 Prohibition on Circumvention of Technological Measures that Control Access to Works Protected by Copyright. We have a pretty full schedule today. We're going to have four topics for separate sessions to deal with those four topics. Our first topic has to do with proposal for literary works distributed electronically that contain digital rights management and or other access controls to try to prevent the enabling of the book's read-aloud functionality or which interfere with screen readers or other applications or assistive technologies that render the speech and specialized formats and are legally obtained by blind or other persons with print disabilities such persons are defined in Section 1, Section 1, Title 17 of the United States Code or are legally obtained by authorized entities as described in section distributing such work exclusively to such persons. We have two panelists this morning on this proposal, Mark Rickert of the American Foundation for the Blind and Melanie Brunson of the American Council for the Blind. And with that, I will let whichever of you wants to go first. You have about two minutes to speak. You have up to ten minutes to get a case. Thank you so much. The Smart Planner of the American Foundation for the Blind, if I can, I would just like to point out that some of the crucial privilege of folks who are on the dance floor just to introduce themselves and their titles. Take a part. I'm sorry, I still was losing a radio show here. If you all could just introduce yourselves and your titles. Yes, David Carson, General Counsel of the Contrary Office. Chris Reed, Senior Advisor for Policy and Special Projects in the Office of the Register. Excellent. Thank you so much. Well, thanks again for allowing us to present today. We presented before you several years ago on a similar topic and the exemption that we are proposing is somewhat different from the one which the Copyright Office and the Library of Congress has registered in the past. But our backing image is the problems that we flag in the past persist. And there are two areas. I don't really want to capitulate all of the points that we tried to make in order to testimony that we at the American Council for the Blind and the American Foundation for the Blind did it jointly. But this flag a couple of them. There are technological issues that prevent people who are blind, visually impaired, people with brain disabilities as defined by law that inhibit their ability to access the text of e-books that they have lawfully purchased or otherwise obtained. But there are also limitations in terms of those entities that try admittedly best to provide access to people with disabilities. We're living in an era here and now where thankfully more and more publishers are beginning to recognize the need for access to their e-books. And yet we are at very much the infant stages of that effort. People are still struggling with how exactly to ensure accessibility. Sometimes they get it right and many times they don't get it right. So there are really two things that we're concerned about. We're concerned about the persistence of these digital rights management controls which often get in the way of a screen reader or other access technologies. But we're also concerned about this exemption and the need for it because sometimes the accessibility that is attempted to be put in place does not do the right thing, it is inadequate to our needs. So in short what we're hoping to do is to have them covered on us in the library and again recognize an exemption that would do two things. That would allow individuals who are blind, visually impaired or those with print disabilities to circumvent controls when it's necessary to do so in order to actually get access to the text. And to also have the ability for especially organizations so-called authorized entities working on our behalf to get around to circumvent such controls when it's necessary to improve the accessibility that may or may not be built into an e-books functionality. When I talk about improving accessibility, let me just give one illustration and I'm sure Melanie will correct the massive things I do this. But right now it seems as though people want to provide access by simply hitting a button that allows the book to read to you. It dumps speech basically into your lap or into your ear without much control over how that material is presented. And particularly in the education context in fact, you know I'll just put in a shameless plug for the following panel we're going to be talking among other things about the applicability of all of this stuff in the educational world and I want to say that particularly in folks in higher ed it's particularly necessary to really be able to interact in a robust fashion with e-books and simply to dump text out without any real sophisticated way to navigate through the text to be able to search on keywords, etc. maneuver around. Those kinds of features are extremely important so we don't see that kind of robust accessibility and we want to make sure that when individuals and particularly when organizations are authorized enemies are improving accessibility for us that the sometimes rather draconian provisions of the DMCA don't come crashing down to prevent that from happening. That's my summary statement and we look forward to the dialogue and any questions. Thank you. Mr. Riker has described the concerns, the problem that we face pretty thoroughly. I don't have much to add at this point except to expand upon the one aspect of controls that creates, I think it's fair to say, the largest headache for