggests that's

20

sort of the way that it's marketed or the commercial

21

significance are ways of getting at that.

22

So, if you're offering a service, and

23

the only way that it's commercially significant is

24

the circumvention aspect of it, then that's

25

something that might be excluded.

26

92

But, if you're offering a service and

1

the primary significance of it is, I can get your

2

device to work, then that's an example of something

3

that would not be.

4

So, I'm not sure that that's such a, you

5

know, unsolvable conundrum.

6

MS. SALTMAN: With respect to, you

7

mentioned the question that the Office raised in

8

its study regarding whether the word user in section

9

1201 can be interpreted to include third party

10

repair people.

11

So can you talk a little bit more about

12

whether the Office would have authority to use that

13

interpretation?

14

And particularly, wouldn't that

15

implicate the -- I mean, to the extent that you're

16

relying on 117, because it would be a user and not

17

an owner who is doing the repair.

18

And wouldn't that implicate your

19

ability to rely on 117 to cover the repair services?

20

MS. WALSH: So, user is a broader

21

category than owner. So owners are a type of user.

22

So in that sense, you know, the statute

23

contemplates users. Some of those users will have

24

the benefit of section 117, both for repairs and

25

modifications since 117(a)(1) does permit

26

93

modifications.

1

So, it's a question again of --

2

MS. SMITH: But 117(a)(1)'s

3

modification is just sort of like in the service

4

of repair going back to the intended functionality,

5

right? That's what the CONTU report said.

6

Do you disagree with that? I mean, I

7

appreciate that you're asking us to go beyond 117.

8

MS. WALSH: Um-hum.

9

MS. SMITH: But, just in terms what

10

117(a) itself is directed at, I think it is a bit

11

narrower.

12

MS. WALSH: Well, the CONTU report said

13

that you should be able to add new functionality

14

to it. So, it's not limited to just making it work

15

the way it originally worked.

16

If you want to make it work with a new

17

machine for instance, then that's permitted under

18

117(a)(1). So, Krauss and the CONTU report did

19

that.

20

MS. SALTMAN: I have sort of a practical

21

question for Mr. Wiens. With respect to

22

agricultural vehicles, there's a lot of discussion

23

in the submissions about the need for third party

24

repair.

25

Could you talk about, like what's

26

94

happening now? Because, you know, I read that there

1

were a lot of farmers who lived, you know, miles

2

away from a service facility.

3

MR. WIENS: Mm-hmm.

4

MS. SALTMAN: And who, you know, were

5

told that it would take four months or whatever,

6

to get their vehicle repaired. And they had a

7

harvest that needed to happen within the next couple

8

of days.

9

So, what are those farmers doing now in

10

a situation like that?

11

MR. WIENS: Right. Good question. I

12

mean, they do the best they can. Part of this is,

13

the farmers are realizing that they need to tool

14

up and learn the code.

15

So, there's a bit of a reeducation

16

happening. It's interesting being here in

17

California. Farmers in California are actually a

18

fair ways behind farmers in the Midwest in that

19

regard.

20

Because the farmers in the Midwest don't

21

farm all year. And so they have a couple of months

22

in the winter to learn the code.

23

So, services like Codecademy and I mean,

24

you're seeing, it's interesting, you go into the

25

tractor forums, which I spend a lot of time on, I

26

95

imagine you don't. And there is increasing

1

technical discussion.

2

There's a lot more comfort around

3

getting in and diving in and understanding things

4

now then there was before there was the exemption.

5

You're also seeing the universities

6

starting to help out. So my alma mater is Cal Poly.

7

It's both an engineering and an ag university.

8

And there is a group of students that

9

has been working with -- there's a group of computer

10

engineering students that's been working with the

11

agriculture department.

12

Where the ag department has given them

13

access to their tractors. And they have been

14

reverse engineering the tractors under the

15

exemption and starting to post some of the

16

diagnostic information.

17

And I can -- I don't think this is in

18

the record, because it got posted afterwards. But

19

it's -- the website is tractorhacking.github.io and

20

it has the results of some of their initial research.

21

And they're working on documenting interfaces with

22

the goal of building an alternative diagnostic tool

23

that's the equivalent of John Deere's diagnostic

24

laptop software. Their hope is to build an open

25

source diagnostic software.

26

96

But these are complex machines. The

1

Society of Automotive Engineering Standard that the

2

heavy equipment industry is using is complex. And

3

then there's a lot of propriety John Deere work on

4

top of it.

5

So, it's going to be, I think, many years

6

before we have anywhere near the kind of alternative

7

-- an alternative that's as functional as John

8

Deere's diagnostic software.

9

MS. SALTMAN: Mr. Mooney?

10

MR. MOONEY: Yeah, Tom Mooney. I would

11

just caution that, you know, we're talking about

12

tractors here versus millions and millions and

13

millions of light duty vehicles on the road all

14

falling into the same class.

15

So when we think about the needs of the

16

few outweighing the safety and security of millions

17

of folks who are driving on the roadways every day,

18

I think it's just something that I'd like to consider

19

up against a very specific use case when it comes

20

to agriculture.

21

MS. SMITH: Well, I mean, there is a

22

temporary exemption that the Register has

23

determined she can recommend renewal of for

24

motorized vehicles, both light and heavy duty.

25

And I think we're questioning whether

26

97

in the heavy duty context, whether there is

1

difficulty and the intended beneficiaries being

2

able to actually make use of that.

3

MR. MOONEY: Okay. Yeah. That's

4

fine. I just wanted to clarify. Yeah.

5

MR. WIENS: The other thing that I would

6

add is that the third party limitation is really

7

a challenge.

8

We're seeing increasingly some of these

9

independent, you know, local -- there's more of

10

these independent local machinery operators.

11

Or sometimes you have a farmer where

12

he's good at fixing his equipment, so he fixes it

13

for his neighbors too and now he's a third party.

14

And so that's -- if you think about the, you know,

15

years of investment that you're going to want to

16

put into learning how to do this, developing your

17

own tools or your own equipment.

18

Certainly the more equipment that you

19

can work on, the more incentive there is going to

20

be to invest in that technical knowledge.

21

MS. SALTMAN: Mr. Zieminski?

22

MR. ZIEMINSKI: Yeah. I just wanted to

23

point out that similarly to Mr. Mooney's comment,

24

the needs of the millions far outweigh what the

25

capacity of the original equipment manufacturers

26

98

can do and what the owners can reasonably do on their

1

own.

2

We need to dissemination that

3

information as far as possible, as broad as possible

4

so that we can get, you know, devices serviced

5

quicker and more efficiently.

6

And if you use the Apple iPhone battery

7

fiasco, all of, you know, doing the math and we can

8

recite to you the numbers. But it would effectively

9

take Apple 2.7 years just to catch up with the

10

backlog in the United States to be able to do that

11

if you relied strictly on Apple Geniuses.

12

If you extended that then to the

13

implications because iPhones are not limited to the

14

United States, they are all over the world, it

15

becomes a greater problem.

16

Contrarily, independent repair shops in

17

the iFixit network, there are almost 20 thousand

18

independent shops just in that network. There are

19

not near that many dealerships or places you can

20

go for authorized service right now.

21

MS. SALTMAN: Mr. Mooney?

22

MR. MOONEY: Yeah. I just want to

23

clarify that we're in no way against, you know, the

24

repair of vehicles.

25

You know, we're talking about a very

26

99

specific and the ability for the consumer to do so

1

on their own, we're talking about a very specific,

2

you know, circumventing security controls around

3

very specific systems that house copyrighted or

4

enable copyrighted works.

5

Or in instances, data that has acc --

6

or systems that have access to safety critical

7

information on the vehicle itself. So, --

8

MS. SALTMAN: So, what's your specific

9

opposition to allowing an exemption for third-party

10

repair people?

11

MR. MOONEY: Well, so I think there's a

12

number of ways -- there's a number of ways that these

13

vehicles can be serviced as is.

14

We're saying that there are specific

15

concerns around copyrighted works on these systems

16

that we would like to protect. That uphold, you

17

know, our ability to compete in the market and be

18

a trusted systems provider to the OEMs.

19

MS. SALTMAN: Mr. Williams?

20

MR. WILLIAMS: Thank you. We made our

21

full case in our written submission and in

22

Washington. So, I won't repeat all of it.

23

But, you know, I just want to say the

24

associations I'm here representing don't really

25

have a position as a matter of policy on whether

26

100

it's a good or bad idea to have automobile repair

1

shops be able to do some of the things that are being

2

discussed, setting aside entertainment systems in

3

the vehicles.

4

But, I don't see a legal path for you

5

to create an exemption for those repair shops under

6

the statutory authority that you've been given.

7

And so you refer to it as a bit of a

8

slippery slope argument. And in a way maybe it is

9

as a matter of policy that the big concern is this

10

spreads to other areas.

11

But also as a matter of actual statutory

12

authority. I don't think that the term user was

13

intended to say that you could create an exemption

14

that applies to repair shops who are engaged in

15

trafficking.

16

I think that was probably intended to

17

apply to people who for example, don't own a piece

18

of software, but maybe you're able to find a way

19

to grant them an exemption in certain

20

circumstances.

21

Or people who have access to a piece of

22

content through a subscription service. And not

23

permanent access. But they want to make a clip.

24

There's other types of users who are not

25

owners of copies that could be contemplated by that

26

101

word. And I think you've been right to say that you

1

don't have the authority to grant an exemption that

2

even implies that trafficking is covered in any

3

shape or form.

4

MS. SALTMAN: What about if we were to

5

grant an exemption that circumvention is exempted

6

when it's a necessary step undertaken by -- or at

7

the direction of the owner of the vehicle?

8

MR. WILLIAMS: Yes. I don't -- I think

9

there may be some circumstance where that would not

10

involve trafficking.

11

But I think in most cases it would. As

12

I understand the automobile market, and I'm not here

13

representing the OEMs, and so I might be incorrect

14

about this.

15

But, as I understand it from reading the

16

record, pretty much every instance involves

17

circumvention. And a business where every instance

18

involves circumvention, I think is going to be

19

involved in trafficking.

20

There's also the issue of marketing

21

under the third prong of trafficking. And if you

22

read that too narrowly, I think it would really read

23

it out of the statute.

24

Because for example, you could say well,

25

I'm not marketing the circumvention if I advertise

26

102

free access to movies. I'm not, you know, but the

1

circumvention is required to get you to the access.

2

So, I --

3

MS. SMITH: Well, if I paraphrase your

4

position to Ms. Walsh. I'll paraphrase her

5

position to you.

6

MR. WILLIAMS: Yes.

7

MS. SMITH: She's saying the

8

commercially significant purpose of an independent

9

car repair shop is to fix the car.

10

MR. WILLIAMS: Mm-hmm.

11

MS. SMITH: It's not to engage in

12

circumvention. It's to fix the oil light or

13

whatever has gone wrong with it.

14

MR. WILLIAMS: And the commercially

15

significant purpose is only one of three possible

16

trafficking violations. I'm not sure -- well,

17

actually, I don't think I agree with your

18

interpretation.

19

But even if you do, it could still be

20

primarily designed for the purpose of circumvention

21

or marketed in a way that informs consumers that

22

they can achieve something that required

23

circumvention.

24

And I don't think that kind of marketing

25

should have to include the words, we will circumvent

26

103

your access controls. That's too, you know, that's

1

never going to be the way that something is marketed.

2

MR. CHENEY: Mr. Williams, can I just

3

probe a little bit more on this? And just sort of

4

flip the argument a little bit.

5

What if you were to say that by granting

6

the 1201 exemptions, but then no one could use it,

7

doesn't that really make 1201(a) ineffective if

8

there's no one that's able to ever use it?

9

In other words, the only time you can

10

go and have some of this work done would be to go

11

to somebody that knows how to make that repair on

12

that John Deere tractor for example, right?

13

You have -- you've bought this fifty

14

thousand dollar tractor.

15

MR. WILLIAMS: Right.

16

MR. CHENEY: You've got some problems

17

with it. You've figured out kind of what the

18

problem is, but the only way to fix it would be to

19

go to a John Deere that may take you two or three

20

months.

21

You've got two or three days, you've got

22

crops in the field, they're going to go bad.

23

You've got a neighbor that can fix it.

24

You go to him. He fixes it. Wouldn't that action,

25

if that action becomes trafficking, doesn't that

26

104

make 1201(a) a null and void?

1

In other words, you kind of gut the first

2

one if you say the second one is so -- can only be

3

narrowly applied in only these handful of things,

4

if you really read those that narrow.

5

Does that make sense?

6

MR. WILLIAMS: If I'm understanding

7

you, I think you're asking, does it kind of take

8

the umph out of this proceeding, basically.

9

MR. CHENEY: Yep.

10

MR. WILLIAMS: Because an exemption

11

won't practically be able to be used in specific

12

circumstances.

13

I won't adopt all of the factual things

14

included in that hypothetical as a scenario that

15

would actually happen exactly in that way. But I

16

understand what you're getting at, I think.

17

And I think from our point of view,

18

you're raising a good policy question. And it's an

19

important policy question.

20

And it's something dealt with in the

21

1201 study. It's not something that the statute

22

currently enables the Librarian to address through

23

an exemption.

24

The one specific instance where

25

Congress did bless that type of a provision was in

26

105

relation to phone unlocking. And there was a very

1

specific bill passed in the legislative history.

2

It very clearly says this doesn't imply

3

any authority to do this in other circumstances.

4

And in fact the Register previously read that

5

statutory enactment to imply that you need that kind

6

of activity in order to create those kinds of

7

exemptions.

8

So, as a matter of policy, whether

9

ultimately that's something Congress should take

10

up or not, I think is a question the Office has

11

already dealt with.

12

But it doesn't change the authority

13

that's been given to the Office in this procedure.

14

MS. WALSH: Well, this is Ms. Walsh from

15

Electronic Frontier Foundation. What we're

16

talking about now is how to interpret the statutory

17

language that's there.

18

And Mr. Cheney raises the important

19

point that if you interpret it in an overly

20

restrictive way, you defeat the intent of Congress

21

to continue to allow for non-infringing uses.

22

And in creating this rulemaking to have

23

presumably a meaningful impact on vindicating

24

people's right to take advantage of the freedoms

25

that they enjoyed prior to the enactment of the DMCA

26

106

with regard to these non-infringing uses.

1

So, it's legitimate to consider how

2

interpreting it in a really restrictive way would

3

defeat the purpose of the regime.

4

MS. SMITH: Did you want to speak to Mr.

5

Williams’ citation or reference to the unlocking

6

act?

7

MS. WALSH: I think it may be a

8

suggestion that Congress in the many years between

9

the enactment of the DMCA and the unlocking act has

10

recognized that it's important to be more explicit

11

about the importance of third party rights.

12

I don't think it suggests that. I don't

13

think it undermines the idea that it's implicit in

14

the original statute.

15

But seeing how the statute has been

16

interpreted, it would make sense as a lawmaker to

17

be really clear that, no, the ability of third

18

parties to help individuals make use of the

19

exemptions is important.

20

MR. WILLIAMS: Thank you. Matt

21

Williams. I just wanted to clarify and make sure

22

I wasn't unclear on this point.

23

That there are exemptions where people

24

are exercising them. And they're not going to

25

service providers.

26

107

So it's not that I'm saying the whole

1

proceeding in every individualized proposed class

2

of works involves this policy question in the same

3

way. But, I understand that with respect to motor

4

vehicles, there is this policy question presented.

5

And there's kind of negotiations that

6

have gone on with the independent repair shops and

7

the OEMs. And I'm not here to speak on whether that

8

solved that policy question properly or not.

9

But I think each proposed class is

10

different. And I don't think that issue is

11

presented with respect to every type of proposed

12

class.

13

MS. SALTMAN: Let's move on quickly to

14

tools. I want to pose a similar question that I just

15

had on third party repair.

16

How -- what authority does the Office

17

have in light of the anti-trafficking provisions

18

to include an exemption for tools, for unauthorized

19

tools?

20

MS. WALSH: Well, I would give the same

21

answer to that. That well, I think it might be --

22

I'd give the same answer that not all tools are,

23

you know, meet the requirements to be prohibited

24

under (a)(2).

25

But I'm curious if what kinds of tools

26

108

are in the question.

1

MS. SALTMAN: So, I mean, you know,

2

currently people can develop their own tools. The

3

owner of the vehicle can develop their own tools

4

for repair.

5

And under the MOU that repair shops have

6

with the car manufactures, there are authorized

7

tools that can be licensed. So, is there a need for

8

other tools to provide repair services to

9

consumers?

10

MS. WALSH: Yeah. So, this is

11

something that we discussed extensively in the

12

context of cars. And touched on a little bit

13

earlier today in regard to the market for providing

14

diagnostic tools.

15

So the way that an exemption interacts

16

with that is in order to develop the diagnostic tool,

17

you need to do circumvention to understand the

18

system and what's necessary to do diagnosis and

19

repair.

20

The tool itself is not a circumvention

21

tool. It's a tool that is built using the knowledge

22

you have gleaned about how the system works. So,

23

it doesn't need to circumvent in order to do the

24

diagnosis. It's reading the data that gets sent out

25

by the car.

26

109

But in order to build that tool, someone

1

needs to have circumvented in order to do the reverse

2

engineering of the device. So that you understand

3

what the codes coming out of it are.

4

If there are undocumented ways of

5

interacting with the software that will let you do

6

repairs that otherwise aren't transparent to

7

independent repair folks and so on.

8

And so that is a tool whose existence

9

is enabled by an exemption that lets you get in and

10

look at it. But it's not a circumvention tool,

11

because it doesn't do any circumvention.

12

MS. SMITH: So that sounds to me like a

13

tool that is enabled by 1201(f). Do you disagree?

14

If so, how?

15

MS. WALSH: So there's a space where it,

16

again, involves enabling interoperability of

17

hardware. Because when you replace a physical

18

component, you need to change the software in the

19

device like a car to get it to work correctly with

20

that car.

