 Yeah, you got three hours. No questions. No questions. No questions. OK. Let's get started, folks. We're already starting late, and that's not your fault. That's because the last panel ran long, but hopefully we can catch up to the schedule. Hopefully we'll get out of this panel. We'll see how lively you are. So this is a panel to discuss proposed exemptions four and five. We actually have proponents only for class... Well, initially we only had proponents only for class four. Since we have an opponent for class five, we wanted to speak here. A proponent for class five has elected to come out and answer your question. So here's going to be ordered. Aaron Williamson, proponent of class four, followed by Jay Solesberger and Gretta Winkook, also proponent of class four, followed by... Do you have a preference for those verses? Jay Solesberger, an opponent of class four and five, and finally... Well, not finally. Steve Attalas, an opponent of class four, and finally Marcia Hoffman, who spoke in California, but did you have an opportunity here to address anything set by the opponent's episteme? So with that, let's start with Aaron. Thanks, Aaron. Thank you. Good evening, Aaron Williams. I turn you over to the software freedom law center. I have your right owners. My clients introduce freedoms or software. I'm here to pose the attention for computer programs to enable the installation of execution of lawfully obtained software in a personal computing class, where certain mentions are performed by or have requests to identify certain conditions. I'm here to pose some attention to allow my clients to produce software for available hardware. This extension is an expansion of the mobile phone jailbreak the exemption granted after the 2009 rule. That exemption was granted on July 26, 2010, and since the market for applications has expanded and uninterrupted, Apple, the primary opponent of that exemption, has now seen more than 25 billion applications sold in its app store. The Android market has sold well over 10 billion. And as intended, the exemption is bolstered by the market for applications that aren't approved by Apple's resolution in the app store. As my colleague at the Electronic Frontier Foundation appointed out of the city, the third party store available to the owners of jailbroken devices has been accessed through 50 million different iOS devices. When the 2000 rulemaking began, smartphones were relatively new. The iPhone had only been released in the previous year, and the first Android phone was two months old. Now, a mere three years later, the majority of Americans own smartphones. This incredible growth has spurred the introduction of other types of mobile computing devices that have themselves become ubiquitous in the last three years. The iPad, for example, was introduced on April 3, 2010, four months before the Library of Congress granted the jailbreak the exemption for smartphones. Today, over 67 million iPads have been sold. The Amazon Kindle in its infancy during the 2009 rulemaking has been through six different models, and by the end of last year was selling a million units per week. These new devices, along with video game consoles, personal music players, set-top boxes, smartwatches, and a host of other new personal computing platforms, have been very short-time supplanted the personal computer for a number of common uses. Perhaps the best example of this can be seen right here in this room. At the technology demonstration hearing, I counted at least three people taking notes on their iPads rather than on a laptop. But people are using personal computing devices like tablets and smartphones in place of personal computers, and they're not just computer tablets. They read emails on smartphones and e-book readers. They browse the web and produce hard-on iPads, and they track the progress of their exercise routine on smartwatches that get talked to their smartphones, which sync to their tablets. The personal computer is at a good run, but the personal computing device is assembled. But just as Apple and the iPhone produce momentum behind these waving new devices, they also set a trend in endangered innovation. The lockdown that Apple imposed on the iPhone, prevented users from installing any software that hadn't been pre-approved by Apple and ensured that Apple would face no competition with star applications is now an industry standard. Android phones are largely considered more open devices than iPhones, but nearly every Android phone available prevents users from replacing the operating system or from access and select functionality. All mass market e-readers are locked down most identically to the iPhone, prohibiting the installation of non-approved applications and aftermarket operating systems. The same is true for video consoles. These locks have become so ubiquitous on mobile computing devices that in the last three years they have found their way back to traditional personal computers. The class of devices previously quite opened to third-party innovation. Microsoft is leading the way in this, recognizing that the smaller, lighter computers in the future will run the ARM architecture, the favorite platform for mobile devices grounded on Intel chips. Microsoft recently mandated that any ARM-based Windows device must irreversibly prevent users from installing unapproved operating systems. This policy applies not only to Windows phones and tablets, but also to the new class of ultra-light notebooks already being produced by such members as the Call-Hound Ministers. Microsoft is also taking a page from Apple's App Store book and will only allow the next generation of Windows applications, called Metro applications, to be sold to the Windows. These locks are often built by operating systems and vendors and security features, but their primary purpose and effect is personal computers with fertile ground for innovation in the application and operating system markets because people were free to innovate on top of hardware available to them. They didn't need to make deals with hardware vendors in order to produce a competing software product. The locks imposed on new devices close this route to innovation, which is the route taken by most of the software success stories of our time. Microsoft, Apple, and Google made their first millions building software for available hardware, unimpeded by any effort by the hardware operating system to stop them. As we heard in the tech demo hearing, Bozilla cannot have the same opportunity to enter the mobile operating system and mobile browser learnings. They were able to build their boot to get the operating system because this procedure made it legal for them to gain administrative access to modern smartphones that were already available in this testing company. They were able to produce a stable version of the Firefox browser for Android for the same reason. While every other mobile operating system vendor including Apple and Microsoft has adapted their operating systems to tablets after tackling smartphones, Bozilla will have trouble doing the same because while tablet computers are essentially identical to smartphones except in their size of marketing, it is not legal to circumvent the same locks on tablets that it is on smartphones. The same goes for you other readers, personal music players, and the whole generation of devices you get to see. In this way, locks serve to protect incumbents who have relationships with hardware manufacturers that are unavailable to upstarts from competition from new entrants like this one. I expect that the first thing you notice about this exemption is that it appears to be quite broad. But I believe that it's only as broad as necessary to make an innovation on the new generation of computers. The devices that are replacing personal computers are not susceptible to simple categorization since it was made apparent at the hearing of tablet computers that were closed by the electronic computer conditions. The line between a tablet and an e-book reader, for example, is arbitrary. Both are hand-held computers, usually larger than a phone and smaller than a laptop with a prominent display. But what makes the iPad a tablet and the Kindle Fire an e-book reader is entirely a matter of the software installed on each by the manufacturer. The same is true for the line between a smartphone and a tablet. Primary extensions side tablets that contain cellular tablets are usually bigger than new devices like Samsung Note that largely erase that distinction. The applications available for each are essentially identical. I can go on, but the point is that these devices are all personal computers with different inputs, outputs, and default configurations. They are used for a set of tasks that overlap broadly from one device to another. And the justifications for and interest in jailbreak in each of them are the same as they are for starters. Addressing each new type of device easement to be in this process not only doesn't make any sense given the lack of distinction between the devices it would critically burden innovation leaving follow-on innovators like Mozilla a minimum of three years behind incumbents and producing software for new devices. To understand this we have looked at the iPad. It was released during the last known as incumbent process and before the rule was made. And by the time we were ruling over three million of them had been sold with all of the same restrictions with the iPhone. The devices were nearly identical and all of the same reasons to grant an exemption were applied on the day it was released but nonetheless so the developers had to wait three years to even ask for the rank to innovate on top of the iPad had left. This does not have innovation. Finally, the exemptions inherent limitations are closed unintended consequences. It allows circumvention only for the installation of licensed software not even for the modification of restricted software and only on hardware only by each I usually grant both exemptions which is well within your authority and it is essential to innovate. Thank you very much. Hi there Brett Weintraub from New Yorkers for Fair Use. I'd like to start out by saying that I am what might be considered a copyright knot to the eye even a strong traditional copyright but the DMCA has much less to do with copyright and it does control my term of art for this law is the Digital Millennium Control Act because it gives control of your personal computing devices to the person that you bought the device from. As Aaron so aptly pointed out in his opening statement most of the smaller computing devices physically smaller computing devices these days prevent the owner from installing the software they wish to install for their own purposes the only reason to lock these devices up that way is as Aaron said to allow the incumbents to have control over your computing environment rather than for you to have control over your computing environment. I have several of these small devices myself and it's absolutely vexing that it's a crime to use them as I wish to use them is my tool I have purchased it I have taken it home from the store so it should be up to me to employ my tool the way I wish to employ it it's not it's not really correct to say oh well you can only use your computing device the way the vendor you bought it from said in that case you don't own the computing device you have leased the computing device you have purchased essentially a limited right to make only certain use of it from the standpoint of innovation the it definitely locks out small companies