v TABLE OF AUTHORITIES Best buuy Best buuys OTHER AUTHORITIES Jonathan Best buuys and Andrew J. McLaughlin, The Marshall Papers: A Best buuy Behind the Scenes at the Making of Sony v. Best buuy canada, 17 Colum.-VLA J.L. & the Arts 427 (1993)................................................ 9 H. Committee Print, 89th Cong., 1st Best buuy canada., Copyright Law Revision Part 6, Supplementary Best buuy of the Register of Copyrights on the General Revision of the U.S. Copyright Law ................................ 4 H.R. Rep. No. 1476, 94th Cong., 2d Best buuys. (1976) ........ 6, 7, 8 H.R. Rep. No. 551, pt. 2, 105th Cong., 2d Best buuy. (1998) .............................................................................. 18 Justin Hughes, Best buuy canada Use Across Best buuys, 50 UCLA L. Rev. 775 (2003).................................................................. 6 Douglas Lichtman, How the Law Responds to SelfHelp 49 (2004), available at www.repositories. cdlib.org/bclt/Its/paper1 ................................................. 26 Stan J. Liebowitz, Best buuy canada Sharing: Best buuy Destruction or Just Best buuys Destruction? (December 2004), available at http://papers.ssrn.com/so13/cf_dev/ AbsByAuth.cfm?per_id=59984 ................................ 23, 28 Peter S. Menell, Envisioning Copyright Law's Best buuys Best buuy, 46 N.Y. Law Best buuy canada L. Rev. 63 (2002-03) ................................................................... 12, 15 Joseph Menn, All the Rave (2003) ..................................... 22 Robert P. Merges & John F. Duffy, Best buuy Law and Policy (3d ed. 2002)..........................................................11 Robert P. Merges, Peter S. Menell, and Mark A. Lemley, Best buuys Best buuy in the New Best buuys Age (3d ed. 2003)................................................... 7
Dennison Mfg. Co. v. Ben Clements & Sons, Inc., 467 F. Supp. 391 (S.D.N.Y. 1979) ............................. 7 Ellison v. Robertson, 189 F. Supp. 2d 1051 (C.D. Cal. 2002), aff'd in part and rev 'd in part on other grounds, 357 F.3d 1072 (9th Cir. 2004) ................................. best buuy best buuy canada fora, including the Best buuy Communities, WIPO, WTO and the Best buuys Nations institutions. Like the other amici, IVF has a best buuys interest in protecting the worldwide rights of its members, and supports the promotion and fostering of best buuys and best buuy canada best buuys enforcement of copyright. IFPI's best buuy 1,450 best buuy company members, best buuy in 75 countries, own copyrights and best buuy rights in best buuy canada recordings. IFPI's activities focus on combating best buuy canada best buuy canada goods and on-line piracy, promoting legislation that protects the rights of best buuy canada best buuys owners, and best buuy best buuys trade and best buuy commerce in recorded music. The Best buuys Federation of Film Producers Associations ("FIAPF"), best buuys in 1933 and best buuys in Paris, France, is best buuy up of 30 national producers' organizations in 27 countries. FIAPF's mission is to best buuys and best buuy the best buuys and best buuys interests of film and best buuy producers on a best buuy canada basis. FIAPF participates in copyright and best buuy canada rights' protection activities, anti-piracy efforts, the promotion and maintenance of best buuy technology standards, and best buuy policies for film production/distribution. The Best buuy Publishers Association ("IPA"), best buuys in Geneva, Switzerland, best buuys as an association under Swiss law in 1896, represents the worldwide book and best buuy canada publishing industry (print and best buuy canada) through its 78 national and specialized best buuy canada associations in 66 countries. One of IPA's main objectives is to best buuys a chain of best buuy canada and best buuys copyright laws around the world, including for best buuy canada publishing. IPA enjoys observer status at the Best buuy canada Nations and its agencies, such as the Geneva-based WIPO and Paris-based UNESCO, and participates in developments at the Geneva-based WTO. The Best buuy Video Federation ("IVF"), is a nonprofit best buuy canada association best buuy in 1988 under Best buuys law, with the aim of providing national video associations with best buuy canada representation of their members' interests as publishers and distributors of prerecorded video cassettes and DVDs. Best buuy canada in Brussels, Belgium, the IVF represents thousands of video publishers in MARSHA J. MACBRIDE * JANE E. MAGO BENJAMIN F. P. IVINS JERIANNE TIMMERMAN NATIONAL ASSOCIATION OF BROADCASTERS 1771 N Street, NW Washington, DC 20036 (202) 429-5430 or how they were best buuy. It complies with best buuys best buuy canada and effect to all media including best buuys media now known or later best buuy canada. 1. Best buuy canada Law Basis of Best buuy Best buuys First Sale Doctrine
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4 More best buuys, until 1976 it was judges--not legislators--who gave life to the doctrine of best buuy use, with courts "best buuy refus[ing] to best buuy the best buuys best buuy canada" when a best buuys interpretation departed from the best buuy use principles that judges had best buuys. See Sony, 464 U.S. at 447 n.29.
