 creating specifications for the phone so that they cannot be used on any other network and that's not before us here. I understand that but it does show a tendency or practice of the largest carriers to exclude competitive opportunities from all of the carriers. Unlocking of handsets of the iconic devices that carriers, the largest carriers have exclusive rights to continues to be a difficulty to create a difficulty for small carriers getting access to those devices even if they weren't to purchase them from the OEMs. So at least we know that that is not a policy of AT&T to unlock their exclusive handsets that I'm aware of. There's also some iPads that you could say that are locked and cannot operate on another network. I think the reason for that may be more howler design technically on purpose than just this mere unlocking process but again the largest carriers have shown a great propensity to ensure that their unique devices are in fact not available to other for other competitive carriers to utilize. And on T-Mobile itself I understand T-Mobile does value the benefit I think there's over 1.2 million unlocked devices on the T-Mobile network now. And as of the time that we filed our appointment, even if you purchased an unlocked iPhone 4S directly from Apple, it still would only be unlocked for GSM networks and not for. So I mean unless that's changed in the past few months, although the phone has the hardware capability to connect to both GSM networks and CME networks, it's my understanding that if you purchase a phone unlocked from the Apple Store, it's not fully unlocked. Alright, let's move on to another topic. One of the basic things one has to address in this rulemaking is whether the use in question is a non-intriging use. I may have, Mr. Bruce, but I don't think I identified anything in your comments pointing out to any of the desired uses that the proponents are suggesting are the driving force behind this request for an exemption. And any of the uses are infringing, but I may have missed it, so here's your opportunity to tell me how what they want to do with results in accident infringement. Sure. When you turn on a cell phone, you typically need to copy significant chunks, not all of the operating system into RAM, and that is making a copy. And the making of that copy, putting aside the issue over section 117, which we cannot discuss separately, but the making of that copy has uniformly been held within the scope of the rights of the copyright owner. And the agreements that are in the record typically limit, and I can expand on those with respect to those that aren't in the record, typically limit the authorization that's granted by the licenses to the use of the software human connection with the carrier's service so that making a reproduction of that software is infringing. Did we argue that explicitly in our comments? No, because none of the proponents in their opening case made the argument that that wasn't infringing. I saw other arguments made with responding to the arguments where they haven't heard the proof. We can certainly, and I'm making that point now, and it's consistent with what we have in our comments where we take the position that the uses are infringing uses, but it does come from the reproduction of the operating system into the RAM of the phone. Okay, let's turn to that bit. 117 is obviously another issue, and it was just one of you on how it works probably different from yours, but without getting into that and making it into it later, Is it your position that apart from section 117, the act of turning on your cell phone and loading the operating system when you are using it with a network other than the network that your license permits you to use it on? Is there is not an infringing act? It's our position that that is a not infringing act, in large part because we believe that the terms of the software license agreement that would prohibit a user from turning on the cell phone that he or she has purchased has lawfully purchased with the software already installed on it after connecting to the other network would be an unenforcable term due to the fact that it's a non-competitive term in stymles competition, and really I can't imagine. Okay, so, and I assume you're, I believe you're also relying on section 117, correct? Okay, so 117 copyright misuse, are those the only two reasons why you would say that that use is not infringing? Well, we also, so my understanding is that you're, you're discussing now after the software has already been altered just from our own. I don't think Bruce is talking about alteration, although we certainly understand that's one scenario. Well, sorry, we're talking over each other, so why don't you, why don't you repeat what you said so the reporter gets it all and then I'll, I'll respond. Sorry, so the other, the other portion of our argument about why unlocking a phone and using it to connect to an infringing abuse is because the, the re-flashing a phone and injecting a particular, I'm sorry, I'm not a technologist and it's difficult for me to talk about these issues. But overwriting some of the variables that the software uses to connect to a carrier's network with different variables to enable it to connect to another carrier's network are alterations if you'd like to comment on that, but do not rise to the level of constituting a derivative work. So the derivative, we believe that the