 services has expanded this this concept is there any are there any cases where voice over IP is being restricted or where that restricts consumers in any way isn't that the open option for most consumers I understand the question exactly but let me let me just try and then before you go wandering it but let me try and clarify a little bit since we're talking about now potentially expanding this I think you would said mobile devices that there may not be any limits on that is there any other way of restricting that concept and I'm trying to understand how your mention of voice over IP as changing the concept of what is a mobile communication device how that fits in to how we might be able to figure out how to tailor or craft an appropriate exemption should I think I was trying to convey that technology is changing and voice data or video is all digits in the IP world and in 3G either whether it's voice over internet internet protocol or you know traditional analog translation it it's all the same and whatever device it is if it's a wireless device conveying information over X's and O's and twos whether it carries a voice or it carries an image or something else it is in the IP world is really irrelevant and that's why I suggested changing it to wireless devices because wireless devices do all those things and they're going to continue and technology will continue to to to march on so to speak that's why the suggestion of wireless devices if you say wireless telephone what do you see what's the first vision that comes to mind it's not the old what would say the Carter phone the black phone setting or you you think about you might think of a phone that maybe a flip phone or a phone that you pull out that maybe an iPhone but a wireless device will mature into a nine inch phone or a tablet or an iPad or in all those things are communication devices so that would be a more traditional thought process of what is a wireless device that you communicate that's why I suggest you might want to change the words to clearly identify where majority of people are going with wireless devices the short answer is none of you have heard before the longer answer is there is nothing in the record supporting and while we're on the topic of harm if I understood correctly because at least one when the circumvention relates to based on the current exemption relates to individual consumers it's I believe I heard you said that there there has not been any specific harm for the exemption that's existed the last three years with with respect to the cellular carriers well assuming for a minute considering the fact that there has been an exception in existence to what do you have any knowledge or any information you can provide as to harm that has been caused by the existing exemption combined to the scope that during the current exemption so is there any particular reason given that the proposed scope that you offer seems to be limited where it's limited to owners and there's an argument that no one is actually an owner of the software on that device and maybe that's that's an issue based on the current language too because that was based on section 117 at a time when we have less clarity of contracts and preburner decisions is there any reason given the fact that there has been no harm under the current language why there is a need to limit that scope well these are the question of owner of the computer program we're not changing proposing a change from the existing scope that's in the current exemption we're suggesting that it's a customer it's important to be clear that this exemption doesn't support primary arguments that we have decided to allow to be able to use their phone on their network of choice we pick up on that last point I know you made the point that commercial activity isn't really something that this is all about I'm not sure whether I agree with that but I invite you to elaborate then I'd like to sort of flip the question and say why should we care about commercial activity as opposed to facts taken simply by an individual owner of a cell phone who wants to be able to use it on another network so first Bruce what what why is the fact of an activity might be commercial is qualified for me and not in pretty use that we need to pay attention to I don't think that's the argument that I'm making is that the primary basis that is advanced by the other side first of all I don't think that the other side is having this burden even as individuals but the primary argument that is advanced by the other side relates to the needs of the individuals and you're trying to be a comment recognizing as a actual matter that we do not expect CTIA members to go after the individual customers who would do this, who would circumvent music section 12.1, that's the reason that we are. Okay but I didn't really, I really wasn't talking about necessarily just what you were putting out as an alternative exemption I think throughout your comments you talk about how this rulemaking is not opposed to get into the enabling of commercial activities and I'm not sure I take that from the language of the statute, I'm not sure I have to take it from the legislative history although I think you do so it's an opportunity for you to expound on that. Well we did take it from the legislative history if you look at the reason that this was included it was from the individual victim of the statute that at least two of Congress put this entire proceeding in into the commerce community. The concern was over limitations on individuals and other individuals. But it's often, it's not in cases finding fair use, the use actually is commercial so it's not as though talking about fair use means it's got to be non-commercial. I don't understand that but I don't see cases that animate it, the commerce community look at this in production of this section, the concerns that animate it, the commerce community are socially beneficial non-commercial fair use. And I think to make those arguments we set out that has to be a medical circuit. Now let me put it to you folks a little differently. I think if you look at what the registrar's recommendations and the last two rule makings have focused on, they've certainly focused on the individual, the individual owner of the cell phone to be able to switch to another network if he or she so desires. So that's been our focus. Your focus is a bit broader. So I guess what I'm asking is justify why we need to be so