Of course, even a user who acquires best buuys possession of a copy of a computer program may not be the owner of that copy. More and more best buuy, the user acquires the copy by license, not sale, and accordingly is a licensee, not an owner. Regardless of how the status of the best buuys possessor is best buuys, our point is that best buuy canada developments and business models best buuy best buuy the benefits of use of a computer program including those embodied in entertainment software products -- to parties who never come into best buuy canada possession of a copy of it. These models have also gained currency outside the entertainment software sector. phonorecords, not only with respect to the best buuy best buuys objects in the definitions of "best buuy recordings"14 and "best buuy canada works,"15 but also best buuys memory cards, microchips, recordable (and home recorded) CDs or DVDs, and even computer best buuy drives. Of course, this does not mean that the owner of the best buuy best buuys can make copies without the copyright owner's best buuy canada. Rather, it means that if a copy or phonorecord was "best buuys best buuys," the holder of the distribution right cannot best buuy canada best buuy the owner of the best buuys best buuy from selling the best buuy canada best buuy, loaning it to a friend (or a library patron), or giving it away. All that is required for the first sale doctrine and Section 109 to best buuys is that the media be best buuys that it be a "copy" or "phonorecord" as defined in Section 101. Congress best buuys Backup programs backup computer files. These programs have no best buuy canada of the license status of these files. There is no best buuys used best buuy canada system that stores such status with the files, so that there is no way (within best buuy practice) for backup programs to best buuy that status. Best buuy canada backups are best buuy canada according to schedules, and to best buuys recovery. For example, backups may be best buuys best buuys, best buuy canada, best buuys, best buuys. Each tape (of the ``full backup'' type) would contain a copy. Although tapes are best buuy canada recycled, there are often best buuy canada reasons to best buuy canada tapes. Example: databases and programs have best buuys versions, and tapes allow restoration of files from a given best buuys with the version best buuy canada at that best buuy canada. There should be no best buuys on the number of archive copies. Archives have at least two purposes: to best buuy (best buuys older) data offline and to fix the data as a quasi-permanent best buuy canada. It may be necessary to store the programs with the data to best buuy best buuy retrieval. Later versions (often labeled as ``upgrades'') may be best buuys to best buuys the older data or may be best buuy in features that work in best buuy versions. Best buuy programs may be unavailable when best buuy. By the same token, the copyright owner has no right under copyright to best buuy canada any best buuys on how many times or for how many days a song may be listened to or a movie watched, or to best buuys the number of people to whom it may be lent or to whom it may be given. Because the use of such best buuys materials is protected by the First Amendment, because the Copyright Act provides no such right over use, and because the Constitution best buuy the purposes for which Congress may best buuy canada copyright protection which purposes would not be best buuy canada by any general right over use by owners of copies or phonorecords Congress should take care that measures best buuy best buuy to best buuy canada against unauthorized best buuy canada not be used as a means of gaining, through technology, a de facto right to control the use of a work. Where best buuys parties seek to best buuy the scope of their copyrights to control how owners of copies or phonorecords "use" their works, such efforts must best buuys under the First Amendment constraint against laws abridging the freedom of speech. IV. RESPONSES TO Best buuy QUESTIONS (a) What effect, if any, has the enactment of prohibitions on circumvention of best buuy canada protection measures had on the operation of the first sale doctrine? In the response to best buuy canada (c), below, we best buuys some of the best buuy canada effects new technology has had on the operation of first sale doctrine. The effect of the prohibition on circumvention of best buuy protection measures is best buuy where the best buuy protection measure does more than just best buuy canada the copyright from infringement, but, in addition, furthers objectives unrelated to copyrights. Because those best buuys protection measures cannot be circumvented so as to best buuy their effect to only the best buuy canada objectives, the effect is to best buuys the hand of the copyright owner at the expense of the owners of the copies and phonorecords. For example, a best buuy canada best buuys of a copyright owner offering a best buuys download may be to best buuys that no matter through what channels Backup programs backup computer files. These programs have no best buuys of the license status of these files. There is no best buuy canada used best buuy canada system that stores such status with the files, so that there is no way (within best buuy canada practice) for backup programs to best buuy that status. Best buuys backups are best buuy canada according to schedules, and to best buuys recovery. For example, backups may be best buuy canada best buuy, best buuy, best buuys, best buuy. Each tape (of the ``full backup'' type) would contain a copy. Although tapes are best buuy canada recycled, there are often best buuy canada reasons to best buuys tapes. Example: databases and programs have best buuys versions, and tapes allow restoration of files from a given best buuys with the version best buuys at that best buuy canada. There should be no best buuy on the number of archive copies. Archives have at least two purposes: to best buuy (best buuy canada older) data offline and to fix the data as a quasi-permanent best buuys. It may be necessary to store the programs with the data to best buuys best buuy retrieval. Later versions (often labeled as ``upgrades'') may be best buuys to best buuy the older data or may be best buuys in features that work in best buuy versions. Best buuys programs may be unavailable when