I work for a company in New York City called Harrod Partners our primary business is designing e-commerce websites but a secondary business we have because our customers ask us to do this is to design tablet applications for both the iPad and Android tablets the unfortunate thing is if the incumbents in those markets mainly Apple and Google decide oh we don't want that application in our official store then you're locked out in the market because not everybody in the country is going to go through the process of breaking the encryption on their device to allow the device to accept the software they want it to accept the personal computer revolution came about in the 80s because mainframes were by design very restrictive and it was very time consuming to get anything changed on an application running on a mainframe at your company so as the personal computer got more powerful there were upstarts that began innovating and that's where we got for instance spreadsheets that's where we got word processors that's where we got a whole slew of applications that we all paid for granted today and it was because small personal computing devices that are much less powerful than this computer that I've got in my pocket were open and people could put on the software they wanted and experiment the way they wanted to innovate to a first approximation I don't believe that the digital play and control act even belongs on the books in the United States of America but the reality is we have this odious piece of legislation that our lawmakers so ill-advisedly passed and we have to come down to Washington every three years to beg literally beg to be allowed to use our computing devices it's wrong I also don't believe that we should have different classes of exemption for computing devices of different physical sizes as Aaron said it's a computer whether it's physically this big or whether it's this big or whether it's as big as the road it's a computer the computer I'm holding in my hand today is many, many orders of magnitude more powerful than the computer that I used on my first job as a Unix system administrator that was supporting several hundred users in database searches so just the fact that the exemptions have to be laid out by what the physical size of the computer is is ludicrous and I would urge you to allow the citizens of the United States of America to have private ownership of their computers and to have the ability to employ their computers the way they wish to employ them now this is not to say that every citizen of the United States is going to legally employ their computer but every citizen of the United States does not legally employ the right of a real every citizen of the United States does not legally employ their handgun every citizen of the United States does not legally employ any particular tool that Nant has come up with in the last many thousands of years so to outlaw a class of tools because some people may not employ them legally is just totally wrong instead the focus should be on oh somebody has done an illegal act let's shut that person down let's put that person before the judicial system appropriately but don't criminalize the citizens of the United States because they want to use their tools to build and produce I made my living off of copyrighted works as a matter of fact I produced three copyrighted works last week that I got paid for it I'm a firm believer in copyright law but I'm not a believer in prior restraint of how you can use your tools Jack Thanks okay I'm yes of course yeah I guess what I want to say is it's going to be very much along the lines what Aaron and Brett said and I want to emphasize two things it's that there's a broad general misunderstanding of what's at issue here in the newspapers and certainly I think it's mainly a misunderstanding on the part of the people against such attention it isn't about copyright as Bill Brett and Aaron said it's not about copyright it's about the issue of the right of ownership of a computer now Bunny Wong wrote two comments Bunny Wong is a hotshot maybe the most distinguished hardware cracker he's also a designer of hardware which is cryptographically protected against people who don't have the right of access to devices he submitted one comment in his own person he submitted a second one he asked people to sign it 25,000 people signed his comment which was in favor of these extensions he certainly mentioned the extensions for the 425 I forgot I also agree very much that as a matter of as both of our sides have said performing both people look, this isn't big have you viewed a big screen as my eyes are going because I like to have a lot of storage and have to be actually able to view something but it's the same thing mind below the gross human interface and how much it weighs as that thing and maybe that thing will move in some directions but by two years from now won't be let me just what I want to draw attention to is this is speculative and it might be felt to be out of place there's an implicit the arguments on the other side there's all sorts of implicit theories about how they won't be able to make it money or more if these extensions let me say by the way I think if creating the extensions they result in a certain number of people using their computers and connections that commit massive copyright violations just as I think people still can rob banks and they often use a car in a way so let's see what can I say about the issue just isn't one of copyright and let me tell you why it can't be copyrighted but it wants it if these extensions aren't created the present right line of ownership that's what we call right line of ownership we walked into the store ten years ago when I bought a computer I walked out of the store it was mine now most people don't fool with their computer they don't get control of it that's probably the reason these extensions aren't created and why the DMCA was passed if you run Windows under copyright law you're not allowed to you're allowed to look at and disassemble the operating system of the model you're not allowed to publicize if that's a mistake the results of your work but be that as it may in practice people don't pack on the lower levels of their windows operating systems but some of us do I don't do it in Windows I do it in other systems sometimes I touch them out I don't do it often not my job the right of ownership is not clear in people's minds because in practice they don't exercise their rights just as most people don't mark that car engine and re-bore the cylinders but they don't car I think it's still true we have the right in America because it's a right of property and a very important one we get to re-bore the cylinders now that doesn't mean that we get to drive over the speed limit or get to run over people or get to make too much noise I'm all in favor of those things I'm all in favor of that that I bought that once upon a time analogous to the ancestor of it was a general purpose computer which I controlled the idea that to prevent speculative in my case I would never ever commit a copyright violation I've never downloaded a popular song either one that I pay for and hopefully some of the money gets to the audience although that's doubtful in practice nor one I've made available people making available probably committed a copyright violation but I've never done it why I'm not interested in a popular song but I have downloaded large copyright records and I downloaded them often now this is another thing you don't get the exemption a lot of people's rights which are right next to copyright will be severely impaired last time in the demonstration I have a little so-called USB and last time I stuck it in a different computer and it booted the operating system you couldn't see if this exemption isn't granted Microsoft is formally declared to do their best to stop that from happening on any computer with an ARM chip that they have to deal and they're going to get a deal with all the manufacturers that they were which is worth something I may not pay for it because it dies through the license but other ones similar to it you pay this thing this little thing contains a copyrighted very good operating system a very good which by the way unless you modify the internals you're running a variant of a restricted copyright license and Apple claims it will be very annoying to make a lot of noise Apple by the way is strongly and correct me if I'm wrong Apple is strongly against all these exemptions I think I spoke to an Apple representative earlier but Apple has been very kind people violate they violate on a massive scale today the anti-circumvention prohibition on forgotten full technical the ARM stuff Apple makes no attempt to actually lock down their devices no serious attempt it's usually within 24 hours I've heard there's even a website you can go to the most recent and you go to the website using your iPad and you press a big red button and after a couple of minutes actually the next good it says congratulations Root on the device says to say you won't and when we say that we don't own the iPad let's be very clear on this Kindle and it says if our propaganda team maybe they did Kindle some years ago got confused about the copyright status of the book 1984 by George Orwell and so people who bought it from the Kindle store for probably a dollar they didn't even know one of the freebies I don't know this is very hard to believe because of course there are laws in the United States and somebody invading your computer and destroying some of your files the jails are convicted for that they went in to the Kindle of I don't know how many thousand people and they destroyed that file later on they said they got confused about the copyright status but what it shows is what Amazon thinks and Amazon thinks correct they don't own every Kindle until it's been jailbroken practically they don't anymore um as for Android Google owns everyone that walks out of the store but Google says that on the Chromebooks they won't cooperate with any vendor unless they make it possible by flicking actually the two switches that are up and I've actually seen a Samsung Chromebook they're two switches once you flick them you own it they'll not be available to you right once you put on your own operation we have zero problems with that that of course they're offering a service that happens to be over the net um they don't like the looks of the machine on the other end I think that's pretty much within their I mean as holy with it they're right to say ah you don't get it, sorry you don't get it the issue is not small hampering or convenience the issue is something that lies with the foundations of at least what the history books used to say and I think some of our propaganda still says it's that every American if they've got the money and buy something and use it as long as they don't injure other people or violate certain rules like the FCC has rules of this then I don't recommend changing the hardware so that I can say suppress all your all your all your telephones in the room against that because that's an interference with other people's stuff but your time's up the issue isn't a small issue it's not an issue of convenience and the people have spoken by the way people want control for everybody I'm Jesse Fager director of international trade and intellectual property for the business software audience I'm here to speak in opposition to the classes of all I'm going to start off with a couple of statistics and then I will spare the statistics for the remainder of my statement there