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CHAPTER 12 OF TITLE 17 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COURTS, INTELLECTUAL PROPERTY, 

AND THE INTERNET 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 17, 2014 

Serial No. 113–115 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

HOWARD COBLE, North Carolina, Chairman 

TOM MARINO, Pennsylvania, Vice-Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

TED POE, Texas 

JASON CHAFFETZ, Utah 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JERROLD NADLER, New York 

JOHN CONYERS, JR., Michigan 

JUDY CHU, California 

TED DEUTCH, Florida 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

JOE KEELEY, Chief Counsel 

HEATHER SAWYER, Minority Counsel 
(III) 

C O N T E N T S 

SEPTEMBER 17, 2014 

Page 

OPENING STATEMENTS 

The Honorable Tom Marino, a Representative in Congress from the State 

of Pennsylvania, and Vice-Chairman, Subcommittee on Courts, Intellectual 

Property, and the Internet .................................................................................. 1 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Ranking Member, Subcommittee on Courts, Intellectual 

Property, and the Internet .................................................................................. 2 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 3 

WITNESSES 

Mark Richert, Director of Public Policy, American Foundation for the Blind 

Oral Testimony ..................................................................................................... 15 

Prepared Statement ............................................................................................. 16 

Jonathan Zuck, President, ACT l The App Association 

Oral Testimony ..................................................................................................... 20 

Prepared Statement ............................................................................................. 22 

Christian Genetski, Senior Vice President and General Counsel, Entertainment Software Association 

Oral Testimony ..................................................................................................... 28 

Prepared Statement ............................................................................................. 30 

Corynne McSherry, Intellectual Property Director, Electronic Frontier Foundation 

Oral Testimony ..................................................................................................... 43 

Prepared Statement ............................................................................................. 45 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 6 

Material submitted by the Honorable Judy Chu, a Representative in Congress 

from the State of California, and Member, Subcommittee on Courts, Intellectual Property, and the Internet ...................................................................... 69 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Library Copyright Alliance (LCA) ............................ 92 

Prepared Statement of Laura Moy, Public Knowledge ......................................... 117 

Prepared Statement of Allen Adler, General Counsel, Vice President for Government Affairs, Association of American Publishers (AAP) ........................... 125 

(1) 

CHAPTER 12 OF TITLE 17 

WEDNESDAY, SEPTEMBER 17, 2014 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, 

AND THE INTERNET

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 10:04 a.m., in room 

2141, Rayburn Office Building, the Honorable Tom Marino (ViceChairman of the Subcommittee) presiding. 

Present: Representatives Marino, Goodlatte, Chabot, Issa, Poe, 

Farenthold, Holding, Collins, DeSantis, Smith of Missouri, Nadler, 

Conyers, Chu, Deutch, and Jeffries. 

Staff Present: (Majority) Joe Keeley, Subcommittee Chief Counsel; Olivia Lee, Clerk; (Minority) Jason Everett, Counsel; and Norberto Salinas, Counsel. 

Mr. MARINO. I am calling to order the Subcommittee on Courts, 

Intellectual Property, and the Internet. Without objection, the 

Chair is authorized to declare a recess of the Subcommittee at any 

time. And we welcome all of you witnesses here today and look forward to your testimony. 

I am going to begin with an opening statement on behalf of the 

Chairman, Howard Coble. He has six things going on this morning. 

I only have five. So I am sitting in for him. 

This morning, the Subcommittee will hear testimony concerning 

a critical component of our Nation’s copyright laws that protect 

copyrighted works from theft. Chapter 12 of Title 17 ensures that 

digital locks can be used effectively by copyright owners to protect 

their works. I was here when the DMCA, and I am speaking for 

Mr. Coble, was debated. [Laughter.] 

VOICE. Mr. Coble was here. 

Mr. MARINO. And Chapter 12 was there and remains today a 

critical component for the protection of our Nation’s intellectual 

property. 

Some have raised concerns about how the DMCA has been used 

by companies for purposes other than protecting copyrighted content. Fortunately, courts have generally gotten it right in determining when digital locks are used for protecting content and when 

they are used to protect anti-competitive behavior. As everyone 

knows, Mr. Coble has not been a fan of those who abuse the legal 
2 

system using our Nation’s intellectual property laws whether they 

are copyright, patent or trademark laws. And I concur with him. 

So we’d like to hear more about ways to ensure that Chapter 12 

is used to protect copyrighted works rather than printer cartridges 

and garage door openers as has been attempted before. The Copyright Office has just announced the start of its next triennial 1201 

rulemaking process. Congress recently enacted legislation concerning cellphone unlocking and I would like to hear the witnesses 

talk about how the law should or should not be used as a template 

for other potential legislation in this area. 

The digital economy has enabled wide distribution of movies, 

music, eBooks and other digital content. Chapter 12 seems to have 

a lot to do with the economic growth and I look forward to hearing 

about the strengths of Chapter 12 and any perceived weaknesses 

this morning. Thank you all for being here today. 

I would like to now recognize the Ranking Member, the distinguished gentleman from New York, Mr. Nadler, for his opening 

statement. 

Mr. NADLER. Thank you, Mr. Chairman. 

Today we consider Chapter 12 of Title 17 of the Copyright Act 

and examine how effective it has been in the digital era. We will 

review whether the anti-circumvention provisions of the Digital 

Millennium Copyright Act or the DMCA have been effective and 

have been used as Congress envisioned. 

Congress enacted the DMCA in 1998 to implement certain provisions of the WIPO Copyright Treaty and WIPO Performances and 

Phonograms Treaty and to prevent digital piracy and promote electronic commerce. I welcome this opportunity to hear from our witnesses about how Chapter 12 of Title 17 is working and what, if 

any, changes might be necessary and appropriate. 

The DMCA has been effective and has worked to encourage the 

creation of new digital works and has allowed authors a way to 

protect against copyright infringement while also helping to promote the development of new and innovative business models. 

Some of the witnesses today will argue that these anti-circumvention provisions have been used to stifle a variety of legitimate activities. However, the DMCA has also been successful by promoting 

the creation of many new legal online services in the United States 

that consumers use to access movies and TV shows. 

Companies that distribute their works digitally often use technological protection measures or TPMs to protect their works from 

unauthorized access or use. These TPMs are used to prevent unauthorized access to copyrighted works and are referred to as access 

controls. There are also TPMs to protect against the unlawful reproduction or duplication of copyrighted works. Copyright owners 

depend on these TPMs as an effective way to respond to copyright 

infringement and a way to make their works available online. Although piracy continues, TPMs have played a key role in reducing 

it, particularly in the video game market. 

We should also study whether the triennial rulemaking process 

is working efficiently. The DMCA has been flexible enough to deal 

with technology changes. Every 3 years, the Librarian of Congress, 

upon the recommendation of the Register of Copyrights, exempts 

certain types of works from Section 1201. This rulemaking pro-
3 

ceeding ensures that there is a process to monitor the developments in the marketplace for copyrighted materials and is initiated 

by the Register of Copyrights. There have been five triennial rulemaking proceedings since 1998 and soon the Copyright Office will 

begin the sixth. 

During the rulemaking process, the Register of Copyrights and 

the Librarian of Congress assess whether the implementation of access controls impairs the ability of individuals to make non-infringing use of copyrighted works within the meaning of Section 

1201(a)(1). For the upcoming sixth triennial rulemaking process, 

the Copyright Office has announced some procedural adjustments 

to enhance public understanding of the rulemaking process. I 

would like to hear the witnesses discuss these changes which will 

include allowing parties seeking exemptions to be required to provide the Copyright Office only with basic information regarding the 

essential elements of the proposed exemption. The Copyright Office 

will also offer a short submission form to assist members of the 

public to voice their views so they do not have to submit a lengthy 

submission. 

While it is clear that the DMCA has not always worked as intended, enactment of the DMCA has led to a long period of innovation and benefits for consumers. Section 1201 has proven to be extremely helpful to creators because it has helped creators to have 

the confidence to provide video content over the internet despite 

the risk of piracy. And Section 1201 has helped deter theft of unauthorized access by/or unauthorized access by prohibiting circumvention of protection measures and trafficking tools designed for circumvention. 

I thank Chairman Coble and Chairman Goodlatte for including 

this issue as part of the Subcommittee’s review of the Copyright 

Act. I look forward to hearing from our witnesses and I yield back 

the balance of my time. 

Mr. MARINO. Thank you, Mr. Nadler. 

The Chairman of the full Committee, Mr. Bob Goodlatte, is en 

route but, in the interest of time, I would now like to recognize the 

full Committee Ranking Member, Mr. Conyers of Michigan, for his 

opening statement. 

Mr. CONYERS. Thank you, Mr. Chairman. 

And welcome to the witnesses. 

Chapter 12 of the Copyright Act encourages the digital distribution of copyrighted material by safeguarding these works through 

technological protection measures. And so, today we discuss whether these measures are sufficiently effective and there are several 

factors I think we should keep in mind. It’s a fundamental measure—matter. We need to ensure that Chapter 12 remains strong to 

prevent piracy and to keep the United States competitive globally. 

Copyright law is critical to job development and the overall 

health of our Nation’s economy. It is the foundation for our inventiveness and dynamic business culture; as well as vital to maintaining United States competitiveness. Intellectual property-intensive industries accounted for nearly 35 percent of our Nation’s 

gross domestic product in 2010 and 40 million jobs, or a quarter 

of all jobs in the United States, are directly or indirectly attributable to the most intellectual property-intensive industries. An in-
4 

tellectual property system that protects copyrights incentivizes 

their owners to continue to innovate and that in turn, of course, 

creates jobs and strengthens our Nation’s economy. 

Unfortunately, piracy and counterfeiting of American intellectual 

property are directly responsible for the loss of billions of dollars 

and millions of jobs. Now, according to a United States International Trade Commission report, Chinese piracy and counterfeiting of intellectual property cost American businesses approximately $48 billion in the year 2009. The commission also found 

that over 2 million jobs could have been created in the United 

States if China complied with its current international obligations 

to protect intellectual property rights. 

Without question, piracy is devastating to our economy and 

harms our creators and innovators. And accordingly, we must continue to strengthen our Nation’s copyright system. We need to provide more resources to protect copyright domestically and abroad. 

And to that end, Federal enforcement efforts designed to protect 

copyright must be fully funded. These include programs to deter 

the public from infringing copyright and law enforcement efforts to 

prosecute commercial infringers. And we need to encourage our 

countries to enact strong copyright laws. We need to encourage 

other countries to enact strong copyright laws and also to enforce 

the laws. 

For example, China continues to host high levels of physical and 

digital copyright piracy by allowing its market to remain predominantly closed to the United States content companies, in clear violation of China’s World Trade Organization commitments. 

So I suggest that we should oppose efforts to weaken Chapter 12, 

because Chapter 12 encourages the use of technology protection 

measures to protect copyright by making it unlawful to circumvent 

these measures or to assist others in doing so. This strengthens our 

copyright system by cultivating innovative business models that 

encourage the lawful dissemination of copyrighted works to the 

public. This in turn discourages piracy and infringement. But nonetheless, some ignore the effectiveness of Chapter 12 by wanting to 

weaken it or even eliminate it. 

For example, some critics contend that copyright owners use Section 1201, as a tool to stifle competition and repeatedly cite the 

laser printer cartridge replacement and garage door opener cases 

in support of their contention. Fortunately, courts in both these 

cases ruled against the companies who had attempted to use Chapter 12 to inhibit competition. Others contend that the triennial 

rulemaking process in Section 1201 is too narrow and limits potential exemptions. 

For myself, I think that Chapter 12 maintains the necessary balance between strong copyright protection measures and a consumer 

driven marketplace for legitimate uses of copyrighted works. In 

fact, the process has resulted in dozens of exemptions being granted since 1998. Yet Congress and the Copyright Office should make 

the process even more efficient and user-friendly. Doing so will 

strengthen the copyright system. 