our community. I am a representative of a membership organization that is representative, whose members come from all across the country and in fact we have several members in foreign countries. The American Council of the Blind is the organization that I represent and I think it's fair to say that one of the issues that arouses the most passion within our membership is the issues surrounding the ability to read books. And the one issue that I think causes the most consternation is the measures that for whatever reason disable the ability to access digital books by reading them out loud. That has ramifications for our membership that people do not frankly have nearly as much sympathy for as they do anti-piracy measures that are more directly related to simply preventing unauthorized use. And so there is a huge distinction in the minds of the average reader with a print disability when you talk about that particular issue as opposed to simply measures that are aimed at prohibiting piracy. We are here primarily because the digital book advent has the potential to level the playing field for our community. In terms of access to education, in terms of access to employment, and in terms of our ability to participate in frankly the cultural and the community life of the society that we live in. However, we find ourselves in spite of that potential being frustrated by the measure of the number of measures that once again create obstacles for us simply because nobody at any level of the process well shouldn't say nobody because that's Mr. Reich would indicate it publishers are beginning to look at access but we have still in the vast majority of cases whether it's because the players won't read out loud or because the books have measures built into them that prohibit use of screen readers or read aloud functions on those limited number of players that do provide them. We have once again obstacles to our use of a technology that could very easily make it possible for us to be on a level playing field with people who do not possess the same print reading disability that we do. So what we're seeking is that degree of flexibility within the copyright law that would enable access to those works. And we are extremely interested in seeing that this happens. And I too am happy to answer questions but that is the conclusion of my speech. Thank you very much. Let me start with reading your proposal. One comment struck me, a couple struck me actually but I want to point to it right now. There's a comment where you said we want to be on the record that is the experience of people who are blind and visually impaired that the shutting out of people with print disabilities from full and impaired access is indeed a rapid problem but this is not our burden of proof. What is your burden of proof in this proceeding? I think it's to illustrate that this problem that we have brought before the Calvary Office persists and I think we've done that in our remarks, especially our written testimony, flagging both the limitations of the accessibility that some groups are trying to build in and also the persistence of the digital rights management controls that are still blocking access. I think as we've tried to say in our written statement even one instance where that happens and we know that it happens more than one instance is a reason for requiring an exception to be put in place because it's not about, it's 10% or 50% of the market, it's about whether I, whoever I may be, who have longly attained a particular work can get access to it. And if I can get access to it by getting around digital rights management controls I should be able to do that without incurring the silver income of that. The difficulty that you face is that you don't know whether or not you're going to be able to access the work until you have put your money down and purchased it and then tried to use it. And if you're on a job, it can cost you your job. If you're in school, it can cost you your class and you have no alternative. What does our record tell us with respect to the extent to which electronic books are not available I think in previous proceedings, again, this mark, in previous proceedings we have provided the category at office with examples of controls, of works where controls have either intentionally or inadvertently locked access. And in the last proceeding we were told that we didn't present enough of those. What we've tried to do in this proceeding in proposing a slightly different, we think hopefully clearer exemption is to take a more global view and to say rather than handing over a few isolated instances five cases, 50 cases, 500 cases, then in fact we are taking a more global approach to indicate that yes, we know from the experience, the state of experience of blind, visually impaired men and women across the country that controls still pose a problem and even when accessibility is attempted there still may very well be a need to improve on that accessibility and if that means we need to get around such controls to make that happen, we should be able to do that. Can you explain to us the reasons why the proposed exemption that you have here differs from that which is a granted in the past? Describe the different features of the reasons for it. This mark, I'll take this first and then you know if you want to help us support the time. I think there are two principle ways that is different. We understood the previous exemption granted to indicate that if a version of a work, a slightly different version of a work was available. So let's say you had a Kindle version of a book and a Nook