derivative work right is not, is not infringed and we believe that the reaction right is not infringed higher. So you're saying when you flash, you clear out all those variables in the blank slate and then you impose your own variables by when you switch to the network with a new kind of system to use that phone. Yes, and that those variables themselves are unprotectable elements. Okay, we've gotten into the question of derivative works. Bruce, do you want to, do you want to speak to that issue? I do, I should have gotten that. Remember, in my testimony at the chief, I spoke about both the error of focusing and the fact that you need to be non-infringing as you respect. First, you need to be non-infringing in the context of the act of certain invention. And I identified two situations where there, it's my understanding that there are modifications that are infringing on modifications. The typical means by which iPhones, which involves changing the loader software, the operating system software in ways they go. In terms of their authentication functionality in ways that go beyond a mere addition of variables. Secondly, I believe that's also the case with respect to the traffic on the proprietary engine. But when you get beyond the question of active certain invention, the second important question is whether the use of the software after it has been unlocked, in other words, after these variables have been changed is infringing. And I don't think Ms. Moye addresses that issue when she argues that simply changing variables or reflashing those variables is not infringing. It may be that in certain circumstances the act of circumvention is not infringing. But again, that's not morally the right question. The right question is whether the use of copyrighted work after it has been unlocked is infringing. And that doesn't go for that point. The right you're referring to in that latter case is, again, the reproduction right, I assume. Is that correct? In the latter case, yes. And in the former case. Any more comments on reproduction right, derivative work right from anyone? You know, I'm not an expert on it, but I... No one in this room is, I suspect. I don't believe that we're talking about it and they're infringing. And in my mind, you unlock the handset, which is under the exemption, and you utilize the device on another network. It's fairly focused, it's very narrow, and you use the device as you had used it earlier. There can be additional data that you may have to use in the process of unlocking the device. You know, does everyone get smarter on how they protect their device and keep it from being unlocked? Which we talked a little about technological innovation. The main purpose and the main focus of the exemption is very narrow and very specific. I don't know that you get to that point of full utilization of the 117 derivative work. Sorry, I have a quick question here. So then, Mr. Joseph, am I clear in thinking that it's your position that if a user of a mobile device has an unlocked device and is using that device currently to connect to a network it has not been ventured? It will depend on the terms of the license governing the software that the consumer is using. Whether the consumer is a licensee and is here assisted with the license. But, unfortunately, we're not here to consider... Well, let me withdraw that. So I think the answer would be depending on the state of the license and what the consumer is on the right to do. Yes? So for a carrier that unlocks a phone from one of the consumers, are they engaging? Since the carrier is the party that granted the license, it is not infringing. The carrier unlocks the phone for its licensee for use on other networks. That's, if not explicitly authorized, explicitly authorized. Okay, let's talk about the licenses. Rushi has given us examples of four customer agreements, one from each of the major carriers. It's not clear to me whether those four provisions you've given us are standard provisions in all contracts for all four of the major carriers. Or are these just examples of certain contracts when there may be all sorts of variations that go up in different directions? I believe those are the standard terms of service that we apply generally. And we can expand those also since we received the information regarding the purchase. And some of the additional provisions that are cited in the terms of service in our comments. It's my understanding those are standard terms of service that generally apply. And isn't it true that in the absence of such provisions in license agreements, someone who bought a cell phone which had the software on it, would in fact own the copy of that software that was on the cell phone? The answer to that question, the trade and the industry, including a specific document, but here where we have specific documents. Yeah, good. Just with regard to that, what if there is the term of the contract is fulfilled? Or for instance, the purchaser of the phone, the purchaser of the phone gives the phone away so there's no longer any privity for that contract. Then you're confusing, I would respectfully say, the copyright infringement with the region of contract. The claim of software is distributed subject to a license. The licensee has no greater authority to give rights in the licensed software to a third party than the copyright owner. And the licensee has acquired that fundamental copyright law. And