21

MS. SMITH: Sure, separately. And that

22

specific example you gave of the diagnostic tool

23

has software, right?

24

MS. WALSH: So that diagnostic tool,

25

you're trying to understand functional elements of

26

110

-- I -- certainly if the developer of that tool were

1

sued, then 1201(f) would be raised as a defense.

2

I would expect the other side to argue

3

that it's not interoperability with software, but

4

instead it's a device that is just taking advantage

5

of some kind of information. Not necessarily

6

software interoperability.

7

MS. SALTMAN: Is there any legal basis

8

or any authority that the Office -- I mean, some

9

of the proponents have asked for the ability to

10

distribute or disseminate these tools.

11

But that seems to run up against the

12

anti-trafficking provisions. Do you have any

13

argument that the Office has the authority to exempt

14

that behavior?

15

MS. WALSH: So in the context of making

16

sense of the way that the exemption allows an

17

individual to take advantage, they have

18

interpreted, you have interpreted the verbs that

19

are prohibited in the trafficking provision in

20

light of the whole provision.

21

And found us a commercial scale

22

requirement. So, I think that there's room to look

23

at whether noncommercial or personal are.

24

Otherwise, something that's not

25

commercial trafficking is lawful. And would help

26

111

people take advantage of the exemption.

1

Now a lot of the things that we're

2

talking about that are really important are

3

commercial repair services. So, that would not be

4

a complete, you know, panacea.

5

MS. SALTMAN: Mr. Wiens, in the

6

agricultural context, can you just talk about like

7

what role do these types of tools play in the repair

8

needs?

9

MR. WIENS: Sure. I mean, this is --

10

developing the diagnostic software, I mean, the

11

hope is that we'll be able to use the circumvention

12

to develop this diagnostic tool.

13

So I can plug it in. And maybe at some

14

point use the circumvention to identify what the

15

error code was. But now we can understand the

16

signals that are coming off the CAN bus.

17

The agriculture equipment is relatively

18

unsophisticated compared to the automotive

19

vehicles that have infotainment systems. They're

20

simpler. There's fewer TPMs overall.

21

And so I think what Ms. Walsh is

22

referring to, where you can use the circumvention

23

to develop the tool. And then that tool does not

24

do any circumvention itself, is very viable.

25

From everything that I understand so far

26

112

from our investigation of how John Deere's

1

technology works in particular.

2

MS. SALTMAN: Mr. Mooney?

3

MR. MOONEY: Hey, sorry. So can I just

4

clarify? So what we're talking about?

5

So are you in essence talking about like

6

a sniffer? Essentially you're saying that it is

7

reading data that is coming off of a product.

8

But that data is benign in some way? I'm

9

just curious. Or it can only be used for good?

10

MR. WIENS: I mean, the intent would be

11

benevolent. There are things that you do over in

12

standard CAN like resetting an error codes where

13

it's not purely reading data coming off the line.

14

You're communicating. You're acting

15

as a device on the network.

16

MR. MOONEY: Right. So, I just think

17

that's important to clarify. It's like there is

18

this benign data that's coming out.

19

So when you're reading -- you have the

20

ability to read, there's all kinds of sensitive

21

information flowing back and forth.

22

MS. SALTMAN: This is the telematics,

23

right?

24

MR. MOONEY: Yeah. But it's just like

25

the hack of what, you know, of sniffing data,

26

113

spoofing data.

1

It's the fact that you were able to

2

access and see it.

3

MS. SALTMAN: I see.

4

MR. MOONEY: Which has safety

5

implications from a telematics perspective. If you

6

were able to -- so a vehicle is communicating through

7

a number of other systems that its positions, its

8

navigation, where it's going, and the timing of

9

that.

10

If you were able to alter that by a

11

millisecond, that has potentially grave

12

implications for the user. So, it's not just this

13

-- and I get where you're coming from.

14

But there's more to it when you get to

15

-- when you're talking about data flow on and off

16

of a vehicle moving down the highway.

17

MR. WIENS: Well, and who owns that

18

data?

19

MR. MOONEY: We don't.

20

MS. WIENS: I do, right? It's my car.

21

It's my data.

22

MR. MOONEY: So, I think how it goes now

23

is that the manufacturer, the OEM owns that data.

24

Or whoever, whatever agreements they have with

25

other providers.

26

114

In most cases, Harmon is simply a data

1

enabler. And now we provide a system that provides

2

functionality in some way.

3

MS. SALTMAN: What's the support -- so

4

in terms of who owns the data, is there -- is that

5

sort of under the terms of the agreement with the

6

owner of the car?

7

Like how -- what determines who owns the

8

data?

9

MR. MOONEY: I can't speak to that.

10

MS. SALTMAN: Okay. Okay. Thank you.

11

That's all helpful.

12

Mr. Wiens, if there were an exemption

13

that allowed for the kind of tools you're talking

14

about, but didn't allow for distribution of those

15

tools, would that fill the need that there is for

16

these kind of tools?

17

MR. WIENS: I mean, the distribution is

18

a challenge. We've seen -- it's interesting, as

19

I've been looking, the companies who distribute

20

diagnostic tools for heavy equipment for long-haul

21

trucks, I found almost all of them are in Canada

22

and the UK, and none of them are in the U.S.

23

And so it really seems like there is a

24

stifling that's happening around -- where the

25

software companies that are developing and selling

26

115

and distributing these tools, are trying to stay

1

outside of the United States.

2

So, I would see a benefit to, I mean,

3

I think most of the market benefit will come from

4

being able to distribute these tools, but.

5

MS. WALSH: Yeah. Can we be clear about

6

what kind?

7

MS. SMITH: Yeah. I think that would be

8

helpful.

9

MS. WALSH: This is Ms. Walsh from EFF.

10

Can we be clear about what kinds of tools we're

11

talking about restricting?

12

Because the diagnostic tools that I've

13

described are not circumvention devices. So, I

14

don't know what the basis for restricting their

15

dissemination would be.

16

MS. SMITH: I don't think we're

17

suggesting there is if it's not something

18

prohibited by 1201(b)(2) or 1201(2).

19

So, I actually was also confused about

20

that.

21

MS. SALTMAN: Okay. Sorry for not

22

being clear. But, I mean, the proponents have asked

23

for circumvention tools as well.

24

MS. SMITH: But I mean, I wonder if Mr.

25

Wiens can explain if something is only in Canada,

26

116

why 1201 is the cause of that?

1

MR. WIENS: Well, those are potentially

2

tools, -- I mean, different classes of tools that

3

you could develop.

4

So those probably are tools that involve

5

circumventions.

6

MS. CHAUVET: So what type of tools

7

would those be if they're not for diagnosis?

8

MR. WIENS: Well, so --

9

MS. WALSH: For repair.

10

MR. WIENS: Yeah. I mean, some of the

11

existing repair tools. I mean, there's different

12

classes of things that you can do.

13

Some of the tools would require a

14

circumvention in the rule. And some of the tools

15

would not.

16

So, you have various levels of how deep

17

you can go.

18

MS. WALSH: So, Ms. Walsh again from

19

EFF. If you have a prohibition on doing the reverse

20

engineering that allows you to develop the tool,

21

then it makes sense that you don't get that tool

22

in the jurisdiction that has the prohibition.

23

MS. SMITH: But right now there is an

24

exemption but for repair. And we have said that the

25

ability to develop or make use, self-help to find

26

117

your own tool would be encompassed within that.

1

So, I'm not --

2

MS. WALSH: Mm-hmm.

3

MR. WIENS: But if you think about the

4

-- if I'm going to a venture capitalist and asking

5

for money. And I want to create a software company

6

and start developing these tools, and the exemption

7

might go away in two years, it's going to be very

8

hard for me to get funding.

9

MS. SMITH: Well, we are not in the

10

position of adopting any permanent exemptions.

11

That's some legislative matter.

12

So, I'm --

13

MR. WIENS: No. I totally understand.

14

I'm just saying that might be another reason that

15

you see these happening overseas.

16

MS. SMITH: Mr. Williams?

17

MR. WILLIAMS: Yeah, just quickly. I

18

think you understand this. And that's why you're

19

asking the questions.

20

But I think this topic is something

21

you've got to be really careful with if you're trying

22

to design it in a way that enables certain tool

23

generation by beneficiaries of exemptions without

24

getting into the trafficking provisions.

25

And I think there are instances where

26

118

an individual who has an exemption and wants to

1

exercise their rights under that exemption, could

2

create a tool for that purpose. That type of

3

personal use.

4

I think you would need to look at, is

5

the manufacturer of the tool or the importation of

6

the tool for the purpose of exercising one of these

7

three prohibited activities?

8

And if you decide that a repair shop is

9

prohibited under those three prongs from doing what

10

it does, then the manufacture of the tool by that

11

shop becomes something that there shouldn't be an

12

exemption for.

13

So, I think that's a hard line to draw.

14

Hopefully I'm being clear.

15

But I just -- I do think there are times

16

when people can make a tool that doesn't quality

17

as trafficking. And I do think this is about

18

trafficking. Because it says otherwise traffic.

19

But, just drawing that line would

20

require a lot of care.

21

MS. SALTMAN: Thank you. That's

22

helpful.

23

MS. CHAUVET: Just a quick question

24

about the MOU, just to clarify the record. So,

25

under the MOU is it that tools for diagnosis are

26

119

available?

1

Or are we talking about tools for

2

repair? And in either case are those sort of

3

basically allowed tools from the manufacturers, but

4

that actually circumvent when they either diagnose

5

or repair?

6

MR. WIENS: Sure. Yeah, if you have the

7

tool from the manufacturer with the key in it, then

8

there's no circumvention. Because you're

9

basically authorized by the manufacturer to do

10

that.

11

So that's what the MOU says. Is that the

12

manufacturer would have to make available those

13

tools.

14

Unfortunately the tools under the MOU

15

are only your standard, like cam bus level tools.

16

They are not telemetry, telematics level tools.

17

And so, you know, you have levels of

18

repair. It's allowing certain, -- you know, you can

19

do a certain set of repairs under the MOU.

20

But over time as these vehicles get more

21

sophisticated, there are other repairs that are not

22

allowed. And I think Aaron Lowe referred to, you

23

know, ongoing discussions.

24

They're finding that the MOU is

25

insufficient. And they're looking for additional

26

120

remedies on top of that.

1

MS. CHAUVET: So I guess a follow up

2

question for Mr. Mooney. So, if these tools under

3

the MOU are essentially circumventing, it sounds

4

like in some cases.

5

Why is it okay for these repair shops

6

to use those tools to circumvent? But then not like

7

have someone -- because you're talking about like

8

security and everything else.

9

So, I want to know like how the tools

10

offered under the MOU meet your security concerns?

11

Presumably they do.

12

MR. MOONEY: Well again, you know, a lot

13

of this falls within the manufacturer who is selling

14

to a dealer. Who then, you know, is working with

15

authorized repair service providers.

16

There is a handshake of sorts that goes

17

on between the manufacturer at the dealer level or

18

at the repair level, to ask to be able to get keys

19

or codes or tools to access systems within that

20

vehicle.

21

And I think that's a -- and to me that's

22

okay. I mean, if there's some sort of process by

23

which that takes place, and which it does already,

24

then there's no objection on that to my, you know,

25

to my end.

26

121

MS. SMITH: So do you have something

1

else?

2

MS. WALSH: It's a different topic.

3

MS. SMITH: Did you have something else

4

to say on this class?

5

MS. WALSH: Yes.

6

MS. SMITH: Okay. Go ahead. What

7

else?

8

MS. WALSH: So I just want to point out,

9

as you think about, you'd asked a couple of questions

10

about scoping the devices that are involved.

11

So, we think that the record

12

demonstrates that the need is not limited to a

13

particular kind of device. And point out that

14

section 117 is not restricted in terms of what

15

machines are contemplated. It doesn't exclude

16

entertainment devices.

17

I would say to the extent that you are

18

persuaded that the speculative concern about

19

potential copyright infringement justifies

20

narrowing the class.

21

I'll throw out alternative language to

22

consider. Such as excluding a device that is

23

primarily a media playback device for audiovisual

24

works and sound recordings.

25

Again, just to reiterate, don't think

26

122

that such an exclusion is warranted.

1

MS. SMITH: Mr. Mooney? I think this

2

is sort of last call for anyone on this Class before

3

I turn it over then.

4

MR. MOONEY: Yeah. So, nothing

5

additional. I just wanted to make an important note

6

here before I think we close out.

7

Is that Harmon is a wholly owned, and

8

this is more for the record, we're a wholly owned

9

independent subsidiary of Samsung.

10

However, any comment that was made here

11

today, or any position or opinion, is of Harmon,

12

not of Samsung.

13

MS. SMITH: Thank you. Understood.

14

Mr. Williams?

15

MR. WILLIAMS: Just very quickly. I

16

appreciate Ms. Walsh's attempt to offer some

17

limiting language.

18

And although I can't endorse what she

19

offered, I'd be happy to work with you on any

20

language that you want to try to craft.

21

MS. SMITH: Thank you. Mr. Wiens?

22

MR. WIENS: I'd just like to thank you

23

for considering this topic. The environmental

24

implications of the decision that you make will be

25

far sweeping and potentially have greater

26

123

implications then a lot of the decisions that some

1

of your colleagues at the EPA maybe making right

2

now. This is a very big deal.

3

And the tools and ideas and techniques

4

that are developed in the repair industry in the

5

United States, reverberate throughout the world.

6

This is really important and I appreciate your time

7

and dedication on this.

8

MS. SMITH: Thank you. We appreciate

9

everyone's participation in this. We're going to

10

adjourn shortly for a break.

11

But, start again as scheduled at 11:30

12

to discuss Class 11. And I'll just remind anyone

13

in the audience, if they wish to sign up for audience

14

participation that's going to start at 1:30 on this

15

sheet that's on the table.

16

Thank you.

17

(Whereupon, the above-entitled matter

18

went off the record at 11:08 a.m. and resumed at

19

11:30 a.m.)

20

MS. SMITH: All right, I think we're

21

going to get started with our last hearing for the

22

triennial section 1201, rulemaking. This is Class

23

11, which is a request to circumvent TPMs protecting

24

computer programs that capture avionics data.

25

My name is Regan Smith, I'm Deputy

26

124

General Counsel of the Copyright Office and I think

1

we on this side will introduce ourselves and then

2

the panelists can introduce themselves.

3

MR. CHENEY: I'm Stacy Cheney, Senior

4

Attorney-Advisor at NTIA, National

5

Telecommunications and Information

6

Administration.

7

MR. RILEY: John Riley, Copyright

8

Office.

9

MS. SALTMAN: Julie Saltman, Assistant

10

General Counsel of the Copyright Office.

11

MS. CHAUVET: Anna Chauvet, Assistant

12

General Counsel of the Copyright Office.

13

INTRODUCTIONS - PANELISTS

14

MR. JACKSON: Thank you and good morning.

15

My name is Bruce Jackson, and with Air Informatics.

16

I filed the request for the exemption

17

for avionics or information off of the current

18

generation of aircraft. Any aircraft. But the

19

concerns are the current generation being digital,

20

software intensive, data intensive and connected.

21

Now, I can start with a bit of background

22

of who I am and why I come to this point, if you

23

wish.

24

MS. SMITH: I think it may be helpful

25

briefly. Now in general we have received --

26

125

MR. JACKSON: Can you speak up a little

1

bit.

2

MS. SMITH: Here, I'll move the

3

microphone closer. So we've reviewed the written

4

comments carefully and I think the point of this

5

hearing for us is to probe where we're trying to

6

understand better the evidentiary basis for the

7

requested exemption, as well as connect it to the

8

legal standards of the Copyright Office and NTIA

9

are looking at in determining whether to recommend

10

that an exemption be granted.

11

So I think if you wanted to briefly

12

summarize what brings you here, that would be a

13

helpful starting point. And then we'll sort of

14

drill down on questions that are probably geared

15

at what is happening in the Copyright Act and what

16

we're supposed to look at --

17

MR. JACKSON: Right.

18

MS. SMITH: -- in determining whether

19

the exemption might be appropriate to recommend.

20

MR. JACKSON: So shall I just wait for

21

your questions or --

22

MS. SMITH: Why don't you briefly

23

summarize what you're seeking to do.

24

MR. JACKSON: Can you speak up, I --

25

MS. SMITH: Can you briefly summarize

26

126

what -- why this exemption is necessary in your view.

1

MR. JACKSON: Okay. The current

2

generation of aircraft, the aircraft such as the

3

A350, the Boeing 787, the Gulfstream G650, these

4

generation of larger business jets and commercial

5

airliners are digital as I was saying.

6

They are basically computer controlled,

7

at this point. And the avionics systems on board

8

generate large quantities of data on a normal

9

operational basis. That information is used for a

10

variety of purposes. And those purposes can be for

11

flight operations quality assurance, how well the

12

airplane is being flown, how well the pilot is flying

13

the aircraft, is he doing so in a safe manner in

14

a way unto which the airline has their airline

15

standards.

16

There is information regarding to

17

maintenance and other activities on the aircraft.

18

And there is, today with these aircraft, there are

19

security concerns. The FAA has evaluated these new

20

generation of aircraft and determined special

21

conditions. Meaning that the design the airplane

22

taking into account information technology, the

23

certification rules to which they have been -- which

24

have been reviewed, do not account for the digital

25

nature of these aircraft.

26

127

And the fact that there can be digital

1

threats, cybersecurity threats, to the aircraft

2

itself. The FAA has identified -- well they have

3

a database and the last time I looked, about 24

4

different aircraft, that have been identified as

5

having security concerns.

6

And in that, they have also published

7

regulations and actions to which the airlines must

8

-- the airlines and the operators, because it could

9

be a private operator for that matter, who has a

10

business jet, that they must comply with and

11

maintain to keep the security of the airplane in

12

the air worthiness of the aircraft itself.