And so, I look forward to hearing from our distinguished witnesses with respect to their suggestions for improving our Nation’s 
5 

copyright system. I thank the Chair and yield back any time remaining. 

Mr. MARINO. Thank you, Mr. Conyers. 

Without objection, the Member’s opening statement will be made 

part of the record. And without objection, other Members’ opening 

statements will be made part of the record as well. 

[The prepared statement of Mr. Conyers follows:] 
6 
7 
8 
9 
10 
11 
12 
13 
14 

Mr. MARINO. We have a distinguished, a very distinguished 

group of witnesses here today and I want to thank you for being 

here. The witnesses written statements will be entered into the 

record in its entirety. I ask that you summarize your testimony in 

5 minutes or less. And, to help you stay within that time, there is 

a timing light on your table. When the light switches from green 

to yellow, you will have 1 minute to conclude your testimony. And 

when the light turns red, it signals that your 5 minutes have expired. 

And Mr. Richert, you and I are a bit in the same boat. I am absolutely, totally color-blind. So I don’t know what those lights are and 

what they mean when they light up and I can’t even tell when they 

are lit. So my staff has to nudge me and say, ‘‘You have 1 minute.’’ 

My staff has to nudge me and say that your time is up. But I will 

give you, just a very polite, quiet comment that you have a remaining minute and you can start to wrap up your testimony as well. 

And I please ask if you can keep your statements, folks, under 5 

minutes so we can get going here. 

Before I introduce our witnesses, I would like you to stand and 

be sworn in, please. 

[Witnesses sworn.] 

Mr. MARINO. Let the record reflect that the witnesses have 

agreed. And thank you and please be seated. 

Our first witness today is Mr. Mark Richert, Director of Public 

Policy at the American Foundation for the Blind. In his position, 

Mr. Richert oversees the foundation’s management and programs 

of key importance to individuals with vision loss. He received his 

J.D. from the George Washington University National Law Center, 

and his B.A. from Stetson University. Welcome, Mr. Richert. 

Okay. I’m going to go, Mr. Richert, I’m going to continue and 

then get everybody’s bios done so it doesn’t interfere. 

I’ll make sure I do it a little harder the next time. 

Our second witness is Mr. Jonathan Zuck, President of ACT, The 

App Association. In his position, Mr. Zuck has steered the association’s growth into one of the most influential organizations at the 

intersection of technology and politics. He received his B.A. in 

international relations from Johns Hopkins University. 

Welcome, Mr. Zuck. 

Our third witness is Mr. Christian Genetski. Am I pronouncing 

that correct? Good. 

Senior Vice-President and General Counsel for the Entertainment Software Association. In his position, Mr. Genetski oversees 

the association’s legal matters including litigation, content protection technology, and intellectual property policy. He received his 

J.D. from Vanderbilt University and his B.A. from BirminghamSouthern College. 

And welcome to you, sir. 

And our fourth and final witness is Ms. Corynne? 

Ms. MCSHERRY. Corynne. 

Mr. MARINO. Corynne? Corynne. Thank you. 

Corynne McSherry. Okay. Intellectual Property Director of EFF, 

the Electronic Frontier Foundation. Her practice focuses on protecting fair use, free speech and innovation in the digital world. 

She received her Ph.D. from the University of California, San 
15 

Diego; her J.D. from Stanford University; and her B.A. from the 

University of California, Santa Cruz. 

Doctor, welcome. 

Welcome to all of you and we start with you, Mr. Richert? And 

I am winking now, Mr. Richert. You’re up. 

TESTIMONY OF MARK RICHERT, DIRECTOR OF 

PUBLIC POLICY, AMERICAN FOUNDATION FOR THE BLIND 

Mr. RICHERT. Thank you very much. 

I’m on. Thank you very much. Wow, that’s a powerful microphone. 

Mr. Chairman, Ranking Member Nadler, honored Members of 

the Committee, thank you so much for inviting the American Foundation for the Blind to present this morning. I’m Mark Richert; I’m 

the Director of Public Policy for AFB. 

If we have some claims to fame, certainly one of them at AFB 

is that Ms. Helen Keller devoted more than four decades of her extraordinary life to our organization. And as we know, Helen was 

quite the fierce advocate, not just the inspirational deaf-blind girl 

at the water pump learning to speak for herself and to have access 

to the whole world of information. But indeed, she was a pioneer 

and a champion for social and human rights. The other thing that 

people don’t tend to remember about Helen is that she was quite 

a diva. Frankly, she was quite a handful and there’s a lot to emulate about her but hopefully that won’t be the impression that I 

leave with you this morning. 

But we are so grateful for the opportunity to present today. And 

noting that our testimonies are now part of the record, let me just 

sort of enter into a conversation with you because yours truly and 

my distinguished panel is here, have a lot to share and there’s a 

lot of complexity, arguably needless complexity, to the 1201 process. But let me begin sort of with the bottom-line up front. And 

that is that we believe, very strongly, that it’s time for the entire 

sort of copyright regime to be looked at very, very carefully. 

We’re grateful that you all have, over the course of this calendar 

year, embarked on what we think is a very productive discussion 

and analysis of the copyright law, its successes and limitations. 

And we are confident that, out of that effort and its work going forward, that there will be a lot of I think, hopefully, very useful and 

productive proposals coming forward. Because it’s time, it seems to 

us in any case, that we take not just a piecemeal sort of incremental approach, which does seem to be at least in part some of 

the origin of the troubles as we see it with Section 1201 and that 

process. 

But it’s time to take a much more sort of 35,000-foot view of the 

copyright structure. In particular, AFB back in the mid-to-late 90’s, 

I had the privilege to be a part of this effort, worked to enact a portion of the copyright law known as the Chafee Amendment, which 

is, I’m sure you know, is the language that explicitly allows for 

folks with disabilities to reproduce materials in accessible formats 

without necessarily needing to acquire permission prior to doing so. 

And in our view that language really helped to sort of codify the 

notion that’s been a part of our copyright system for a very long 
16 

1For more information, see http://www.afb.org/info/about-us/1. 

2For more information, see http://www.colorado.edu/law/academics/clinics/technology-law-policy-clinic. 

time. Namely that, for certain purposes, certainly for providing access to people with disabilities, such access is clearly a fair use. 

And we wanted to work as we did in the mid to late 90’s with 

the American Association of Publishers and other owners groups to 

craft what we think was a very appropriate approach at that time, 

albeit segmented. It was limited at that time to nondramatic literary works. So it’s very, very limited in scope but, nevertheless, 

I think a very important first step. 

That having been said, the Chafee Amendment is itself a very, 

as I indicated, a very sort of narrow, incremental step. And, over 

the course of time, certainly in 1996, there were few of us, certainly 

least of all yours truly, who really thought much about how the 

internet, how mobile technology for sure and the whole world of 

technology would change all of our lives I think for the better and 

certainly permanently. And so now it’s time, we believe, to—— 

Mr. MARINO. Mr. Richert, you have about a minute left, sir. 

Mr. RICHERT. Thank you. 

Now it’s time to take a much more comprehensive view. In terms 

of the 1201 process, I think our experience has been that there are 

significant limitations to it. While the Copyright Office and the Librarian of Congress have certainly recognized the exemptions that 

we have asked for over the course of time, they’ve also been threatened to be taken away. And we came within a hairsbreadth of the 

exemption for eBooks that we worked so hard to get; almost got 

withdrawn. I think what that shows, even though that the rights 

of folks with disabilities to ready, certainly haven’t changed, sometimes the process can threaten to fail people with disabilities. And 

I hope we have a chance to talk more about that. 

So with that, I’ll just conclude for now and look forward to the 

discussion that we’re going to have. 

Thank you so much. 

[The prepared statement of Mr. Richert follows:] 

Prepared Statement of Mark Richert, Director of Public Policy, 

the American Foundation for the Blind 

Chairman Goodlatte, Ranking Member Conyers, Chairman Coble, Ranking Member Nadler, and Members of the Subcommittee, thank you for inviting me to speak 

about the experiences of the blind and visually impaired communities with the anticircumvention measures in section 1201 of the Digital Millennium Copyright Act 

(DMCA). My name is Mark Richert, and I am the Director of Public Policy at the 

American Foundation for the Blind (AFB), a non-profit organization dedicated to removing barriers, creating solutions, and expanding possibilities so people with vision 

loss can achieve their full potential.1 I’m grateful to Professor Blake Reid, Molly 

McClurg, and Mel Jensen at Colorado Law’s Samuelson-Glushko Technology Law 

and Policy Clinic (TLPC) for their assistance in preparing this testimony.2

For 93 years, the AFB has sought to expand possibilities for the tens of millions 

of Americans with blindness or vision loss. We champion access and equality and 

stand at the forefront of new technologies and their ability to create a more equitable world for people with disabilities. 

More particularly, we have worked for nearly a century to break down societal 

barriers and eliminate discrimination by achieving equal access to the world of copyrighted works. Helen Keller, the AFB’s most famous ambassador and a noted deafblind author, activist, and teacher, once wrote about the importance of access to 

books for people who are blind or visually impaired: 
17 

3 Helen Keller & Annie Sullivan, The Story of My Life 117–18 (1924). 4 Helen Keller, Speech Honoring Louis Braille at the Sorbonne, Paris (June 21, 1952), http:// 

www.afb.org/section.aspx?SectionID=86& DocumentID=4620. 5 United States Library of Congress, The History of the Edison Cylinder Phonograph, http:// 

memory.loc.gov/ammem/edhtml/edcyldr.html. 6Frances A. Koestler, The Unseen Minority: A Social History of Blindness in the United States, 

http://www.afb.org/unseen/book.asp?ch=Koe-10. 7 Id. 

8 Harry G. Lang & Bonnie Meath-Lang, Deaf Persons in the Arts and Sciences: A Biographical 

Dictionary 302–303 (1995). 9 Id. 

10See generally Karen Peltz Strauss, A New Civil Right: Telecommunications Equality for 

Deaf and Hard of Hearing Americans 205–273 (2006). 11See Robert McG. Thomas Jr., Gregory T. Frazier, 58; Helped Blind See Movies with Their 

Ears, NY Times, July 17, 1996, http://www.nytimes.com/1996/07/17/us/gregory-t-frazier-58- 

helped-blind-see-movies-with-their-ears.html. 

In a word, literature is my Utopia. Here I am not disenfranchised. No barrier of the senses shuts me out from the sweet, gracious discourse of my 

book-friends. They talk to me without embarrassment or awkwardness.3

The advocacy of Helen and others led to the widespread adoption of braille, which 

transforms written text into raised dots readable by people who are blind or visually 

impaired. In 1952, Helen spoke of the critical role that access to braille versions of 

books and other written works played in affording people with disabilities access to 

the societal benefits of the copyright system: 

[T]hese raised letters are, under our fingers, precious seeds from which has 

grown our intellectual harvest. Without the [Braille dot system, how incomplete and chaotic our education would be! The dismal doors of frustration 

would shut us out from the untold treasures of literature, philosophy and 

science. But, like a magic wand, the six dots of Louis Braille have resulted 

in schools where embossed books, like vessels, can transport us to ports of 

education, libraries and all the means of expression that assure our independence.4

The adoption of braille ran in parallel with the development of other transformative accessibility technologies for copyrighted works. In 1878, Thomas Edison 

suggested that the newly developed phonograph player would lead to the use of 

‘‘[p]honographic books, which will speak to blind people.’’ 5 Blind inventor Robert 

Irwin helped adapt the phonograph to operate at slower speeds and offer longer play 

times.6 The efforts of Irwin and others led to the adoption of accessible ‘‘Talking 

Book’’ recordings of printed books and magazines in the 1930s and later gave rise 

to a long-running staple of the music industry: the long-play record.7 The Talking 

Book also foreshadowed the rise of the audiobook and modern text-to-speech and 

screen reader technologies, which are now poised to facilitate access to textual 

works for people with visual, print, and cognitive disabilities. 