version of the same work that access to one of those works if it's prevented by digital rights management controls if the other product is available then the exemption wouldn't apply. I didn't explain that periodically but I think you get what I'm saying. We understood that that was the purpose and in fact the letter and the spirit of that previous exemption. So we recognize that the DMCA specifically says that exemptions that you will grant are only to be allowed of those instances where another version or an identical version of a work isn't reasonably available and we simply don't believe that if a e-book for example is available on those two platforms that one of them happens to pose access to really troublesome that somehow the user with print disabilities must use the other platform. We simply reject that as a matter of public policy. The other area in which this exemption differs is that we are explicitly allowing authorized entities to do the work and to circumvent controls when the purposes of that exemption are intended so that we can streamline the process of providing access. It's an awful lot to assume that an individual consumer with print disabilities is going to have a technological wearable to pull off circumvention. So we believe that an authorized entity who is doing work on behalf of those with print disabilities should be entitled to avail itself of an exemption along the lines we're talking about. Okay, so there's two differences basically. Let's turn to the first one first. What do you think of the matter of public policy? It makes no sense to limit the scope of the exemption to cases where there is no format that is accessible. That's why I'm worried, but I think that's essentially what you said. I think the language of the DSE is good when it talks about not reasonably available and I think we need to give some meaning to that. The whole point of this exemption is to make sure that the person with print disabilities can get access to the thing that he or she has purchased or otherwise long to obtain. We shouldn't be expecting, we don't believe, people to have to use. They may not want to patronize another vendor for whatever reason. They may not be able to patronize because those formats are not necessarily interchangeable in terms of usability. Let's explore that because you've been appeared for several times and this is I believe the first time we've heard you just public policy argument and I don't recall hearing any difficulties from you in the past about the way the past exemptions have been set up. So what's changed? Has the marketplace changed? Has the way that people use e-books changed or has he just changed your mind on what the good public policy is? I think that the short answer to that is that the language of the last exemption was crafted in an environment where there weren't the same kinds of, we were trying to get the questions we could possibly get. But I'm quite certain because I think you and I had that exchange the last thing on this public policy discussion. If yours truly wasn't as articulate that it needed to be, then hopefully we could make up for lost time now. It most assuredly is not a change of mind. It's a question of trying to make sure we get it right. I want to continue that point on the marketplace. Can you help us understand the platforms that are out there? You mentioned the three major ones in your products, the iBooks or platform, the Kindle platform, and the Nook platform. I understand Kindle, for example, you can actually read Kindle books on devices other than the Kindle itself. What implications do they need to set out for the accessibility of Kindle content? Well, I'll turn to you because being in public policy there means that I don't get to know the innards of technology as much as others in our organization do, but I'll take a stab at it. You know, a lot of folks who are blind or visually impaired, I'll just let them know my comments to that, are accessing Kindle content, obviously not on the Kindle, but using a PC that's specifically adapted for the purpose of trying to create access. That accessibility is not nearly as robust as it needs to be or could be. But what it shows is that a person with print disabilities that is required to be grounded to a PC or otherwise walk around with a laptop or otherwise find some place. In other words, they're not able to use the content on the equal basis with others. I don't know if that's your question, but I think the bottom line is we're in a corner now where we have content that can be displayed on a variety of devices. We fear that even in such an environment these copyright protections may block in our experiences that they continue to block access in a number of instances. Yeah, if I may just follow up on that. What we've part of the issue is the book itself and part of the issue is the extent of an individual's disability. If someone has the ability to read large print they have more options than someone who has no ability to read print off of a device's screen. And if one is limited to the accessibility of the book through a text-to-speech screen reader then one has very limited options even with regard to the Kindle books. You can only use them on some Kindles. The PC app is really, as Mr. Reichard indicated, the most usable. But there again you don't have the access to the navigation features that a sighted user would have using that book on either the Kindle or the PC app because the screen reader functionality is only limited to basic navigation and you don't have the ability to do the searches and flipping to particular pages