with respect to the standard terms of service, those are not the same as the term contract provision. Their term persists for the time you have to come. They don't expire at the end. If you have a two-year contract, we're paying a given fee for two years. The standard, the terms of service that govern your use and the license to the software don't expire with the term contract. So I think they're confusing a couple of issues embedded in your question. Well, so who would be the infringer in that case? If the phone's given away, you're saying the person who then turns the phone off who was not subject to any license is infringing the copyright. They would be the infringer, yes. Can I just follow up on this line of questions, Bruce, for this? So this is a hypothetical. I have a phone and I throw it away with the owner of the copyright work or the licensee. Have any sued against me for destroying his property if you believe that it's because the license is rather a ownership of that particular phone? As a general rule, we know because, typically, there's destruction of the phone. One of the condoms, the outcome is the end of the night. And by the way, I was to amend. I think my answer was right vis-à-vis the acquirer of the phone, even in the absence of binding terms of service. Okay, so question for everyone then. Do we have any evidence in the record before us that any significant number of purchasers of locked cell phones actually do own the copies of the software on them? Another way of putting that is, do we have any evidence that any significant number of people who purchase cell phones do so without the subject to license terms, the terms that were decided in the CTIA comment? My quick answer, no. So I am unaware of any evidence that we would be happy to respond to it in writing, post sharing. However, I also, I do believe that for the thousands of consumers who purchase their mobile devices from the second-hand market such as from eBay, many of them probably are not subject to terms of a service contract term that governs, but typically comes governing the software and solve the problem. But does it follow that when they wanted that phone, presumably from someone who did obtain a pursuant to license, that they obtained the right to reproduce that copy every time they turned on their cell phone? I think the record sort of identifies, I mean it's not enough, but if you get a phone you know not where it came from, what it was restricted to. This is a sort of a servitude or a chattel theory of what right do you have to something that you have in your hand and if it works, it works. I mean I don't know if anyone knows, even the carriers clearly understand if they have a right to that hardware, software together when you turn it on works. I'm not so sure that there's an easy answer. I don't know of anything in the record that speaks to that for now. I think that there's also the first sale doctrine, the owner of a device to sell it to, under this theory, the person. But if the initial owner of the device obtained a pursuant to a license agreement which made it quite clear that the owner of that device did not own the copy of the software that was on the device, when that person sold that device to a third party, how could the third party suddenly get more rights than the original person, original owner had. I had a contract with Verizon, I sell that phone to you. I didn't own the copy of the software on the phone. So how is it that you own the copy of the software on the phone after I sold the phone to you? Bruce, you look like you want to answer for her. No, I don't. I think your question captures it. We're only a million precisely, but I will then simply amplify more of the first sale doctrine also on your flies to owners of copies that doesn't apply to licensees of copies. So the first sale doctrine suffers from the same defect as the section 1.7. One issue that I'm surprised I didn't see a whole lot of discussion on in the comments, given the amount of time we spent on it last time around, and the changes that have occurred since that time has to do with case law in the Ninth Circuit. My recollection of what we said two years ago was essentially that the law is pretty unclear with respect to what the status is of whether one owns the copy of software when one obtains it pursuing to a license, and that issue was in fact before the Ninth Circuit. One of our problems was we couldn't predict how the Ninth Circuit was going to rule. So we were dealing with a relative paucity of cases, but also cases that went in both directions. Like it or not, and some may, some may not, the Ninth Circuit has now spoken, but I don't know that any of you have really spoken clearly as to what the implications are of the rulings in the Ninth Circuit. And since we spent so much time worrying about them last time around, it would be nice to have some help on what lessons we should draw from the Ninth Circuit rulings, if any. Bruce? I thought we actually did address that issue in our written comments, which is of course where most of our position is laid out. And it's argued that the Ninth Circuit, which in particular case found the copies that issue to have been licensed rather than sold, that the holding of the Ninth Circuit is consistent with our position that software on global funds typically is licensed. The examples of the agreements that we cite, we think, support that. Now, to