concerned about commercial actors. We might want to make a buck out of being able to do things that in some cases perhaps might be more within the scope of section 1201A2 than 1201A1. I don't think I'm asking for that expansion. Basically we've suggested solely for the purpose of connecting with another wireless network. So I don't think that our position was a massive expansion of that from a solely for purposes of connecting to another network. So I do think that in reference to the harm, I think you clearly have a record of the benefits that accrue to this specific extension. And were you not to have the exemption, then all those benefits go away creating harm to Bruce's point. I think the record is replete with that issue. And I think his particular definition that he's proposing is more of a trope's enforce that you cannot fully utilize. An exemption under the terms, conditions that not only he's stated today in his testimony, but specifically if you look at his exemption, it is a ratcheting down, it's not a further restriction of an individual's right to full use and not infringing use of a handset. So I think that sort of the burden of proof may shift again back to someone who is asking you to modify the definition. And I don't particularly see any information in the record that supports his definition as a fair and accurate rewrite and that the outfit should consider. I want to follow up on that point, but first of all, anything else on the commercial? Sure. I just wanted to refer to the example that we provided in our proposal of the individual consumer who has long-term service, a long-term service contract with a post-paid service provider, has a device that he or she is particularly happy with. And when the time comes up, that person is presumably paying an elevated monthly service charge every month to cover the cost of providing devices at low upfront cost to that person or anyone else who accepts a long-term contract. So when the time comes up for that person to sign a new contract and to get a so-called subsidized device in return for signing a new contract, or to just continue with the service month to month, continuing to pay the elevated service fee, either way, if that person sticks with that service, he or she is going to be paying the elevated monthly service charge that contemplates the investment that the company makes in providing a low-cost so-called subsidized device to consumers. So that person should be able to get a device in exchange for signing a new contract. If he or she does not want to switch from their old device, then they should be able to sell it. And I mean, I think that that was the very limited sort of something that I suppose you could call expressly commercial purpose that we had contemplated. Aside from that, I think that sold me non-commercial is just sort of a fuzzy term that may be unclear for a lot of consumers who want to unlock their phones for financial reasons. Why is permitting someone who owns the cell phone to sell it to somebody else, the kind of core copyright-related interest that we need to be concerned about here? It strikes me as being a real stretch in terms of the kinds of things we've looked at. Maybe that doesn't mean it's illegitimate, but I think you've got a burden to explain to us why we need to care about that. Sure. I would almost flip that question the other way and say, why is making the distinction part of the core copyright concern? If unlocking the device is a non-inferential use, then it is a non-inferential use, regardless of what the motive is for engaging in that. Well, maybe you could help me by going through the four statutory factors in section 1201A1C and explaining how those factors will take in favor of providing a widening of the exemption to unlock purely for purposes of resale. Because it's clearly not enough to say the use is non-inferential. We then have to look at factors. That's the availability of the availability of used copyrighted works. Clearly, encouraging a robust second-hand market for mobile devices is something that encourages more widespread availability of these copyrighted works in the form of mobile device framework and software. And that includes the availability for use of the works for all types of purposes, including non-profit, archival, preservation, and educational purposes, particularly given the fact that non-profit and low-income purchasers of devices may need low-cost devices, which they're more likely to find in a robust second-hand market. Now, I think we didn't talk about the impact of the prohibition on the circumvention would have on criticism, comment, news, reporting, teaching, scholarship, or research, because I think that that's just not a particularly salient factor with respect to this particular class. And then with respect to the effect of the circumvention of technological measure on the market for our value of copyrighted works, I just don't think that there's any evidence that this will have an impact on the market for our value of mobile device computer programs. Mobile device manufacturers will continue to develop and innovate new devices for those consumers in the marketplace who wish to purchase new devices, and they will continue to develop firmware and software to be installed in those devices and to operate those devices for sale in the first-hand market. Bruce, you want to make any response? Well, first of all, I'll ask you a little last point. The greatest example of innovation, which was an exclusive agent that I did not have seen by far, was then subsequently separated. Normans created his evidence with the arguments of the circumvention of the similar kind of imagination of those who were stimulated. There has been a lot of reporting on this, and we argue this oftentimes, that the iPhone, I don't think it's clear or accurate to say that AT&T invested in the iPhone. It's the reverse Apple invest in the iPhone, and they did market it to other carriers, and they were pretty much forced into an exclusive. So I think the innovation came from Apple, saying not necessarily the carrier. Bruce, which came first? The iPhone or AT&T? That's clear, the iPhone. We needed both, and to make the iPhone successful, there was a good deal that AT&T had to do for this detail in our comments, and that was necessary to make it a successful review. Well, look at the record on that. Stephen, I think the last thing you said, it was with respect to the alternative