Access to copyrighted audiovisual works has also been a long-standing priority for 

people with disabilities. When ‘‘talkies’’ hit American theaters in the late 1920s, 

deaf and hard of hearing people who had previously enjoyed subtitled silent movies 

lost one of their primary sources of entertainment and information.8 However, the 

arrival of the talkies led the deaf Hollywood actor Emerson Romero, cousin of Hollywood star Cesar Romero, to splice subtitles into the frames of feature films, documentaries, and short subjects for use by schools and clubs for deaf and hard of hearing people.9

The efforts of Romero and others gave rise to the modern captioning movement, 

which has resulted in the captioning or subtitling of a significant proportion of television and Internet-delivered video programming and motion pictures.10 Romero’s 

work foreshadowed the efforts of Gregory T. Frazier, a publisher and writer who 

conceived the idea of narrating visual elements of video programming during natural pauses in dialogue to facilitate access to movies for people who are blind or visually impaired, a process that became known as ‘‘audio description’’ or ‘‘video description.’’ 11

For all the promise of technology to provide equal access to copyrighted works, 

the copyright laws that protect those works have sometimes served to impede that 

technology. For example, in 1996, Congress enacted the Chafee Amendment to the 

Copyright Act in an effort to overcome what the National Library Service called 

‘‘significant’’ delays in obtaining permission from copyright holders to create braille 
18 

12Library of Congress, NLS Factsheets, Copyright Law Amendment, 1996: PL 104–197 (Dec. 

1996), http://www.loc.gov/nls/reference/factsheets/copyright.html. 13See H.R. Rep. 94–1476, at 73 (1976) (‘‘[A] special instance illustrating the application of the 

fair use doctrine pertains to the making of copies or phonorecords of works in the special forms 

needed for the use of blind persons’’); Sony Corp. v. Universal City Studios, 464 U.S. 417, 455 

n.40 (1984) (‘‘Making a copy of a copyrighted work for the convenience of a blind person is expressly identified by the House Committee Report as an example of fair use, with no suggestion 

that anything more than a purpose to entertain or to inform need motivate the copying.’’); Authors Guild v. HathiTrust, 755 F.3d 87, 101–03 (2d Cir. 2014) (citing the Americans with Disabilities Act and the Chafee Amendment in holding the provision of accessible books to library 

patrons with print disabilities a fair use). 14See Joel Falconer, The 40-year history of ebooks, illustrated, The Next Web (Mar. 17, 2011), 

http://thenextweb.com/shareables/2011/03/17/the-40-year-history-of-ebooks-illustrated. 15See 17 U.S.C. § 1201(a)(1)(C)–(D). 16 Comments of AFB, Copyright Office Docket No. 2002–4E, available at http://copyright.gov/ 

1201/2003/comments/026.pdf; see also Comments on Rulemaking on Exemptions on 

Anticircumvention, Copyright Office Docket No. 2002–4E (Comments 9, 20 & 33), available at 

http://copyright.gov/1201/2003/comments/index.html. 17See Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access 

Control Technologies, 68 Fed. Reg. 62,011, 62,014, 62,018 (Oct. 31, 2003) (codified at 37 C.F.R. 

§ 201.40), available at http://copyright.gov/fedreg/2003/68fr2011.pdf 18 Comments of AFB, Copyright Office Docket No. RM 2005–11, available at http:// 

www.copyright.gov/1201/2006/comments/discipio_afb.pdf. 19See Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access 

Control Technologies, 71 Fed. Reg. 68,472, 68,475–76, 68,479 (Nov. 27, 2006) (codified at 37 

C.F.R. § 201.40), available at http://www.copyright.gov/fedreg/2006/71fr68472.pdf. 20See Comments of AFB, Copyright Office Docket No. RM 2008–8, available at http:// 

www.copyright.gov/1201/2008/comments/american-foundation-blind.pdf; Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 75 Fed. 

Reg. 43,825, 43837–38 (July 27, 2010) (‘‘2010 Final Rule’’) (codified at 37 C.F.R. § 201.40), available at http://www.copyright.gov/fedreg/2010/75fr43825.pdf. 21See Reply Comments of the American Association of Publishers, et al., Copyright Office 

Docket No. RM 2008–8, at 50 (Feb. 2, 2009) (‘‘Joint Creators and Copyright Owners do not 

oppose renewal of the exemption related to literary works in ebook format . . .’’), available at 

http://www.copyright.gov/1201/2008/responses/association-american-publishers-47.pdf; Reply 

Comments of the American Intellectual Property Law Association, Copyright Office Docket No. 

RM 2008–8, at 1–2 (Feb. 2, 2009), available at http://www.copyright.gov/1201/2008/responses/ 

aipla-23.pdf; Letter from Lawrence E. Strickling, National Telecommunications and Information 

Administration to Marybeth Peters, Register of Copyrights (Nov. 4, 2009) (‘‘[E]ven a limited 

number of literary works without access for the visually impaired is too many.’’), available at 

http://www.copyright.gov/1201/2010/NTIA.pdf. 

and other alternate-format versions of books.12 The Chafee Amendment reinforced 

Congress’s and the Supreme Court’s long-standing views that efforts to make copyrighted works accessible is a non-infringing fair use—a determination reaffirmed in 

the Second Circuit’s recent HathiTrust decision.13

Just two years later, however, the first electronic book readers were released, and 

the ebook revolution was born—spawning with it a generation of books delivered 

with digital locks, or digital rights management (DRM) technology.14 Along with 

ebooks came the DMCA and its anti-circumvention measures, which cast the circumvention of DRM into legal doubt, even for the explicitly non-infringing purpose 

of making a book accessible to a person who is blind or visually impaired—or for 

other non-infringing accessibility-related uses like adding closed captions or video 

descriptions to a DRM’d video program. 

In short, the DMCA made the type of accessibility efforts Congress had sought 

to enable in the Chafee Amendment—efforts embodied in the long-standing goal of 

equal access codified in the Americans with Disabilities Act and other laws, including the recently enacted Twenty-First Century Communications and Video Accessibility Act (CVAA)—effectively illegal for digital books and other digital copyrighted 

works. The DMCA’s triennial review process left the door open, however, for people 

with disabilities to ask for exemptions to the DMCA.15

And ask we did. In 2002, the AFB, other blind advocates, and library associations 

went to the Library of Congress—indeed, in the twenty-first century, in America— 

for permission to read books.16 While the Library granted us that permission 

through an exemption from the DMCA in 2003, it expired, under the DMCA’s provisions, just three years later.17 And so we went back, again, in the 2006 review, and 

sought it again.18 That time, we received it.19

But when we went back again to ask for the same exemption in the 2010 review, 

the Register of Copyrights recommended that it be denied.20 Even though no one, 

including copyright holders, opposed the exemption, and even though the National 

Telecommunications & Information Administration recommended that it be renewed—we were a hair’s breadth away from losing the legal right to read electronic 

books.21
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22 2010 Final Rule, 75 Fed. Reg. 43,838–39. 23Joint Comments of American Council of the Blind and the American Foundation for the 

Blind, Copyright Office Docket No. RM 2011–7, available at http://www.copyright.gov/1201/2011/ 

initial/american_foundation_blind.pdf; Exemption to Prohibition on Circumvention of Copyright 

Protection Systems for Access Control Technologies, 77 Fed. Reg. 65,260, 65,262, 65,278 (Oct. 26, 

2012) (‘‘2012 Final Rule’’) (codified at 37 C.F.R. § 201.40), available at http://copyright.gov/fedreg/ 

2012/77fr65260.pdf. 24 Comments of TDI, et al., Copyright Office Docket No. RM 2011–7 (Dec. 1, 2011), available at http://www.copyright.gov/1201/2011/initial/IPR_TDI_gallaudetU.pdf. 25See 2012 Final Rule, 77 Fed. Reg. at 65,270–71, 65,278. 26See generally World Intellectual Property Association (WIPO), Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print 

Disabled, http://www.wipo.int/treaties/en/ip/marrakesh/. 27 2010 Final Rule, 75 Fed. Reg. 43,839. 28See H.R. 1892 113th Cong. (2013), available at https://beta.congress.gov/bill/113th-congress/ 

house-bill/1892/text. 

Fortunately, the Librarian of Congress overruled the Register and granted us the 

exemption.22 In the 2012 review, we went back for a fourth time and successfully 

renewed the exemption with our colleagues from the American Council of the 

Blind.23

We were also joined by our colleagues in the deaf and hard of hearing community, 

including Telecommunications for the Deaf and Hard of Hearing, Inc. (TDI), Gallaudet University, and the Participatory Culture Foundation, who sought an exemption to develop advanced tools for making video programming accessible.24 Unfortunately, the exemption was granted only in a limited form, precluding valuable research efforts that could have meaningfully advanced the state of video programming accessibility.25

For those keeping score, we’ve now been through four rulemaking proceedings 

spanning more than a decade. In a seemingly endless loop that calls to mind the 

dilemma of Bill Murray’s character in the movie Groundhog Day, we, our colleagues, 

and our pro bono counsel have poured hundreds of hours of work into a lengthy bureaucratic process that requires us to document and re-document the accessibility 

of copyrighted works and argue and re-argue the rarely-disputed premise that making books and movies accessible to people with disabilities does not infringe or even 

remotely threaten the rights of copyright holders. In short, section 1201 has forced 

us to strain our limited resources simply to achieve the human and civil right to 

access digital copyrighted works on equal terms. 

And yet, for all this work, we are scarcely further along than where we started 

more than a decade ago, as the exemptions we have achieved begin to fade below 

the horizon yet again. This fall, we face the prospect of a fifth trip to the Copyright 

Office to reaffirm our right to read and experience video programming on equal 

terms. We face the burden of making our case yet again, even in the wake of the 

declaration of the world in implementing the historic Marrakesh Treaty that access 

to books is a basic human right, the denial of which should not and cannot be tolerated by civilized countries in the twenty-first century.26

Even if we win yet again, our victory will be short-lived, as our exemption will 

expire again in three years. And the exemption will only provide limited relief, as 

it leaves unaffected the DMCA’s trafficking ban, which prevents us from creating 

and distributing advanced tools and services to people with disabilities who don’t 

have the ability to circumvent DRM to make works accessible on their own. 

The shortcomings of this process are manifest. Even the Librarian of Congress 

has noted that: 

The section 1201 process is a regulatory process that is at best ill–suited 

to address the larger challenges of access for blind and print–disabled persons. The exemption that the Librarian is approving here offers a solution 

to specific concerns that were raised in the narrow context of the rulemaking. Moreover, it is a temporary solution, as the 1201 process begins 

anew every three years.27

We join the many other public interest organizations that have urged Congress 

to fix the problems with section 1201 of the DMCA by limiting violations of the circumvention prohibitions to cases where there is a nexus with actual copyright infringement—a result that Representative Zoe Lofgren’s Unlocking Technology Act 

would accomplish.28 This would bring to fruition the common sense proposition that 

efforts to make copyrighted works accessible to people with disabilities should not 

run aground simply because the works are protected with DRM. 

In the meantime, we urge reform of the triennial process itself. At a bare minimum, we urge Congress to take action to relieve the burden of repeatedly seeking 
20 

re-approval of uncontroversial exemptions like the one we must re-propose during 

each review. 

Members of the Subcommittee, you can count the blind and visually impaired 

communities among the leading champions for the success and development of the 

copyright industries. At AFB, we believe that access to the social, cultural, economic, and participatory opportunities afforded by copyrighted books, movies, music, 

software, and more are profoundly important in enabling people with disabilities to 

access a democratic society on equal terms—particularly as those works migrate to 

digital distribution systems in our ever-advancing information age. However, we 

urge you to act swiftly and decisively to limit the negative impacts of section 1201 

on the right of people with disabilities to access those works. 

Mr. MARINO. You came in under the wire, Mr. Richert. I appreciate that. 

Mr. Zuck, please? 

TESTIMONY OF JONATHAN ZUCK, 

PRESIDENT, ACT l THE APP ASSOCIATION 

Mr. ZUCK. Thank you. I’ll try to follow your good example. 