be fair, the Ninth Circuit didn't go into an added characteristic that is common in the wireless terminal service, which is the right to modify at will by the character of the software, which I think is a further addition of its license rather than the ownership of the licensee. So would anyone on that side of the table like to address for us what implications we should draw from the Ninth Circuit rulings, Werner? I've had some help here to point to page 16 of the Metro's robotic science, and we can certainly supplement that particular section more fulsome. But I think it's also fairly well, well, I'd say it's addressed, but I would like to supplement that for the record. Anyone? Sure. So I have some questions for both sides here. We'll start with you, Laura, to tell me why Enwin would be able to use a tablet on another network. I'm trying to wrap my head around the expansion that you have requested. I see it's clear that you wanted to use a mobile carrier for voice services for all sorts of reasons, but I'm still unclear as to why someone would want to switch anything but their mobile phone device to another network. So please let me know what the reasons would be and why we should entertain your exemption as written. I think that there are a number of reasons that people switch service carriers, not just for voice services but also for data, and it may have to do with coverage of the network or the customer service, maybe just a personal relationship that an individual consumer has with a particular carrier that is either positive or negative. These are the sorts of things that influence consumer decisions to sign up with one carrier and then on the first place, they are the same sorts of considerations that can be considered by the consumer. Are there any terms of service that we should be aware of, as there were, for voice services that apply to the switching of tablets for data services that should be part of the record or what you know about? Well, I'm sort of struck by your distinction between voice and data when we're moving into a 3G and 4G world where voice is data and many of the devices that you currently have are voice of internet protocol signals. So it's a bit sort of concept, whether it's voice, whether it's data, whether it's video, it's all bits of data. So in that respect, a wireless tablet is a wireless device. That's why we suggest that you should identify wireless devices. And many of the suggestions are correct. If you have a device, you get transferred from Washington, D.C. area to the Texas area and you want a different carrier because they have better coverage in that area. Most tablets right now, you're already switching to hotspots or Wi-Fi offload type of situation. So if your host carrier, if you want to change, then you should have that same right. It is a wireless device that transmits data, whether it's turned into voice or whether it's, you know, a video or whether it's something else. That's why we suggest that you expand the understanding. It means a lot in the telecom world, whether it's a telecommunication service or information service. I'm not sure that those distinctions are relevant particularly in the copyright world, but I think it certainly is easier to understand the types of devices we're talking about if you say wireless devices. Well, I just want to note, I think the burden is on the proponents here to show why there should be an expansion because at least as I understood it, the current exemption has been traditionally understood to apply to what we know as voice service. The whole reason for switching is making a service that the current carrier has, but it was really in the context of what we knew in 2006 and 2010. So if you're looking to see a revision of it, then you have to show us exactly why we should entertain that at least as I was asking those questions. Well, let me jump in on that because one of the questions I wanted to ask was what evidence do we have in the records that access controls are in fact used to lock tablets, notebook computers, e-readers, any mobile devices other than what have typically been understood to be cell phones? Well, as we point out in our report by comments, that when you purchase, for example, an iPad in the Apple Store, you're required to select a carrier before checking it out. And the consumer is informed during the checkout process that your iPad will work only with the carrier you choose. So we know that they are being sold locked. Well, wait a minute. Hold on. How do we know that? What you just told us doesn't tell me that they're locked. Do we know what kind of access control, if any, is put on the iPad? Hi, I'm sorry, I was referring to any kind of access control that restricts your point of particular carrier. But what you decided a moment ago did not in any respect say there was an access control on it. It said you won't be able to use it somewhere else. I don't know why you can't use it somewhere else. Maybe it's just totally incompatible software. I just don't know. But my specific question is what evidence do we have that access controls are used on these other devices? Because we have no evidence. I think that game's over on that front. Related to that, I think it's contractual. I don't see anything that locks you down. I think it's just a matter of deciding an agreement. I know. And that's why I was asking this one question in regard to everything but