and things that a sighted user not can't read the loud function has access to. Someone there is also a Kindle application that is usable on iOS devices but that, as I understand it, is not usable by someone who needs to read the book out loud. It is usable by someone who can use it to read large print but it is not usable by someone who needs to read out loud. So there again, there are that form of access to ebooks does have serious limitations and all of the other functionalities have such, you know, they're not universally accessible. So if one were to make an argument that, well, a Kindle book is usable that would be so we don't need to grant access to an iBook then what you're simply saying is so that means someone who can read it using large print would be able to use it but someone who is boring may be stuck. How much of that dynamic is a function of the device versus the book file it is my understanding that it is a combination of the Kindle app and the book itself. And is that true for other major platforms distribution platforms of book content? Yes, I believe so. Because for instance iBooks that are created and sold in the iBook store one can use greater ease than one can, for instance, Kindle books unless it is in the PC. That's actually where I wanted to go next because you've mentioned broadly two types of accessibility, one is navigation and navigability for those who are blind visually impaired and the other is the ability to enable to read aloud a function. In your comments you've mentioned that the iBooks are accessible and I'm just wondering does that mean they have both of those accessibility features enabled? Ms. Park, it's probably an exaggeration to say that every book in the iBook store I would want to make I wouldn't want to swear to that but their accessibility is generally certainly the best of that which is out there. I part of the challenge that we have is that not all people with disabilities are the same and certainly someone who for example, may have significant learning disabilities that fall within the definition of disability may require certain accommodations which you can use that term here to the content that might not otherwise be useful for other folks. So we know for example our colleagues in the autism world are struggling with how can we for someone who has significant attention issues and otherwise needs to have content adapted in a particular way if we render that material that content in a way that's most useful for them and in order to do that we need to get around copyright protections in order to produce essentially work that makes sense for them we need to be able to do that so I think to folks who are blind-visioning here that I've only used personally the iBooks stop to use the technical people term. Myself you know a little bit you know I think their accessibility is generally pretty good but I also wouldn't want to try for example to use and I would form that a significant legal or scientific or other technical work that would require me to do a significant amount of navigation because of that post-controls to some of the things that's there. On the marketplace point we've seen some evidence that the marketplace is evolving rather rapidly in this regard I think just today actually there's an article about McMillan dropping DRM on a number of its science fiction titles and launching an e-book store to sell those directly what impact does that have if any on your need for this extension? This mark will start at the end of the finish part. I think it's an excellent sign it shows I think that people are beginning to open up to the realities of the marketplace. The fact that there's movement does not guarantee that a student over the course of the next three years or an employee or someone frankly doing a governmental position or any context it doesn't matter we hypothesize any of those certain situations any of those scenarios will encounter a book that has technological measures in it which may be the use of screen readers or other access software and when that happens not yet but when and that individual or an authorized entity can make access possible they should be able to do that without incurring the wrath of the DMCA and so I think the fact that we are not asking for a perpetual exception no doubt in three years we'll be back if there are continues to be persistent problems particularly on the accessibility piece of this not just the straight up or down can I get in but how well can I use the content but certainly over the course of the next three years as the marketplace continues to evolve there's going to be a continuing use of this exception. With respect to your proposed exemption language you had mentioned that one of the major differences is the authorized entities piece and I'm just wondering do you want to go? If you have an exemption that simply enabled circumvention for the purpose of making inaccessible content accessible which requires an underlying use. Assuming the underlying copyright use is authorized under section 121 do you need the exemption language to be written that specifically? I'll start with it again Melanie is also a lawyer and I think they'll nail it I think it's like anything else if it's not written in black and white then it may be a question as to whether or not it's permissible. Over the course of the last let's see six, seven years with the advent of the so-called bookshare.org at www.bookshare.org service with a number of language-language particularly students have really found it's one of several, of course but it's really quite a popular service you