13

The aircraft is controlled and

14

basically broken down to the three domains. The

15

passenger domain, which has little concerns of

16

actions in it. There is an information domain to

17

which is controlled. And then a control domain

18

which is the actual net operation of the aircraft.

19

And each of those has the control domain and the

20

information domain has a concern and a potential

21

risk. And so part of the regulation is to develop

22

security protocols for maintaining this aircraft

23

and part of that protocol is to review the data.

24

Now the FAA and the airlines and the

25

operators have had an ever increasing improved

26

128

safety record because of the activities they have

1

done to oversee and provide quality assurance for

2

the maintenance support and operation of the

3

aircraft.

4

And so, with the digital nature of the

5

airplane itself, there is an increased interest in

6

the control of that information even though there

7

is a requirement now for the airlines to review that

8

data. So we're in a bit of an interesting area at

9

this point.

10

MS. SMITH: So is your company looking

11

to make like an aftermarket data analytic product

12

or what is your interest in circumventing a TPM on

13

an aircraft?

14

MR. JACKSON: Air Informatics, my

15

company, is really looking at the information, the

16

communications, the analytics, the connectivity,

17

and the cybersecurity for the airplane. So it's in

18

essence, how do we collect the information because

19

they are vastly wireless, but there is also wired

20

means to collect the data, what they call sneaking

21

out, running out to the airplane with a USB drive.

22

But it's about the connectivity, the

23

analytics, understanding what's going on in the

24

airplane and the cybersecurity.

25

MS. SMITH: So are you already

26

129

collecting this data or is there data that you would

1

like to collect that is being hampered by an access

2

control.

3

MR. JACKSON: I'm sorry I'm having a

4

hard time hearing. I've probably been around too

5

many airplanes. But --

6

MS. SMITH: Are you already collecting

7

this data or is the collection of the data that

8

you're seeking to get hampered by an access control?

9

MR. JACKSON: It is both really. In a

10

sense of the work that I've done and the work that

11

we've done have dealt with airplane health

12

management for Gulfstream, cybersecurity for Box

13

and penetration testing for the airline, or the

14

operator, or for the manufacture of the component

15

box that would go on the airplane. And for

16

assessments of the security of the airlines

17

infrastructure to support the airplane. And the

18

development of the airplane network security

19

program.

20

The drive for the request of the

21

exemption has been really the situations have

22

occurred where a manufacturer has chosen to encrypt

23

data and not provide access to it. Or to act -- to

24

prohibit the access to that data and prevent

25

companies from doing the analysis. Now we do the

26

130

analysis as a contract to an operator or an owner

1

because we are in contract to those parties.

2

MS. SMITH: So is the aircraft operator

3

or owner allowed access to that data and then they

4

pass it on to you? Or are they having a hard time

5

getting that data also?

6

MR. JACKSON: A combination of all of

7

the above. In the sense of we can do the analysis

8

because it can be complex and it had can be novel

9

and interesting in the sense that their not

10

well-versed in the space and they've gone to third

11

parties.

12

MS. SMITH: But can the aircraft

13

operator or owner get the data that you're seeking

14

to get? Right you're trying to circumvent

15

something in order to get data is what I understand

16

in essence what your request is. And I'm trying to

17

figure out who -- whether or not the aircraft owner

18

already has access to it.

19

MR. JACKSON: The aircraft owner, we

20

work in conjunction with the owner or the operator.

21

And I say owner or operator because you could have

22

leased aircraft.

23

MS. SMITH: Right.

24

MR. JACKSON: And you could have owned

25

aircraft. And there is a fine line difference

26

131

between that and a difference in interest. But we

1

fundamentally work for the operator because they

2

are the ones that have the requirement to maintain

3

a safe and secure aircraft. So the FAA regulations

4

go fall on the operator of the aircraft itself. And

5

so we work for them typically in this case.

6

We could work in the sense of a leasing

7

company may say I want that data because we have

8

to have that data when the lease gets turned over

9

in order to meet requirements of the FAA. We want

10

to make sure we have it up-front instead of trying

11

to collect afterwards.

12

And they have concerns of failures of

13

the airline and inability to get that data would

14

have a significant impact on them in the end.

15

MS. SALTMAN: Does -- is it the

16

manufacturer of the airplane who controls access

17

-- who would give access to the data or the

18

manufacturer of sub components within the airplane.

19

How does that work?

20

MR. JACKSON: You buy the airplane, you

21

buy all the systems in it. You pay for the gas, you

22

hire the flight crew, you fly the airplane. The

23

owner’s requirement to maintain in a safe condition

24

is --

25

MS. SALTMAN: Yes, but --

26

132

MR. JACKSON: Is on the operator.

1

MS. SALTMAN: But so who has access to

2

the data that you are trying to access? If that's

3

protected by an access control, like who has the

4

password to get to that data? Is it the

5

manufacturer of the component, or --

6

MR. JACKSON: No, it's a responsibility

7

of the airline to collect that data. The standard,

8

or how that data might be formatted is by an

9

industry-based standard. In the sense there is a

10

committee or group called ARINC, we were originally

11

called Aeronautical Radio.

12

That was formed by the airlines

13

themselves going back to the '20's to create

14

standards so they can have interchangeability of

15

components or parts or the like. And they've

16

defined a format standard to which the

17

manufacturers build to.

18

But the software itself may both be --

19

may be developed by the box owner but the information

20

we're collecting relates directly to how that

21

aircraft is being operated, how it's being flown,

22

how it's being maintained in itself.

23

MS. SALTMAN: I guess what I'm trying to

24

get at is, in order to get to the information, I

25

mean, is it possible to go to the manufacturer of

26

133

the box or the airplane and seek permission or get

1

a license to access that data?

2

MR. JACKSON: Well, they are trying to

3

exert the position, some, that you can't deal with

4

the data unless you get our permission. But the

5

airlines believe, and historically, this

6

information has been the airlines considered their

7

airline information. And it could be anything from

8

-- any type of information.

9

MS. SMITH: Do the airlines already

10

have access to this data that you're seeking access

11

to.

12

MR. JACKSON: They have -- yes, because

13

they're responsible for -- example: there is a

14

wireless access point on the top of the airplane.

15

In what's called the electronics bay or in a

16

compartment of the airplane itself, which holds all

17

the computers, there are file servers. The

18

airplane information is collected in that file

19

server, in essence the hard drive. Then on landing,

20

that data is streamed out directly from the airline

21

to a corresponding access port at an airport or at

22

that their hangar to go directly into their

23

possession.

24

MS. CHAUVET: I'm sorry, to go into

25

whose possession -- to go, when you say the data

26

134

is going to the hangar or whatever and it goes into

1

their possession. When you say their possession,

2

who do you mean, specifically.

3

MR. JACKSON: I missed the last part.

4

MS. CHAUVET: When you are saying their

5

possession, whose possession are you referring to?

6

MR. JACKSON: The data from the

7

airplane after a flight goes, you know, they have

8

the responsibility and they have setup systems so

9

it goes back to the airline. And so it can go

10

directly when they land and pull into the hangar

11

or to the terminal and it goes directly back to their

12

servers.

13

MR. RILEY: When you say the airline, do

14

you mean the owner or the operator?

15

MR. JACKSON: The owner or operator,

16

really yes, that's the best way to do it. And that's

17

what I'm saying.

18

MS. SMITH: I guess I had thought that

19

you were looking at the airlines or the operator

20

as a potential client but it sounds now like you

21

may be trying to access data that is proprietary

22

to the airline that they do not wish to share.

23

MR. JACKSON: We do not do anything

24

without the airline's request and on contract. So

25

we're not listening in and going back to them because

26

135

that data belongs to the airlines.

1

MS. SMITH: So now I'm confused why the

2

exemption is necessary if the airline already has

3

the data. Can't they just give it to you?

4

MR. JACKSON: Again, I apologize.

5

MS. SMITH: Can the airline just give

6

you the data if they already have the data and it's

7

their data?

8

MR. JACKSON: I'm not sure I

9

understand.

10

MR. CHENEY: So let me maybe restate the

11

question slightly different. So in what process

12

are you interrupting that data flow? You said that

13

the airplane pulls up, it then is transported or

14

transmitted to a server at the hangar --

15

MR. JACKSON: Right.

16

MR. CHENEY: And at what point are you

17

interrupting that? Are you getting it after it's

18

already stored by the operator or are you getting

19

it in between that, is that when you're getting it?

20

MR. JACKSON: It can be either in the

21

sense that we have and can set up an access point

22

and manage that access point. And so the data comes

23

from the airplane and we can do things where we

24

manage the delivery. We oversee the delivery from

25

the airplane. We can capture the information as a

26

136

service that then delivers it to the airline.

1

MR. CHENEY: So then can --

2

MR. JACKSON: So that doesn't mean we do

3

an analysis of it, we just do a connectivity and

4

delivery. We can do, on contract, the analysis of

5

the data.

6

MR. CHENEY: So let me probe a little bit

7

more on that. In order to do so, you're saying that

8

you have permission of the operator to interrupt

9

that flow?

10

MR. JACKSON: Yes.

11

MR. CHENEY: And so it's curious to me

12

why they wouldn't give you that after it already

13

was loaded onto their server rather than

14

interrupting that. Is there some reason why you

15

have to interrupt that data flow in order to get

16

the data? Is it because the format of the data is

17

the problem?

18

MR. JACKSON: No. It's in the sense of

19

it's not in their business model to do wireless and

20

information management at that side and they may

21

find that it is not cost effective as their own

22

systems. And so it's a matter of economics. It's

23

not that they can't, they may not be good at it or

24

they may not find it economically -- they may find

25

it economically better that we do it, then they do

26

137

it. So it's a matter of just a business model, I

1

think is how I'm answering.

2

MS. SMITH: I'm not sure that that is his

3

question. I think he's saying maybe, Mr. Cheney,

4

correct me if I'm wrong, but if you're getting the

5

data at one part of the process are you just seeking

6

to circumvent to make it more convenient to get it

7

at a different part of the process? Or is there

8

something else going on?

9

MR. JACKSON: It's a matter of their

10

business choice. We can deliver the data, capture

11

it and make sure, manage that collection process.

12

And delivering it to their servers to look at. Or

13

we can deliver it to their servers for somebody else

14

to look at. But it's their data, if I'm

15

understanding what you're saying, is to their data

16

and frankly, you may have an operator that is small.

17

Two airplanes. And that's just not something

18

they're good at or want to be good at. And so

19

they're going to say help us get that data.

20

And that's part of the business, to do

21

the connectivity piece and the management piece and

22

part of it would be a report to say so much was

23

delivered as of this date but I don't know what's

24

in the ones and zeros.

25

The business model could also say do the

26

138

analysis of the data. It's the analysis of the data

1

that -- because the data that we manage may be

2

encrypted and we can't see it and that's fine. But

3

the data in a case that's encrypted, the airlines

4

or the owner or the operator, may then say we would

5

like you to review and analyze that data as well.

6

But if it's encrypted, we have -- that's a means

7

of protection that we have to then overcome.

8

MS. SMITH: Can they give you the

9

airline’s permission to decrypt the data in that

10

example?

11

MR. JACKSON: Yes, if they have it and

12

yes, if they're given that decryption code. That

13

has not always been the case. There have been cases

14

where the original plan was a standard VPN from the

15

two ends of the end point, you know, from the

16

delivery to the receipt of the data on the ground

17

or at a hangar. And then they chose to encrypt it.

18

And so --

19

MS. SMITH: Who is they?

20

MR. JACKSON: We can be the VPN end point

21

but they chose to encrypt it as well.

22

MR. CHENEY: Who's encrypting it in

23

that example?

24

MR. JACKSON: Well, it would be the

25

manufacturer of the airplane.

26

139

MR. CHENEY: And so by -- what you're

1

suggesting is, I think, in this process, let's see

2

if we're teasing this out and we understand that.

3

I think that's what we're trying to get at here,

4

right? Is that -- is you're working -- your client

5

is primarily the operator of the airlines.

6

MR. JACKSON: Yes.

7

MR. CHENEY: Whoever's operating the

8

airplane. This data is being encrypted or coming

9

from the manufacturer of the airplane or the

10

manufacturer of the part or whatever, and they're

11

the one that's imposing the encryption on it and

12

you want to decrypt it at some point in that process.

13

Is that what we're getting at?

14

MR. JACKSON: Yes. If it's on contract

15

with the owner or operator. There have been cases

16

that didn't happen with us but a manufacturer of

17

the airplane -- the operator, owner or operator,

18

has data. They have collected it. And now they

19

want to give it to a third party company to do

20

analysis of it because they didn't have the

21

expertise or the staff or economically, they

22

thought it would be better to contract it out.

23

MR. RILEY: And this is the encrypted

24

data?

25

MR. JACKSON: It could be encrypted or

26

140

it could be decrypted --

1

MS. SMITH: Well, if it's decrypted you

2

don't --

3

MR. JACKSON: In case it could be

4

encrypted.

5

MS. SMITH: If it's decrypted 1201 is

6

not hindering your ability, I think, to analyze that

7

data. So we're more focused on when there's

8

encrypted data.

9

MR. JACKSON: Encrypted data. And then

10

the OEM, the manufacturer, steps in the middle and

11

says no, you can't give that to them. We're not

12

giving you the code and that became a business

13

challenge, it became a regulatory challenge. In

14

this particular case, the company that was doing

15

the analysis was purchased by another large well

16

known company and the OEM said well, we withdraw

17

our -- if you're going to go with that company to

18

do, now that they're owned by this other, we don't

19

have a problem with that. And so, it got very

20

complicated in that sense.

21

MS. SMITH: Do you --

22

MR. JACKSON: So there --

23

MS. SMITH: Have you received threats

24

of legal action based on section 1201?

25

MR. JACKSON: I'm not sure that --

26

141

MS. SMITH: So in that example, it

1

sounded like the situation was resolved. So I'm

2

wondering about, again, the need for this

3

exemption. Has your company or your clients

4

received refusals to decrypt the data or

5

cease-and-desist letters invoking section 1201, or

6

something suggesting that this prohibition on

7

circumvention is an obstacle to what you want to

8

do?

9

MR. JACKSON: I really apologize, I'm

10

not hearing you properly.

11

MR. RILEY: Has anyone told you that you

12

cannot decrypt the data, that you've been presented

13

with a cease-and-desist letter, or --

14

MR. JACKSON: We have never received a

15

cease-and-desist letter.

16

MR. RILEY: Have you asked for

17

permission and been told no?

18

MR. JACKSON: We have been told that we

19

would not be given permission.

20

MR. RILEY: So when the -- let me just

21

clarify some things you've been saying. It sounds

22

like the aircraft owner or operator can get the

23

encrypted data off of the airplane without a

24

problem. But the problem is decrypting it.

25

MR. JACKSON: Correct. And the actual

26

142

access to the data. And they have even gone to the

1

point where even the data was not encrypted or they

2

refused -- they basically have threatened that you

3

have to pay a license to review that data.

4

MS. CHAUVET: Do you know of any

5

circumstances where someone has asked for a license

6

to the encrypted data and the license has been

7

refused?

8

MR. JACKSON: The data has not been

9

requested -- not, we have not been told that you

10

can get a license for this data.

11

MS. SMITH: I thought you said just a few

12

minutes ago that someone could be offered a license

13

to the encrypted data. So that's what I'm asking

14

about.

15

MR. JACKSON: It was another company,

16

that is how it's happened. And the situation that

17

I described of the OEM stepping in between and saying

18

you can't have access to that data without a license

19

to it, was not with my company, but it was with a

20

company that I was working with. And we couldn't

21

go forward, even with discussions.

22

MS. SMITH: But that implies you can get

23

a license to the encrypted data.

24

MR. JACKSON: They --

25

MS. SMITH: So I'm asking --

26

143

MR. JACKSON: Yes.

1

MS. SMITH: For any examples where a

2

license to the data has been requested but then has

3

been refused.

4

MR. JACKSON: In this particular case,

5

I was managing, we were managing, a certain part

6

of that chain. A certain part. And I was managing

7

the security -- development of the security

8

protocols.

9

In that we were pointing out and

10

determining what type of analysis would be required

11

and how to manage the requirement to analyze the

12

data. The particular -- our owner operator had a

13

long standing agreement with that owner operator

14

that data would be managed.

15

The OEM stepped in and says you can't

16

allow them that data.

17

MS. SMITH: You said earlier though it

18

is the aircraft's operator's data, so how can the

19

OEM prevent them from sharing their own data?

20

MR. JACKSON: That is a question that I

21

can't -- that is a question I cannot directly answer

22

because I am of the belief, the owner operator was

23

of the belief that they owned that data.

24

Because, again, it was a box that they

25

purchased, came with the airplane. The format was

26

144

commonly known and was not proprietary. And they,

1

the manufacturer of the airplane was saying you

2

can't do that. In the end, they removed their

3

objection when the third party company that was

4

doing the analysis was acquired by a major partner.

5

MS. SMITH: Do the owner operators,

6

which it involves their data, do they support your

7

request for an exemption. Do you know?

8

MR. JACKSON: For them to do the

9

analysis?

10

MS. SMITH: For you -- this exemption,

11

there was only two comments, maybe three comments,

12

filed and we didn't receive any from the airlines.

13

Do you know whether your clients support your

14

request for this exemption?

15

MR. JACKSON: Again, I'm not exactly

16

sure I'm hearing you properly.

17

MS. SMITH: You seem to be seeking an

18

exemption to circumvent an access control to get

19

at data owned by the airlines.

20

MR. JACKSON: Yes.

21

MS. SMITH: Do the airlines support

22

your request, do you know?

23

MR. JACKSON: Yes, I believe they would

24

in this case. If they --

25

MS. SMITH: Have you asked them?