Vice-Chairman Marino, Member Nadler and the Members of the 

Subcommittee, thank you for the opportunity to speak today about 

an important area of copyright law and its impact on the app industry. ACT, the App Association, represents over 5,000 app developers and information technology businesses who both create and 

license digital content. 

The app industry is a success story. A story about a vibrant, innovative and growing industry that you should be proud to know 

is in every congressional district of the United States. In fact, we’ve 

become a little bit famous for our collector’s edition player cards 

that give the details of a developer in each district. 

The app industry is growing rapidly as mobile devices are wherever marketable innovation is taking place. Like most of you have 

already used a host of apps this morning to check email, weather, 

traffic, to book reservations and appointments, to access and revise 

documents in media, to Skype with a colleague and in my case use 

social media to announce that I was going to testifying before Congress this morning. So it isn’t surprising to learn that after the 

launch of the first app store, just 6 years ago, apps have grown into 

a $68 billion industry in the United States employing more than 

750,000 Americans. Industry experts expect revenues to grow to 

more than $140 billion by 2016. 

The app industry as we know it today didn’t exist when the 

DMCA became law in 1998. Software developers like me then did 

engage in the debate over proper balance between protecting content and not harming emerging and future innovations in technology. They understood the value of intellectual property to their 

ability to make profit. Still, their technological expertise made 

them wary of the potential impediments to innovation and abuses 

which many argued would be the result of the DMCA. 

The courts have eased our concerns by consistently rejecting attempts to abuse the DMCA to block competition or legitimate research and reaffirm the flexibility of the law by regularly by adding 

new exemptions for things like cellphone unlocking and accessibility for the blind. Additionally, the near constant innovation in 
21 

content consumption, delivery and creation has suggested that the 

DMCA is having very little, if any, adverse impact on innovation. 

Today, consumers have nearly endless legal options for obtaining 

and consuming music, movies, including new streaming solutions 

like Spotify, Hulu and iTunes—all things that DMCA skeptics 

thought might be impossible under the law. Because the DMCA is 

extremely technical and easy to misinterpret or misunderstand, 

and often debated by participants that haven’t even read it, ACT 

published a white paper on the 15th anniversary of the law last 

year entitled, ‘‘Quick Guide to the DMCA: The Digital Millennium 

Copyright Act Basics.’’ 

While the guide refutes many of the criticisms against the 

DMCA, the takeaway is this: The explosive growth in technological 

innovations and content delivery options prove that the DMCA has 

created an environment in which these things are possible. In fact, 

the emergence of a curated app store that’s seamlessly tied to the 

mobile operating system, like iOS and the Apple App Store, demonstrates how DRM and DMCA can create a virtuous cycle for consumers and application developers. 

In the modern curated app store, the platform provides the most 

invisible DRM that provides great protection for developers and important benefits for consumers. Consumers are able to trust the 

apps in the store and benefit from the ability to instantly replace 

lost or corrupted apps with just a few clicks. The result is the developers make twice as much money on these types of stores and 

consumers have to deal with the small fraction of viruses and 

malware of operating systems that do not have a closely tied 

curated app store. 

Being able to use technological protection measures to control access and copying is essential to the success of the industry. Yes, 

app piracy exists and the DMCA isn’t perfect. No law is. But just 

because in 16 years, since the law was enacted, there have been 

a handful of cases brought under claim DMCA violations, we 

should not take our focus off the innumerable innovations of the 

last decade. 

Let’s take it out of the abstract into the concrete facts. There are 

over a million, and that’s a million with six zeroes, apps that are 

available in the marketplace. There are thousands of app developers currently in the market and there are virtually no barriers 

to becoming and entrepreneur in this industry. There may be ways 

to improve the DMCA to ensure it can handle the next generation 

of technological advances, but we should proceed with caution for 

dismantling a series of compromises that have served the industry 

and consumers so well. 

Thank you very much. 

[The prepared statement of Mr. Zuck follows:] 
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Mr. MARINO. And Mr. Zuck, you too came in under the wire. 

Thank you. 

Mr. Genetski? 

TESTIMONY OF CHRISTIAN GENETSKI, SENIOR VICE PRESIDENT AND GENERAL COUNSEL, ENTERTAINMENT SOFTWARE ASSOCIATION 

Mr. GENETSKI. Vice-Chairman Marino and honorable Members of 

the Subcommittee, my name is Christian Genetski and I’m the 

General Counsel of the Entertainment Software Association, or 

ESA. 

ESA represents the interests of the country’s leading video game 

publishers and console manufacturers—companies whose artists 

and developers produce a wide array of highly expressive, interactive copyrighted works played by hundreds of millions of gamers 

worldwide. Last year alone, our industry contributed more than 

$21 billion to the U.S. economy. 

As this Committee examines how Section 1201 of the DMCA is 

operating in today’s digital era, I appreciate the opportunity to 

share how ESA members’ use of TPMs, or technological protection 

measures, and the safeguards afforded under Section 1201 bear out 

both the foresight of this Committee in recognizing how TPMs 

could spur innovation and demonstrate the structure of the DMCA 

is fundamentally sound and largely working as intended. 

Under the leadership of Chairman Coble, Ranking Member Conyers and others, this Committee made clear that 1201’s anti-circumvention prohibitions were designed to incentivize copyright 

owners’ use of TPMs in service of two distinct but related goals: 

One, to prevent online piracy; and two, to promote broader dissemination of content to legitimate users. For our industry these incentives are working. 

The evolution of the video game industry over the last 15-plus 

years reflects a DMCA success story for game platforms, game publishers and, most importantly, gamers. Although piracy of video 

game content and attacks on the integrity of online games a significant concern, there is no question that TPMs and the DMCA have 

played a pivotal role in reducing their scope. 

But TPMs are about much more than preventing piracy. Our industry understands that in the long run, one of the most effective 

ways to reduce piracy is to offer consumers a compelling experience 

that unauthorized versions simply can’t compete with. Critics reflexively presume that TPMs necessarily reduce consumer choice. 

We disagree. In fact, the underappreciated role of TPMs is how 

they help game publishers expand consumer choice by exponentially growing the universe of authorized uses across multiple platforms with increased flexibility and at a wider range of price 

points. 

To name just a few examples TPMs in the video game industry 

have spurred and explosion of free-to-play game offerings available 

on mobile phones, tablets, and online; they’ve transformed the 

video game console from a living room device shared by families to 

a robust online hub that connects millions of people around the 

world in online play; and they’ve enabled the growth of brand new 

digital gaming services that allow users to acquire and store digital 
29 

games at lower prices, receive free games, game enhancements and 

trial periods, and allow them to play the same game across multiple platforms and devices in the way that they want. 

All of these examples illustrate the game industry’s consumer-focused approach, and every one of them relies heavily on TPMs. Accepting that no technology is impervious to attack; the DMCA has 

been a critical tool to establishing both a baseline respect for the 

integrity of TPMs that protect copyrighted works and the deterrent 

to attempts to thwart them. 

Against this backdrop of success, we believe it’s critical that any 

consideration of Section 1201 reform to address outlier cases or 

perceived unintended consequences must not undermine all these 

accumulated benefits. Some proposal that attempt to enable circumvention for only nominally non-infringing uses, for example, 

would undoubtedly have the effect of emboldening those how seek 

to pirate game content online. This concern is not theoretical. The 

Copyright Office recognized this fact during the last triennial rulemaking in rejecting a proposed exemption that would have allowed 

circumventing video game console TPMs for non-infringing uses because the evidence showed that the very same steps required to 

hack a console for those non-infringing uses were, in fact, used 

overwhelmingly in support of copyright infringement. 

No law achieves perfect results. To the extent there are specific 

instances where the DMCA may be restraining a legitimate fair 

use or at least creating that perception, we believe that the safety 

valve of the rulemaking process is best suited to accommodate 

them. We saw the process work very well in our case in the last 

rulemaking, but we recognize that it may not have worked as 

smoothly in every instance. 

Targeted efforts to improve the efficacy and the efficiency of that 

process merit consideration and we’re open to exploring that discussion with you. 

Thank you again for the opportunity to testify today. The decade 

and a half since the enactment of the DMCA has been, by any 

measure, one of unrivaled innovation. Consumers today have access to higher quality and more varied content as well as a greater 

voice and wider range of choices in how to experience that content 

than at any other time in history. 

We look forward to working with this Subcommittee to ensure 

that the DMCA continues to fulfill its intended objectives. Thank 

you. 

[The prepared statement of Mr. Genetski follows:] 
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Mr. MARINO. Thank you, Mr. Genetski. 

Ms. McSherry, you are recognized for 5 minutes. 

TESTIMONY OF CORYNNE McSHERRY, INTELLECTUAL 

PROPERTY DIRECTOR, ELECTRONIC FRONTIER FOUNDATION 

Ms. MCSHERRY. Thank you. 

Mr. Vice-Chairman and Members of the Committee, thank you 

for the opportunity to be here today. 

The Electronic Frontier Foundation is a nonprofit organization 

dedicated to protecting consumer interests, innovation and free expression in the digital world. As part of that work, we’ve been involved in most of the leading court cases involving Section 1201. 

We regularly counsel security researchers, innovators and ordinary 

internet users and remix artists regarding Section 1201. We’ve also 

been involved in the Section 1201 exemption process almost from 

the beginning. 

Based on this experience, we’ve had a pretty good opportunity to 

assess the real price of Section 1201, and in our view that price is 

too high. Section 1201 was supposed to help deter copyright infringement, but over and over we’ve seen this law used to thwart 

activities that are not just legal but that have nothing to do with 

copyright. 

Last year, Americans got a sense of the problem when they discovered, to their surprise, that merely unlocking their phones to go 

to a different carrier might be illegal. They were equally surprised 

to discover that the DMCA gives the Librarian of Congress veto 

power over normal uses of their personal devices, and they were 

not happy. Thousands spoke out, the White House weighed in, and 

Congress passed a law temporarily restoring the ability to consumers to unlock their phones. Now, we’re grateful that Congress 

passed that law, but we should all be profoundly disturbed that it 

was necessary to do so in the first place. Something is broken here. 

See just how broken it is. Let me focus just on a few practical 

examples. The first involves a discovery of a serious security flaw 

and copyright, sorry, copy protection on millions of CDs; one that 

could allow malicious attackers to essentially take over a user’s 

computer. It affected 500,000 networks including government and 

military networks. Now researchers at Princeton University knew 

about the flaw but they hesitated for weeks to share that knowledge for fear that doing so might violate the DMCA. And they had 

a good reason for that fear, because they had already faced Section 

1201 threats for simply talking about their work. 

Now in recent years more and more Americans are becoming 

aware of how important it is to find and fix security flaws. When 

our leading researchers can’t do their jobs, we are all at risk. So 

that’s one problem. Here is another. 

The DMCA has been used to block competition and innovation, 

and not just printer cartridges and garage door openers but also 

video game console accessories, computer maintenance services, 

and so on. It takes legitimate competition out of the marketplace 

and into the courtroom at the expense of consumers and taxpayers. 

It’s even been used to threaten hobbyists who simply want to make 

their devices and games work better. We’re a Nation of tinkerers, 
44 

*Additional material submitted by this witness in the form of a document entitled ’’Unintended Consequences: Sixteen Years under the DMCA’’ is not reprinted in this hearing record 

but is on file with the Subcommittee and can be accessed at https://www.eff.org/files/2014/09/ 

16/unintendedconsequences2014.pdf. 

inventors and makers. Section 1201 inhibits that fundamental freedom to tinker and to innovate. 

Here’s yet another problem. From phones to cars to refrigerators 

to farm equipment, software is helping our stuff work better and 

smarter but, if that software is protected by TPMs, repair and recycling of those goods may require circumvention. Putting repair and 

recycling at risk is bad for consumers and it’s bad for the environment. Ironically enough, 1201 is even a problem for the very people 

who it was supposed to help the most: Creative artists. Once they 

understand how 1201 works, the artists I work with are appalled. 