know I know that the publishing world is really scooped by okay well if Bookshare could do it, where does it stand who's really entitled to produce materials in accessible format it's not the sort of thing where I think people who are in the publishing and rights owners world would be comfortable with unless we make it clear that we're not talking about anybody being able to do this we're talking about individuals who've qualified and there were representatives who were defined we think fairly strictly by law so I think you know smarter lawyers, all of whom I'm sure are on that dais than we most truly at least may find that it's not necessary that it proves to be the case that that's fine but I'm concerned that it should just be up to individuals trying to figure out the technological area if there are folks with sophistication who can help make access possible they should have the ability to do it I think that for you know the sense that we've gotten in our discussions with publishers has been that they would feel better about individual about authorized organizations doing it than individuals anyway because they would rely on the good faith of that authorized organization as as being a representative of someone who is in fact qualified and eligible to do it as opposed to individuals you know we have been proposing the idea that it should be allowable by either because it needs to be possible for someone who purchases a book directly from the marketplace but it also is a fact in our community that for a lot of people the first place that they go for access to materials is an authorized entity and therefore they look to those entities to provide the expertise when there's an obstacle that needs to be overcome in order for them to get access I'm the author of the identity issue one thing that just occurred to me during the course of this discussion was I think the language you've proposed might change the situation significantly in the following respect there may be a flaw in this because it just occurred to me but I'll think out loud with respect to the exemptions that we have had up until now I think it's the case that in order for someone to take advantage of this exemption they would have to obtain a lawfully made copy which means either they bought it or maybe somebody gave it to them assuming the first sale doctor applies in that environment because the question I'm not going to try to resolve today so at the very least the publisher gets whatever the publisher's price is and first in exercising the exemption you would pay for out of that deal for both sides looking at the language you've proposed today I think what it means is that that's not going to happen now the reason I think that's what it means but maybe I'm wrong is that when you look at that second prong what that will allow is it will allow authorized entities that obtain one legitimate copy to make as many copies as they like under section 121 distribute them for free meaning that that's money out of the pockets of the publisher now maybe we don't care maybe we do care I imagine publishers care but I'd just like to think through the ramifications of that and figure out if that's going to happen should we be comfortable with it and if we're not comfortable with it should we try to build something in here that offers some protection for publishers in terms of they're getting their piece of the action here to a smart literature point I think it certainly was not our intent to create a situation where publishers are not getting any more what is the thing done we do feel this is a middle and emotional issue not so much a legal point or even a policy point but we often get really frustrated with publishers who say give me my chunk of change even though I haven't bothered to lift a finger to make sure that you can get access to my material so I think we need to balance those two sort of competing points how to do that in that language there's a way to indicate that an authorized entity isn't just freely distributing multiple copies of the same thing of the same work to a bunch of folks without providing an appropriate royalty you know, purchasing the work certainly makes some sense I want to make sure that what is being paid to the publisher is the fair price of that book in an inaccessible world which is to say if I need access in a way that they can't provide I should not be paying for example for a more expensive audio book format some more expensive large print format what the publisher or rights owner should be compensated for is the price of the mainstream book available to the general public because that's the standard against which we would measure parents I also want to add caveat to this discussion and that is that one of the reasons for proposing a situation that we allow multiple uses is that if I am a person who doesn't have a disability I can go to any public library and buy or borrow that book without any regard for whether or not the publisher is going to get making money off of my borrowing as opposed to buying it and so I think what we also need to do is to be mindful of the the avail the right of people with disabilities to have the same opportunity that that sighted person will have to do that The current marketplace is there anything akin to library borrowing for accessible e-books? Bookshare Bookshare does sort of lend them out Well actually no, Bookshare doesn't lend them out but Bookshare allows you to download them Of course there is the NLS the National Library Services download site which allows you there again though they don't require you to send them