26

145

MR. JACKSON: We have engaged in that

1

with airlines and it's an ongoing discussion and

2

it's something we've had with other airlines

3

globally. That, of course, doesn't impact this

4

decision because it's not a U.S. airline.

5

MS. SMITH: But the airlines may be in

6

a position to give you this data.

7

MR. JACKSON: Yes and no. If the data

8

has already been encrypted -- has been decrypted

9

and they have the codes, yes they can. It is their

10

data, it is their right to manage it any way they

11

wish. That is their position, that is our position.

12

There have been cases where they have

13

not been given that information to decrypt that

14

data.

15

MS. SMITH: Does this data, it comes

16

through in bulk form. Would you call it

17

unstructured data?

18

MR. JACKSON: It is in bulk form, it's

19

raw files, it's un-interpreted. It requires a

20

degree of interpretation and it comes not as ones

21

and zeros but in some form of, how can I put it,

22

formatted data but it's not in a easy to understand

23

fashion. It's a combination of codes and text

24

characters with certain meanings.

25

The meaning of this data, and it could

26

146

be altitude, pressure, temperature, speed, how the

1

airplane is flown, control service inputs, things

2

like this, that the industry has defined

3

definitions of this and formats of it saying this

4

is the order of the data and you can take it from

5

this x-y-z to an intelligent text stream of speed,

6

altitude, pressure.

7

MS. SMITH: So the format is dictated by

8

industry standards or FAA regulations. Is that

9

correct?

10

MR. JACKSON: The document -- the

11

development of that standard is done by committees,

12

by the operators themselves -- that are composed

13

of the operator staff. It was originally done over

14

at the company called ARINC. ARINC in its structure

15

has been recently sold. There's a history to that,

16

ARINC was formed in the '20's by the airlines

17

themselves. Everybody had a piece of the company,

18

a percentage of the company. And they still have

19

committees that define standards for the

20

development of the box, the format of data in this

21

particular case.

22

Now as it turns out, during the

23

beginning of the recession, the airlines wanted to

24

get rid of the ownership of the company and they

25

sold it to a private equity firm Carlyle. Carlyle

26

147

then sold it to Rockwell Collins. Rockwell Collins

1

then diverse, you know, sold off the Standards Group

2

to SAE, which is Society of Automotive Engineers.

3

They are maintaining this in the same way they have

4

before.

5

MS. SMITH: They're maintaining a

6

standard?

7

MR. JACKSON: The standards and

8

developing new standards.

9

MS. SMITH: How do the operators comply

10

with the FAA regulations currently if there is

11

encrypted data they are having trouble getting

12

access to?

13

MR. JACKSON: I'm not again --

14

MS. SALTMAN: Well, can I ask -- because

15

the FAA regulations mandate that the airlines have

16

to analyze this data and collect it. If a

17

manufacturer of a box or a component refuses access

18

to the data, isn't there some way you can point to

19

these regulations? Is there an enforcement

20

mechanism where the manufacturer has to comply to

21

allow the airline to comply with the FAA

22

regulations?

23

MR. JACKSON: That action has not been

24

taken. The FAA does not seem to be interested in

25

taking that action. They don't care how you get the

26

148

data, as long as the analysis, I shouldn't say data,

1

I should say the analysis, is done, as long as it's

2

done. And so they don't care if you pay a license

3

or do it yourself. They just say it has to be done.

4

MR. CHENEY: Are you saying that in some

5

instances, that it's not being done today? Is that

6

why your service is being offered? Is there a gap?

7

MR. JACKSON: There are, I know very

8

specifically of cases, where it's not being done.

9

MR. CHENEY: And it's done because they

10

can't interpret the data because it's encrypted and

11

it can't be read, except by some third party provider

12

like yourself?

13

MR. JACKSON: It's a host of reasons.

14

Manpower, knowledge, experience. I don't think

15

there's one definitive reason that they are not

16

doing it.

17

MR. CHENEY: So it's not necessarily

18

primarily that there's encryption on the data that

19

is not the reason that they're not providing it.

20

MR. JACKSON: That is one of the

21

reasons.

22

MR. CHENEY: It is one, okay.

23

MR. JACKSON: It is certainly one of the

24

reasons. I mean, there have been cases where they

25

-- goes back -- they have not managed to create a

26

149

consistent connection to the airplane. And so they

1

were unable to get it for periods of time.

2

Could be weeks or months. And though

3

the regulations say that you need to do this on a

4

periodic basis, it was not done. And there are

5

cases where the encryption, and they didn't do it

6

because they didn't have the skill, they didn't have

7

the encryption codes and it's not being reported.

8

I know on some manufacturers, one

9

manufacturer, and airplanes, they are not

10

distributing the encryption codes and to comply

11

with the regulations you have to go to their

12

designated company. And that's just the way they

13

did it.

14

MS. SALTMAN: What happens if an

15

airline doesn't comply with these regulations?

16

Does the FAA impose a fine on the airline? Are they

17

grounded? What happens?

18

MR. JACKSON: They -- if there is an

19

audit of the regulation, there can be some form of

20

penalty, which is typically a fine. The fines vary,

21

depends on the severity of the issues. But audits

22

are not that common.

23

MS. SALTMAN: And do you cite the exact

24

regulation you are referring to you in your comment?

25

Or do you have that?

26

150

MR. JACKSON: I can give you those

1

regulations.

2

MS. SALTMAN: Okay.

3

MR. JACKSON: I can give you, those I can

4

give you copies of because they're public. There's

5

AC -- and I can rattle some of them off right now.

6

MS. SALTMAN: Sure, that would be

7

helpful.

8

MR. JACKSON: AC 119-01, OpSpec D301,

9

FAA 8900.168 -- what did I have. I thought I did

10

have a list, but I can give you that digitally. AC

11

119 which I mentioned. FAA 8900.1 Volume 3, Chapter

12

61, which is the aircraft network security program.

13

I mentioned OpSpec D301, which is in N8900.189 and

14

that's aircraft network security as well.

15

N8900.358, dealing with aircraft electronics

16

systems security special conditions. Those are the

17

primary ones that are in place right now.

18

MS. CHAUVET: Given that there are so

19

many current regulations, why would it not be more

20

appropriate for the FAA to address the issues of

21

manufacturers not providing --

22

MR. JACKSON: They --

23

MS. CHAUVET: --- decrypted data.

24

MR. JACKSON: Well it may be, and I can't

25

say whether it is or is not, they are not getting

26

151

them -- they tend not to get involved in something

1

relating to this.

2

MS. CHAUVET: Have there been direct

3

efforts or have you tried to --

4

MR. JACKSON: I had --

5

MS. CHAUVET: --- affect the FAA

6

regulations or any other regulations to require

7

manufacturers to provide encrypted --

8

MR. JACKSON: I've had conversations

9

with those individuals to understand why it's not

10

being done and what their position is and the answer

11

has been it's not our position to do that.

12

MR. RILEY: If you were able to get the

13

encrypted code, how would you decrypt it?

14

MR. JACKSON: Well, the encryption code

15

is like anything else, it's like any other encrypted

16

data, you just apply the code and it will --

17

MR. RILEY: But assuming you don't have

18

the code?

19

MR. JACKSON: Well --

20

MR. RILEY: Let's assume you have the

21

encrypted data but not the encrypted code, what

22

happens next?

23

MR. JACKSON: Right. If I don't have

24

the decryption key.

25

MR. RILEY: Right.

26

152

MR. JACKSON: Now you could go through

1

a variety of algorithms to try to find a way to go

2

-- to find that code and go do it. That's the

3

standard process of procedures. But it's not one

4

that I choose to do. That, in my opinion, gets a

5

little bit dicey even if we have the permission to

6

do it. But you can technically do that. It depends

7

on the strength of the code and how they've chosen

8

to encrypt it, the algorithms they've used.

9

MR. RILEY: How strong is the code?

10

MR. JACKSON: It varies. It's up to

11

whoever's setting up the encryption algorithm.

12

MR. RILEY: What's typical? 16 bit?

13

32 bit?

14

MR. JACKSON: It's typically, I hate to

15

say this, I've seen some pretty weak encryption

16

codes. They are not current to NIST standards or

17

recommendations. Historically, they just have

18

not.

19

One manufacturer only, I don't know if

20

it was late last year or the beginning of this year,

21

changed digital certificates from SHA1 to SHA2 and

22

that's been recommended to be changed 10 years ago

23

by NIST. But they just hadn't.

24

These are not necessarily the most, well

25

-- I've seen various levels of encryption. From

26

153

very weak that could probably be decoded in a short

1

period of time.

2

MR. RILEY: Is there any concern that if

3

you were to decrypt the code it would somehow become

4

corrupted?

5

MR. JACKSON: Well you have standard

6

methods to make sure the data is not corrupted.

7

That's built in to the information. There is means

8

to which the data can be authenticated, validated,

9

and can with CRC and other forms of digital means

10

to make sure that the data, the integrity of the

11

data, remains.

12

That's key to what has been done and

13

that's a fundamental principle in developing the

14

data stream and the delivery of data.

15

MS. SMITH: So you're --

16

MR. JACKSON: So that's not necessarily

17

related to decrypting it or not. And you would be

18

able to tell whether it was, you know, corrupted

19

in one manner or another.

20

That's critical in a couple of ways.

21

One, you're dealing with very specific information

22

with a format that, output format, that is within

23

the expected norms. Corrupted data from going from

24

600 knots per hour, 600 miles per hour to 601 miles

25

per hour is, you would detect that from a CRC but

26

154

the type of errors you would have is you're suddenly

1

doing 60,000 miles per hour, which is obviously in

2

error.

3

But there are means to digitally

4

determine that the authenticity, the

5

non-repudiation, all these components are in it to

6

make sure that what is sent is what is received.

7

And that's independent of encryption.

8

MS. SMITH: So you have said in your

9

writing that the circumvention would be conducted

10

in a controlled setting such as an office or data

11

management environment. And that the data would

12

not be exposed in any real time flight operations

13

setting. Can you explain a little bit more how that

14

would work?

15

MR. JACKSON: Well you're dealing with

16

standard methods, tools, process and procedures to

17

guarantee that you're not losing any data loss.

18

You're not going to have any data loss or data --

19

MS. SMITH: But I think my question is

20

you're not taking the data while the plane is in

21

the air? Right? I mean, what does that mean, the

22

data would not be exposed in any real time flight

23

operations setting? That's your statement, so I'm

24

just trying to understand what is behind that?

25

MR. JACKSON: I'm not. You're saying

26

155

that how do I prevent the data being lost and being

1

--

2

MS. CHAUVET: No, I think she's talking

3

more about safety concerns. So like you say you're

4

going to be analyzing the data in a controlled

5

environment not when the plane is in the air.

6

MR. JACKSON: Oh!

7

MS. CHAUVET: And I think she just

8

wanted some more information about that statement

9

that you made in your written submission.

10

MR. JACKSON: This is just being done in

11

industry standard practice and services and

12

environments. That's fundamental with everything

13

you do. And the data does not directly impact any

14

air worthiness or provide any flight risks. The

15

data is to see that the airplane is being flown

16

properly, maintained properly. Probably the most

17

real time concerns is the cyber security side to

18

make sure that you can look at the data at some close

19

interval to determine that nothing -- no one has

20

touched the airplane with an intentional means to

21

harm or to corrupt or in any way to affect the air

22

worthiness of the airplane or the flight.

23

MS. CHAUVET: Once you have access to

24

the data, particularly in the cyber security area,

25

which you're just referencing, does that give you

26

156

control of any kind over any of the software in the

1

plane or information about being able to access the

2

software in other parts of the airplane?

3

MR. JACKSON: The data that is

4

received, again, is in all cases advisory. In the

5

sense that it does not -- I mean the data is always

6

advisory in the sense you can look at it to determine

7

how well the airplane is being flown.

8

Whether certain maintenance actions

9

have actually occurred. Maintenance actions have

10

been done properly. In the cyber security side it

11

would be to make sure that nobody has touched the

12

airplane. That you can see no malicious act that

13

would impact the airplane itself.

14

MR. CHENEY: I think part of the

15

question here is is that misuse of this data in some

16

way, does this data give you the sort of information

17

that would -- were it be published on the internet,

18

for example, that it would allow some cyber security

19

incidents or allows you that sort of access that

20

you would be able to have some malicious access to

21

the aircraft or be able to --

22

MR. JACKSON: Access to the aircraft --

23

I'm trying to think of the best way to answer that.

24

The data itself should not or would not impact the

25

operation of the aircraft itself if it was revealed

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157

to someone. It might reveal someone's flying

1

capabilities. It might reveal a maintenance fault.

2

It does not impact some software being changed or

3

reloaded or, you know, counterfeit software to be

4

delivered to the airplane.

5

MR. CHENEY: So, I think -- if we can

6

restate what you're saying just to make the point

7

is that this data is given to you at some point by

8

the airline.

9

MR. JACKSON: Yes.

10

MR. CHENEY: After the plane is on the

11

ground.

12

MR. JACKSON: Yes.

13

MR. CHENEY: All of this data is given

14

to you to analyze what the plane has just done.

15

MR. JACKSON: Yes.

16

MR. CHENEY: And then to give it back to

17

the airline to say this is what's wrong. It's not

18

to access anything while the plane is in the air

19

or to affect its next flight.

20

See that might be one of the issues is,

21

does that data give you an opportunity or, whomever

22

might get access to this data, some information that

23

allows them to do something with the plane as it

24

takes off for the next flight.

25

MR. JACKSON: The -- in any of this you

26

158

may look at a case where somebody is flying

1

erratically and it might be flagged to the airline

2

that something dramatically is wrong with how this

3

airplane is being flown. There could be something

4

that could determine they made a maintenance error

5

and the anti-lock brakes, you know, are mis-wired.

6

That requires a very quick analysis which is not

7

being done now. Most of this is trend related

8

information. The most important real time or near

9

real time analysis would be the security of the

10

airplane itself. To look at the data and to see that

11

there was no unauthorized access to the airplane.

12

There is the equivalent of a firewall and that no

13

one attempted to go through the firewall.

14

Or there's an access point. And you can

15

see there was no unauthorized, repeated attempts

16

to log into the airplane from -- at some airport,

17

that was unauthorized. That's the type of thing the

18

FAA is most concerned with that would raise a red

19

flag that says hey, we have to look at something.

20

Because all of a sudden at x-y-z airport someone

21

tried to connect into an access point on the top

22

of the airplane a hundred times. And the airplane

23

didn't respond or the airplane responded.

24

Did someone maliciously try to upload

25

something to the airplane? Try to connect through

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159

something? Those are the type of things that are

1

most important in a real time basis. That, I think,

2

is what you're looking at, the answer, the type of

3

thing you're looking for with that question.

4

MR. CHENEY: Well, actually I was

5

looking for the sensitivity of the data itself that

6

you're getting. Can that data be misused?

7

MR. JACKSON: Yes, and the misuse --

8

MR. CHENEY: Not the mix.

9

MR. JACKSON: No, it should not be in the

10

sense in that sense.

11

MR. CHENEY: So my question is then why

12

is the manufacturer encrypting the data? What's

13

the --

14

MR. JACKSON: Well, there's economic

15

value to data. There is a belief, and I have been

16

told by a vice president in charge of one aircraft

17

program, that it is their intent to own everything

18

on that -- all the data off of that airplane, because

19

it impacted their business opportunities for global

20

services.

21

So that they could offer certain

22

maintenance operations and they wanted to be solely

23

responsible for that. That was specifically told

24

to me by a vice president of an aircraft program

25

at a well-known manufacturer. So, it's similar to

26

160

what I had said with the airline being told by a

1

manufacturer that no you're not authorized to give

2

the data captured from your airplane on how you're

3

operating it or how the pilots are flying the

4

airplane to a third party company to do the analysis.

5

MS. SMITH: All right thank you, Mr.

6

Jackson, very much. I don't think we have any more

7

questions for you. So that will wrap up Class 11

8

and we will back at 1:30 for our very last session.

9

MR. JACKSON: All right, thank you very

10

much.

11

MS. SMITH: Thank you.

12

MR. JACKSON: I appreciate it.

13

(Whereupon, the above-entitled matter

14

went off the record at 12:21 p.m. and resumed at

15

1:30 p.m.)

16

MS. SMITH: All right, we are going to

17

get started for the last session for the section

18

1201 rulemaking, this we've termed the audience

19

participation section. We have seven people who

20

have signed up. And so the first person, however,

21

is someone we were not able to accommodate for our

22

Class 3 panel which was held in D.C. so we're going

23

to give her a little bit more time, which is similar

24

to what we did for the people in D.C. who were unable

25

to come to L.A. So I think first we will introduce

26

161

ourselves and then perhaps, Ms. Gilford, you can

1

introduce yourself.

2

So my name is Regan Smith, I'm Deputy

3

General Counsel of the Copyright Office.

4

MR. CHENEY: I'm Stacy Cheney, Senior

5

Attorney-Advisor at NTIA, National

6

Telecommunications and Information

7

Administration.

8

MR. RILEY: John Riley,

9

Attorney-Advisor, Copyright Office.

10

MS. SALTMAN: Julie Saltman, Assistant

11

General Counsel at the Copyright Office.

12

MS. CHAUVET: Anna Chauvet, Assistant

13

General Counsel at the U.S. Copyright Office.

14

INTRODUCTION - AUDIENCE PARTICIPANTS

15

MS. GILFORD: Thanks, nice to meet you.

16

Karen Gilford, I'm the General Manager of Movies

17

Anywhere.

18

MS. SMITH: Thank you and you would like

19

to offer comments in respect to Class 3, which

20

concerns space shifting. Is that right?

21

MS. GILFORD: Yes.

22

MS. SMITH: And I understand you have a

23

presentation for us.

24

MS. GILFORD: Yes, I do.

25

MS. SMITH: Okay, you can go to the

26

162

podium and present that. We will call that Exhibit

1

3C and that along with the rest of the exhibits will

2

eventually shortly be posted to copyright.gov.