what we know of today. And I know that Samsung Notebook, some of the Xbox, some of the other devices are locked. And we can provide you information in that regard. I think it's referred to. But we can provide you additional information. But again, I'm still sort of struck with your question that you're talking about califying a voice only when in the wireless world there literally is no distinction between a analog voice, traditional analog voice connection and a data connection. Especially when you're already in the voice of internet protocol, we'll be in the 4GLT, which is all data. And the wireless devices, the tablets and the other devices are falling along the same traditional path that carriers have looked to lock devices in order to access their network. It's the same, I won't say it's the same protocol, but it's the same type of network access regime. And that's what we're suggesting should be covered on the exemption. And the language should be modified so that it's clear that we're talking about wireless devices. Many of the phones that you refer to now are actually smartphones that are much more than voice. As a matter of fact, most people will say a smartphone spends 70% of its life in some other data consumption form other than a voice conversation. But is there any evidence that anyone is confused by the reference in the current exemption to... What is the word, half set, does that make sense? Is there any evidence that anyone believes that smartphones are not within the scope of that? I certainly don't, but I also look at the wireless device world maybe a little different than you do. You can make telephone calls, you can have video, Skype, face-to-face phone calls over a wireless iPad or a tablet, just like you have a phone call. And so the difference I think is, at least for me, sort of escapes me as a major difference between a telephone, i.e. wireless phone, as it's matured and developed and the functionality continues to grow as technology develops. I mean, just for you to recognize, you can see the harm that's been in the record with regard to anything but what we know of today. And even though you were to expand the scope and you said with some rationales why it should be, I didn't see how it's currently affecting consumers now. I mean, we've seen in other contexts, like for a jailbreaking that over 25,000 people signed a petition, how jailbreaking your mobile device helps them, but I didn't see anything here from any kind of consumers that say, I need to unlock my tablet to use it on another network for some other reason. I agree with that. I'm not aware of any evidence in the record addressing this and that's one of the main points we've made. And I'm also not aware, I answered Mr. Carson's question that there is any confusion about the scope of the current invention and I think here the intent is that an iPad is not a home handset. And along those lines, have you seen any activity in both the selling context that people want to unlock their tablets or eat meat or anything else to be used in other countries for purposes that you are concerned about in terms of the voice devices, etc.? I don't know the answer to that. Mr. Berry, which of the comments did you say there was a book about some Samsung tablets? Yeah, we couldn't figure out if it was a PCS or not, but we'll find a clue. I just wanted to add that many tablet devices also have telephone numbers assigned to them by different areas of the world. It's not as clear as Mr. Carson just indicated. Can you make a phone call? Of our implications, for sure. Yeah, but I think David has. Is the device designed for me, apart from the addition, possibly? Yeah, it strikes me what is a telephone, what is a telephone call? The exchange of data right now is a telephone call. Whether it's voice or it's text or it's data, it's a picture or whatever. That's essentially a telephone call. That's what your telephones, wireless telephones do today. It strikes me that the progression of technology in the March forward is happening at a rapid pace. The fact that you have a tablet that can do all those things and also do a lot more doesn't necessarily disqualify it as a non-telephone device. I think you're getting telephone communications law and the definitions under Title II or Title I or Title III confused a little with some copyright law. I think this narrow extension is fairly focused in very narrow and we're talking about devices that can be wireless devices that communicate with each other through a wireless network. And whatever the device is, given the technology that we're moving to, they make telephone calls in a whole different variety of versions and flavors. And I think qualify similarly as your description of a voice call. It bothers me that you focus on that when in fact it's more the technology that is going to use data to turn that into whatever you want to call as a communication to another person. I think what we're learning here is that if we recommend an extension this time around, we're going to have to very carefully look at the records, see what the evidence is with respect to current locking practices, see if there is any evidence of what is likely to happen in the next three years. And our jurisprudence pretty clearly says that means more likely than not. And shape the class with what the record tells us in mind and we'll see what the record tells us on that. Good. So for