back Unlike the traditional borrowing of the cassettes in the railways which you do have to send back when you download them you don't have to return them So again just thinking out loud If you're going to accommodate something like those two practices what you're really doing for better or worse is telling any person who qualifies under section 121 to concede such works is you're telling them well you're not going to have to pay because there are ways for you to get them from authorized entities without paying a dime Is that accurate? Well I guess it is The only other thing I was thinking is I think that library still does have a process whereby after you've had a book for so many weeks it goes away and some of those are now available in accessible format Another issue maybe not an issue, I have no idea but again it's a sort of an issue spotting I think with the authorized entities Is there any history maybe there isn't I don't know but is there any history with respect to copies that are in the hands of authorized entities being sort of appearing on the open market being used in ways that they aren't intended so that they actually cut into the legitimate market decided persons for the works Is that something that you're concerned about if we extend this so that the authorized entities themselves have a good way to exercise this This part I'm aware of no authorized entity under that changing amendment section 121 that has been accused of allowing that to happen or as I was going to say I hear we hear rumors of individual students who love to share things with other people quite frankly if they did they would be outside of not only the old exemption that you've all created before proposing so I don't necessarily think that if that even were dynamic that it's something that can't be reached under the existing long-term exemption in place but I'm aware of no authorized entity certainly none of the major ones is really only a handful in this space I think we've mentioned several in a day there are a couple of others we haven't mentioned but this is not something that we have heard either out one or two authorized entities are conscious of the precariousness of their position and don't want to violate the the good faith standard that they're operating under and so I think they have been very careful I believe that Bookshare we keep talking about but they actually have notices on their website that if they catch you they will suspend you and not allow you to donate anything or to download anything anymore and they claim although I'm not aware of the specific instances that they have actually booted people out of the system and those folks are no longer eligible to come back and download books so I'm not aware of any specific instances but they have been very vocal about their willingness to protect the privilege that they have and I think that all of the that the National Library Service has the same the same statements on their sites and they will go after you if they catch you I did hear from the National Library Service of an instance where a couple of years ago somebody I believe they said from the UK got a book from someone in the U.S. and advertised a copy of it on eBay and they they got tracked down and both ends of that transaction got got taken to task very quickly and that book was not on eBay so I think it's fair to say that everybody in the community of users as well as in the authorized density community is mindful of the right of interest and the nature of the impact on them of what we're proposing and nobody wants nobody wants anyone's interest to be abused and so we're perfectly happy with efforts to be as as diligent in pursuing abuses as possible because I think that we we are only talking we're serious about only wanting authorized users Now section 121 which is the section under which these authorized energies are operating requires that the copy distributed under section 121 be in specialized formats exclusively for use by blind or other persons with disabilities is that limitation that you intend to operate in the context of this exemption yes they would have to they would have to an authorized entity that's participating in the exemption that we're proposing would have to conform with section 121 I think we're done I appreciate it our next panel is schedule to start at 10.30 so we have the video Welcome to DC I'm he's not here I'm he's not here yes hey I'm really Oh hey, how's it going? good to see you getting ready getting ready so where are you I was going to call So, I've been... I'm a go-to person. I'm a go-to person. Oh, okay. Good stuff. It's good to have you here. We have more countries. Oh, it was nice to have you here. Good stuff. What are you going to do? Well, a little bit. For a few weeks. Yeah. Yeah, I know that. Yeah, I know that. I think that's a good thing to do here. I like it for us. Okay. Okay. This is good. Good. Really? Is she a go-to person? No. Okay. Okay. How are they doing here today? Right. How are they doing here today? Again. Yeah? What do you mean? I mean, you gotta go back to them. Thank you. Thank you. Uh... So, you think, uh... P.K., how do they do it? What's the... That's today. That's today. Yeah. Yeah. Yeah. That's great. Yeah. Yeah. There's an intention to that, but... But... Yeah, I don't know. Yeah. Yeah, that was an interesting... Interesting. It was a... That was a... It was a... Interesting. It's no checking email. I've been doing that I can get there I can give you the penny tour of the library All this is going on and reporters are up in the front. So, yeah I I I I I I I I I I I I I I I