language suggested by CTIA, was that the burden is on someone who wants to pose something different to explain why you need that something different. So let me just put to the three of you. The first question, has the existing class that was announced a couple of years ago, has that been too narrow, such that non-infringing uses that people should have been able to engage in, have not been engaged in, because the extension was not sufficiently broad? I'm not aware of that particular trend. Our suggestion to change some of the definitions, or to probe more to how the industry is viewing these devices. Back to Mr. Gustavs' suggestion, I think I finally understand a little more what you're saying, and to Mr. Gulland, if you have a device that you have an app that's downloaded, Google provides an app that downloads and makes that device look, act, feel, and respond like a telephone, i.e. a wireless device that the phone calls, what would you call? I'm suggesting it's a wireless device, and that's where the industry is going in terms of its description of devices that are on networks, and that would be more appropriate so that there is not confusion, and there's not efforts to frustrate the full use and benefit of your extension that you've robust graciously provided for a number of years. Anyone else have anything to add? I would just echo what Mr. Barry said, and say that most of the language changes that we recommend were the purpose of clarifying the application of this extension and for making it simpler for the average consumer to understand specific evidence of the words the current extension has failed to take advantage of the extension because of some differences in the language. One thing I wanted to go back to for a second was one change that's occurred over seemingly significantly over the last three years is the availability of unlocked phones. But I notice in what we mean by an unlocked phone may be less clear, and in particular I wanted to just go back to some evidence that was introduced in Consumer Unions reply comments that looked like mostly related to the iPhone 4S, but that when a consumer purchases an unlocked phone from Verizon, Scrim, AT&T, those are not really unlocked. So can you talk about that at least in that context? It sounds like only a phone purchased directly, an iPhone purchased directly from Apple is fully unlocked, but can you describe or expand on that a little just to understand or our understanding of what an unlocked phone is in this context? I actually believe that an iPhone purchased directly from Apple unlocked is not completely unlocked insofar as the CDMA chipset is disabled. But for example with the Sprint policy, just looking for a moment to the Sprint policy, Sprint will unlock the MicroSIM slot on its iPhone 4S for consumers who wish to travel internationally, but that SIM slot will still only accept an international SIM card, it won't accept a SIM card from a domestic carrier such as AT&T, and so that's where they're calling it unlocking, but it's not completely unlocked. But that's not the case with the although there may be some limitations for iPhone purchase from Apple that there is more interoperability or use of that device unlocked. I believe that an iPhone purchased directly from Apple unlocked can be used to connect to any GSM network so that you can use it to connect to multiple carriers that are domestic. However, although the phone also has the necessary hardware built in to connect to CDMA networks such as Verizon, that chipset is... I'm just going to go ahead along with what Bob is saying. This article just this morning from twice this week in the Boston Electronics, it says, iPhone goes prepaid through Cricut. You know, Cricut was one of the promoters three years ago. It says, Cricut Communications will become the first prepaid service carrier to offer the iPhone beginning June the 22nd when it offers both the iPhone S and iPhone 4 with its current $55 market plan. That says, iPhone 4S will be available for $4.99, for the 6th, the 8th, the model for the iPhone 4 will be $3.99. So again, this is an ongoing issue. I don't have any comments. I'm just saying that the iPhone issue prepaid is something that I think you all should be thinking about as we go forward with this. Because I don't know if this article here whether or not I'm paying Cricut 4.99 for this, whether or not that's unlocked or unlocked, even though it's prepaid. So Rob's question is salient even to this day to this particular report. Before I give Bruce an opportunity to have the expressives be used on this issue, I just wanted to find out is when we're talking about unlocked phones and this problem that we see with or has been alleged with the iPhone, is that true for other types of phones or is this something where an unlocked phone is not really or not fully unlocked in the issue just for the iPhone? I think the short answer is that we're not sure. So the AT&T policy says iPhones and certain other devices are not eligible to be unlocked. So I think it may be, but without going to AT&T device by device, it's impossible. First of all, AT&T disabling of a chip set. Okay, well then, before we conclude just a word about the record and what's next, essentially the record is what it is. We're a pretty advanced agent of this process now. So we do not, as a general proposition, intend to start taking in more evidence or more argument. It has been traditional and it may or may not be the case this time around that following the hearing and perhaps after we take a look at the transcripts, there may be some ambiguities to be clarification on. There may be some facts that we think are really important to know that we'll ask for some additional information on. Or we may not, because quite frankly, the time for presenting evidence is in the past. So it's only if there was just something that we're confronting and we really can't figure it out and we need to figure it out and we're going to make a decision that we'll be asking you either for more argument or for more facts. So you may or may not hear from us. Please don't speak to us because we've got to start figuring out where we're going with this and we have a process. We're trying to stick to that process. With that in mind, I'm happy to say it's noon so everyone can go off to lunch and not be bothered with us anymore today. And for those of you who are in my house, we'll see you here at 9 a.m. on Monday. Thank you.