you, Bruce, I read in the Wall Street Journal I had it right here from May 7th. There was an article in the Marketplace section called Carriers Chip Away at Phone Subsidies. And it seems to indicate that one of the trends for the next three years at least is that more and more carriers are taking back the control of the device from others in chains such as Apple. And using the cost of the device as a means by which to retain the customer because of your spending $700 for an iPhone for as it is unlocked, that would be more of an incentive for you to stay with that particular carrier. So I'm trying to gather some information from you about where this whole argument about subsidies is going and whether or not this article is in fact indicative of the trend that there will be less and less subsidies going forward in the next couple of years. Okay, that seems to be your basis upon which you're concerned about in regard to the clients at CTIA. I have to admit to being at something with discretion and wisdom would say that we respond to that question in writing as I sit here. I don't think I have an answer. In fact, I'm pretty sure I don't have an answer. No, that's quite all right. I just want to see what the trend is in terms of the business practices and the models going forward with regard to what subsidies are for the wireless market place. This really piqued my interest. I understand you don't have something to respond to at times. I thought maybe you had some general idea based on what you're speaking to with your clients of where things may well be going. I don't have any knowledge that consumers... Again, this is a consumer choice. Some other questions with regard to what is in the record and that has to do with the use of precedent. I'm seemingly confused by CTIA's comments because in one point you say we should not rely on what the register has done in the past but in terms of reselling and used phones, you say we should definitely use that as a model to go forward if we do have an exemption for this particular class. So give me an idea of what we should be doing in terms of how we view precedent in the 1201 momentary proceedings. Sure. On issues like that they know will proceed and with respect to issues of law construction, prior decisions of the register presumably have persuasive effect but not binding effect to the extent they are believed that the reversal of the presumption on Section 117 we have demonstrated, now I hope, persuasively that the register's reversal of that toward the... as a result of the presumption or fluid in the face of the register's own recognition of prevailing practice was incorrect as a matter of law and that you would not do that again till the nation is binding to be persuasive. I do believe that to the extent again is in this proceeding and it rests firmly on the other side and to the extent they have failed to provide sufficient evidence that goes beyond what they did last time I would expect you to do certainly no more than you did last time. We will deal with the evidence that was insufficient last time that once again that would not justify an exemption. Finally, as an administrative body, I think there are a number of questions for Laura. I didn't see any comments in your replies about CTIA's proposed exemption. What would you say is that the CTIA's proposed exemption is not the only one that is not applied to the CTIA's proposed exemption. What would you think of the fact that we decided to adopt a language that was proposed? How would you respond to that? Before Bruce interjects, we understand that not really proposing that we adopt it but it's what they might be willing to live with if it went anywhere. Well, I'll go beyond that. I say that we would be willing to live with it if it went anywhere. I saw that difference. So, what's the response in the component side? I'm sorry, I don't have a comment on that. Well, in general, I think someone behind you has it to share. It was not just the specific language, but the general compositions that were laid out. Given that there's a component that's willing to concede particular language for an exemption for individuals such as what you described when you were traveling, why would you seemingly object to something like that if it provides you the relief that you would seek? So, forgive me. This is just off the cuff right now. I'm looking at this. I think one of the concerns that I would have is undertaking my individual customer as a wireless service provider. So that means if I'm not already a customer as a wireless provider, I can't unlock my phone. I don't know how that would work. So, if Laura gives me a phone and I haven't decided what provider I want, if I want a phone, this wouldn't apply to me. Now, commercial purposes, I can go on about what does that really mean and what if I use my, I mean, I work for consumer. Being in my phone, my personal phone is also my work phone. Right. What happens in that case? They will give me a, you know, I don't, because the regime doesn't provide me with my services. That certainly don't mean to impose upon you at this time your, your learned advice here. But I just wanted to get that general feeling as to how you would feel about something that's something a person could look with. Well, don't let her off so easy. This was in the initial comment. It's a fair game to get their reaction to it now. And then they can't react to it, then