3

(Whereupon, the

4

above-referred to

5

presentation was marked as

6

Exhibit 3C for

7

identification.)

8

MS. GILFORD: Okay. I have a

9

presentation, also a short video that I'll lead

10

with. The video that I'm going to present is

11

actually a piece of advertising, a 30 second spot,

12

that describes our product. This is how we

13

communicate the value propositions to consumers in

14

the marketplace. I thought it would be helpful to

15

start with this.

16

(Video plays.)

17

MS. GILFORD: I'm a Mac person, so

18

excuse me. Thank you.

19

So I'll walk through a quick

20

presentation to give you an overview of Movies

21

Anywhere. As you can see from my video, Movies

22

Anywhere, as its name speaks to, is a product that's

23

focused on feature films. Where we feel very lucky

24

to work on our product because we know that consumers

25

love feature films, which is really the product that

26

163

streams through Movies Anywhere.

1

The other thing that we see happening

2

today, and one of the reasons why Movies Anywhere

3

was sort of brought to bear by the studio partners

4

that power it, is folks have an amazing experience

5

in their homes right now to watch movies in the

6

living room with broadband speeds increasing,

7

screen sizes increasing, and a proliferation of

8

devices in the living room now that really make it

9

seamless to access content with a couple of clicks.

10

We know that people now really enjoy

11

watching premium content in their home. But one

12

thing that has emerged in the space over the past

13

few years with the proliferation of broadband and

14

devices is a little bit of consumer confusion about

15

if I buy something here, can I watch it over there?

16

And so the studios came together to fund and power

17

Movies Anywhere to solve that and create what we

18

call interoperability between different services.

19

So the mission statement of Movies

20

Anywhere is it's an app, as you saw, also web-based

21

and it brings your purchased movies together so you

22

can watch them whenever you want, when and where

23

you want. So regardless of where you purchased

24

them, you can link your accounts to Movies Anywhere,

25

as you saw in the video, we will bring the collection

26

164

together. And then we'll also bring that

1

consolidated collection back out to your retailer

2

end point so you have a choice where you want to

3

experience that consolidated library.

4

This is a slide that shows an overview

5

of our ecosystem at this moment in time. So the

6

interoperability feature really brings together

7

three main cohorts. The first one is our studio

8

partners. We currently have five of the major

9

studios in our service. Sony Pictures, Fox,

10

Universal, Disney and Warner Brothers. So those

11

are the five video partners. There are about 7,500

12

titles in the service. We have retailers

13

integrated, iTunes, Vudu, Google Play, Amazon and

14

Fandango Now. That constitutes approximately

15

between 75 and 80 percent of the U.S. market share

16

for electronic home video licenses that are sold.

17

And then on the lower left hand side you

18

see all the platforms where consumers can download

19

the service or navigate to the service on the web.

20

We are on all the Apple platforms, Android

21

platforms, Amazon platforms, Roku, and those smart

22

TVs and other end points that are powered by

23

operating systems like Android TV where consumers

24

can access the Google Store and download our app.

25

This is just some quick stats on the app.

26

165

Our tag line is Your Movies Together At Last. We

1

do focus on feature films. As I mentioned, there

2

are 7,500 titles available in the service. And what

3

that means is that the 7,500 titles which are a

4

combination of titles from the five studios are

5

available for this interoperability feature.

6

Meaning that Movies Anywhere has taken them in and

7

mapped them to all the retailers which facilitates

8

the movies being able to flow across the platforms.

9

We launched on October 12th of last

10

year. The app is free for consumers to download --

11

MS. SMITH: Can you explain the

12

difference between this Movies -- there was a

13

previous product, was it Disney Movies Anywhere,

14

or what's the difference?

15

MS. GILFORD: Sure. Disney Movies

16

Anywhere was only Walt Disney Company feature

17

films. So it was limited to a catalog of about 500.

18

So Movies Anywhere expands the offering, utilizing

19

some of the sort of backbone technology that was

20

developed for DMA but brings four more studios into

21

the mix.

22

MS. SMITH: Thank you.

23

MS. GILFORD: We are an English

24

language supported app although the content does

25

support -- the actual films are available in other

26

166

languages and right now this is a service that is

1

only available in the United States.

2

The next few slides will just give you

3

a little bit more of an in-depth product walk

4

through. If you have the app you may have seen some

5

of these. The first screens just show you our

6

welcome and sign up process. When somebody

7

navigates to the app, they're just greeted with a

8

few quick screens that they can get past if they

9

would like but it just kind of gives it a little

10

bit more of an explanation of what the app does so

11

that we're very clear about the service that we're

12

bringing.

13

You can sign up for the service using

14

an email and password of your choosing. You can

15

also sign up using Google or Facebook. The first

16

page you are greeted with when you download the app

17

or navigate up to our website is what we call our

18

Explore page. This is the home screen. We do try

19

to personalize it for each user profile. And really

20

the purpose of this page is to let consumers know

21

sort of what the newest releases are out in the

22

marketplace that are available in the service. Any

23

special features or promotions. Seasonal things,

24

offers that we may have or that our studio partners

25

may have, things that we think that the consumer

26

167

would be interested in knowing about.

1

The next screenshot and area we are

2

showing here is really the bread and butter of the

3

service, which is our retailer account linking

4

screen. So this is where consumers will go to

5

create the linkage between Movies Anywhere and

6

their preferred retailer. So they can navigate to

7

the retailers where they purchased films, hit that

8

connect button. It's a pretty seamless integration

9

where you would also then sign into Vudu or iTunes,

10

or Amazon, Fandango or Google. It sends you back

11

to Movies Anywhere. It gives you a very clear

12

signal that you are connected and your movies are

13

starting to flow in and then flow to the other

14

retailers. So there is a feedback loop as this

15

functionality is happening.

16

And then you can also set on the screen

17

the retailer that you would like to be your default.

18

So then screens will show in a minute, when you go

19

to buy a movie, then that would be your retailer

20

of choice. If you haven't set one, you'll be

21

presented with all the options available to

22

purchase on that platform.

23

The next page is our redeem page. This

24

is where consumers who have purchased a physical

25

DVD that has a redemption code in the pack and it

26

168

gives them an opportunity to also enjoy a digital

1

copy, would come and enter the code that comes in

2

an insert in that pack. Here and then we fulfill

3

the title right in Movies Anywhere. It gives them

4

feedback that the title has been successfully

5

redeemed and drops into their locker.

6

MS. SMITH: Can I ask a question. What

7

if you've lost the code?

8

MS. GILFORD: If you lost the code,

9

there are ways we have some forgiveness through

10

customer care but it is the same -- but it does

11

operate similarly to losing a coupon or a gift card

12

or something like that. But there are some remedies

13

that we can -- that happen in the customer care

14

channel occasionally.

15

MS. SMITH: And you can redeem this

16

through -- for Blu-Ray or DVD's? Are there any

17

other physical media?

18

MS. GILFORD: It's for the titles that

19

have the code. It's clearly marked on the physical

20

packaging if the unit you are buying has a code in

21

there or not. They are generally referred to as

22

combo packs because they give in pack the consumer

23

a couple of different format options to watch the

24

movies. So typically that could be an SD disk, a

25

Blu-Ray disc and then a code. Now you might see one

26

169

with 4K and different options, but generally it's

1

called a combo pack because the user is getting more

2

than one option on how to consume it.

3

MS. SMITH: And this is a rollout

4

starting in October 2017 or was it previously

5

available -- I guess if the service didn't exist

6

--

7

MS. GILFORD: There were other options

8

to redeem those codes on other services and those

9

still exist today. So for instance, in Disney

10

Movies Anywhere you could've redeemed Disney codes.

11

On some of the retail partners, like

12

iTunes, if you really navigate there is an area where

13

certain studios may allow consumers to redeem codes

14

directly on iTunes or in a service like Vudu you

15

can redeem codes. That's decided on a studio by

16

studio basis in their individual agreements with

17

the retail partners.

18

MS. SMITH: So in terms of the studio

19

agreements for Movies Anywhere, can they take those

20

codes they may have had for Disney Movies Anywhere

21

or something else through Vudu or Walmart or

22

whatever and use that into this Movies Anywhere?

23

MS. GILFORD: Yes. We honor codes sort

24

of like backwards compatible, if you will --

25

MS. SMITH: I think that's right, yes.

26

170

MS. GILFORD: So if the code redemption

1

opportunity doesn't start just for codes generated

2

after we launched, we go all the way back in index

3

codes that are out in the marketplace.

4

MS. CHAUVET: And then besides the

5

redeem codes and then I saw Vudu up there, are there

6

any other methods to convert, I'll just say convert,

7

generically like a hard media into a digital form?

8

MS. GILFORD: In our app, code

9

redemption is the only method that we power and

10

service. But you mentioned Vudu, who's one of our

11

partners, they have a program that you may be

12

familiar with called Disc to Digital for some

13

eligible titles with certain parameters that they

14

could probably speak to better, you are able to

15

convert a physical disc to a digital copy. And if

16

you do do that on Vudu and then link your Vudu account

17

to Movies Anywhere, those copies would come into

18

our service and then also flow out to the other

19

retailers that you are connected to. And they're

20

treated just like any other digital movie.

21

MS. CHAUVET: That's actually really

22

helpful. And then besides Vudu are you partnered

23

with any other third party that has a similar

24

offering?

25

MS. GILFORD: No, just because our

26

171

other retail partners that we've integrated so far

1

don't offer that. But Vudu just happens to be the

2

only one that I know of that has that service right

3

now and also has an integration with us.

4

MS. SMITH: So I'm trying to understand

5

if there's a way if Movies Anywhere is a useful

6

service for sort of back catalog media that

7

consumers may have. Do they need to see whether

8

disc to digital is offered by Vudu or do they need

9

to buy a new copy that would have a code or what?

10

Or is it just doesn't speak to someone who may have

11

bought a DVD or Blu-Ray five or ten years ago.

12

MS. GILFORD: I mean, it depends, just

13

on how that title is -- what unit you bought, and

14

then how -- what studios have done that disc to

15

digital license. I can tell you personally that I

16

did disc to digital with titles that I bought 10

17

years ago and it worked perfectly fine. It didn't

18

work for every title I bought 10 years ago, but it

19

did work for some of them.

20

The My Movies tab, which is the center

21

navigational item on the app, is what it says.

22

That's where a consumer's movie library is stored.

23

That's their digital movie collection. They can

24

sort it, they can access playback from there and

25

172

that's where we also save any maybe viewership of

1

a movie that may be stopped partially through so

2

you can pick it back up.

3

And then the last page I think I'm

4

showing is our movies detail page. So this is

5

really the backbone of the system. There's a page

6

like this for all of the titles in our system. It

7

gives the basics that you may find on other sites

8

that offer information about feature films. And

9

this is where consumers would hit the buy button

10

and be presented with retailer choice of where they

11

may want to purchase the movie.

12

Movies Anywhere does not sell directly,

13

we're just a hub. When, if you went off to purchase

14

on iTunes or Amazon, you complete the purchase

15

there, then be sent back to Movies Anywhere. That

16

movie, once you have the linkage accomplished, when

17

you need to buy something, it would automatically

18

flow within it happens within seconds back to Movies

19

Anywhere and then out to the connected retailers.

20

MS. SMITH: So if I were to use the

21

Movies Anywhere app to buy a movie on Amazon, for

22

example, the places where I could watch that, like

23

the number of devices, that would all just be

24

determined by Amazon. Movies Anywhere wouldn't

25

alter the scope of that purchase in any way. Is that

26

173

right?

1

MS. GILFORD: Yes, we do alter the scope

2

of that.

3

MS. SMITH: Oh, okay in what way?

4

MS. GILFORD: So let me give you an

5

example. I'm going to use Apple as my example. If

6

you buy a movie on iTunes and you are linked to Movies

7

Anywhere and you're also linked to Google Play or

8

Amazon or Vudu, you would be able to watch that movie

9

that you purchased on iTunes on your Apple TV and

10

your IOS devices which is part of their more closed

11

ecosystem but that movie will also flow to Movies

12

Anywhere and you will be able to watch it anywhere

13

our app is available.

14

Like, for instance, a Roku device, an

15

Android device, an Amazon device. So Movies

16

Anywhere expands the ecosystem of the places where

17

you can watch the movie that you purchased on iTunes,

18

or Amazon, or Android, or any of our retailers. So

19

it's exponential because you can watch your movie

20

back not only on the platforms where Movies Anywhere

21

is installed. You can watch it on any of the

22

platforms that Amazon is installed on, Vudu's

23

installed on, Google Play is installed on, iTunes

24

are installed on, Fandango Now is installed on.

25

MS. SMITH: So does it affect the, I

26

174

guess, number of devices you can watch it on at the

1

same time? Or is that a different subscription?

2

MS. GILFORD: Yes, there are, as most,

3

it's any service that's doing streaming, there is

4

-- I don't know the exact number, but it's pretty

5

much on par with other similarly situated services

6

that, you know, devices and simultaneous streaming.

7

We don't look like outliers on any of our parameters.

8

MR. CHENEY: Would that be on per title

9

or per access to your service? In other words, if

10

you bought a household service for your home, would

11

that access be limited to four or five instances

12

of playing, and it might be four or five different

13

movies at the same time, or would it be four of five

14

instances of the same movie playing at the same time?

15

Is that, what is the limitation?

16

MS. GILFORD: It's on an account basis,

17

that's usually how it's managed. So you can

18

download the app for free, but it's a one-to-one

19

relationship. So one Movies Anywhere account can

20

connect to one iTunes account can connect to one

21

Amazon account, not multiple.

22

And then you have an opportunity, so for

23

instance, me, I can set up a sub-account for my

24

husband, a sub-account for my child, a sub-account

25

for my second child. And so that would be, I think

26

175

you could do that up to six times. So you could set

1

it up for four users and, theoretically then, we

2

could all be enjoying the service at once, right.

3

So you're able to set up profiles that

4

can access the same consolidated library. For

5

children, you could set the, a limit on the MPAA

6

rating so they're not exposed to perhaps R-rated

7

content you have.

8

But that's kind of how it works. It's

9

a one-to-one relationship between MA and each

10

retailer, one account per, but then you can set up

11

sub-accounts for your family to access, sort of the,

12

if you will, family movie collection.

13

MR. CHENEY: How, you said you could

14

download the app for free. Is there a monthly

15

subscription service charge here? Or is it just the

16

whole thing is free?

17

MS. GILFORD: The app is free to

18

download, but the only thing that a consumer is able

19

to play back are the movies that they have purchased

20

at retailers.

21

MR. CHENEY: So the use of your app is

22

free as long as they've purchased the video in one

23

of these other services?

24

MS. GILFORD: Exactly. It's, it sort

25

of adds more value, you could argue, to the purchase

26

176

of the film because now you are able to enjoy it

1

in many, many more places of your choice.

2

So you don't have to worry, so to speak,

3

if you bought a movie and you changed, decided to

4

change device from Android to Apple, or vice versa,

5

or buy a Roku in the living room, you can make your

6

own device.

7

The intent is you can choose the device

8

you want when you go into a Best Buy or Costco or

9

wherever, and hook it up and know that the, your

10

assets, the movies you purchased, are going to be

11

able to be played back there.

12

So it's sort of, almost like a utility,

13

if you will, that's kind of helping consumers be

14

able to watch the movies they bought wherever they

15

want.

16

MS. SALTMAN: Can you watch rented

17

movies, rented through Netflix or Amazon? I guess

18

not Netflix, but I know you can rent movies on

19

Amazon. Can you rent a movie and then watch it in

20

the app? And then also, do the same expiration

21

parameters apply that would apply in Amazon?

22

MS. GILFORD: Right now we do not

23

service rental or VOD. It's solely limited to a

24

transactional model.

25

MS. CHAUVET: And then these uses, or

26

177

maybe all of them, go to personal use? Are there

1

any restrictions on a public performance? And I'm

2

thinking specifically, like, a teacher in a

3

classroom being able to show a class a movie that

4

maybe the teacher purchased through one of your

5

partners.

6

MS. GILFORD: That's covered in the

7

terms of use. It's available, but all those

8

parameters are outlined in the terms of use. I

9

honestly don't have it memorized to know about that

10

specific.

11

MS. CHAUVET: And do you know if any of

12

the, so say someone -- like for Netflix generally,

13

I think even 100 percent captions its movies. So

14

if something is captioned when it's, or at least

15

the availability of captioning is available on

16

whatever medium they purchased it, and they decide

17

to watch it through your app, is that captioning

18

still available?

19

And then I guess a second question would

20

be, if they purchase something where captioning was

21

not originally available, do you guys make that

22

available through your service?

23

MS. GILFORD: I, we have, we are in

24

complete compliance with all of the ADA captioning

25

and all of that.

26

178

And we have our own files, if you will.

1

We store all of the 7,500 and so movies we have.

2

And so we will give the best available experience

3

based on what we have. And even if one of our

4

retailers for some reason or not has, sort of, a

5

lesser experience, we will have -- when you -- you

6

will get the better experience, if you will, in

7

Movies Anywhere.

8

So we're sort of, our intention is

9

almost to set the bar in that when you come in our

10

service we'll have adhered to all of that and you

11

will enjoy it with all of that.

12

So we're, you know, so we, since we're

13

studio-powered, we want to have almost a gold

14

standard situation there so consumers always know

15

that they can go to this place and have, kind of,

16

the best experience for that film.

17

So another example unrelated that

18

probably is more clear is a lot of home entertainment

19

purchases come with an extra benefit of bonus

20

content, which a lot of fans enjoy.

21

So you could go to different retailers

22

and see different incarnations of that bonus

23

content. Some blow it out awesome and it's all

24

there. Some choose not to host it, so you buy it

25

and you just see the movie.