are over 100 billion smart home users in the US today there are 10 million capital users well over a million apps are available from thousands of individual software developers the four top mobile software platforms Android, iOS, RIM, and Windows Phone and literally tens of billions of apps have been downloaded fierce competition exists among major software platforms and the multitude of apps that run on them the range of choices available to consumers is truly mind-boggling it's against this background of a dynamic competitive marketplace that the office must decide whether to grant the exemption under section 1201 the exemption is being sought in the name of consumer choice in competition our view is that granting an exemption will be justified by neither the statute nor public policy in point of fact the TPMs have issued a key rule for the platforms and the apps that run on them I'll begin by discussing class 5 since many of the arguments against that class also apply to the much broader proposal for class 4 I'll then discuss the additional reasons why we oppose the proposed class 4 exemption the performance of class 5 have not met their burden but demonstrated a substantial adverse impact on their class of copyrighted works the class 5 opponents allege that there is a substantial class of consumers who are harmed by their inability to install waffle unapproved apps on the mobile device of their choice and be certain there are some users who install or wish to install only legitimate apps that are not available in the curated distribution model employed by some platforms but there is no evidence of a significant improvement for example we have that as proper statistics about the number of phones that have been jail-breaking and the number of installations of City have but these statistics in and of themselves do not establish that a large number of users are jail-breaking their devices so that to install legitimate apps jail-breaking is a precondition for installing pirated software that City have distributed pirated apps as well as legitimate ones so many of the users counted in these statistics are engaged in piracy even if the proponents could demonstrate a substantial adverse impact they have failed to show that a harm they allege is not outweighed by the positive effects of the use of TPMs on the availability of copyrighted works access controls are simple to a distribution system that benefits consumers independent app developers and third party content creators as well as developers from mobile operating systems they are the heart of a curated model of software distribution that gives consumers a level of assurance regarding quality and security and gives app developers and content creators a level of assurance regarding anti-piracy the end result is a staggering number of apps that have been developed by thousands of independent developers and distributed to the public consumers have a faster rate of choices including hundreds of thousands of apps that are available they also have the option of a foregoing curated model by choosing a platform like Android or Linux that is much more old TPMs on mobile devices have led to widespread availability of works ensure that they are precisely the kind of use facilitated protection measures that Congress sought to promote in an active section called the work the flip side of that proposition is that permitting the disabling of these locks decreases the value of copyrighted works by undermining the value proposition that the platform creator offers to users independent of a big factor in what makes a platform attractive to consumers is the availability and quality of applications that run on the platform if the platform becomes less attractive to application developers or if customers lose confidence and quality or security of the apps available to run on it there will be less likely to choose it thus reducing the value of the platform and the software that runs it for their part, app developers who experience high levels piracy on a particular platform see the value of their works decline as they lose the ability to monetize them there is plenty of discussion in the developer community about how to have higher rates of piracy on the Android platform for example as driving into alternatives like the iPhone moreover unauthorized reproduction and modification of an operating system for the purpose of running non-incorporated applications is not a non-incorporating use because it is not fair to use in argue the fair use argument for jail where it being realized on an inappropriate extension of two non-circuit cases on reverse engineering Sega vs. Accolade and Sony Connectix Sega and Sony are cases involving intermediate copying and the development of the end product that is not substantially similar to the original computer program when the owner of the device jail breaks it he creates and uses a substantially similar in fact, substantially identical version of the operating system in the reverse engineering cases the use of the original program was viewed as indirect here we are talking about a direct and more or less continuous use of the modified version of the program for the same purposes as the original jail breaking is not transformative as the Supreme Court is determining the process it does not add something new for the further purpose of a different character the hacked operating system is of the same character and serves the same purpose as the original operating system very little new additional expression is added only what is necessary for the TPM finally, I'd like to take a few moments to clarify our review on section 12.1.F before I discuss for post price 4 in section 12.1.F commerce created a narrowed section for non-inferring reverse engineering that contains number of important safeguards jail breaking will not qualify first, the exception is the development of interoperable software jail breaking by consumers is not for the purpose of developing the software second, since the customer of jail breaks a mobile device generally does so in violation of the license terms for the operating system there is no longer any walk-alright union software as required by the statute third, the information needed to make applications interoperable for the mobile device is readily available to app developers platform developers make software development kits available to app developers to help encourage them to develop apps to run their platforms we do believe however that section 12.1.F is relevant to this procedure as an expression of congressional intent commerce has stated that while achieving interoperability a valid basis for an exception in some circumstances those circumstances are narrow the fact that commerce has created a specific exception of section 12.1.F in that a proposed class would not qualify for it should wait against granting an exception under section 12.1.A.1 regarding proposed class 4 it is far prior than proposed class 5 covering all personal computing devices we believe that the reasons just stated for rejecting the narrow to class 5 apply here as well in addition we know that the argument for exempting personal computers relies on speculation about how a specification that we have by 2.3.1. will be implemented sometime in the future there is no permanent impairment of non-interpreting uses but the proponents of class 4.2 and their speculation is insufficient to establish the likelihood that there will be an impairment of non-interpreting uses in the next few years as the house manager's report stated the evidence of the likelihood of future adverse impact during the time period has to be highly specific, strong and persuasive and it is certainly not the case here the proponents of simply not going to agree. I would just like to respond to a couple of things that were said before I turn to my colleague here one is that it is great to talk about the right of ownership I think to the extent that all relevance in this proceeding and really not at all certain that it is I think we have to bear in mind that the kind of transactions that we're talking about here are transactions that involve sale of hardware but also licensing of software and other ongoing relationships both between the consumer and the software developer that is providing updates on the software that is embedded in the device and also the carrier if this is a device that works on a telecommunications network so we're talking about something more complex than the sale of a full aid for the new shell we're talking about ongoing and fractal relationships that govern much of what proponents of these solutions would like to argue is simply inherent to the right of ownership of the device and with that, let me turn to you Steve, before you go, I just wanted to let people for those because I have questions about what you just said so just think about it, it's about the UEPI just to know what those eight does so rather than ask questions when you're done, just think about that as you go forward Thank you I'm Steve Metallitz here representing seven national groups of copyright owners and creators I'll be very brief because I did have the opportunity to speak on this at the hearing on May 17 in regard to number five the only thing I'd like to say about that is on May 31 in the hearing on May 17 it was pointed out that much of the information we've provided about the relationship between packing of the smartphone operating systems and piracy was rather outdated and up-to-date information we do we've submitted it to you about the process and I've got a couple copies here basically I think this material makes a couple of points that Jesse has already summarized one is that there is a link between jailbreaking as it's called and applications indeed the leading app store providing jailbreaking tools also provides higher applications as materials that's important here and again Jesse has referred to this is that there certainly are competitive models here and you could compare the Apple model and the Android model in terms of the degree to which unrestricted applications are available in an unrestricted manner in the latter and the marketplace obviously is going to decide whether the most models will prevail or whether they will continue to coexist as they do now but one difference between those two models is that the Apple model does encourage and support greater development and dissemination of new apps there's far more apps available on the Apple model than the Android model even though Android actually is far more prevalent in the marketplace so the potential market is larger but developers are not as eager to exploit that because that Android marketplace is characterized by very high levels of piracy so again this is in these articles talking about the piracy worsens developers will return to iOS or even switch to Windows Phone 7 both are more secure so in terms of the dichotomy that the office drew in this 2010 recommendation between business interests and copyright interests we've already indicated that we hope the office will revisit that we don't see the basis for that in the statute but in fact here is a case where it's clear that the interests that underlie the model the Apple model for example and the Android model include and dissemination copyright works and the business interest is a copyright interest and one that is directly relevant to one of the criteria Congress asks you to reply which is the effect on your field I'll just say with regard to number four and I'm sure we'll have some questions about it I think in some sense we