we'll react to it on our own. There's just something, you know, by reading the record, seeing some of the gaps, and that's why I'm asking you these questions today in trying to reconcile any contradictions or omissions is one of our omissions here in this hearing so we can make the record even better than it is today. Yes, and I definitely appreciate that opportunity. So, you know, this is, and I'm not going to chance the fully review, but I would say that those would be two of my concerns looking at this. At the moment I do appreciate Mr. Joseph suggesting language, but I do think there are some. Mr. Barry, do you have any comments here? Yes, as you know, it's not exactly what we have suggested. I think there's at least three or four different versions out there. I would like to respond to this in writing, if you would. I think there's a couple issues that are raised by this, some of which we discussed previously in our discussion on 1-17. I think race is serious concerns about their definition here. I would prefer obviously the recommendation we made to you. I think the way it's drafted right now, for me, especially the conversation we had this morning, I believe that there are potential hidden traps there that would maybe confuse and provide easy efforts to frustrate the implementation of the exemption. So I'd like to respond to that in detail. I just have one more question for both of you here. That's in regard to your copyrightability argument that you made in your opening brief. Explain to me exactly what you mean by that. Are you talking about the copyrightability of the firmware that is the lock itself? And for you, Bruce, you didn't seem to suggest that their argument was entirely wrong, but you said something like, leave it to the courts to decide whether or not the firmware that locks the phone is copyrightable. So with that in mind, please present your arguments on that particular reference as to why this would be a non-infringing use. We were saying that these elements are not copyrighted. We were referring to a particular element. So those are just the particular elements that limit the connection, some limit it to format networks, and that changing those particular elements of the firmware, therefore, is a non-infringing use. Now, you're talking about, is this a code we're talking about in the firmware? Is it the firmware in a computer program which is trying to wrap my head around what it means when you're saying it's not copyrightable? I'm sorry, what was your distinction? We're talking about lines of code or we're talking about a computer program that is in fact the firmware itself that locks the phone to a particular network. We're talking about lines of code that in order to alter the firmware to enable it to do a different network, the person re-flashing the device has to replace some of those elements in code with different elements, and if those elements themselves just those newer elements are copyrighted. My understanding from past Blue Lakers and I just want to make sure my understanding is correct is that what you're really talking about is simply changing some data, which is the data that says go to this network or this network alone. Instead, you can change it to say go to that network. Is that what we're talking about or are we talking about something different? Right, that's basically what we're talking about. I mean for me that the register in the past register at the time, register Peter's used the analogy to the Happy Birthday song where you can imagine that the Happy Birthday song is a piece of code and that just the name is a variable but can be replaced with a different name. I think that response of understanding the correct distinction between the use of the operating systems is certain that there are certain locks and means of circumventing locks for which you do not need to do something that is infringing to accomplish the unlock and there are other type variations of software where the way unlocking is commonly accomplished does the creation of an infringing modification but that begs the question the use of the operating system software that is there upon used is copyrightable nothing in the record to suggest that it isn't so the short answer is it is given the absence of proof to the contrary and the loading of that software that is not to the extent it is not authorized by license would be a very responsive statement. I'll call up on that. I understand you argue about the reproduction but let's say that the only changes you're making are literally there's a change in a code that directs you to instead of going to Verizon you're going to spectacular. Under those circumstances is it your argument that there is an additional there is an infringement of an additional exclusive right beyond the reproduction right when all that is altered is a bit of data like that? I'm not arguing that there is in that case as you have described I'm not arguing that. You seem to be suggesting that there might with respect to some of the operating system software and some of the cell phones you might have to do actually more which might rise to that level is that correct? That is my understanding for example it's my understanding that the most common meaning of unlocking an iPhone is modifying a bootloader software so that it doesn't engage and that modification is more than substituting a symbol indicator of where would Okay, anyone on