26

179

We have all of the bonus. So since we're

1

studio-powered we're like, hey, this is the place

2

where no matter where you bought it, you know if

3

somebody tells you about a piece of bonus and you're

4

like, wait, I didn't see that on retailer x, they

5

didn't give it to me, you know, well, let me go check

6

Movies Anywhere, and you'll still have access to

7

sort of the ultimate package that you paid for

8

regardless of your, where you bought it from.

9

MS. CHAUVET: And I know you're talking

10

about captioning specifically, but I guess I also

11

wanted to ask about audio description. For

12

example, Hulu is involved in litigation right now

13

because it does not currently offer audio

14

description.

15

So I don't know if that's something that

16

Movies Anywhere is also considering offering, or

17

if its partners offer that service?

18

MS. GILFORD: I'll probably have to

19

follow up on audio description. We just launched

20

in October. And it has been discussed, but let me,

21

if it would be okay to follow up because I don't

22

have a clear answer. But the intent is that we would

23

be the bar raiser for all that sort of stuff.

24

MR. CHENEY: In addition, do you have

25

all the languages that might be available on the

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180

original source video as well?

1

MS. GILFORD: Yes for, we are, we're,

2

we, again, whatever was sort of available in the

3

United States, so Spanish tracks are prevalent,

4

some movies have multi-language tracks where,

5

because of the creativity of the film, there could

6

be French or something else.

7

So we're sort of, you know, we're

8

adhering to all of whatever was distributed in the

9

United States. So if the film was offered in the

10

home entertainment window in the U.S. with

11

multi-language, then we'll also have those

12

languages.

13

MS. SMITH: Thank you. Continue

14

please.

15

MR. CHENEY: Think that was her last

16

slide.

17

MS. SMITH: All right, great. So thank

18

you, that was very informative. With respect to

19

Class 3, is it your view -- I guess I'm trying to

20

understand how you would like us to think about this

21

in terms of the relevance to the proposed class.

22

Are you suggesting that it could provide

23

an alternative such that the exemption isn't

24

necessary? Or are you seeing that the exemption

25

might pose a harm to this business model? Can you

26

181

sort of talk about what has brought you here today

1

in connection to the 1201 proceeding?

2

MS. GILFORD: Yes, I mean I, I mean my

3

perspective on what we -- the main feature that I

4

highlighted, which we call interoperability, is

5

that's what it's intended to do, is to facilitate,

6

sort of, consumer choice.

7

So for instance, you don't have to feel

8

locked into one platform, one retailer, a physical

9

device because of where you -- your movie purchase

10

originated from. So you should be able to, the

11

intent is to add more retailers over time, add more

12

platforms, add more content so this robust system

13

exists.

14

And that's in an effort to respond to

15

consumer needs and advancements in technology that

16

have kind of happened in parallel to the home

17

entertainment industry.

18

Look, I would argue that the alternative

19

would be, it would have a major impact on the

20

revenue. Movies Anywhere would certainly go away.

21

This is invested in by the studios almost as a cost

22

center.

23

I'm not necessarily -- I'm not

24

generating revenue. Although I have buy buttons,

25

it goes out to the retailers. I'd like to hope that

26

182

we will be able to influence revenue over time. But

1

it's, I'm not measured on a revenue goal, for

2

instance.

3

So I think the studios would no longer

4

invest in this service. And that would have a

5

significant impact on the digital marketplace I

6

would think for sure, and could have a major impact

7

on just the transactional window overall.

8

I think it would drive up the prices of

9

transactions or could eliminate the ability for

10

consumers to buy movies over time because

11

everything would resolve perhaps to a subscription

12

service then where you could pay a fee and access

13

it.

14

And I don't know, we see evidence that

15

consumers do like to buy movies just based on the

16

volume in the marketplace.

17

MS. SMITH: Can you alter any of the

18

movies that, once you've loaded them onto Movies

19

Anywhere? Maybe that's the wrong terminology, but

20

I know we heard testimony about ClearPlay, for

21

example, that might allow you to take out some

22

content.

23

And we also, in connection with Class

24

1, heard from people who wanted to cue up specific

25

clips. Is any of that, those features available

26

183

through your app?

1

MS. GILFORD: Not right -- so it's DRM

2

protected so there, there's, you can't go in and

3

extract clips and have them as a separate video file.

4

We, we're six months out of the gate.

5

It was a very complicated launch. But in the future

6

could I see us putting pointers in for specific

7

scenes where, hey, here's that really funny scene,

8

and you could maybe put a bookmark there to access

9

it.

10

That could be a future feature on our

11

roadmap that we could add. But it's just a matter

12

of figuring out when that would fit in.

13

MS. SMITH: Does it import, sort of, the

14

existing bookmarks? Like, the chapter selections

15

you might have --

16

MS. GILFORD: Yes, absolutely, but

17

they're the ones that are, the ---

18

MS. SMITH: In the physical copy.

19

MS. GILFORD: Yes, that are on the

20

physical copy, yes, yes. So all the chaptering is

21

there. And there's still images just as, that kind

22

of represent each chapter.

23

So as you're sort of scrolling it's

24

really easy to see where you are in the movie and

25

kind of land on, perhaps, the exact moment that

26

184

you're trying to find in the movie.

1

MS. SMITH: All right, thank you very

2

much.

3

MS. GILFORD: You're welcome.

4

MR. CHENEY: Thank you.

5

MS. CHAUVET: All right, our next

6

panelist is Mr. Johann George. He also has a

7

presentation which is going to be entered into the

8

record as Exhibit 3D.

9

(Whereupon, the

10

above-referred to document

11

was marked as Exhibit 3D for

12

identification.)

13

MS. SMITH: So we're still focused on

14

Class 3 instead of shifting?

15

MS. CHAUVET: Yes, that's right.

16

MS. SMITH: So if you could start by

17

introducing yourself and your affiliation and then

18

proceed with your presentation.

19

MR. GEORGE: Absolutely.

20

MS. SMITH: Thank you.

21

MR. GEORGE: So my name's Johann

22

George, and I am following up with a presentation

23

that my colleague, John Mitchell, gave in the

24

Washington portion of this panel.

25

I want to thank you for allowing me to

26

185

come and present. And my main purpose here is

1

really to follow up on some questions of a technology

2

nature that came up at the last meeting.

3

So this slide is really just to say that

4

I'm not an attorney, I'm a technologist. And so I'm

5

probably not going to be very good at those --

6

MS. SMITH: We will hold our legal

7

questions.

8

MR. GEORGE: Exactly. Okay, so I'll

9

just give a very quick recap to refresh your memory.

10

So what we are trying to do is to allow

11

consumers who've actually bought DVDs, Blu-Rays,

12

content in one way, and allow them to watch it

13

anywhere, in some sense. Watch it on their phones.

14

I think something similar to what Movies Anywhere

15

seems to be wanting to do. One -- or does, I guess,

16

already.

17

One, here what's true is that there's

18

a lot of movies out there. There's, I mean, over

19

a hundred thousands of domestic, mainstream-ish

20

movies, not counting the large number of

21

educational videos, all of those other kinds of

22

things.

23

And people, you can, obviously people

24

have purchased them, but it's not very convenient

25

to only be able to watch them on a DVD. Or maybe

26

186

they bought it on a DVD some time ago. Maybe the

1

current version is even not in print. They'd like

2

to be able to move it into some place that is more

3

readily watchable.

4

And of course, we know that there are

5

many people out there who just go and make a copy

6

and watch it on their favorite device. What we'd

7

like to do is provide an alternative that's legal

8

and that's well protected.

9

So the idea is that we allow you to

10

transfer your -- transfer data from whatever media

11

you have to an -- some other different media,

12

typically electronic, and only one fixation of that

13

data is kept at any one time.

14

So for example, if it gets transferred

15

from a DVD to, electronically to your phone or

16

something like that, the DVD no longer exists. And

17

we are very careful to make sure that at no time

18

a copy ever exists.

19

MS. SMITH: Do you have some slides sort

20

of explaining that process? Because I think since

21

we did hear from your colleague, the more you can

22

focus on the technical aspects of what OmniQ is

23

trying to do, that will be most helpful to us.

24

MR. GEORGE: Yes.

25

MS. SMITH: But I don't mean to rush you.

26

187

MR. GEORGE: Absolutely. So again,

1

it's encrypted using multiple 2048 bit keys. At all

2

time we, again, continue to respect the intent of

3

CSS and AACS. And I think my colleague probably

4

explained the exemption. So let me go to the next

5

slide which talks about the encryption.

6

So I think two questions came up, and

7

I'll answer those, and you might have more as I

8

explain it. But the question was how we encrypt and

9

how strong is the encryption.

10

So the data is actually broken up into

11

chunks, probably about a megabyte in size. Each

12

chunk is encrypted with its own 2048 bit key. So

13

again, we think that that's better protection than

14

the content scrambling system, CSS, which uses 40

15

bit keys or AACS, which uses 128 bit keys.

16

As you probably know, with every bit you

17

add, it increases the security level by a factor

18

of two. So it's, makes a pretty big difference.

19

Something else that's true is unlike CSS

20

and AACS which use a single key for all the data

21

and typically for one given movie -- they're all

22

encrypted, every copy of that movie is encrypted

23

with that same key. Every single, if you have a

24

movie, every megabyte chunk is encrypted with its

25

own 2048 bit key.

26

188

So if you take a 4 gigabyte DVD,

1

typically there's probably 4,000 of these 2048 bit

2

keys that are all unique. What's true is also if

3

someone else has the same movie and they'd encrypted

4

it themselves, that would be a complete different

5

set of keys that's used.

6

So again, we think that the protection

7

is pretty strong. The algorithm, I know that came

8

up in Washington. That gets used and it's a stream

9

cipher, which is similar to CSS and AACS. And

10

again, each time the data is moved, new keys are

11

generated limiting the lifetime of each key.

12

Another question that came up in

13

Washington was transitory duration, which is sort

14

of how long -- the transfer process -- for example,

15

we're taking data from the DVD to stow it on a hard

16

drive.

17

How long does that data and its copy of,

18

so the megabyte is stored in volatile memory. And

19

then it's destroyed on the DVD, and then it still

20

runs in the hard drive and volatile memory is

21

destroyed.

22

And the one question that came up is how

23

long is it actually in the volatile memory. And

24

again, it's less than a second.

25

MS. SMITH: Does that assume you have a

26

189

fast network? Does it depend on the speed of your

1

network?

2

MR. GEORGE: It would depend on the

3

speed of your network. So what's true is you sort

4

of look at the speed of average networks in the U.S.

5

or going even across the U.S., actually even past

6

that, latencies are about 50 milliseconds. And the

7

average transfer speed is about 50 megabits a

8

second.

9

So a megabyte of data is typically

10

transmitted in about 250 milliseconds. But it

11

could turn out that your network is a little slower,

12

it could take a little longer. But the point is it's

13

well under this duration.

14

Something else that's true is if your

15

network is slow you could -- we could just limit

16

the process and say the network's too slow at the

17

moment, when the network speeds up we'll allow that

18

to take place.

19

MS. SMITH: Does both the decryption

20

and the re-encryption, does that also occur in

21

volatile memory?

22

MR. GEORGE: Yes, everything occurs in

23

volatile memory. So yes, when it all, when it adds

24

up, all adds up, it's well under half a second, well

25

under a second.

26

190

And I think those are the questions that

1

were mentioned in Washington. But if there's any

2

other questions I'd be happy to take them.

3

MS. SMITH: I don't think so. Thank

4

you.

5

MS. CHAUVET: Thank you very much.

6

MR. GEORGE: Great, thank you.

7

MS. CHAUVET: All right, next on the

8

list we have Cory, and I apologize I'm going to not

9

pronounce your name correctly.

10

MR. DOCTOROW: Doctorow.

11

MS. CHAUVET: Doctorow. So for each

12

panelist who comes up, if you could please sit down,

13

just introduce yourselves, your affiliation, and

14

then which classes you wish to refer to in your

15

testimony.

16

MR. DOCTOROW: Refresh my mind on the

17

numbers of the classes.

18

MS. CHAUVET: You said Class 1 and Class

19

7.

20

MR. DOCTOROW: Seven, thank you. Hi,

21

I'm Cory Doctorow. Thank you so much for

22

entertaining my comments. I'm going to speak in a

23

personal capacity.

24

I am a consultant to the Electronic

25

Frontier Foundation, but really I'm speaking in my

26

191

capacity as a dystopian science fiction writer.

1

After a few days of listening to the

2

hearings, I wanted to weigh in specifically in that

3

capacity. I'm a bestselling novelist. I write for

4

Macmillan's Tor, the largest science fiction

5

publisher in the world. I'm published by Random

6

House and Harper Collins in the UK.

7

And I'm deeply embedded in the

8

entertainment industry. And I have a real interest

9

in copyright being held in some regard by my

10

customers.

11

I feel like we have now entered an era

12

in which getting people to pay for works is an act

13

of moral suasion. That as we've seen, virtually

14

everything that people want to take for free they

15

can, despite our tender ministrations.

16

I mean, I think it's pretty telling that

17

we just watched a presentation about an anti-piracy

18

technology that was played back on VLC, which

19

violates DC -- CSS, and which is distributed from

20

Hungary because it's the last territory that will

21

tolerate their servers.

22

I mean, here it is having been

23

trafficked into UCLA Law School by some technician

24

in violation of section 1201, potentially criminal

25

violation if they got paid for it.

26

192

And I think that in both of the areas

1

that I'm commenting on today we heard a lot of talk

2

about the idea that bypassing a TPM, even with no

3

nexus with copyright infringement, should be viewed

4

with great skepticism if it frustrated a business

5

model.

6

And this is where my background as a

7

dystopian science fiction writer comes in because

8

it really is the stuff of a Black Mirror episode,

9

where designing a technology such that bypassing

10

a TPM is necessary to use it to benefit you, instead

11

of its manufacturer shareholders, gives you the

12

power to invoke the state's might to prevent your

13

customers from thwarting your commercial desires.

14

And I feel like it does bring this

15

framework that's supposed to regulate my

16

relationship with my supply chain. As a working

17

creator who depends on copyright to extract my

18

living, it brings it into disrepute. It makes

19

people think that copyright is a nonsense.

20

And I wanted to intervene in this

21

normative way, and ask you as you deliberate on this,

22

to consider that as you narrow the exceptions that

23

have been asked for in the service of defending a

24

business model, rather than in the service of

25

preventing infringement, that you create the

26

193

situation in which people think that copyright is

1

not something that they can or should bother to

2

understand or give any real, serious consideration

3

to.

4

And that if you were to be as liberal

5

as possible in allowing people the traditional

6

enjoyment of their own property, regardless of the

7

impact on shareholders of the firms that

8

manufactured that property before they exhausted

9

their interest in it by selling it to a member of

10

the public, that you would go far to bringing

11

copyright back into repute in the digital age and

12

to helping creators like me. So that's really all

13

I had to say.

14

MS. SMITH: Thank you. We appreciate

15

it.

16

MR. DOCTOROW: Thank you.

17

MS. SMITH: Appreciate your comments.

18

MS. CHAUVET: All right, our next

19

panelist for the audience participation is Cynthia

20

Replogle. I'm sorry if I mispronounced your name.

21

MS. REPLOGLE: No, it's Replogle. Hi,

22

I'm Cynthia Replogle. I'm the intellectual

23

property attorney for iFixit, and I deal mainly with

24

trademarks and patents so I'm not a copyright expert

25

at all.

26

194

MS. SMITH: Are you here to talk about

1

Class 7 or a specific class?

2

MS. CHAUVET: Class 7 was repair.

3

MS. REPLOGLE: Yes, I guess that's the

4

class it most applies to. I just wanted to take a

5

higher level view and remind everyone of the purpose

6

of copyright law.

7

In the Constitution it says, to promote

8

the progress of science and useful arts by securing

9

for limited times to authors and inventors the

10

exclusive right to their respective writings and

11

discoveries.

12

And on copyright.gov, it says,

13

copyright protects original works of authorship,

14

including literary, dramatic, musical and artistic

15

work such as poetry, novels, movies, songs,

16

computer software and architecture.

17

As I watched these hearings over the

18

last few days, it's become clear to me that companies

19

are misusing and abusing copyright by improperly

20

asserting it as a cover for protecting other

21

interests, often to the detriment of society, by

22

conscious design decisions that impinge people's

23

rights in their own property.

24

So I'd like to ask you to please keep

25

in mind the purpose of copyright in considering

26

195

these exemptions.

1

I also volunteer for Surfrider, which

2

is an environmental group dedicated to the

3

protection and enjoyment of our oceans, waves and

4

beaches. And I'm heavily involved with plastic

5

pollution issues.

6

I've seen that society is divorced from

7

experiencing and seeing the consequences of our

8

disposable products. Plastics are derived from

9

fossil fuels with all that entails, and many items

10

like your plastic water bottles are used only once.

11

And you may put them in the blue bin,

12

but the truth is that less than 10 percent of

13

plastics are actually recycled, and the rest of them

14

end up in our environment.

15

We have to realize that there is no away

16

when we throw something away. We only have one

17

planet, and it's important to consider what we do

18

with our waste, and whether we create it in the first

19

place.

20

Many electronics, consumer

21

electronics, are similar in some ways. On the front

22

end, the devices contain rare earth metals which

23

are a limited resource. As well as sourcing them

24

new by mining can be harmful to the environment and

25

human health.

26

196

They're designed often to be used for

1

just a few years and then discarded for the next

2

new thing. They may have a battery that wears out

3

and it's not easy to replace, or the screen is

4

cracked or there's some other malfunction.

5

And even if someone wants to repair,

6

copyright law is used to impede repair. And this

7

results in mountains of e-waste. Repair.org says,

8

Americans alone generate about 3.4 million tons of

9

end-of-life electronics per year.

10

If you put every blue whale alive today,

11

and there's 10,000 to 25,000 of them, on one side

12

of a scale and one year of U.S. end-of-life

13

electronic products on the other, the end-of-life

14

electronic products would be heavier.