heard from the previous witnesses that you can't really draw a sharp line between a tablet and a personal computer and four and five I think part of this is perhaps the fallout of the failure of the performance of exemption five to provide any definition of a tablet of very unwise exemption in that area unless there's a clear definition so that people will be able to know what exemption covers and what it doesn't cover I think again if you look at the marketplace as it exists now it is a highly competitive marketplace as Jesse indicated and if you were looking for a place where you have a few restrictions options clearly available in the personal computer marketplace and we indicate that there's a speculation that it might not be as available in the future and that's the word that the performance used it really doesn't amount to as much as Jesse has indicated or calls for a shorter stay and even in the the issue of installing an operating system I'm not going to take it as given that that actually involves sort of invention of the existing operating system and even if it does commodity hardware in PC space is available I think in the software freedom of law center submission is not available in the in the mobile phone space it is certainly available in the PC center so in other words users have access if they want to a computer that on which they can install their own operating system so the options are available sort of invention is required to do to do that and visually the performance haven't been I think to carry the burden of showing that I will stop there and I'll be glad to thank you can you hear me okay if I speak at this level a little bit louder okay thank you for having me back again today I'm excited to be back again speaking with you about these issues because I think they're very important I'm Marcia Hoffman I'm a senior staff attorney with the electronic frontier foundation my organization is the proponent for proposed class 5 I have two points in response to Mr. Fader first of all consumers will suffer an adverse impact if exception 5 isn't granted for three years now people have been benefiting from the 2010 exemption that was granted that allowed the jailbreaking of smart phones and since then tablets and other mobile devices have been introduced to the market for the past three years there's been tremendous growth not only in the market as everybody agrees but in the practice of jailbreaking and in the development of independently designed but unapproved third-party applications for use on those devices if this exemption isn't granted then the people who have been making legitimate lawful uses of this type of software on their iPhones for the past three years are all going to become criminals their behavior is going to become illegal and people who are doing similar things or would like to do similar things with tablets are going to be children their ability to do so and there's simply no reason for that and I think it's worth noting by the way that the anti-survention provisions of the DNCA do carry criminal penalties I mean this is not just a situation where people need to be worried about being sued for jailbreaking their phones so that they can configure a custom interface that they like better than the one that Apple provided but they actually have to think about the fact that there are criminal penalties in theory they could go to jail would anybody ever prosecute them? probably not but it's something that they have to think about and that kind of illegal cloud does not encourage innovation and it doesn't encourage consumer choice and it doesn't encourage competition well I encourage you to think about that. Number two exemption five is a narrowly crafted exemption that is not going to legalize piracy I want to be incredibly clear about this particularly in light of the articles submitted by Mr. Metallitz on Friday and one submitted by Mr. Fader yesterday these are all articles that express concern about piracy I think that they are completely they have nothing to do with our exemption request our exemption request is about making lawful uses of third party software and piracy simply doesn't fit into that equation as the evidence submitted by Mr. Metallitz in his opening comments showed piracy was an issue back before the 2010 exemption was granted and we can see that it is still an issue today and I think that that's something that nobody disputes if this exemption is granted what it will do is clear the way for people to make lawful, fair uses of software on their devices it won't clear the way for piracy it won't remove any existing legal remedies that copyright holders have when users are infringing content or pirating apps or installing pirated apps all it will do is clear the way for lawful uses and that's it and so to the extent that piracy may continue basically if this exemption isn't granted then all jailbreaking is going to be legal but if it is granted then people will actually be able to make lawful uses so I think that that is important to recognize third we heard some testimony about the vast array of apps that are available I think that that would be a much smaller array of apps if it worked for the fact the developers are able to develop for platforms like the iPhone if they can get their apps approved by Apple and distribute those applications through other alternative markets and so I think that jailbreaking does nothing but encourage development and encourage competition and encourage innovation and if developers decide that they don't like developing for the Android platform for instance because piracy is a big issue there or for whatever other reason they can choose to develop for some other platform and jailbreaking opens the way for them to be able to do that just briefly 12.01f we've talked about this at length at the last hearing it is true that congress granted reverse engineering exception at 12.01f I don't think congress could have foreseen what we're looking at today and that's what this rulemaking process is this part so that you can actually grant exemptions when congress perhaps couldn't have foreseen what was going on now I would appreciate the opportunity to respond to the article submitted by mr. metallitz and this creator in writing but I just want to say really I think that they are beside the point because they have to do with piracy and I just want to reiterate this proposed exemption has nothing to do with piracy it wouldn't legitimize piracy it wouldn't legalize piracy it would legalize lawful fair uses and that's it thank you very much one more thing I know you had questions for me at the last hearing and one of them was as mr. metallitz said what is a tablet something that responds to mr. fader so I'm not going to address that now but if you have any questions that you would like to bring up with me here that I can answer I would be happy to address those things thank you before we go to questions do any of the other proponents have anything to say in direct response to what was said and when I shut this each time it really is in direct response to what was said not just something else you want to say it's very correct mr. fader stated that the law as of today the law of the dmca enforcement is you know the harms are speckled early on as of last week Microsoft has attained to a law now defended by the dmca upon most computers so all delton computers ht computers all the dopo computers this day forward will not allow you to install different operating systems now I think mr. metallitz pointed out there's a difference between diddling with ios and installing different operators and I want to emphasize I agree there's a difference and the more important issue is but that's a small issue for me the big issue is the absolute lockout of other operating systems on the arn that is the formal strict openly declare repeatedly position of Microsoft they make a deal with a vendor as an arn device they're going to do their dargest act by the present law of criminal penalties to stop me I'm sorry I'll be slow I'm sorry I didn't see you were using the wonderful multi-strike steno device if you buy an arn device next year and the deal has been made by Microsoft and I don't know if Microsoft would take you to court they're intelligent about that unlike sumi sumi I think has tried to start to induce criminal proceeding into geohot but I'm not sure it was resolved before but within court it was a civil case it was a civil case okay I stand corrected okay so it's not speculative because of the long history of domination by Microsoft with major sellers on computers they've been able now to get to position where it's not just that when the stuff comes there you can throw away the things they'll never give you a refund they won't do it now when I go to install with that little thing, the 3BSD thing today on this machine I put it in I boot it and you operating system is running if I want to install it there's an install script maybe in that thing or after you know it doesn't make a difference I can put whatever OS I want on this machine there's no electromechanical crypto bar to it and certainly no electromechanical crypto bar backed by criminal penalties if I do it and then publicize how to do it the issue is the right of private ownership of computer market it's nothing else and let me just say and this is more than pro forma in my case in any way the proof of people massively getting copyright violations via, I don't even know the names of these stupid programs they use there's nothing to do with it the issue is whether in practice business situation whether next year I can buy this machine and put an operating system of my choice on it which again I repeat I'm not boasting of course I'm boasting I never ever violated anybody's copyright although I put a lot of copyrighted material on here several different operating systems and the competition I just want to close with one thing it's all in answer to the two things if say in 1985 it could have happened in 1985 we had the techniques the UEFI as the important point of the TPM we got them to change the name in 2003 because we made it stink in the hospitals if that had been enforced then when Apple was going bust in the 90s and trying to build an operating system it seemingly didn't have the resources to do it they had the resources they didn't have the intelligence to hire people to build an operating system and they brought Steve Jobs back he said I'll sell you my little operating system it's a free operating system it's the one that ran next it's once again a free BSD it's a common case thing lower level is what people mock top level is free BSD and I do want a free Apple system without all the Apple stuff okay, if that isn't the series impairment competition I'm sorry please forgive me if I'm going one more thing competition in which arena and chewy bono the people who really benefit from this is not the end user who likes to watch movies on their device I know that's their theory and I might even say it's partly true but the people who really benefit who really break in the dollars it's Apple and Microsoft hopes it'll be in that position and somey and so you have to ask yourself what I mean, I have to be precise I'm just saying one more the precise thing is I won't be able to boot I won't be able to go to the store spend $500 or $1,000 and boot the operating system the only one that I run I won't be able to boot it'll cost me a lot more it'll probably be available for a few more years they'll work to extinguish that that's the issue I will give you an opportunity but