They understand that they need to make fair uses of existing creative works and that Section 1201 often stands in their way. 

Now of course there is an exemption process, but it’s just not an 

adequate safety valve. It takes tremendous resources, many hours 

of work, legal and technological expertise. And even if you manage 

to win an exemption, you have to start all over again just a few 

years later. 

And finally, I know that the Copyright Office and the Librarian 

of Congress are staffed by dedicated and smart people but it 

doesn’t make sense to task a small group of overburdened copyright 

lawyers and librarians with making decisions that can shape the 

future of technology markets. 

Here’s the biggest problem of all: The costs aren’t outweighed by 

the benefits. Individuals and companies that engage in large-scale 

copyright infringement, the so-called pirates, are not deterred by 

Section 1201. After all, chances are they’re already on the hook for 

substantial copyright damages. There are other penalties that already exist. 

Something is broken and we need your help to fix it. We believe 

the best outcome from this process will be for Congress to overturn 

Section 1201 altogether. Short of that, the law should be limited to 

the situations it was supposed to target: circumvention that’s actually intended to assist copyright infringement. Not only would this 

bring the law back in line with its real purpose but it would dramatically reduce the costs of the triennial rulemaking process, and 

one strong step in the right direction is the Unlocking Technology 

Act, introduced last year by Representative Zoe Lofgren and a bipartisan group of sponsors. 

Thank you for your attention and I look forward to your questions. 

[The prepared statement of Ms. McSherry follows:]* 
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Mr. MARINO. Thank you, Ms. McSherry. You paled us; you have 

set an excellent record coming in on the 5 minute mark and a wonderful example for we on the dais. So hopefully we will keep our 

comments to 5 minutes as well. As is my practice, I wait and ask 

question at the very end since I am going to be here for the whole 

hearing. And, as a result, I am going to recognize the distinguished 

gentleman from Ohio, Mr. Chabot for his 5 minutes of questioning. 

Mr. CHABOT. Thank you, Mr. Chairman, and I will stay within 

the 5 minute rule, myself, for sure. 

I will start with Mr. Zuck, if I can. I recently came across a story 

about a family back in my district, back in Cincinnati, Ohio, that 

developed a successful app known as Kalley’s Machine. It is an 

interactive app that allows children to play with a fictitious food 

creating machine. Their app recently launched and their success 

has led them to create the interactive gaming company called Rocket Wagon. This is a great success story and there are stories like 

this, I’m sure, happening across the country. We are particularly 

proud of the one happening in our area, of course. 

My concern, Mr. Zuck, is with piracy that threatens these 

startups and companies like Rocket Wagon. Pirates are creating 

copycat apps and selling them under a different name. How significant is this threat? Are the tools provided by the DMCA sufficient 

to stop this activity or are the tools found elsewhere in Title 17? 

And what additional tools would you like to see put in a place to 

protect app developers and consumers like Kalley back in the Cincinnati area? 

Mr. ZUCK. Congressman, thank you for the question and Rocket 

Wagon is a great success story and a great company. And piracy 

does continue to be an ongoing problem. And so, as I stated in my 

testimony, I think the DMCA and the technical protection measures that it enables have gone a long way to help in that process 

because it has allowed for curated stores and those particular 

stores have a much better record of finding and removing both pirated and poorly intentioned software from the store than less 

curated marketplaces. And so, there is a lot of evidence to support 

that. 

And so, to say the DMCA is sufficient, I’m never going to say 

that, but it has certainly played a very significant role, I believe, 

in altering the landscape that existed previously in software. And 

so, I think that that has provided a significant environment in 

which apps have been able to survive. I think that we are always 

looking for new and creative mechanisms to try and protect software developers from piracy; it does continue to be an ongoing 

problem. We had another member, Zoo Train, that had basically 

the, you know, its app pirated and replaced with malware under 

a similar name and sold, you know, from the store. And it, you 

know, and in an un-curated store it took over 6 months to remedy 

that; right? 

And so there are still challenges ahead and there are alternatives being developed in the marketplace and proposals that 

come up from time to time to address issues particularly in the 

international marketplace. But I believe, fundamentally, the 

DMCA has played a very fundamental role in creating an environment in which less piracy occurs and less malware affects the com-
63 

puters of consumers. And so that is why we came today to be in 

support of real cautious reform of the DMCA if any. 

Mr. CHABOT. Thank you. Let me direct my next question at Mr. 

Genetski. 

Could you describe specifically how TPMs have allowed the video 

game industry to innovate? 

Mr. GENETSKI. Yes. Thank you, Congressman. 

I think there are three parts to the story of the role TPMs have 

played in our industry. One is, as a matter of technology backstopped by the rule of law and the DMCA, it has been effective in 

not completely eliminating but certainly diminishing piracy. And 

the best way to illustrate that is the historical difference in piracy 

rates between games for the PC platform which doesn’t employ 

TPMs on the computer, on the platform, and those on game consoles which employ TPMs on the platform to recognize and stop the 

playback of pirated content. Those rates have been drastically different, and the PC packaged game market was severely undercut 

by piracy. 

It has, in fact, shifted. And part two of the story is sort of TPMs 

sort of playing a role in reinventing the PC game market and allowing it to flourish in a new way by moving content to the cloud 

and to server-based online games, where the platform then, because the content is held back on the publisher servers, can be protected by TPMs and can authenticate and allow only legitimate 

users to access and play the game together. 

The third, and probably the most underreported part of the story, 

is that TPMs have been an incredibly useful tool in allowing the 

game publisher to compete with free and to compete with unauthorized versions. By allowing users to do things like have a 48- 

hour free trial period with an expensive game so they can evaluate 

whether they like the game and want to make the choice; using 

tools to allow users to start the game on their phone, then play a 

little more later in the day at lunch on their tablet and then when 

they get home at night, resume progress in that game on their 60- 

inch TV screen at home. One experience, one purchase of a game. 

These are things users want and TPMs are the backstop, and the 

DMCA puts the rule of law behind that for making piracy an irrational consumer choice. 

Mr. CHABOT. Thank you very much. My time has expired and 

yield back. 

Mr. MARINO. Thank you, sir. 

The Chair, excuse me, the Chair now recognizes the Chairman 

of the full Committee, the gentleman from Virginia, Congressmen 

Goodlatte for his opening statement. 

Mr. GOODLATTE. Thank you, Mr. Chairman, and I thank you for 

taking me out of order and I appreciate both sides of the offer of 

allowing me to give my opening statement, I am going to forego 

asking questions but I did want to get this statement on the record. 

This morning, the Subcommittee is continuing its comprehensive 

review of our copyright laws with a look at Chapter 12, a relatively 

recent edition to Title 17 that addresses technological protection 

measures, or TPMs. When the DMCA was enacted there was significant concern that the digitization of our economy would result 

in mass piracy becoming an unfortunate reality for many copyright 
64 

owners. TPMs were intended to enable copyright owners to engage 

in self help to protect their works from theft. 

Depending upon one’s perspective, TPMs have either been an effective tool to thwart piracy or have simply been a small speed 

bump to those who intend to steal copyrighted works regardless of 

the law. Copyright owners, themselves, have reevaluated the need 

for TPMs. For example, the music industry has, in recent years, 

turned away from widespread use of TPMs. 

Our witnesses, this morning, have suggested various options to 

modify Chapter 12, some with a scalpel and others would perhaps 

blunter instruments. I look forward to hearing their thoughts about 

how Chapter 12 has worked so far and what options the Committee 

should consider. As someone who was very active in negotiating all 

of the DMCA, I am not sure that anyone involved in the drafting 

would have anticipated some of the TPM uses that have been litigated in court. Such as replacement printer toner cartridges and 

garage door openers. So I am also interested in ways to better focus 

Chapter 12 on protecting copyright works from piracy rather than 

protecting non-copyright industries from competition. 

And Mr. Chairman, I yield back. 

Mr. MARINO. Thank you, Chairman. 

The Chair now recognizes the full Committee Ranking Member, 

the gentleman from Michigan, Congressman Conyers for his questions. 

Mr. CONYERS. Thank you, Mr. Chairman. 

I would like to address this question to the Vice-President, Christian Genetski. Your testimony, sir, mentions targeted efforts to improve the efficacy and efficiency of the triennial rulemaking process 

may well be worth consideration. What kind of changes would you 

recommend for the process? 

Mr. GENETSKI. Thank you, Congressman. 

You know, I think that we all share the frustration expressed by 

Mr. Richert in his testimony about the need to return repeatedly 

and use extensive resources to seek a renewal of an exemption 

where no one is opposing the exemption. So I think there are instances like those where now we have the experience of several 

iterations of the rulemaking process, where we have seen some patterns emerge. 

I don’t have the bulletproof solution and recommendation today, 

but I think that there are clearly areas that are emerging like 

those that Mr. Richert speaks to that may warrant some thought 

about how we might address situations like that, which are contrasted to the proceeding that Ms. McSherry and I participated in 

with regard to video game consoles, where I felt like the process 

worked well. We had a voluminous record; reasoned argument from 

both sides and what I felt was a fair result based on the evidence. 

I think we need to look across all the instances we have seen 

over time and see if we can isolate instances where there might be 

room for target improvement. 

Thank you. 

Mr. CONYERS. Thank you. 

Mr. Zuck, The App Association. Do you believe there are opportunities to continue to improve the law and ensure that it is ready 

for the next generation of technological advances? And why do you 
65 

believe we should be wary of dismantling a series of compromises 

that have served innovation and creativity well for the past 16 

years? 

Mr. ZUCK. Thank you for the question, Congressman, and again 

I agree, I believe, with everyone on this panel that there is always 

room for improvement in the law and potentially, particularly, in 

the rulemaking process and the review process that happens every 

3 years to make that process more fluid and create fewer impediments to legitimate exemptions. 

The reason that I express some caution is that because the facts 

are with the law in that, taken as a whole, it has worked. As I stated in my testimony, it has facilitated a $68 billion industry by allowing app developers to new levels of protection and consumers a 

new level of protections from malware and the need to replace software, et cetera. And those things are enabled because of those technical protection measures that the DMCA called for. 

So the fact that there has been some instances along the way 

where the law has been tested, I think, is really not anything, any 

different from any other law. I mean it is a, you know, it feels very 

normal that the guidelines are set up by the legislature and kind 

of implemented, you know, through rulemaking and reviewed by 

the judiciary. I mean, I remember that from Schoolhouse Rock, in 

grade school, being the way that things are supposed to work. And 

I think that if we applied a test that said that if every law that 

has been brought before a court needs to be gotten rid of, we would 

get rid of a whole lot of laws that a lot of us find very valuable. 

And so, I think that we need to be cautious in our reforms because I think when taken as a whole, it is obvious that the law has 

been successful and we need to deal with the exceptions to that 

success but we also need to remember that as a whole it’s been successfully so we should make very fine tuned and, as Chairman 

Goodlatte stated, use a scalpel instead of a sledgehammer when attempting that reform. 

Mr. CONYERS. Thank you both and I yield back, Mr. Chairman. 

Mr. MARINO. Five, four, three, two. [Laughter.] 

you get your breath? 

The Chair now recognizes the gentleman from California, Congressman Issa. 

Mr. ISSA. Thank you, Mr. Chairman. 

It is really great to be here today. You know, before I sort of go 

through questions, one of my concerns is that we don’t have somebody from the Library here. We don’t have, if you will, the representation of that part of it. And hopefully that is something that 

the Chair will realize that we need that perspective. 

Let me ask a first question, which is if we leave the system in 

place the way it is now and Congress continues to be faced with, 

if you will, decisions we don’t like or things like the cellular situation of cracking, where you clearly bought something, the software 

was incidental to the hardware you bought; is there flexibility in 

the current system to in fact allow Congress’ view to quickly be 

seen or do we have to hope that there is a large enough public outswell, up-swell to do what we did on telephone, you know, if you 

will portability rights? 