the other side have any views to offer on that latter point about at least with respect to the iPhone you would in fact be creating an unauthorized subject perhaps to 117 that's an issue on which we have disagreement Right, and that's probably my answer is that you need the exemption to unlock the degree of what you have to do to unlock varies by device may vary by the process that either the manufacturer or the carrier that reflected the device so that it could be more complicated than just a set of data that unlocks it and it's good to go it may actually also have other series of data that needs to be replaced in order to not only put it on the network but actually let it work and authenticate on another network and to that extent my view would be to the extent that you have to do that and we're only talking about accessing and putting it on another network so it can actually function in the same way it function on the other network it would be covered by 117 so I understand the dancing on the head of the pin on the extent of the unlocking requirement and I suspect that if you do not extend the exemption that we have here we will have even more complicated you know versions of software and efforts to frustrate this opportunity for consumers and I just want to add that we're still talking about a mere segment of the operating system that is essentially functional in nature and in which there are very limited modes of expression so I think that this still may not may not be the type of alteration that would rise to the level of creativity or expression necessary to constitute a perfect work and I don't think there's anything in the record to support the argument that would be the case might sound like a broken record let me ask you a couple questions about the narrower alternative that you put forward first of all you talk about this being permitted when circumvention is undertaken by an individual customer of a wireless service provider and I read that to mean a current customer so if I was a Verizon subscriber and my contract expired and I'm no longer connected to Verizon I would not be privileged to take advantage of this exemption was that an intended an intended component of what you're putting forward? Can I get back to you after? No. It's a fair question and I don't believe I believe that a prior customer and indeed if you look at the carrier and locking policies they typically do also apply to a prior qualified customer and I think it's fair to include that within the term customer and not limited to current customer. Next question. Reading on you talk about a customer who owns the copy of the computer program now if I understand the customer is never going to own the copy of the computer program so don't we really have an old set here? Given that the entire basis on which the argument is being made and I realize that there's an argument of misuse but I believe the argument that the prohibition that determines that if you have infringement with it is simply not copyright misuse and not finitely so based on section 1 of 17 that actually carries forward a limitation that the copyright office that the register and librarian included in the prior it is possible that there will be owners I'm not aware of them I believe that what we have are licensees it is consistent with the exemption as the register recommended in the library and adopted it last time. And one reason we recommended it last time around was we couldn't figure out who the owner is and the law was in such disarray that we decided fine we'll put that language in there and if it turns out you were the owner of the copy you get the benefit of it and if it turns out you weren't then you don't. Well with respect I don't think that's why you included it last time the reason you included it last time was the only not infringing use on which the register relied was section 117 and an absolute prerequisite of the applicability of section 117 is the ownership of the copy of the copyrighted work I understand that but I'm saying as we crafted the language one thing that was in our mind was we don't really know what falls within this because the law is so unclear but notwithstanding that what I think I'm taking away from this is if we were to adopt this particular language it would be the position of your clients that none of your subscribers could ever fall within this is that correct I don't know that that would be their position remember they have not sued individual consumers would be their position that this exemption didn't apply doesn't mean that there would be a risk of liability to the extent that the terms of service remain as they are set forth in our contract in our comments we don't know where the terms of service might come in the future and it may be that that a court would find that certain companies terms of service actually do transfer ownership again it's tied into the section we need to find a non-affringing use in order for this proceeding to proceed at all and the one on which last time in section 117 this is an absolute requirement in section 117 I want to get back to talking about scope of the exemption and switch for a second to the other side in terms of expanding the scope of the current exemption and if I'm understanding the argument that the difficulty is that defining or the concept that when we're talking about a telephone now seems to be broadened but some of the examples