I want to make sure I understand the point you made about Microsoft is that Microsoft hey, I gathered some deals and as part of it as part of those deals the new Windows operating system will be installed on their computer with access controls from taking it off is that the notion I don't know if you may be able to destroy it but you certainly will not be able to install a new operating system this one's got an operating system that I installed by making today I forgot if I made a CD or a little thumb drive and the way it works is you have to go to the BIOS when it starts up there's a little button you press because the BIOS is somewhat mysterious and the last time I pointed out when I bought a different machine I brought a different machine and then I bought it the day before you're going to have a hard time you might be able to crack into it but that's not my interest I bought a machine for $200 I think it was $240 and I wanted to run that day my own operating system I needed another machine for some purpose so I called the BIOS he gave me the password he left the recipe in the password I put it in but it's the equivalent of that password but it's a much better system the BIOS and that thing if I didn't know the password I wouldn't have a big deal it would take me a day or so I don't have to pull out a battery I can get a remote but the new things are such that either you have to go to Microsoft and beg them to sign the so-called kernel of the operating system as a matter of fact in the past week a distribution of the new Linux called Fedora it's the so-called free version of Red Hat they decided to pay $99 not directly to Microsoft indirect payment a one-time fee and they would sign a certain number of the kernels and then it would boot in the future any whole operating system often and all operating systems are under copyright that's about all today I think very few are in public demand they're all huge copyrighted works with literally hundreds of thousands of minimum man-hours of work by highly skilled people they're created ones I'm interested in are freely licensed so you don't pay money if you want to, by the way, some of them are free you have to pay money for them that's not an issue of money but the licensing is such that I get to freely modify them and in some cases I can redistribute binaries of the modified ones other cases when I redistribute the binaries I'm acquired by the terms of copyright license let's leave that aside this is if this exemption, number 4 is not granted, it will almost surely end the I haven't used the word market the distribution of valuable copyrighted works as I said, if in 1985 the system it didn't put in you might be running an apple and they might be as rich as they are today when it came to it I don't believe this number but the people are getting quoted it's all cut in half they spent 500 million the quote is one billion and repeated they spent 500 million and got nothing they wanted to build a so-called proprietary or sort of secret operating system I actually learned something about privately thank you I've come to the end of my time to make my response to you can in a moment but I just want to follow up on what he's saying there wouldn't be any apple at least before we know it today if this had been enforced I might like to ask Jesse and Steeve to react just back to Jay's account of the New Deal Apple is made apparently with some equipment I'm Microsoft I'm Apple Apple doesn't do anything do you understand that he has given an accurate account not put in an accurate amount one week old yeah specifics this is new information I think that a couple of few words that you're spoken just a few moments ago it was I'm not sure I think exactly how this is going to play out even more in the place as a matter of pure speculation as far as I understand it's a problem that is to in particular particular chip architecture not all chip architectures there is skill and availability of what the company sees and what you can install the operating system for your choice so we're not talking about making all PCs impervious of the installation of the operating system but on the specifics of the Microsoft management okay and do you have any understanding of the purpose of this aspect of the deal that you basically said you can't install the OSR I don't know in the speculation on my part but one of the common reasons for now to effectively system is to alter the current the more you harden it the more secure the system is tell you're not even going to agree oh absolutely we have no problem with indeed Linus Torvalds who the lead developer of the so-called linux kernel he recently on his blog spot he said of course we all long played as long as we get to install the technologies that we want that's the issue who's got the password that's the only issue the issue is not UDFE slash PPM slash Palladium slash security which by the way is basically most machines in the past five years David I think I can take this I'm sorry I just want to follow up but in reference to what we're all discussing I read a lot I want to make 31st by Kori Doctorow which is locked down free open OS maker pays Microsoft ransom to the right to boot on users' computers which relates to everything you just said so in reference to your response please look at this as a starting point by which to think about this so I'll give my understanding of the UAAI situation I have specific information about that the deal that Jay is referring to but previously and I believe this is why Steve and Jesse have referred to our comments as speculation our initial five Microsoft had published before that time Microsoft had attended policy regarding the EFI secure boot which is an evidence of speed up okay I'm sorry so Microsoft had published a draft specification stating that Microsoft or Windows certified computers would have to implement UEFI secure boot at that time they didn't mandate whether it had to be whether a certain measure should be allowed to use or anything like that but we said this is a signal that these measures are moving to the personal computer since our initial time Microsoft published a new specification for Windows certification that specification divides personal computers into two categories those that are based on the Intel architecture and those that are based on the ARM architecture for the Intel architecture the specification states that computers they implement UEFI all computers must implement UEFI and UEFI secure boot a physically present user must be able to install new operating system keys thus allowing them to install the operating system on another choice for ARM the specification states that they must implement UEFI secure boot must be enabled and a physically present user must not be allowed to install new keys or turn off secure boot that only operating systems keys already exist in that firmware at the time of purchase or later updated by Microsoft and its partners who will be able to install the operating system Brett, you had one to speak Yeah my UEFI comments I'm going to leave aside because Aaron stated them quite properly I will say that what the other side said about well all this talk of UEFI is pure speculation it hasn't come to be it is my belief and that's all it is, my belief, my personal opinion that the reason the UEFI stuff has not been written in stone by Microsoft and the rest of the globulators is because they are intentionally waiting until after these hearings and until after the ruling is made because then they will gain a significant business advantage if the American citizen is enjoying from being able to make use of his tools the way he wishes to the inside also said that the only reason for jailbreak in one of these devices was for piracy well entirely wrong there are people such as myself that are fed up with our cell phone carriers shoving crap down to our phones my particular phone has at least four applications on it that did not come on when I bought it that I did not install that have been shoved down by Sprint in the year and a half I've owned the phone and they are constantly between them and Google shoving applications down to the phone in the form of updates that I don't particularly want thus forcing me to continuously uninstall stuff when I can uninstall but some things don't even show up in the uninstaller that is available to the owners of the device this the lack of exemptions we definitely stifle the free market as jay pointed out the the ability to boot the operating system of your choice on any computing device if you physically own that hardware you should be able to put whatever software on it you want that you have the legal right to use and the way you leify the spectrum work if many of the smaller mobile devices work today it is very difficult for the ordinary person to make that choice even if they want to when my father was still alive he asked him at one point to send him off to a personal computer at home my father had been an electronic technician in the Navy for 30 years his job was mainly maintaining computers he thought he could maintain a computer I gave him a Windows computer because my mother insisted on it because that's what the neighbors had I advised against it but that's what he got after a few months he said to me well this is happening that's happening how do I fix this how do I fix that a few months later I replaced it with a completely different operating system something called 3DS8 and my dad was in a hog heaven until he died because he could actually fix things when they went wrong he could tinker with things he could essentially be the backyard tinkerer that has brought us so many innovations in this country without these exemptions you're getting rid of the backyard tinkerer today's backyard tinkerer tinkers with his computer as opposed to say steam powered machinery or pumps or internal combustion engines although albeit there are still some people that tinker with those and try to come up with improvements but by and large the majority of tinkers the majority of individual makers in this country make things using what is essentially the universal machine this is the machine that I can give instructions to do anything today that will not be the case if these exemptions are not granted especially if the in-logulators get things like UEFI logic for thank you for the opportunity to finish responding to the specific ones sure thank you so Jesse made it to the point that the operating system we have roughly equal market share between Android and IOI the remaining say 10% of the market is shared by a rapidly declining rim who makes blackberry devices and the Windows phone and it's uncertain at this point rim who chopped I think some 400 jobs last week or last month it's I think most can say not necessarily long for this world at least it's present form Pong is also a recent a recent loss in this market so now we've gone from relatively strong players to perhaps to so the idea that the competition is thriving here I think is incorrect and I think that Mozilla is sort of one of the few potential players who have a real credible shot at entering this market at this point but as I said they've been relying on the exemption granted in 2010 in order to make an entry into the market both of the opponents also made the point that alternative app stores encourage piracy saying that there are pirated apps in the city of App Store that may be I'm not sure I don't have evidence for that myself but my understanding is that the city's policy is against pirated apps just as the iOS app stores policy is