Please. 
66 

Ms. MCSHERRY. Well, I think that flexibility does exist. Congress 

has the ability to set copyright policy and that is Congress’ job. But 

it does strike me as a remarkably cumbersome process to make 

sure people can do some things basic like unlock their phones or 

any of the other things that we haven’t even though of yet. Keep 

in mind that we haven’t, there are many innovations that involve 

TPMs that might need to be circumvented for perfectly lawful uses. 

So, and just to address something that has come up earlier, it is 

not just that occasionally that these TPMs are litigated and impede 

competition, EFF has actually an increasingly larger and longer 

and longer paper collecting all the examples of unintended consequences of Section 1201. 

So I think the better solution is rather than this kind of piecemeal approach, trying to backstop the Librarian of Congress, is 

rather a broader approach. So if we are going to retain Section 

1201, we should reform it so that the acts of circumvention for 

which one might be liable actually just applied to acts that are tied 

to some intent to infringe copyright or facilitate copyright infringement. And in addition, I think it is extremely important that we 

consider reforming the law so that the exemptions that are created 

and do exist apply to tools and not just the acts of circumvention. 

That is a real big flaw in the current exemption process. 

Mr. ISSA. Thank you. 

Mr. Genetski, I guess my question to you would be similar. Congress acting is certainly cumbersome by comparison to court review 

because the court can essentially say you didn’t get it right under 

the intent of Congress. But for Congress to say it, we need the 

House, the Senate and the President. Do we need further administrative review that has a bias toward the intent of the Digital Millennium Copyright Act, which was to protect intellectual property 

while allowing entities that own something to get its full use? And 

I know we have a representative here that specifically blind people 

often find themselves without an accommodation and only through 

circumvention can they get an equivalent level of access. 

So the question is do we look at the existing system, particularly 

with a review process that is under the Library of Congress, not 

under the patent and trademark office, or do we look at real reforms that create some sort of administrative review that has a 

bias toward fair access? 

Mr. GENETSKI. Thank you, Congressman. 

I think that the design of the statute, with its balance of prohibitions and its balance of statutory exemptions for things like reverse 

engineering and security testing and interoperability, strike the 

right framework to—— 

Mr. ISSA. Okay then. If you think it does, then I will go to Mr. 

Zuck. And the question is—No, no, look. I mean I am looking for 

those who obviously think it is fine, but there are some questions 

based on specific examples where it didn’t work. 

Mr. Zuck, we have got a 3-year review. We have got essentially 

Congress is the backstop. We have no advocate position of review 

if you don’t like it pretty much other than coming to Congress. So 

quickly I could have each of your thoughts. 

Mr. ZUCK. I will say quickly, I think the system has largely 

worked. There are some exceptions and I think it is worth explor-
67 

ing them and exploring that process to see if perhaps there is a 

more fluid process, a de facto process in the absence of objections 

for example, that might be something worth looking at. So I mean, 

we are not at all closed because as technologists we are the ones 

always pushing the edge of the envelope and trying to find new 

ways to deliver content and give users access to their content on 

different devices, et cetera. So if anybody is sympathetic to that notion, it is the tech community. 

So I just preach caution in that arena but I think that change 

is certainly possible if done in a very targeted way. 

Mr. ISSA. Okay. Any last comments, please? 

Mr. RICHERT. Am I on? 

There we go. 

Mr. ISSA. Yes. 

Mr. RICHERT. Thank you so much. 

You mentioned, sir, that the notion that folks are blind or visually impaired have really only one recourse right now and that is 

to reach for the circumvention 1201 exemption process. I would just 

submit to the Committee that there is another way. There is another way right now where we can achieve some of this work. And 

that is if rights owners ensure the accessibility of the stuff that 

they make available. 

When we first went to the Copyright Office, we went because we 

experienced a widespread problem, namely that folks who were 

blind or visually impaired were acquiring eBooks, downloading 

them, purchasing them just like everybody else, attempted to read 

them and they would in fact most of the time not get any kind of 

message at all pulling it up on their gizmo, their computer or other 

device. They simply wouldn’t be able to read them. But in some instances they actually received messages that said this eBook has 

been disabled for purposes of a screen reader used by the blind and 

visually impaired. And we submitted copies of this material to the 

Copyright Office as part of our submissions. And what I think that 

that illustrates is that we wouldn’t have initiated, I don’t believe, 

our efforts almost, what is it now 12, 11 years ago, to pursue these 

exemptions if the underlying works we are talking about were 

made accessible. 

So that is why we have been suggesting that sort of an overall 

approach to copyright reform makes sense because in our view the 

notion of, you know, ensuring the limited monopoly of owners for 

the purpose of promoting the progress of science and the useful 

arts surely means, at a minimum, that all people, particularly folks 

with disabilities, can use the things that other folks can use if the 

underlying work, the eBook, the movie, the video that doesn’t include captioning for folks who are deaf, or description for folks who 

are blind or the app that may not be optimized for the technology 

that currently exists to allow folks with disabilities to use it; if that 

material is accessible then I would welcome a discussion that talks 

about sort of a presumption that indeed these materials are accessible and exemptions may not necessarily be used. Obviously that 

is difficult to do across—— 

Mr. MARINO. Mr. Richert, could you wrap up your answer please? 

Mr. RICHERT. And here I thought I built up credit with my opening statement. [Laughter.] 
68 

Mr. MARINO. You did. You have—— 

Mr. RICHERT. I will stop there and—into my next monopoly. 

Mr. ISSA. Mr. Chairman, I appreciate the excess time and I certainly think that the time was well spent to realize that there are 

none so blind as those who will not see the needs and desire of 

their customers and answer it. But hopefully we did shed some 

light on it today. Thank you. 

Mr. MARINO. Thank you. 

Thank you, Mr. Richert. 

The Chair now recognizes the distinguished woman from California, Dr. Chu. 

Ms. CHU. Thank you, Mr. Chair. 

I would like to submit for the record a written statement from 

the Copyright Alliance which describes the numerous ways in 

which content owners like film makers and musical artists use 

TPMs to provide new experiences to users and at the same time 

protect their works. 

Mr. MARINO. Without objection, so admitted. 

[The information referred to follows:] 
69 
70 
71 
72 
73 
74 
75 
76 

Ms. CHU. Thank you. 

Mr. Genetski, from your testimony, I understand that TPMs or 

technological protection measures have certainly impacted piracy 

rates in the video game industry and there is an interesting story 

to tell when you look at piracy rates among the various platforms 

available to users. You called out some distinctions between games 

placed on a personal computer which does not use TPMs and the 

traditional game console which can and does use TPMs. 

Could you tell us about how the rate of piracy differs among 

these two platforms and how does the industry combat infringing 

use relative to the availability or non-availability of TPMs on a specific platform? 

Mr. GENETSKI. Yes. Thank you, Congresswoman. 

The rates historically have been and currently are, you know, on 

the order of 80 to 85 percent higher for PC game titles than they 

are for consoles. And in many cases these are the same game titles 

being produced for both platforms. If you go to sites that cater to 

infringing downloads, one of the most popular 29 out of the 30 titles of the top 30 titles are PC titles. 

I think the more compelling part of the story perhaps is the response by the game industry to that reality which I alluded to earlier which is to find a way to reinvent that market relying on recognizing that issue and then trying to employ TPMs in a manner to 

grow that market. And that is primarily occurred with, again, advances in the infrastructure and the architecture allowing online 

play. So you have got millions of users around the world all connected on thousands of servers that are distributed across the 

world and they are interacting online and playing and TPMs are 

regulating access to that world. 

And it is important because, for that world to be fun and engaging for the millions of consumers who want to play the game in a 

legitimate way, often for free, paying only for the content that they 

want to pay for which again is also protected by TPMs, you have 

to be able to create some rule sets and only let in the folks who 

want to play according to those rules and not those who would run 

spyware and phishing attacks and cheats and hacks that distribute 

the—that small subset that would disrupt the experience for the 

majority. And TPMs with the rule of law and the DMCA behind 

them have played a critical role in nurturing that development. 

Ms. CHU. Thank you. 

Now I understand that the industry will likely find new innovative ways to deliver gaming content to its users as technology advances whether it is storing content in the cloud or allowing for 

streaming to consoles, which is also done by other industries like 

film and music to deliver content to its customers. What role do 

TPMs play in how content owners determine whether they should 

pursue and make available these methods for accessing content? 

And what role does the triennial review process play? 

Mr. GENETSKI. I think again, building off my prior answer, probably easy to give one tangible example. So there is an online digital 

gaming service called Steam which is produced by a company 

called Valve; ESA member, Electronic Arts has its own digital gaming platform called Origin. Those platforms are designed to allow 

users to purchase digital content often at lower prices. EA’s service 
77 

has a feature called Game Time which I alluded to earlier, which 

is you get a 48-hour window to try a game. It is a lawful means 

to try it if you like it because you often hear in the piracy debate 

that people are downloading an infringing version because they 

want to try it before they buy it. So we have tried to eliminate the 

need to do that for those who want to do it lawfully. These are the 

kinds of uses but of course you have to have a TPM. So when the 

48 hours expires, you are able to pull the content back. 

So these are some of the examples. And Steam is viewed as a 

very pro-consumer, very nonrestrictive service. And it is viewed 

that way because the TPMs it uses are sort of the backbone for the 

ability to have account-based services and the ability to store all 

your digital games in one library. And there is very few restrictions 

once you have purchased them. But the entire architecture behind 

the scenes enables that pro-consumer platform. 

Ms. CHU. And finally, how about our international obligations 

with regard Section 1201? For instance, treaties. 

Mr. GENETSKI. So with the WIPO Internet Treaty of course was 

of course one of the motivating factors behind the enactment of the 

DMCA. That treaty requires that we have effective and adequate 

remedies against circumvention, certainly in compliance with 

those. We have subsequently entered free trade agreements with a 

number of countries, Korea, Australia among them, that are more 

specifically tied to the provisions that are in 1201 now. Certainly 

the repeal or some of their proposals that would roll back the current prohibitions to a place where their adequacy and effectiveness 

would be called into question would potentially be in conflict with 

those agreements. 

Ms. CHU. Thank you. I yield back. 

Mr. MARINO. Thank you. 

The Chair recognizes the distinguished gentleman from Texas, 

Congressman Farenthold. 

Mr. FARENTHOLD. Thank you very much. 

And I want to start visiting with Ms. McSherry, proud EFF 

member for 15-plus years. Twenty-five dollars a year is well spent 

on your salary I think. I wanted to visit a little bit about where 

this could potentially go. You know, traditionally patent law has 

protected things and copyright has protected artistic type works. 

But now, more and more things have software in them and you are 

licensing that software when you purchase a thing. 

For instance, the operating system on your telephone or the 

firmware on a piece of hardware or, for your example, you know 

the garage door openers. Do you see the possibility of being able 

to draw some sort of distinction with respect to copyright of, you 

know, say software that is an integral part of a thing as opposed 

to say an add-on app you would put on the telephone? 

Traditionally, you have been able to buy a thing and do with it 

what you want, but with some of these licensing agreements you 

can’t do with it what you want. I mean, taken to an extreme, let 

us say I bought a car and the car company decided that they were 

only going to license the original purchaser the software embedded 

in the car and they use something like OnStar to turn it off if they 

find out you sell the car. Can we draw a distinction between things 
78 

and maybe look at coming up with some exception for embedded 

software? 

Ms. MCSHERRY. Thank you for the question and it is a very good 

one and it is one of the reasons that we are actually most concerned about 1201 going forward. We have this long collection of 

unintended consequences where we have seen 1201 used in all 

kinds of unexpected ways. And we think, unfortunately, the problem is only going to get worse. Your car example actually isn’t all 

that extreme. I have been contacted by folks who want to modify 

their cars and, I mean, people have been tinkering—— 

Mr. FARENTHOLD. Where is Mr. Issa going? [Laughter.] 