15

Those products contain toxins and heavy

16

metals, things like arsenic, lead, cadmium,

17

mercury, and dioxins, as well as explosive

18

elements. And unsafe processing, such as burning,

19

in developing countries, exposes people to health

20

hazards, as well as polluting the water, air, and

21

soil.

22

In the environmental community, we

23

often talk about the four Rs, Reduce, Reuse, Repair,

24

and Recycle. Many so-called end-of-life devices

25

could be repaired, reused, or recycled but for

26

197

companies' misuse of copyright law.

1

So I would ask that you please consider

2

the environmental and human health impacts of your

3

decisions, as well as the purpose of copyright, and

4

act for the greater societal good. Thank you.

5

MS. CHAUVET: Thank you very much. Our

6

next speaker is Sina Khanifar.

7

MR. KHANIFAR: So I'd like to start off

8

by thanking you for coming and listening to the

9

comments. I wish I'd been here for all three days.

10

Unfortunately, I was only able to join today.

11

So I have kind of a long story with the

12

DMCA and unlocking that goes back far into my life

13

to when I was a college student.

14

MS. SMITH: And are you here in

15

connection with any other interest group?

16

MR. KHANIFAR: I am a tech fellow at EFF,

17

but I actually haven't done anything really related

18

to DMCA work at EFF. It's kind of mostly unrelated.

19

MS. SMITH: Thank you.

20

MR. KHANIFAR: Yes. So when I was in

21

college and I was, at that point I was a green card

22

holder, so I had moved to the U.S. and moved back

23

to the UK. And I took a phone with me from the U.S.

24

to the UK that I unlocked.

25

And it was a bit of an arduous process.

26

198

At that point, this was the time of flip phones,

1

right. The Razer was just coming out. And I took,

2

and it wasn't a Razer that I initially took. It was

3

a phone that used to belong to my mom.

4

Cell phones were pretty early days then.

5

And I, it took me a really long time when I got there

6

to be able to actually use the phone in the UK.

7

And it was, I remember it was, very

8

clearly, it was the summer of my first year in

9

college that I had a couple of weeks extra, and I

10

spent the whole time basically tinkering with this

11

phone trying to get it to work.

12

And I've always been kind of an

13

electronic software person, so there's a good

14

amount of tinkering involved. And eventually I got

15

there and I unlocked the phone and realized hey,

16

if this is so painful for me, there are probably

17

other people who are in a similar situation and want

18

to unlock their phones.

19

So I actually ended up, by the end of

20

the, kind of, process I'd hired multiple

21

programmers who were helping me. We wrote a piece

22

of software to kind of commercialize this and to

23

enable people to unlock Motorola phones.

24

And it went well. I kind of got a little

25

bit lucky. It was right before the Razer came out,

26

199

and the Razer was probably the most popular phone

1

ever at the time that it was released.

2

And the software did quite well until

3

at one point I got a, well I mean, this is how the

4

news was broken to me. Someone, my mom called, and

5

she received a cease and desist letter from Motorola

6

very specifically highlighting DMCA section 1201,

7

fines of up to, I can't remember, $250,000 per

8

incident.

9

And I'd unlocked a lot of phones so

10

that's a lot of incidents, right. And, yes, my mom

11

called me. She was very, very worried as you can

12

imagine, right, about what I'd been up to in college.

13

So, and I as a student, particularly as

14

someone who was a green card holder, not quite in

15

the bucket of being a citizen yet, was -- I was really

16

worried about it. I mean, I shut down the service

17

immediately, and was like, shoot, I guess I'm stuck,

18

right.

19

And so there was a pretty big chilling

20

effect on my business. And it took me over the

21

course of a few months, I ended up being connected

22

to, via various law clinics, to Jennifer Granick,

23

who then had, I believe, published an article on

24

it and then pushed for the original unlocking

25

exemption to be added.

26

200

And that exemption, I believe, was in

1

place for six years, right. So through two, kind

2

of, three year processes, and then was removed.

3

And at that point I just happened to have

4

finished -- I carried on doing entrepreneurial

5

work, and I just happened to have left my last

6

company, that last exemption was removed. And so

7

I hopped on whitehouse.gov and created a petition

8

asking the powers that be to make unlocking legal

9

again.

10

Not so much because I personally do that

11

much unlocking at this point. I've completely

12

moved on from that industry. But because I do

13

fundamentally believe in this right of users, once

14

they purchase equipment, to be able to do what they

15

want with it, right. And particularly, if they

16

bought a cell phone, to be able to use it on another

17

network.

18

So we put, kind of, it was a bit of a

19

long battle. I went to Congress a bunch of times.

20

And, obviously, the Unlocking Act as well as the

21

FCC's kind of new rules around unlocking were put

22

into place.

23

Now I know this year, I think for

24

unlocking, no one's really challenged it in any

25

meaningful, there's no real opposition, which is

26

201

great. I wish Congress had made it a permanent

1

exemption.

2

But there are kind of related issues

3

that I think are worth talking about. So one of the

4

things that's started happening recently is that

5

instead of controlling devices by locking them and

6

preventing access to the wireless network itself,

7

the carriers are instead preventing users from

8

using, kind of, over the top services.

9

And some, ironically, those services

10

are the very traditional thing that you buy a cell

11

phone for, voice service. So voice service today

12

is moving away from being, it's definitely not

13

analog and it hasn't been for quite some time. But

14

it used to be a specialized network, so CDMA2000

15

for some devices, et cetera. It's moving to all

16

being voice over LTE, which is really just a variant

17

of voice over IP.

18

And today, if you buy a phone that --

19

iPhones happen to be okay because Apple kind of

20

pushes the carriers on this. But if you buy an

21

Android phone on, let's say, a Verizon or T-Mobile

22

or anywhere, and you try and take it to AT&T, you

23

can unlock your phone, right.

24

Verizon sells its phones unlocked

25

because of FCC rules. T-Mobile doesn't, but you can

26

202

unlock them, get them, to get them across for the

1

most part.

2

But you can't get HD voice. And at this

3

point, the carriers are almost entirely moving

4

towards HD voice. No one's deploying older,

5

typical voice services anymore, right. And you

6

can't use HD voice on AT&T.

7

Similarly, you can't even buy an

8

unlocked phone, a phone that was unlocked

9

originally and move it across to AT&T and use that

10

service either. But it's one of the ways that

11

they're kind of, the carriers are choosing to

12

maintain control over the device ecosystem that's

13

allowed on their services.

14

So that's one thing that I wanted to

15

highlight as kind of an issue, and I think a real

16

reason for not just renewing the unlocking

17

exemption, but also perhaps broadening it to take

18

these facts into consideration. Because the only

19

way to really get around this problem, and this is

20

what a majority of users do, is jailbreaking your

21

phone and basically changing the firmware to make

22

it seem to the carriers as if this is an approved

23

device that has HD voice capabilities, right.

24

So I think it's a reason why

25

jailbreaking and unlocking are now becoming a lot

26

203

closer in the way that they work. And the other

1

part, I'm still in telecom so I'm cofounder of a

2

company called OpenSignal and, as well as Staircase

3

3.

4

And telecoms are really moving to

5

internet of things, right. I mean, we've heard a

6

lot today about cars and repair.

7

I mean, this unlocking of your, the

8

modem in your vehicle, right, if you've purchased

9

the vehicle and, let's say, T-Mobile and Sprint are

10

merging. And T-Mobile's shutting down its 2G

11

network at the moment. You may well want to unlock

12

your vehicle at some point in the future to change

13

the modem and connect to a different network.

14

And as those telematic systems are

15

becoming more and more integrated that may well mean

16

unlocking the actual operating system of the

17

vehicle in order to be able to do that, right.

18

But it's not just vehicles, I mean,

19

internet of things is going to spread more and more,

20

so. And we're seeing it also in the telecoms

21

industry in the devices that you use to connect to

22

the network.

23

So it used to be the case that everything

24

came from the cell tower outside. Today a lot of

25

connectivity happens indoors via femtocells,

26

204

software defined radios that basically generate a

1

carrier's cell signal inside your home.

2

There hasn't been, I wish I'd had the,

3

had thought about it to push for this particular

4

class of exemption, but customers buy these

5

femtocells. If you're an enterprise, you're often

6

paying $5,000 or more to buy these devices. And

7

they use the, your internet connection to generate,

8

on licensed frequencies, a network that your users

9

can then connect to, right.

10

But in a very similar way to, it's a,

11

two ends of your cell phone, right. Your cell phone

12

is communicating with the tower, the tower's

13

communicating back. Those devices are now also

14

locked, right, and only will broadcast on the

15

carrier that you purchased them from.

16

And I mean, I guess it's going to go the

17

next triennial and we'll see if maybe I have the

18

energy, or someone has the energy to push for the

19

ability to reverse engineer and change those

20

devices.

21

But I think that's, it's in this larger

22

class of things that people don't do because the,

23

there is, in my view of these, a pretty strong

24

chilling effect from 1201 in terms of trying to

25

reverse engineer these devices.

26

205

And I think it's going to become,

1

particularly with 5G -- 5G doesn't make it inside

2

buildings, right, it's high frequencies. And

3

they're about to do an auction on this, but 25

4

gigahertz, 35 gigahertz, those frequencies don't

5

make it inside buildings.

6

So you’re -- it's not just going to be

7

your cell phones. You're almost always going to

8

have to have a device inside the building similar

9

to a WiFi router that provides service.

10

So I mean, I think this is a trend that

11

-- that's only going to kind of continue. And the

12

range of devices that the proponents and the

13

nonprofit organizations and the companies come and

14

petition for is only going to grow.

15

And to me, that's just the, generally

16

a bit of a worrying trend, right, that, you know,

17

each time they have to make a de novo case for these

18

different exemptions, I know from the folks at EFF

19

who work on this that, I mean, it's a huge burden

20

of energy that could be going towards other equally,

21

if not more, important work, right.

22

And I think it's a shame that -- when

23

-- when I was pushing Congress to pass the Unlocking

24

Act, this is something I pushed them on pretty hard

25

on, right. And I think, you know, the original

26

206

intent of the DMCA and 1201 was to prevent piracy.

1

I actually think it hasn't had a huge

2

impact in reducing piracy. I'd be really

3

interested in meaningful studies that would look

4

at that and how much of, and how much of piracy was

5

stopped due to preventing DCSS and that kind of

6

thing, and how much of it was actually due to the

7

copyright notices that Cox and whoever else, and

8

Time Warner and Spectrum and whoever else were

9

sending to their users, right.

10

So generally, I was reading through the

11

report that you guys sent back in June of 2017. And

12

I feel like one of the things that wasn't really

13

questioned in, you know, in that document was what

14

is the real utility today that having these

15

protections really enables?

16

And the particular part that worried me,

17

and this was true of unlocking, and I brought it

18

up with the folks at Goodlatte's office and everyone

19

else's office who I chatted with, was that the tools

20

and services are just absolutely critical, right.

21

No one is able to unlock their own cell

22

phone, right. Like so I did it in college, the

23

technology was way simpler then than it is now,

24

right. But it's literally out of access for 99

25

percent of people.

26

207

And I grabbed a little screenshot here.

1

You know, there was this argument made in the, in

2

that document that perhaps the primary value of

3

anti-trafficking provisions has been to prevent the

4

development of mainstream business models based

5

around the production and sale of circumvention

6

tools. Permitting the distribution of such tools

7

could significantly erode that important benefit.

8

And I think there's two problems with

9

that argument. One of them is that it's just like

10

your standard slippery slope argument, right.

11

If we enable tools and services for

12

these very specific classes of devices, no DRM is

13

ever going to work again, right. Or even that DRM

14

isn't going to have its intended purpose, which I

15

don't think is the case, as we talked about the car

16

repair, pieces of it.

17

You know the copyright impacts of

18

allowing people to repair their cars are really

19

minimal. No one's going to take a Toyota's firmware

20

and copy it onto a Honda's, a Honda, right. It's

21

just not a real world issue.

22

And so, to me, I think those, that

23

argument around allowing for those tools is just

24

really, really strong, and I didn't see that really

25

reflected in that document.

26

208

MS. SMITH: So we do -- I just, here

1

we're focused on the rulemaking. And in that policy

2

study and in that instance we were looking at

3

legislative proposals, including we recommended

4

Congress may consider one for this, services and

5

third party assistance.

6

So while we do appreciate everything

7

you're saying, if there's ways you can --

8

MR. KHANIFAR: Taylor it to the

9

exemptions?

10

MS. SMITH: -- focus on what we're --

11

right, we're just interested in, under the current

12

sandbox that we've been instructed, and taken up

13

this rulemaking in, what we can do and how we should

14

look at it.

15

MR. KHANIFAR: Sure. Yeah, so I think

16

on that front, unlocking is probably the one that

17

I'm most qualified to talk about. And I think those

18

examples of unlocking becoming a bigger issue both

19

for handsets and for the equipment being used to

20

generate that signal, is really, really important.

21

I would express support for some of the

22

other exemptions that have been mentioned. I don't

23

think there's any that I can specifically talk

24

about. Perfect, thank you.

25

MS. CHAUVET: Okay, thank you very

26

209

much.

1

MS. SALTMAN: Great, thank you. All

2

right, next we have Kyle Wiens, who will be talking

3

about Class 4.

4

MR. WIENS: Hello.

5

MS. SMITH: Hello.

6

MR. WIENS: Yesterday, it was discussed

7

that potentially there was no one in the room that

8

would be able to build the HDMI device that we were

9

discussing. And I just wanted to say that I

10

probably could.

11

MS. SMITH: Thank you.

12

MR. WIENS: That's all I got.

13

MS. SMITH: We'll take your word for it.

14

MS. CHAUVET: Short and sweet. All

15

right, lastly, we have Jay Freeman.

16

MR. FREEMAN: Hello. So I'll be

17

speaking on Class 4, then I'll make a comment on

18

Class 8, I believe is the number, video game

19

preservation. And then I will make a comment which

20

is related to both and is also kind of related to

21

everything in interpretation.

22

So first of all, for Class 4, which was

23

HDCP/HDMI, so one of -- I always end up coming up

24

here and saying that, another hat that I wear. And

25

so another hat that I end up wearing is this, in

26

210

the county of Santa Barbara, I end up doing a lot

1

of video recording of a lot of different public

2

meetings.

3

And one of the things that I think we've

4

always considered very important is that public

5

meetings are very well documented. I mean, these

6

meetings here are extremely well documented, which

7

is something that I actually, I love so much about

8

the Copyright Office.

9

MS. SMITH: Great, thank you.

10

MR. FREEMAN: And it is, and the process

11

of recording a public meeting oftentimes involves

12

trying to record all the different types of things

13

that people end up bringing. And you have very

14

little control over what people end up bringing.

15

And they end up bringing laptops that

16

end up requiring things like HDCP strippers, which

17

is something that, you know, when I entered, tried

18

to, recorded that, I'm not supposed to do that,

19

right. I'm actually up here saying that because I'm

20

pretty certain that there's no one who's actually

21

going to try to catch me on it.

22

But the problem is that I don't -- I

23

don't have good access to that tooling and I'm

24

actually, it technically is illegal for me to do

25

that.

26

211

And so I'm in this awkward position

1

whereby in order to adequately record the public

2

meeting, sometimes which I'm a part of, because I

3

know the exemption on government entities is only

4

for security purposes, information security. It is

5

not for general government.

6

Even, when the meetings I'm a part of,

7

or the meetings I'm not a part of, I'm in this awkward

8

problem where in order to actually keep an accurate

9

recording of the meeting, is effectively impossible

10

to do it under -- under the law, unless I request

11

people have special hardware that they don't have.

12

MS. CHAUVET: I guess I'm --- I'm still

13

puzzled why you need to, stripper, like to strip

14

it for that purpose.

15

MR. FREEMAN: Yes. So actually, just

16

last night, we had a meeting at the Isla Vista

17

Community Services District. And the problem that

18

we run into is that Mac laptops, which many people

19

have, just default to having HDCP. And they output

20

the monitor output through, using HDCP.

21

Part of this is because -- and it depends

22

on the laptop you have. But the, it, but again, it's

23

essentially it's like somebody is going to come with

24

their, with the laptop that they own and all the

25

presentation materials that they have and the

26

212

meeting needs to be recorded. And so the --

1

MS. SMITH: Well I mean, we're undergoing

2

modernization of course at the Copyright Office.

3

MR. FREEMAN: Yes.

4

MS. SMITH: But in the meantime we've

5

just asked people to bring a USB drive. I mean, can

6

you do that?

7

MR. FREEMAN: So it depends on the kind

8

of presentation. Sometimes the presentation

9

requires specialized software that they have. So

10

it's not, for example, a PDF file. It's not a

11

PowerPoint presentation.

12

But it is, in fact, some kind of

13

demonstration that they're performing. It is a

14

format that uses a piece of software that runs on

15

their computer but doesn't run on the computers that

16

are available.

17

In some cases it is the, essentially,

18

the audio visual setup of the room makes it very

19

convenient for them to not have to constantly be

20

switching back and forth between different systems.

21

And where it's like, so they can bring

22

their single presentation machine, and then they

23

can be doing everything from their presentation

24

machine rather than having it, for example, during,

25

parts of the presentation being run off of a USB

26

213

device from a console computer, which is sometimes

1

embedded inside the lectern.

2

It's something that I've just, I've run

3

into so many times. And it's actually something

4

where, I mean, there are conferences that I work

5

with. And the conferences have just gotten to the

6

point to where they've just bought an entire box

7

of HDCP strippers.

8

And -- and they sit there and they just

9

make certain that every single room has one set up

10

such that they can record whatever device is brought

11

for that conference's purpose.

12

It is, I find it to be such a drastic

13

and common need that I, and weirdly such an easily

14

doable one because HDCP strippers are commonly

15

available on the market despite 1201 because

16

they're just produced in other countries and you

17

can buy them online.