against pirated apps I've had several clients free software developers who have come to me with reports that their software, GDL software was being distributed in the app store in violation of the new general public license and therefore in the treatment of their copyrights so piracy is not piracy is not a problem that is unique to the over in phones or to city it's a problem that will always be with us and no matter how strictly I'm curious in App Store piracy can still be a problem I think that the difference in piracy that you see on Android versus iOS does not necessarily do as the opponents have said to the more open nature of Android to the side loading of applications but rather to it's a rather lackadaisical approach to the curation of apps if you have less review of the applications that are going to the app store then sort of by definition you're going to miss more piracy but that has nothing to do with whether a user is able to jailbreak a phone and install an operating system the statistics as to the success of the app store I'm happy to hear because I think that it vindicates your decision in 2009 proceedings to grant the exception for smartphones the success of the applications have continued to grow and interrupted some of that time as I said in my initial comments I think that illustrates the wisdom of that exemption as I said regarding UAPI at this point it's not spectacular that what's going to happen but UAPI Microsoft has definite policies and we now have new devices laptop computers that are being produced from Windows certified that you will be unable to install alternative operating systems unless Microsoft has approved a key for that operating system usually in collaboration with a vendor and of course for my clients it's not adequate that you'll be able to maybe deal with a particular licensing authority to get a key into computers For example, one of my clients, Gentoo, a Linux-based operating system with hundreds of thousands of users is built from source every time, which means that whatever image you apply a key to will be different from the image that a later user will actually install on a computer, and therefore a key-based system corresponding to a particular operating system image that should never work for an operating system like that. And as my final comment at this stage, I'd like to point out that the statutory standard is not the circumvention be absolutely necessary to make the use, the fair use or the non-infringing use at issue, but that users of copyrighted works are adversely effective. And I think that the opponents have repeatedly tried to elevate the statutory standard so that if there is any way that the market has provided any sort of answer to a problem that is no longer a problem, I don't think that's the case, I think that as long as users have, as long as we've demonstrated that users are adversely affected by the prohibition, then I think that you are well within your range. Any response to what was said since you two last spoke? Let me first start with the standard. The language of legislative history is substantial adverse effect. So we're talking about something more than an adverse effect that affects a few people, if you die hard, or people who want to tickle their dust on their computer. We're talking about something that is significant in the context of the marketplace of the topic. And we're talking about a marketplace millions and millions of dollars, millions and millions of dollars in licenses. So I think the fact that marketplace alternatives do exist, we've demonstrated that they exist, really puts a heavy burden on opponents to establish that this is more than just an adverse effect on a few people. So what is the threshold then in terms of when do you get to that point when it becomes an adverse effect? Is it $100,000,000,000,000,000,000? I think it's dependent on the marketplace you're talking about. In this particular business, you're talking about a marketplace of hundreds of millions of devices. So the threshold is of course going to be higher. I think the question of piracy is very relevant. Jailbreaking enables the installation of pirate maps. I don't think anybody here would dispute the fact that it's the case. Regardless of how you've drawn the class that's being imposed, on day one you may jailbreak the phone for the purposes set forth in their class. And it's a perfectly legal act that involves with the meeting of the exception. On day two, the phone is still jailbroken and it still enables the installation of pirate maps on day three and day four and so forth. So we need to be cognizant of what the effect is, even if the intention is only to permit certain kinds of installations on jailbroken phones. Once you throw the doors wide open, pirate stuff is going to fall into place. But isn't the case that I would have that I've been on a citizen and I'd jailbreak the phone. That doesn't necessarily mean that I'm going to download pirate adapters. For me at least there's a disconnect. There is the possibility that it may happen. But it doesn't mean I'm going to take action just like I can drive a car, I avoid everyone on the road. I could hit that person on the curb, but I don't. So isn't that the same and don't you want to trust the people who do this for the purposes? You have to look at the nature of the market place. In fact it is that a lot of people are jailbreaking their phones that it's perfectly legal and they're doing it for the purpose. Initially maybe the purpose develops later on as they find the can install pirate apps, but they are installing pirate apps on their phones. There is a definite connection between, a definite causal connection between jailbreaking a phone and the installation of pirate content on that phone. But and this is a key point in Steve's way to the fore. The copyright interest doesn't continue in the entire state. It was more at stake here. What we're talking about is what is the economic model sustainability today. And we no longer live in a world where the sole dominant model is sales copies for a particular price. In the case of these kinds of devices we're talking about business models. I think that's not a very important context. We're talking about business models where there are different income streams belonging to different people including the copyright owner of the operating system. You don't sell copies, individual copies, the rest of this transaction of the operating system. That doesn't mean the operating system has an value. It doesn't mean that it's being done as a charitable endeavor. It's part of a business endeavor, part of a business model that sustains the creating process. And there's a lot of talk about what's the distinction between say Kimmel and iPad. And I think there is a meaningful distinction to be made there, but it's not a meaningful distinction based on the college. It's a meaningful distinction based on the underlying business model. The Kimmel is sold at a lower cost because of another spending income stream. The sale of copyrighted books, new books on the device. This is all tied together. And if the purpose of jail-breaking the device is to permit essentially an engine run around this business model, what you're essentially saying is that it is okay to acquire this work for something other than the customary price and to benefit from the use of this work for other than the customary price. I respect what you said in terms of business models and free enterprise, but at the same time I have concerns about user rights and competition, and I think that would you agree with me that we have to balance those? It's copyright interests, business interests, user interests in competition, all in this bundle as we go forward to crack an exemption? I think one thing, we're looking at a truly competitive market in spite of some of the obligations that we have in competition among different platforms. The Android is just a blip in this process to a place a couple years ago, and it's now emerged as the top, the most widely used mobile operating system. Well, it's going to be the case three years or six years hence. It is a competitive market place, and it's a hugely competitive market place among apps that run on these devices. So if competition is a concern for you and bearing in mind, there's a whole other body of law to deal with the competitive behavior, which is not a part of this process. There is competition, there's a lot of competition. The competition stops once I buy my phone. In essence, I pick my phone as an Android, but now it's mine to do what I want in terms of what runs on it. Again, there are thousands of phones out there. I like the Android operating system, but maybe I do not want somebody to cram down to my phone. I can't get rid of it, so should I have that? You can't get rid of your phone? No, you can't get rid of that. As we had heard from the witnesses here, sometimes I have sprint, sometimes down those things when you have an update. I can't get rid of it. I don't know the basics upon which to get it strapped, that particular thing that they put in there that bothers me because maybe it's in the background or something. I don't have that wear-a-thou, but some people may well do since I have the right to somehow correct what I believe to be something I do not ask for. I think perhaps you're going to competition a little bit different than what Jesse is referring to because people who don't like how they're treated by a particular business can go to another business and they're treated more to their liking. This even extends to the very tiny minority of people who want to install a home-cooked operating system on their computer. They have to have that ability. They will have that ability. And while I have no knowledge, again, knowledge about this Microsoft UEFI, if it's as described by performance, they would still have that ability. So I'm not sure how the burden of proving that they need to circumvent in order to make the use of a particular program that they want has been met in that situation. May I? I'll try to be very brief. I believe Jesse Fader and Steve Metallis, fundamentally, this is my point of trying to make here for several of these hearings. The other side's minimum demand is absolute ownership of every personal computer on Earth because nothing else. When they say business model, what they mean is from boot until you close it off at night after you've watched your movies because you have a contract. It's under the control of Apple or Microsoft. I agree with what they said fundamentally. And they're now... I was hoping to be able to make this argument, but I wasn't able to make it. They're claiming that the entire operating system must be considered to be a piece of DRM which this law, the DMCA applies, and you can't touch it. This is crazy. When the law was passed, technical means were some ridiculous little piece of software that people would run windows and then they'd get around it. Right? Now, the other side is saying they must be granted a legal power to halt somebody into court because they touch the operating system on a piece of hardware they bought. That's what they just said. I agree with them. That's what they're claiming. That's why exemption four should be granted. You're going to have to outlaw other operating systems because look, for example, suppose somebody uses... I can't bring the name of any actual operating system. It's all invented. A new operating system called... Infringio. It's freely licensed. Its sole purpose is to go out on the net and infringe copyright. Now, obviously, that