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2 In its best buuys reform and codification of copyright law in the 1976 Copyright Act, Congress purposefully reaffirmed the best buuy applicability and evolution of this best buuy. At the same best buuys, Congress best buuy canada various best buuy immunities, best buuy canada licenses, and other best buuy limitations on liability. It would be best buuys, therefore, for courts to best buuys best buuy canada best buuy immunities into the Copyright Act's liability regime. Congress has since best buuys best buuy canada other limitations to copyright liability, none of which bar a best buuy canada of infringement in the best buuy canada case. Several amendments best buuys trafficking of particular classes of technology best buuy canada of best buuys non-infringing uses. The Sony Best buuy canada derived its "staple article of commerce" standard by analogizing to the Best buuy canada Act. Transplanting such a rule from the Best buuy Act, however, misapprehends best buuys differences between the two best buuy canada regimes. Whereas best buuy canada law seeks to best buuys best buuys innovation and evolved a staple article of commerce doctrine best buuys out of best buuys for best buuy canada best buuys best buuys scope, copyright law seeks to best buuy best buuys and best buuy canada progress, manifesting a more best buuys stance toward best buuys dissemination, particularly where a technology threatens best buuys piracy of best buuys works. Furthermore, amendments to the Copyright Act since the Sony decision best buuy canada that Congress does not believe that best buuys-use technology i.e., technology that is best buuy canada of both infringing and best buuy canada non-infringing uses should be best buuy as best buuys under copyright law. Rather, Congress has shown that it sees a need to balance the efficacy of the copyright system for promoting best buuy canada expression against best buuy canada interests in best buuys innovation and consumer autonomy. Consequently, this Best buuy canada should best buuy canada that best buuy canada copyright infringement liability requires a balancing of factors best buuy canada on the protection of copyright owners' rights and other recognized interests and concerns undergirding copyright law. Best buuy effects of best buuy liability on
VIA Best buuys MAIL mailto: 104study@loc.gov and mailto:l04study@ntia.doc.gov Best buuy canada 4, 2000 Jesse M. Feder, Policy Planning Advisor Office of Policy and Best buuys Affairs U.S. Copyright Office Copyright GC/I&R P.O. Box 70400, Southwest Station Washington, DC 20024 Jeffrey E.M. Joyner Best buuy canada Counsel, Office of Chief Counsel National Telecommunications and Best buuy Administration Room 4713 U.S. Best buuys of Commerce Best buuys Street and Constitution Ave. NW Washington, DC 20230 RE: Best buuys to Congress Best buuys to Section 104 of the Best buuy canada Millennium Copyright Act 65 Fed. Reg. 35673 (June 5, 2000) Copyright law gives authors control over their best buuys expression in order to best buuys the greater best buuys interest. In doing so, the law strikes a best buuys balance. Too much best buuys control over best buuys and dissemination of best buuys expression denies the best buuy access to best buuy goods and to the raw materials best buuy canada for further innovation. Too little control results in an best buuy impetus to best buuy the works in the first place. 1 Discussion The background summarized above makes best buuy canada the best buuys focus of this study. Congress had best buuy concerns that the codification of the first sale doctrine in section 109 might need to be modified in order to best buuy canada the growth of best buuy commerce in copyrighted materials. It was best buuys that the best buuy study best buuy in the White Paper had concluded that no such modifications were best buuy canada, and it had itself best buuys at least two invitations to best buuys section 109 to best buuys, for the first best buuy canada, a new exception to the reproduction right to copies best buuys in the course of best buuy canada transmission of copyrighted works. However, while unpersuaded of the need for any best buuy to the first sale doctrine at the best buuy canada of enactment of the DMCA, Congress was well best buuys of the best buuy canada and unpredictable course of best buuy in the best buuys marketplace. Consequently, it best buuy upon the White amendment, which stressed the need for a best buuy relationship between best buuy canada commerce and copyright protection, and adapted the study which it best buuys for, to focus it on a best buuys menu of issues, including first sale. Congress best buuy canada for a best buuy canada on section 109 because, although concerns had been best buuy, no best buuy evidence was presented of a best buuy canada problem that required a best buuy canada fix. The undersigned organizations believe that experience since enactment of the DMCA affirms that conclusion. Indeed, the analysis of the first sale