18

But the problem is is that importing

19

that and utilizing it is still technically illegal.

20

And it is an adverse effect on the ability for not

21

only like these conferences to be able to organize

22

their event and record it for the people's

23

educational usage, it's an adverse effect on

24

academia in order to be able to record the work

25

that's being done by professors in order to show

26

214

to other people.

1

And it's an adverse effect on government

2

agencies who are, actually have a mandate in order

3

to be publicly accessible and to have the

4

information that's presented available later. So

5

that's my commentary on number 4.

6

MS. CHAUVET: Okay, Class 8 then?

7

MR. FREEMAN: Okay. Class 8, which was

8

video game preservation. So a hat that I used to

9

wear that I don't wear anymore, I spent four years

10

working as a game developer on a massively

11

multiplayer online game.

12

So now, this class is specified to be

13

three, it's listed with three, actually it's

14

supposed to read separate first.

15

It's listed with three separate types

16

of games, one of which is massively multiplayer

17

online games, one of which is video games with a

18

multiplayer component, and then the third one is

19

-- I'm sorry, video games with online multiplayer

20

features.

21

And then the third one is just

22

multiplayer online games.

23

Now so, during the discussion on this

24

a couple days ago, there's a lot of discussion about

25

just how incredibly complicated it is in order to

26

215

perform these types of modifications.

1

And I actually started to become, as

2

somebody who wants this exemption to happen, I have

3

actually started becoming a little bit concerned

4

because it starts to make it feel like that, well

5

even if you had this exemption, are you actually

6

going to succeed in doing this very often?

7

And there were some comments from the

8

opponents stating that, well in order to actually

9

pull this off, the servers are sufficiently

10

complicated that you would have to re-implement the

11

entire world and, which would involve, which

12

involve actually distributing or copying a lot of

13

copyrighted material.

14

And I would like to point out that while

15

that is true for some games, and that is true

16

oftentimes when in relation to massive multiplayer

17

online games, this class is covering multiplayer

18

games, games with online multiplayer features.

19

The vast majority of games that are

20

multiplayer actually have a very simple server.

21

The very simple server's goal is to just deal with

22

network address translation issues between all the

23

clients.

24

If I try to have my computer talk

25

directly to your computer, I'm on a cable modem at

26

216

home, you're on a cable modem, we can't talk

1

directly.

2

But instead, there will be some simple

3

server that was written by the developers that just

4

coordinates access. It provides an online

5

matchmaking service that allows you to find other

6

players. It then provides forwarding service for

7

those packets.

8

These are, as specified in, by the --

9

by the proponents, very particular to the

10

individual games. It is very seldom that you'll

11

find one that works on multiple games.

12

But it is something that, if you are able

13

to reverse engineer the tooling of the game and then

14

figure out how these online server components work,

15

you can re-implement it without re-implementing,

16

without, with essentially, you've cleanroomed it.

17

You aren't re-implementing any of the

18

copyrighted material of the game. You aren't

19

redistributing any of the art assets of the game.

20

But you now are able to make these multiplayer online

21

games, video games with non-linkable player

22

features, and some massively multiplayer online

23

games begin, work again for the purposes of video

24

game archival.

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MS. CHAUVET: Is circumvention

1

required?

2

MR. FREEMAN: So circumvention is

3

sometimes required for that. And the reason why is

4

that the games themselves are oftentimes, the code

5

for them has been obfuscated.

6

And the obfuscation, which is a form of

7

technological protection measure, and is actually,

8

it is the basis, obfuscation is the basis of many

9

technological prevention measures across all these

10

classes, including for example, the FairPlay

11

encryption used on the iPhone to encrypt

12

applications and to encrypt audio works.

13

That FairPlay, that, so the, that

14

encryption mechanism, for example, that is

15

protecting that application that, makes it so that

16

I actually have to bypass that TPM.

17

I have to, I have to build some, I have

18

to like sit around and reverse-engineer, actually.

19

I almost said build tool, but that's actually the

20

same confusion that was brought up by the developer

21

last time is that you're building something for that

22

one-off purpose in order to remove that obfuscation

23

from that one thing, and then you usually just

24

crumple it up, throw it away once you're done with

25

it.

26

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But I have to sit around and do a lot

1

of work in order to understand what that application

2

was doing, when it was talking to the server, to

3

find out what information the server would have to

4

return back in order to make it work.

5

And that's something that is eminently

6

doable, but it is something that does require

7

developers to actually sit down, break a TPM for

8

that individual application and then do the work

9

of doing that writing. And that is something that

10

is currently illegal without an exemption under the

11

1201.

12

MR. RILEY: So there is an existing

13

exemption. And this was a question --

14

MR. FREEMAN: Correct.

15

MR. RILEY: -- that we asked about

16

yesterday, whether you can do that on, under the

17

existing exemptions on PCs or to use a console as

18

a type of listen server. And do you think that

19

there's some of that that preservationists can do

20

already?

21

MR. FREEMAN: So this is just, I, maybe

22

I'm misunderstanding what the thing that is -- so

23

my understanding exactly that we're intending to

24

expand the exemption to include a different class

25

of games. And so since the class of games would not

26

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have been covered before, I'm not certain how --

1

MR. RILEY: Well, the preservationists

2

can play, can engage in circumvention to play

3

multiplayer games as long as it's done locally.

4

MR. FREEMAN: Correct. Yes, so that's

5

different. So the idea is, so there are local

6

multiplayer games. And local multiplayer games are

7

typically, like you'll have a PlayStation with four

8

controllers. And then people can sit down at that

9

game and then, and work with it.

10

The difference here is, is that this is

11

a, these are games that have an online -- online

12

component. And so these are games that had

13

previously been built in order to have an online

14

matchmaking service that then allows you to do the

15

across the internet communication.

16

And that's why they got expanded to

17

further include multiplayer online games. It's

18

possible, of course, I mean, I was just an audience

19

member. It's possible that I misunderstood the

20

class expansion, but.

21

MR. RILEY: So I guess the question was,

22

you know, other proponents said that, they directed

23

their comments toward local area networks in terms

24

of the games that already have that option

25

available.

26

220

And so the question is can you use the,

1

as an example, the fact that preservationists can

2

jailbreak consoles, and this is one of the rare

3

circumstances that we allow this to happen, can you

4

add that functionality by doing so and not have to

5

have an additional exemption for some of these

6

multiplayer games?

7

MR. FREEMAN: So if you're, local area

8

network games, so that was another, that was another

9

like era of multiplayer gaming whereby you,

10

essentially, broadcast on the local area network

11

information about who else is on that network. And

12

then you'd be able to establish the multiplayer

13

setup.

14

It's very different from the online

15

matchmaking services that you end up seeing which

16

I --

17

MR. RILEY: I completely understand

18

that, but what we're asking about is can you recreate

19

some of those online games but not on a connected

20

network that goes outside of the building, but in

21

a different sort of network that you create on your

22

own to play those games, those online games -- I'm

23

using online in quotes -- in a, not on a pre-setup

24

local area network. But can you set up some sort

25

of other network using the current exemption?

26

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MR. FREEMAN: Because it is the class of

1

work that is being expanded, I would have thought

2

no, because it's, I mean -- so for this class of

3

work, which is for the massively multiplayer online

4

game, you could, like when you end up constructing

5

an alternative server for it, you can run that server

6

anywhere, including locally inside of a room, and

7

you can make it so that no one outside of the room

8

connects to it. You could call that a LAN.

9

But the, I guess the question that I have

10

back to you, is do you consider that all of these

11

categories that are currently listed here as the

12

class expansion were covered by the previous

13

exemption?

14

MR. RILEY: So I think that's a

15

different question.

16

MR. FREEMAN: I think it's a different

17

question as well, which is why I feel like the

18

argument that is being made here is that in order

19

to, is that we're attempting to expand the class.

20

And so we're attempting to expand what

21

kinds of works we're allowed to do the circumvention

22

on to include games that were not designed for LAN

23

multiplayer, but were designed for online

24

multiplayer, and designed for even massively

25

multiplayer.

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MR. RILEY: Yeah, and my question --

1

MR. FREEMAN: Okay.

2

MR. RILEY: -- is can you do any of that

3

already under the current exemption?

4

MR. FREEMAN: No, because the exemption

5

is tied to a class which is not massively multiplayer

6

but is instead the more limited multiplayer.

7

MS. SMITH: So right now you can

8

circumvent and you can jailbreak the console if

9

you're one of these institutions. And then you can

10

set up a LAN that, you know enables the matchmaking.

11

And I'm not going pretend to know as much about some

12

of the different types of games as some of the

13

panelists, and perhaps yourself. But it needs to

14

be a complete game.

15

A complete game means a video game that

16

can be played by users without accessing or

17

reproducing copyrightable content stored or

18

previously stored on an external computer server.

19

And so we're being asked to expand the definition

20

of complete games.

21

But I think when you started discussing

22

that there's some games where you don't need to

23

reproduce copyrightable material on the external

24

server, you just need to facilitate the matchmaking

25

functions.

26

223

I think what Mr. Riley is asking is

1

whether you could do that on a LAN that you create

2

and it's part of this preservation activity.

3

MR. RILEY: Yes.

4

MR. FREEMAN: So two things. The

5

description you just read I believe is actually

6

subtly different in the sense that that was that,

7

so there, the case of a matchmaking service, the

8

matchmaking server code is copyrighted. You are

9

reliant upon the copyrighted work that is running

10

on that server.

11

The question is if you were to write a

12

new one, is it a derivative work. And I believe that

13

the answer has usually been no, unless you have,

14

if you have never been able to see the original.

15

MS. SMITH: Well, if there's a video

16

game that can be played, and I guess if you're doing

17

your own matchmaking on this LAN, you can still play

18

the game and be this, that becomes on the hood of

19

the pin, whether you can still play the game if

20

you've matchmade it in a different way you've set

21

up on this LAN.

22

But I think that's what he's getting at,

23

whether some of these games you're talking about

24

can fall under the current definition of complete

25

game.

26

224

MR. FREEMAN: And the definition of

1

complete game you described?

2

MS. SMITH: Yes, I can read it again.

3

It's video games that can be played by users, so

4

it's focused, I think, on the playability.

5

MR. FREEMAN: Correct.

6

MS. SMITH: Without accessing or

7

reproducing copyrightable content stored or

8

previously stored on an external computer server.

9

MR. FREEMAN: And the class expansion,

10

and the expansion that we're looking to do is for

11

games where that, where it is required to reproduce

12

copy -- okay.

13

Yeah, I just, I probably just

14

misunderstand a lot of the context of the class

15

expansions as an audience member. So the, I mean,

16

the cases where I'm describing do require,

17

essentially, reproducing something, but not

18

copying something. Like, it's not really, I mean,

19

it's not legal reproduction, it is instead a

20

refaximile, like a --

21

MS SMITH: Kind of like reverse

22

engineering?

23

MR. FREEMAN: Essentially, yes, so.

24

MR. RILEY: Can I ask what MMO you worked

25

on?

26

225

MR. FREEMAN: It was, you wouldn't have

1

heard of it. It was called Eschaton Chain of

2

Command. It was something that was very similar to

3

EVE Online that came out later. But we did not

4

finish it. Turns out that no one at our company knew

5

how to make anything that was fun. We only knew how

6

to make things that were like fast.

7

So all right, so the final comment that

8

I wanted to make is that, so the, when you look at

9

what the goal of this process is, the goal of this

10

process as defined in the law, was to find people

11

who had non-infringing uses that were adversely

12

affected. And then to figure how to continue, allow

13

them to continue doing that.

14

The actual, like the statements in the

15

law multiple times state that the goal of the, like

16

the goal of the rulemaking process is to find and

17

list the non-infringing uses that have been

18

adversely impacted by the scope of this law.

19

It then lists criteria by which the

20

Copyright Office is supposed to use to determine

21

what an adverse impact is. But it is for what it,

22

determining what an adverse impact is.

23

It's not, it does not seem to be like

24

about whether or not the rule should happen, but

25

about determining the criteria by which we can

26

226

measure adverse impact.

1

The, there is a criteria which is the

2

marketability and value of the copyrighted work,

3

which is listed at the very end of that list.

4

And I find that the, when I sit here and

5

listen to these arguments, I sit here and argue

6

against people, in person even with them, right,

7

that the argument oftentimes ends up hinging on some

8

idea that by providing an exemption for this class

9

that that will decimate the market that is for that

10

-- for that area.

11

And they're some places where the

12

Copyright Office has explicitly looked into it and

13

explicitly found things that they were very

14

concerned by.

15

An example of that might be video game

16

consoles, which tend to be a relatively specialized

17

piece of hardware where a video game is designed

18

specifically for that piece of hardware.

19

But we see that same argument somehow

20

being utilized for things like online streaming

21

media, for things like Spotify and things like

22

Pandora. For things like Netflix and things like

23

Amazon Prime.

24

And yet these are situations where the

25

media is in a very general format that is playable

26

227

anywhere. These are cases where the software that

1

is available to play it is available on every

2

platform, both weak platforms and strong platforms.

3

We see this argument being applied to

4

devices such as smart speakers all the way through

5

to devices such as iPhones. And in some of these

6

cases the argument is just, I will just say, almost

7

absurd on the face of it, because on that very device

8

you don't actually need to have done the

9

circumvention.

10

So as an example of this, there was an

11

argument that was made in the written comments

12

about, from the App Association about -- oh wait,

13

no. It might have been -- I'm sorry, it was either

14

the App Association or it was the ESA that was about

15

a game from one of their members which had been,

16

which they found on the Google Play store.

17

They found another copy of that game

18

that had the same art and the same name. But in

19

order to reproduce a game that has the same art,

20

that has the same name, you do not need to have a

21

jailbroken device.

22

You do not need to have circumvented

23

anything. You simply need to have screenshotted

24

the art assets and then published a game that looks

25

the same that has the same, that has the same name.

26

228

Very similarly, if you would like to

1

publish, if you would like to have on a smart

2

speaker, you would want to have audio being able

3

to play through it that's pirated, well you can copy

4

that audio off of any device, and then play it

5

through your smart speaker.

6

If you would like to be able to watch

7

a pirated movie, well if anyone in the world had

8

managed to obtain a DMCA stripper just once, then

9

you can stream that, you can, sorry, you can download

10

a copy of that movie and play it on any of these

11

devices without the user doing any circumvention.

12

Now the question is, is whether the

13

person who is doing the copying specifically, but

14

we know that that person was doing something

15

illegal.

16

That person, and so the problem I run

17

into is that the act of allowing, for example, a

18

user to circumvent their device in order to disable

19

the touchpad that is glitchy, the, to allow a user

20

to circumvent a device in order to do security

21

research that is not solely for the purpose of good

22

faith research, to allow a user to circumvent a

23

device in order to determine if there is, in order

24

to get the timecode information from a DVD or to

25

be able to get, or do screen readers, or any of these

26

229

use cases, this, stopping those people from doing

1

that doesn't actually effect that market of pirated

2

work.

3

And I feel like it, the Copyright Office

4

for video game consoles I, I'll even admit as

5

somebody who, I really hate admitting, I really hate

6

admitting it. But I'll even admit that you make

7

some arguments that move me at times.

8

But I just have never felt the argument

9

for Spotify, Pandora, Netflix, Amazon Prime, any

10

of these movie or music services because the content

11

is so generally available.

12

I have not felt that argument for

13

applications that can be used on general purpose

14

computers with operating systems like Android that

15

are available on all sorts of different hardware

16

platforms.

17

MS. SMITH: I mean, I'm sorry, are you

18

saying because there's a lot of pirated music that

19

we should just allow circumvention to Spotify? Is

20

that what it's classed into?

21

MR. FREEMAN: So what I'm trying to say

22

is that we're throwing out the baby with the bath

23

water. By saying that technically I can,

24

technically, I can circumvent Spotify, even though

25

what we're actually trying to get is circumventions

26

230

for purposes of protecting people, circumventions

1

for allowing disabled people to be able to utilize

2

work, circumventions that allow people to do things

3

that were creatively not possible before, that

4

because -- but people will say, but technically that

5

car is capable of running Spotify so you shouldn't

6

be able to jailbreak anything on that car.

7

And it's like, okay, but you know I

8

really didn't buy a car in order to steal music from

9

Spotify. That just doesn't make any sense to me.

10

I mean, I was able to do that on my computer.

11

The reason, none of us are sitting

12

around trying to -- and the pirates aren't doing

13

this on cars. There's no pirate who is sitting

14

around in their garage in a car trying to steal music

15

from Spotify. They're doing it on all these other

16

devices.

17

And so the idea to me that these

18

circumventions that are, that circumventions are

19

being argued as, they should be disallowed because

20

of theoretical potential use cases that are

21

copyright-ridden that are already able to be done

22

everywhere else is just very strange to me.

23

And I feel like that should be more

24

strongly realized when looking at that criteria,

25

that there is an adverse impact. That adverse

26

231

impact has been shown. The adverse impact

1

sometimes nearly feels devastating.

2

And the question is then, does that

3

circumvention in that case, does the ability for

4

the, does the copyright owner coming and claiming

5

that theoretically the car can do Spotify -- I feel

6

like they should really be on the hook to show that

7

people actually are going to sit around in their

8

garage with their car using these techniques in

9

order to be able to circumvent that music before

10

the Copyright Office does not grant that exemption.

11

So that's the, kind of, cross cutting

12

concern comment that I wanted to make.

13

MS. SMITH: All right, thank you.

14

MR. FREEMAN: Thank you so much.

15

MS. CHAUVET: All right, well that

16

concludes, that's everyone.

17

MS. SMITH: We are done with the

18

hearings for the 1201 rulemaking. Thanks everyone.

19

(Whereupon, the above-entitled matter

20

went off the record at 2:53 p.m.)

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