must be outlawed. Now, it is outlawed under today's copyright laws. Certainly, its use is outlawed to infringe. They're claiming that they must be granted in effect and in truth. Do you know what will be made of that? It's private strain. And I'm sorry, I've been told to use that word. Somebody knows what it means. Ah, it's actually on the law school. Okay, so... Maybe it's by the union's engineer. He's got a lot of copyright. Keep going, keep going. Okay, so the issue is now open. The other side says the entire operating system from the metal on up must be under their control. Otherwise, you know, people can use it to hire a student. That's their argument. Our argument is I bought the hardware and you can't twist the section of the DMCA to stop me from installing an operating system. That's it. I would like to ask permission to send you, I hope, within the month something on the exact issue of the EFI. If Microsoft had stuck last week to what it claimed, we'd have much less objections, but they did. They said, they always claim that once you set it before you put it on your own key to practice. Not true, as we discovered last week. That's a separate argument. Okay, that's it. They made my argument. Jesse, you're responding. Well, I just want to respond to one thing that was said. We're not claiming that the entire operating system is a DRM. We're saying that the operating system is a copyrighted work. That modification of the operating system in order to eliminate the DRM is an infringement. I want to respond to one more point that I wanted to respond to one more point that Marcia made which was a little troubling to me. It seemed to be that, and correct me if I was characterizing this, is that people have a blind's interest today in the exemption that was granted in 2009. And given that the whole structure of this process is that they've only been doing it for a few years, that simply can't be right. I mean, that cannot alleviate the kinds of harm that they can look to, or one would never be able to roll the back of the exemption in one seat as granted. So the strength of this is objective of going down there. I would like to respond to that and then also appoint those for favor of me earlier. I think that if we can't take that into consideration at all, then that would mean that the law would be completely chaotic. I mean, if this were a situation where the copyright office couldn't consider at all, but are not as granted an exemption in the past, and everything were completely de novo in every way, shape, and form moving forward, I think we'd be in a situation where people would be in constant confusion of the state of the law. They could never rely on the legal protections they think that they have. And I realize that the standard of review here is de novo, but I think that as a practical matter, it is within the copyright office's discretion, and I think it makes sense to consider whether or not there has been this legal protection for the three years prior, or even before that. And if there are good reasons not to continue granting the exemption, I think that, of course, that's worth taking into account as well when the copyright office is considering whether or not to renew an exemption. But I mean, the fact that people for three years now have been deal-breaking their phones and that that might suddenly become a completely illegal criminal act, and the effect that we'll have on consumers is worth taking into consideration. It may not be dispositive, but it's a factor that is worth thinking about at the very least. Well, the first time you made that point, I wasn't certain whether you were saying what I'm about to say, but I just want to make sure. I got the impression that you were saying that if we let the exemption expire at the end of this correct term and that we don't issue a similar new exemption, those folks who have already jail-broken their phones will suddenly be in violation in section 1201. Is that your point? If they continue a jail-broken future. Yes, exactly. I mean, with respect to phones, I mean, my thinking about it is that people who have jail-broken their phones during the current exemption period have done so lawfully. But if the exemption isn't renewed, then before people who continue to do that or people who do it for the first time would be in violation of the law. And as for tablets, there's never been an exemption. So people who do it now, in theory, are in violation of 1201 and moving forward, they continue to be in violation of 1201. Of course, we've had classes that were expired, and that's... we're still up here. Yes, that's true. The world hasn't ended. I recognize that. But I do think this would affect millions of consumers, and I think there's plenty of evidence in the record to show that a lot of people, jail-broken devices, poor-ruled devices, we're talking about an inquiry, and we're not talking about five people or 50 people. As I mentioned during the last hearing, when the jail-breaking tool, Absinthe, was released in January, over a million devices downloaded over a weekend. David? Just two minor points. I'm sure if the office were to decide not to issue a similar exemption to an exemption, I'm sure EFF would be an excellent job of informing people about the change in the legal system. So do not come as a surprise. The other point, I hear often from the right-hand side of the table here that the adjective criminal applies to the activity that is not covered by a 12-0-1 exemption. I just wanted to get on the record that, of course, the criminal liability for a 12-0-1-a-1 only applies if you sort of... It's not the same thing as to say it's a violation of a 12-0-1-a-1. So that might be, for example, Mozilla. I think, well, I don't know what their situation is and their other provisions of the statute that many of the groups we've talked about here, I think, need to look at what their status would be with regard to those provisions. All I'm saying is that if 12-0-1-a-1 were to apply, starting on October 1, as it does not now, to the activities of the specific exemption, it would not mean that anyone would necessarily be in any criminal liability. Brett, do you have a point? Yeah, just going to what the other side is saying, that the effect of not getting these exemptions is limited to a few coops like myself who want to run what they want to run on computers and it would not harm the citizens at large. I just want to point out, I just pulled up on my very tiny computer here, a website called NetCraft. What does NetCraft do? NetCraft gives statistics on what software is used by web servers on the internet. Greater than 80% of the web servers on the internet are using free software booted on free operating systems, which, if this UEFI stuff happens, that would be the end of it. My company, their partners, will be stuck between a walk and a hard spot with how are we going to run websites for our customers. Websites that we design and build and host for our customers are built using an entire free software stack with the Linux operating system at the bottom, with the FreeBSD operating system at the bottom, depending upon some little technical twiddly things, followed by the Apache web server, followed by the PHP language, followed by a piece of software called Magento, which is also a freely licensed software, all of which would not be able to boot on a computer that was restricted to booting software only approved by Microsoft. And what would the Harman that be? Well, the Harman that would be you would have, as computers aged out and became no longer fast enough or no longer able to be maintained because parts were not available, you would have large numbers of websites going off the net. You would probably also have to a certain extent a number of websites that would shift over to using Microsoft's inferior products for these services and pay Microsoft a large tax for that. I don't think that it is in the best interest of the American public to do something that will have that kind of an impact and not granting these exemptions will indeed have that kind of an impact. The half-life of a production computer system is no more than three years. We're rapidly running out of time and we haven't really even got to our questions so I'm going to ask that, I'm going to have some questions carefully, only respond if you've really got something to say in response to them and try to be succinct because if a question is being asked because we're curious about something that may make a difference and the more time you take and going off-point the less likely you are to get your answer that you really want us to hear. Thank you. I'm going to direct you to Adam. In response to what Desi and Dean had said about the scope of your exemption, I too have found it a little bit difficult to wrap my question off. Not exactly sure, but seems rather broad. Even though you said it's limited, is it solely or should you say substantially directed at these operating systems or is there a larger component to that because you used the term software rather than operating systems so I'm just trying to figure out what the scope of this. I'm sure you're going to have to be very quick. It's a little bit of a high-speed sort of path, yeah. I think that however, it's important to recognize that there are... She was just going to send this one up just so I can find it. Yeah, it's just a regular... We've seen it particularly with users as smart phones and tablets, it's important for many users to be able to get access to applications that are not available through the official channels of the devices. It's not important then to replace operating systems. So, you know, I think it's important to take those users into account when you're cracking them in this kind of fashion, but if you have the ability to replace the operating system, then you'll generally have to either replace applications as well. It's just a technically more difficult step and I wouldn't want to meet those users at all. That is the best exception request about apps. Isn't that more to their concerns that they addressed or we're not going to start to do both? As I understand EMS exemption, they applied to operating systems and applications as well. Can I talk a little about that? My understanding was that I think Steve was carefully said that installing a new operating system may not be it may not be the start convention. Yeah, I mean this issue has come up before in different contexts in this proceeding. And the question is whether you need to circumvent in order to believe something and install something else. I don't know. I mean it's a factual question. I don't know the answer to it. I think the burden is on the opponents to show that what they want to do requires circumvention. Jeff, have you ever been in a program in terms of this? If you took all the software out of the device, some of the further point was that I buy this device, this machine and I want to I own that machine and there often isn't any licensing term on the machine itself. A licensing is with respect to the software. Can you well I guess the first question is can you completely like it if it is there firmware or other things that might not be able to be completely uninstalled or on the machine and if you can is there any copyright issue and the infringement issue of circumvention? Starting from the second question I think is the easy question. The leading conference is on more circumvention. Well the question is is there a EM that needs to be circumvented in order to have the that seems to be the assertion of the