Ms. MCSHERRY. People have been tinkering with their cars in the 

United States since we have had cars; right? But more and more 

part of what is making cars work better is software. We have software embedded in our cars as we have in our refrigerators and our 

toasters and our many other things. But that software is often 

going to come accompanied by license agreements, as you say, and 

TPMs that are going to inhibit folks’ ability to modify those products that they thought that they were buying to repair them, they 

can be used to lock folks down to one repair option, and that is 

something that unfortunately is all too common. 

So it is actually a real problem. License agreements are a problem because, of course, when you might buy an object but you are 

only licensing the software inside of it. And that license might 

come with all kinds of restrictions that you don’t know about because you never read it. But, in addition, bringing it back to the 

main focus here, may come locked down by technological protection 

measures that will inhibit your ability to—and not just repair and 

recycle the things you buy but also test it for security risks which 

is, I think, extremely important. One of the things that I have been 

hearing so far today is folks talking a lot about how important 

DRM can be. 

Mr. FARENTHOLD. I’m running out of time. I have only got 5 minutes. I got a couple other—I don’t mean to cut you off, but I wanted 

to talk to Mr. Zuck for a second. 

You hinted that courts have upheld traditional exceptions like 

fair use and then you cited that as an example things are going 

well. But moving through the court system is slow and expensive. 

How can we streamline the process to where legitimate things that 

have, you know, fair use, reverse engineering that have historically 

been recognized through copyright are allowed without having to 

resort to expensive and long-term litigation or waiting for the triennial rulemaking process? 

Mr. ZUCK. Thank you for the question, and I guess I’ll say that 

while the judicial process is slow it is also inevitable at the beginning of the life of a law. And that most of the examples are, in fact, 

old and that because established precedents are now in place that 

have in fact made people less fearful about the implications of 

hacking and modifications. If you look at the attendance list at a 

DEF CON or a Black Hat conference, hacking is alive and well 

today. People are modifying things all the time. 

So I mean I think it is a mistake to think of that as a rule rather 

than the exception in current times. Now are there opportunities 

to refine the process by which exemptions are granted or renewed? 
79 

I certain believe that that is the case and that we can find ways 

to streamline that process and make it work better because no law 

is perfect. But I think it is a mistake to look at our experience of 

DMCA as a whole and regard it as problematic rather than a success because the numbers just simply don’t support that. 

Mr. FARENTHOLD. All right. Thank you. I see my time is expired. 

Thank you, Mr. Chairman. 

Mr. MARINO. Thank you. 

The Chair recognizes the distinguished gentleman from Florida, 

Congressman Deutch. 

Mr. DEUTCH. Thank you, Mr. Chairman. 

Mr. Zuck, can you just continue that specifically what changes 

would you make to Section 1201? 

Mr. ZUCK. I’m sorry, I didn’t hear you. 

Mr. DEUTCH. Specifically, what changes would you make? How 

would you amend it? 

Mr. ZUCK. I guess I am not prepared to make a specific proposal. 

I certainly think that the renewal process of an exemption is something that could be modified and streamlined especially when there 

are no objections to that renewal which is very often the case. You 

know, that there weren’t any objections filed by the copyright owners. And so I think in that particular case it should be easier. But 

again, I believe that the cumbersome nature of the process has 

been the exception and not the rule. 

As we have both testified, most of these systems that are in place 

are seamless and adored by consumers for the benefits that they 

provide. 

Mr. DEUTCH. Right. So that is where I am stuck. Ms. McSherry, 

you—I think we all agree that the Copyright Office made the 

wrong call on cellphones. But you have said that this doesn’t—1201 

and doesn’t deter copyright infringement, that it inhibits the ability 

to innovate and that there is one in particular. I just want to make 

sure I understood. Acts of circumvention, you said, we should only 

worry where there is an intent to violate copyright. Is that your approach? 

I think I heard you say that. I just want to make sure. 

Ms. MCSHERRY. Yes, that is correct. If someone is engaging in 

circumvention or creating tools for circumvention that are designed 

to facilitate copyright infringement as opposed to entirely non-infringing uses. That is the distinction. 

Mr. DEUTCH. Well no, no, no. There is obviously a difference between non-infringing uses and whether someone intended to violate. There are, you would agree obviously, that there are cases 

where a copyright may be violated, someone was unaware. But the 

copyright holder is still protected; right? Should the only people 

who violate copyright laws, should the law only apply in those 

cases where violators of copyright law is intended to violate? 

Ms. MCSHERRY. I think the law should only be applied where 

there is a tie to actual copyright infringement. 

Mr. DEUTCH. Whether it was intended or not? 

Ms. MCSHERRY. Well, I think the way to get around that is to 

look whether the tools—— 

Mr. DEUTCH. I am not trying to get around anything. 
80 

Ms. MCSHERRY. I know, I am trying to speak to that, your 

honor—I am sorry. Habit. Mr. Congressman. If someone is designing a tool in good faith, not intending for it to be used for copyright 

infringement and it happens to be, I don’t think that should be a 

1201 violation. So we can look at good faith. 

Mr. DEUTCH. But you would repeal 1201 altogether? 

Ms. MCSHERRY. If I had my druthers, yes. Yes, I would. 

Mr. DEUTCH. And because it doesn’t innovate; it hasn’t led to any 

innovation. But we have sat here and heard example after example 

after example of how it has contributed to innovation. Where do 

you dispute? Mr. Genetski laid out, and I thought fairly exhaustive 

fashion, all of the ways that there has been ability to innovate, that 

has benefited consumers, that has benefited gamers, that has benefited the economy. Do you dispute everything he said? I am trying 

to make sense of the conflicting testimony. 

Ms. MCSHERRY. Sure. 

So, two points. When we look at 1201, we look at it as a cost benefit analysis. And the reason that we advocate scuttling altogether 

if we can is we don’t think the cost benefit analysis works out. Secondly—— 

Mr. DEUTCH. Hold on, but that is what I want to focus on. 

Ms. MCSHERRY. Yes. 

Mr. DEUTCH. Obviously, your testimony also says that no matter 

what we do there is always going to be copyright infringement. It 

essentially says pirates are going to be pirates. Why do we even 

bother worrying about them? That is essentially the argument that 

you make. And in doing your cost benefit analysis, I just, I would 

ask you to address specifically the benefits that Mr. Genetski has 

laid out in some detail. 

Ms. MCSHERRY. Sure. I am happy to do that. 

So I think that what is happening here is we are conflating 

TPMs and 1201. So I think that Mr. Zuck and Mr. Genetski have 

argued for the benefits of TPMs. And that is a separate question. 

It may be that their view is that it has been beneficial in a variety 

of ways. I don’t necessarily agree, but we can leave that aside. 

Mr. DEUTCH. I know but I asked you—I’m sorry. 

Ms. MCSHERRY. My issue with 1201 is about—— 

Mr. DEUTCH. But I am asking, no, no. But I am asking, we listen 

to the testimony and we have to make these determinations. So 

when you make a statement that 1201 should go away, I would ask 

you to also, you listened to Mr. Genetski testimony—— 

Ms. MCSHERRY. Sure. 

Mr. DEUTCH. And you said there needs to be a cost benefit analysis. 

Ms. MCSHERRY. Right. 

Mr. DEUTCH. Do you acknowledge the benefits that he has described? That is all I am asking. 

Ms. MCSHERRY. Thank you. 

What I am trying to stay is that I do not think the cost benefit 

analysis of 1201 as a backstop to the TPMs works out. Now whether there is a cost benefit analysis with respect to TPMs on their 

own, that is a different question. 1201 is a penalty in addition; 

right? And the problem with 1201 is that it has inhibited things 
81 

like security testing which is all the more important with the proliferation of DRM. 

Mr. DEUTCH. Right. 

Mr. Genetski, just in my last—just to wrap up. That list that you 

presented, I don’t need to ask you to go through it again, but it was 

a fairly long list of benefits that have accrued as a result of this 

language; correct? 

Mr. GENETSKI. Yes, that is correct, Congressman. 

Mr. DEUTCH. Thanks. 

Thanks, Mr. Chairman. I yield back. 

Mr. MARINO. Okay. The Chair now recognizes the distinguished 

gentleman from North Carolina, Congressman Holding. 

Mr. HOLDING. Thank you, Mr. Chairman. 

Mr. Genetski and Mr. Zuck, I am going to give you a minute or 

so just to respond to Ms. McSherry’s distinction between 1201 and 

TPMs and the cost benefit analysis. Mr. Genetski, if you could proceed with that. 

Mr. GENETSKI. Sure. Thank you, Congressman. 

I understand the distinguishing point she is trying to make and 

let us be frank. The use TPMs that I have described is a sound 

business choice. Part of the impetus is to deliver a consumer’s content in the ways that they want to experience and use it and where 

they will come back and continue to be repeat customers. 

That said, the DMCA plays a critical role and has historically the 

way laws always do in establishing as the normative behavior. People understand that it is unlawful to hack these TPMs. They understand that you can’t circumvent the access controls to gain access to an online game, an online universe. And where technology 

fails, and inevitably in our experience technology always at some 

point appears to fail, having the law as a backstop to understand 

for the benefit of the vast majority of users who want to experience 

the content lawfully and appreciate the bargain and the choice to 

do so; that that experience isn’t ruined by the small group who 

would prefer to get their enjoyment out of frustrating the experience for everyone else. 

Mr. HOLDING. Mr. Zuck, do you want to weigh in? 

Mr. ZUCK. Thank you, Congressman. 

And again, I would have to agree that TPMs have played a major 

role in the right apps getting into the hands of the right customers. 

It has been critical to the success of that industry. And again, I 

think that the cost benefit analysis of the backstop, as it has been 

put, has also shown up as well. Again we are talking about the exceptions, and if you look at security researchers, for example, or 

bugs et cetera; I mean the Heartbleed bug, for example, was in an 

open source software, and it was missed for ages and ages despite 

the fact that there were no technical measures in place. So the idea 

that somehow keeping something under some technical protection 

measure leads to more bugs or makes it harder to find them, it just 

doesn’t hold water. 

So again, if we do a cost benefit analysis, there is no comparison 

between the benefits of it that have been accrued as a result of 

both the technical protection measures and the laws that protect 

them and some of the exceptions that have happened along the 

way that we are all, I think, at the table to try and address. 
82 

Mr. HOLDING. Mr. Genetski, you have said that the 201, that if 

you were eroding the protections afforded by 201 it would embolden 

and encourage those who seek to pirate content online. Give me an 

idea of the market share of pirated content; what you are facing 

and how you think that would increase if you eroded 1201? 

Mr. GENETSKI. Thank you, Congressman. 

I think the game console example is probably the best one to answer this question. I alluded earlier to the game console platform 

TPMs reducing in scope, relatively, the amount of piracy that takes 

place on that platform as opposed to the PC platform. It still exists. 

And in the context of the last rulemaking process, there was a 

proposed exemption by EFF to allow circumvention of game consoles and it was limited on its face for non-infringing uses only in 

fairness. However, what we put forward and what the record 

showed in that case was the community of users that would use 

the tools to circumvent those protections, basically they broke the 

lock. And once the lock is broken there is no fixing it. And that one 

lock is what prevents the playback of pirated content. It may also 

allow for some sliver of a non-infringing use for a researcher to just 

examine the code for hobbyist purposes. 

Mr. HOLDING. All right. Let me interrupt you. 

Mr. GENETSKI. Sure. 

Mr. HOLDING. Do you know how much money you are losing due 

to pirated content? 

Mr. GENETSKI. It is extremely difficult to quantify but we certainly have an active internet monitoring and takedown program 

at ESA where we are, you know, identifying the hundreds of thousands of infringements monthly on the top, just the top 15, 20 sites 

that cater to that activity. So it remains a significant problem. 

Mr. HOLDING. Okay. Mr. Chairman, I yield back. 

Mr. MARINO. Thank you. 

The Chair recognizes the distinguished gentleman from Florida—— 

Mr. JEFFRIES. New York. 