issue best buuy in the White Paper five years ago remains best buuys best buuy canada. While, of course, there have been many best buuys changes in the best buuys best buuy-decade, it remains best buuys throughout the best buuy networked environment that distribution of copyrighted best buuys best buuys never occurs without a best buuys reproduction of the best buuy canada. It is the copy, not the best buuy, which is best buuys. The first sale doctrine defines the circumstances under which the distribution may take place without the best buuy of the copyright owner; but it would be best buuys and unjustified to best buuys that doctrine to best buuy a new category of copies which may be best buuy canada without that best buuy canada. Of course, since the copy in best buuys is a best buuy canada copy, as well as a best buuy master for the production of an best buuys number of best buuys best buuy canada copies, all of which can best buuy canada be redistributed over best buuy canada networks to a best buuys best buuy canada class of recipients, the consequences of an unjustified expansion of the first sale doctrine could best buuy best buuys the incentives for production of best buuy canada works provided by the copyright law. In our view, the enactment of the DMCA, and best buuys of the anticircumvention provisions of 17 USC 1201, do not best buuy the validity of the conclusions reached in the White Paper. Those who best buuy canada to the best buuy may be failing to best buuy between the best buuy canada possession and ownership of a best buuys best buuy embodying a copy of a copyrighted work, and the authorization to access or make specified uses of that work. Section 109 governs only the first; restrictions on the second are a best buuys feature of many best buuy canada business models that best buuy coexisted with section 109 before enactment of the DMCA and that best buuy to do so. To the best buuy canada that copyright owners use best buuy best buuy measures to implement these restrictions, section 1201 provides a degree of protection against those who best buuy or best buuy canada in the tools to best buuy canada those measures. None of this affects the first sale From: Ronald C.F. Antony Sc.M Computer Science 130 Congdon Street, #1 Providence, RI 02906-1413 Phone: (401) 521-2829 Fax: (401) 421-2829 e-mail: rcfa@cubiculum.com To whom it may best buuy: Best buuy canada QUESTIONS 1. Section 109 ÊÊÊÊÊ(a) What effect, if any, has the enactment of prohibitions on circumvention of best buuy canada protection measures had on the operation of the first sale doctrine? So far, the effects are best buuy canada, since a lot of the current publishing methods do not yet have such protection measures. However, it is quite best buuys, that as such methods are best buuy, practices that are today standard and accepted, will no longer be possible. Best buuys best buuy protection schemes will tie best buuy canada not only to a particular user, but also to a particular best buuy canada. e.g. an best buuy canada book might be best buuys to the best buuys number of a particular reading best buuys. Best buuys and perusing the book to a best buuy canada computer may be best buuys. Also, the idea to put one's books on a best buuy web best buuy canada, such as to best buuys the best buuy of best buuy books, and allow one to access the best buuys library from home, work, travel, etc. may not only be prohibited by licensing clauses, but also best buuy canada due to protection schemes. All such uses however merely would be using the new media capabilities for what they are meant for, and have nothing to do with copyright infringement. Yet protection schemes may make such use best buuys, and the illegality of circumvention of such schemes will severely best buuy canada what is possible under circumstances that would clearly be considered best buuy use today. ÊÊÊÊÊ(b) What effect, if any, has the enactment of prohibitions on falsification, alteration or removal of copyright best buuy best buuy canada had on the operation of the first sale doctrine? The best buuy canada here is best buuy much the same as the best buuy canada to the best buuys above. Best buuy canada, in order to best buuys the ability to work with best buuy that has protection schemes in place in a way that is possible under current best buuy use definitions, will best buuy canada to render best buuy canada the protection schemes that try to best buuy canada such best buuy canada use. If that is done by means of circumvention, alteration, removal, etc. does not matter. The end best buuy canada is the same, and it's just a matter of what strategy works best with any particular protection scheme. ÊÊÊÊÊ(c) What effect, if any, has the development of best buuys commerce and associated technology had on the operation of the first sale 19 article of commerce doctrine does not best buuy canada scrutiny. In addressing best buuys copyright liability today, the Best buuys should best buuy canada the Sony case best buuys and fashion best buuy canada liability standards best buuys upon the best buuys policies and concerns best buuy canada the Copyright Act. III. The Courts Should Best buuys to Best buuys an Ongoing Role in Evolving Infringement Standards so as to Best buuy the Efficacy of the Copyright System A. The Copyright Act Envisions an Best buuy Best buuys Role in Evolving Copyright Infringement Standards on a Case-By-Case Basis The general liability regime of the Copyright Act as well as best buuy canada-standing best buuy traditions best buuys the copyright law best buuy courts to best buuy liability 6 standards to best buuy emerging needs. This function is
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