factual issue. I don't know I don't tackle that. The reason I raise that is you can look at the software the SNLC submission on page 10. It says while modification of the pre-installed operating system is sometimes necessary to circumvent an application on the same is not true of OS locked operating system. Removal of devices default operating system does not require reproduction, derivation, distribution, performance or display. So cannot refer to you know section one or two. I think that's Jesse's point. It struck me that I'm not sure you would need to access it in order to do that. So I don't know whether there's any circumvention. Well that's I mean I think there's there are definitional issues here that aren't easily resolved by resort to any cases or to the statute itself. It's possible that I could be proven wrong on my statement in there that for every global operating system there's no need to perform any modification of the operating system to get the necessary commissions to remove it. There are you know as I understand it essentially three ways in which users are prevented from removing an operating system. One is simply the polling administrative rights which makes it impossible to believe at least some portions of the operating system that you simply don't have will be accessed. Another is to actually you know sign the operating system so that you confirm or yes so that the system will not boot an unsigned operating system and that's another type of metric which used to prevent users from installing new operating system and also controlled access to the operating system to make it impossible to even install a bootloader that would then install unsigned engines. And so there are various measures employed I think that all of them can certainly be construed to control access to the existing operating system therefore cognitively as such as a violation when you assert that. Was that in your comments? I'm not sure I'm not sure that was stated in your comments. Might as well have a couple more questions. Yes. One more thing on that as I believe the only computer systems engineer on this panel today if you have burned into read-only memory soldered into the circuit board of the computer a tiny program that says you can't load anything that I don't want you to load then it becomes from a practical point of view impossible to load another operating system on top unless you can somehow wait that read-only memory chip and reprogram it now I'm not a lawyer but one the reasonable man test would say somebody can call that circuit eventually but from a practical point of view it just makes it impossible for even various stupid people to make that change of operating system because there are read-only memories that are actually read-only once they're burned that's it they can't be reflashed you've burned out little pathways in the chip it will only do one thing is that a one trick owning can I ask putting that back to copyright owners is that is there any copyright interest in preventing someone from completely liking the device I mean maybe it's 1201 but the question is is it 1201 somehow protecting a copyright interest or is it protecting a hardware I think just looking at the statute the question of installing a new operating system is totally irrelevant to this pursuit I guess I understand I'm sorry it's it sort of has a definition and it has to do with access to copyrighted work so if you're removing the existing operating system the question is do you need to have access to it in order to do that so that whether it's in form of ROM or some other form if there is a access to control mechanism that you have to sort of invent or do that then we're in the right the right table here but if not not we're at the right table but we're not necessarily asking the right question so the question would be if in order to obtain access to the copyrighted work in order to protect the copyrighted interest in that work or is the purpose of getting access to that work to completely obliterate the work and I think those are slightly different things where you're not actually going to use the copyrighted work in any way in the second in the latter case you're and so access is just being used sort of as the of the copyrighted work could be being used as the hope there for I suppose the only purpose of the access to control mechanism to prevent the obliteration of the work would qualify as that your question I think that's I'm not sure what the answer to that question is but in this case I think there is an access controlling the operation and that's probably not its only purpose important that I have again I think this comes back to really security that's the the main reason why these sorts of blocks in place prevent the use of so I think I think I think at the end of the day there are some real factual questions here and you know I come back to what I said at the beginning which is that it is the burden of performance of these exceptions to establish that what they're really talking about here is sort of which is an access control for a non-emergency purpose and that there is a substantial membership so at the end of the day I can't answer the technical question right now but I think in essence the burden is on comments to answer the kind of questions that you see at the time could I just ask say for example it is possible to think about this that the DRM is a physical thing can we get a phone or a laptop or any other computing device and I took a tool and ripped it out would that be an act of circumvention Jeff we were avoiding bypassing or I don't think extracting is in there much better I own the phone not the software but it's embedded in a chip and I just took out the chip that would be a circumvention well this is actually pulling that just took out right I think I just put it anyone that destroyed it so insistible is if you took a chip and soldered it into your video game console in order to circumvent an access control along the algorithm it could be an artwork or it could be a song remove the burden Steve construed the issue as whether you need to access the game the act the copyright remove it I don't think that's the issue the issue is first whether the technological protection manager controls access to the copyright and then whether you use is not in here I think particularly if you think we'll take the example of one type of we have by like operating system signing procedure in that case that signature or that encryption so you does control access to the copyright work we only want to sort of benefit I think that when the law was passed nobody would consider access to a copyright work means popular songs that you obtain legally illegally and then the whole there's something software that stops you from putting it up on your this is a completely different question it's it's merely a coincidence it's a misuse they're hominins actually the proprietary OS is a copyrighted work that I don't doubt accessing yet when you're fiddling with the bootloader or modifying the bootloader or something like that if the DMCA and this is it's part of the reason I always say it doesn't deal with copyright for many reasons look that's not when you're not copying something and making profit by distributing it that's not what happens you want to put your own operating system on it and the use of the word access to remove it it's more like it's not quite a pure coincidental comment there's some sense of access but it ain't the second thing removing the whatever little thing is on the song and then redistributing it that is that is a thousand miles from my putting my operating system on the piece of hardware that I bought it just doesn't and the other side by the way I want to thank them for their absolute honesty this is maybe a new question for them they hear it and they tell the truth they don't know it sounds different you know yeah I just want this couple of looking Jesse you had made a statement in the opening is that part of the record some of the assertions that you made or is there something new outside the records in other words do we already have this those are well those are I'm not sure those are really articles that we sent to you they're all from right it's like the past starts with sentiation to what you say and the last question is we're going back to this issue of a tablet how really can you define a tablet so what I heard it's a small computer that folds in your hand is that enough for us to go forward to say that you've established a class upon which we can grant an exception Mark yeah yes so we thought this might come up so we took a stab at a definition and what we did is we took a look had a bunch of the definitions that are out there there are some from various magazines there are some from companies like Intel and we tried to identify some of the common factors and so this is what we suggest a tablet computer is a personal mobile computing device typically featuring a touchscreen interface that contains hardware technically capable of running a wide variety of programs that is designed with technological measures that restrict the installation or modification of programs on that device and is not marketed primarily as a wireless telephone handset could you please do us one more time yes and of course we would be happy to put this in the record as well I think you are yes well a tablet computer is a personal mobile computing device typically featuring a touchscreen interface that contains hardware technically capable of running a wide variety of programs that is designed with technological measures that restrict the installation or modification of programs on the device and is not marketed primarily as a wireless telephone handset okay the first part of that I follow and I get I'm not quite sure why you are including in the definition of a tablet the fact that it contains technological measures that control access why should that be part of the definition of a tablet I can well imagine a tablet which has no technological measures on that major right well I think we were thinking about this in the context of our definition of our proposed class and we were trying to define a device that met the criteria that we were seeking an exemption for and so the reason that we put that in there is because we wanted to make clear that we are talking about a situation where a device has certain technological protection measures that make it impossible for a consumer in the ordinary course of things to install or modify programs on the device but if the goal is simply to define what a tablet is out of the context of that particular proposed class might not be necessary for the same reason we said it's not marketed primarily as a wireless telephoto handset because we wanted to differentiate it from a smartphone which is also in our proposed class okay I think it's probably fair to ask people to react to it but I can ask and you can decline but any reactions at this point I need to see on paper that's fine so let's do this this is a new and potentially helpful suggestion you could it'll take us a little while to get that transcript back so if you could give us maybe email us the actual text we will send it to everyone on this back I will ask people to react to us within 10 days please yes we can do that because we still have free unfettered user computers better make it 7 days just in case anything else okay well folks we are running behind but I at least need some time to reflect my memory so let's review the 415 thank you I'm Jen I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm I'm