Mr. MARINO. New York, I am sorry. Congressman Jeffries. 

Mr. JEFFRIES. Okay. Thank the Chair. I thank the witnesses for 

their presence and for their illuminating testimony here today. Let 

me start with Mr. Richert. 

I just want to discuss some of the concerns you have articulated 

about the triennial rulemaking process. So in the context of this 

process, I gather your organization, as well as affiliated organizations, have essentially been through the process four times over the 

last decade or so. Is that correct? 

And in your view, Section 1201 forced your organization to strain 

resources limited in nature that were being expended essentially to 

vindicate a civil right with respect to access of the visually impaired to digital material that had already been established. Is that 

right? 

Mr. RICHERT. That is fair. 

Mr. JEFFRIES. So you support reform of the process in the instance of, you know, so-called noncontroversial exemptions. Is that 

right? 

Mr. RICHERT. I am having fun with this microphone device. 
83 

The short answer is yes. We would support comprehensive topdown approach that looks at the whole copyright structure to improve accessibility of all copyrighted works. And specifically for 

1201, we would join our colleagues who have recommended specific 

reforms, and I would be glad to talk about some of those if you 

would like. 

Mr. JEFFRIES. Yes, certainly. And I want to get into that now. 

And I am interested in this notion of how one would define a noncontroversial exemption. It seems, in some instances, easier said 

than done particularly around this place. I mean, XM banks reauthorization was not controversial before it was controversial. You 

know, spending on transportation and infrastructure, noncontroversial for decades until it became controversial. 

How would you define what essentially is a noncontroversial exemption? Would it be based on the lack of objections? Would it be 

based on repeated reauthorization? Is it some combination? 

Mr. RICHERT. It is an excellent question. I don’t know that noncontroversial is the best adjective or whatever part of speech that 

happens to be to what we are trying to achieve. I think it is interesting really. People often think about the disabilities issues and 

the accessibility issues as being like motherhood and apple pie 

until, of course, it comes to signing on the dotted line about actually getting legislation or regulations or something else through. 

And then, for some reason, it becomes a very controversial issue, 

I think, because most people want to support folks with disabilities 

and that is great. 

I think really what we are talking about is frankly when someone can make a case that the use is fair. And there is legislation 

pending before the Congress that sort of wrestles with that. We 

have talked about that notion in papers that we have put out that 

really what we are talking about here is if you are talking about 

a use that has been traditionally recognized as being fair; I can’t 

speak to other uses. That’s not what I am here for. For folks with 

disabilities pretty clear that the fair use has always been consistently recognized for folks with disabilities when you are rendering 

some work of authorship in a way that someone with a disability 

can use. That seems like a no-brainer, to use the technical legal 

term. 

Mr. JEFFRIES. Thank you. Let me move on but I appreciate your 

observations on that just in the interest of time. 

Mr. RICHERT. Yes. 

Mr. JEFFRIES. Mr. Genetski, I agree with the premise that the 

current framework certainly has allowed for innovation to thrive. 

I think that, you know, based on the tremendous growth in products that have been made available, not just in the gaming industry but in the wide range of industries over the last 10 or 15 years, 

suggests that innovation has not been suffocated by 1201. But I 

also think that perhaps some modification to the process is appropriate. 

Currently there is a de novo review as it relates to the triennial 

review process. Do you think that in certain instances it will be 

reasonable to move away from a de novo review and for there to 

be, for instance, a presumption of reauthorization in instances 
84 

where an exemption had already previously been determined to be 

appropriate? 

Mr. GENETSKI. Thank you, Congressman. 

I think that the, in the current process, I think the policy considerations that form initial requests are properly balanced. I think 

that the initial burden of establishing a use that is being constrained, fair use that is being constrained, belongs with the proponent. I do think, however, that we do again, now several 

iterations through the cycle, I think you have landed on a point 

that we have seen reiterated a few times today where it does seem 

that in the case of exemptions for the case has already been made, 

and 3 years later there is not suggestion that anything has 

changed. The proponent has to come in and move for renewal there 

is no opposition—I think trying to define a noncontroversial case 

creates real line-drawing problems. 

So I do think that if you are going to focus on a shift that the 

right focus is on the lack of opposition and reducing the burden 

where there is no opposition. Perhaps it is not in the de novo review, but in that the burden of persuasion would stay the same if 

there was an opposition. But in the absence of one, you would have 

an automatic renewal. I think these are the kinds of things that 

are definitely worthy of consideration. 

Mr. JEFFRIES. Thank you. 

Mr. MARINO. Gentleman yield back? 

Mr. JEFFRIES. I yield back. 

Mr. MARINO. Thank you. 

The Chair recognizes the distinguished gentleman from Missouri, 

Congressman Smith. 

Mr. SMITH OF MISSOURI. Thank you, Mr. Chairman. 

Ms. McSherry, the 2011 exemptions you all sought for game consoles that you mentioned; what was the exemption? 

Ms. MCSHERRY. It was the exemption to modify game consoles so 

that you could, for example, run an open source software system 

called Linux which researchers have been using around the country 

for a long time. You can basically turn your video game console 

into a computer that can run all kinds of application. 

Mr. SMITH OF MISSOURI. Okay. What were the benefits you were 

trying to attain through those exemptions? 

Ms. MCSHERRY. There is a related one as well. But just focusing 

on that one, what had happened is that there used to be video 

game consoles that you could modify to run Linux and many people 

relied on those for research purposes because they are less expensive than some other computers. But then the console design was 

changed so that you couldn’t run the Linux anymore. And so—and 

protected by a DRM. But you could circumvent that relatively easily and convert your computer back to being used for research purposes and those are perfectly lawful reasons, perfectly lawful purposes. And so we sought an exemption for that. 

There was a related ask for circumvention so people could run 

homebrew, they are called homebrew games, which is basically 

games that they developed themselves. And again, for completely 

personal, noncommercial uses. 

Mr. SMITH OF MISSOURI. Did you see any downsides from those 

exemptions? 
85 

Ms. MCSHERRY. No, we didn’t. 

Mr. SMITH OF MISSOURI. Okay. 

Mr. Genetski, would you like to respond to that question? 

Mr. GENETSKI. Sure. So I think Corynne accurately stated the exemption that they sought which again was nominally limited to 

non-infringing uses like the ones she spoke of for the researchers. 

The record in the rulemaking established that the, in particular, 

the ability to run Linux on a game console as opposed to running 

it on a computer that in fact the adoption of that feature on that 

particular console was incredibly low until there was a publicly released hack that allowed you to circumvent that feature to open 

that up which was the same feature that protected the ability 

against playing pirated content. There was a much higher uptick 

of usage once that was opened up for piracy. We saw far more uses 

of the tool there. 

And after it was removed, which was a piracy prevention measure, to remove that, that particular console manufacturer, the 

record wasn’t granted authorization to be able to use that part of 

the system to bona fide security researchers who had asked them. 

So there was a, in a balancing of harms there, the view was there 

was very little actual harm in the case of the purported reason and 

a grave harm to opening up that door for what it would actually 

be used for, which would be to aid piracy. 

Ms. MCSHERRY. I’m sorry. Can I just add one thing? 

Mr. SMITH OF MISSOURI. Sure. 

Ms. MCSHERRY. But it seems to me that that is a perfect example of where we wanted to distinguish between TPMs and 1201. 

That hack was publically released. It was already widely available. 

So all 1201 was doing was getting in the way of legitimate uses. 

Right, it didn’t stop the TPM from being broken or distributed. All 

it did was inhibit legitimate users. 

Mr. SMITH OF MISSOURI. Thank you, Mr. Chairman. I yield back. 

Mr. MARINO. Thank you. 

The Chair recognizes Mr. Collins, the distinguished gentleman 

from Georgia. 

Mr. COLLINS. Thank you, Mr. Chairman. I appreciate it. 

Let us continue this. I want to see this discussion. As most who 

have attended these, I have delved in deep. And one of the things 

that, looking at this, I have just an interesting problematic issue 

here with content of expression were growing, both, and the hyperbole that tends to get involved in this. Only if we stop this measure, we are shutting freedom of expression and speech and everything else. 

And Ms. McSherry, frankly, there are some issues I think where 

you can point to maybe a chilling effect here or something that 

things are going on. What is amazing is and what was brought up 

earlier was that I read through your report and most of your document and cases are 5, 6, 8, 10 years old and in which a lot of these 

issues were found by the courts in your favor, in the way you were 

looking for; and have set precedent since then. That is the reason 

the court system exists; is to set precedent to say how can we react 

to this market and what is use and nonuse. 

So I think the, you know, to simply say well these, you know, 

these are not working because we still have these going on, I think 
86 

maybe we will just go to we’re the Judiciary Committee, let us just 

take robbery off the books. We just as well not do that because 

somebody is going to rob so, well, I guess it is just not working all 

that well. I mean, shoplifting. You know, whatever we want to talk 

about here. 

I think there is a fine balance here. So let us continue this discussion. Let us have it in not a discussion of simply, we don’t like 

1201 and TPMs need to be fixed because they solve all our problems, but look at what has happened in the marketplace. 

This is what I would like for the panel to discuss for a second: 

You made a comment just a second ago that there was this game 

console, Linux opened it up, the system, to possible piracy and uses 

of that when it was published but then you said the game console 

folks then came in and granted permission in limited ways to use 

this for the purpose there because it didn’t infringe. Let us talk 

about how we do move forward. 

If 1201 was just left as-is, there is at least some thought process 

here that yes, there are problems and yes, it falls through, but 

what are the ways the industry because in the end if you don’t sell 

your product nobody cares. Okay. And believe me, hackers are 

growing and there is a whole area there. How can we look at this 

from a perspective of taking what is the marketplace and inventors, creators, generally looking at to move it toward a more userfriendly more consumer-friendly basis and I think there are plenty 

of examples out there. I would like to see what your step is. Give 

me the three to 5 year down the road. We are working within the 

restraints we have now. What if we didn’t change it? What if we 

left 1201 as-is? 

Ms. MCSHERRY. I think one of the problems is all the innovation 

that we don’t even know that we are going to miss. 

Mr. COLLINS. Stop right there. 

Ms. MCSHERRY. Sure. 

Mr. COLLINS. You are basically telling me what I don’t know because we don’t know, and I will give you that to an extent but that 

is not a very good answer when I am saying: What are we doing 

in the process now that are moving gaming companies; moving 

music industry; moving film industry to protect the content? You 

are not going to have people out here inventing new games being 

innovative, being innovative in software and content, if there is not 

a profit motive to it. 

This is not a utopian society although there is a great TV show 

on now, Utopia. This is not Utopia. You would make these things 

to produce and make a—don’t tell me what we don’t know. I get 

that. I am a NASA fan; okay. We got more out of it than Tang; 

okay? We got that Internet and everything else. There is things we 

didn’t know going in. But how are we using it now to benefit the 

consumer without the hyperbole of chilling everything else? 

I am on your side more than you think here, but your answers 

are not going past the talking points. 

Ms. MCSHERRY. So when you say using it, do you mean Section 

1201 or TPMs? 

Mr. COLLINS. Using the current system, how are we seeing ESA 

and others respond to consumer demands and consumer changes 

that we can work with and if the changes need to be made for not 
87 

only the consumer side but for the product side? That is what I am 

trying to get and a very friendly conversation on. How do we make 

it better under the current system? 

Ms. MCSHERRY. I don’t mean to be difficult. So we keep 1201 and 

then how do we make the marketplace better? Is that the question? 

Mr. COLLINS. What are we seeing that the marketplace is responding to 1201? I think what we are missing here is you are so 

opposed to 1201. I am saying, what is actually happening in the 

system under 1201? 

Ms. MCSHERRY. Okay. So let me tell you some things that are 

actually happening in the system under 1201. Independent repair 

people are very worried about whether going forward they are 

going to be able to stay in business as cars increasingly have software embedded within them that are wrapped in TPMs and also 

tied to license agreements that they may or may not be able to 

interact with that the manufacturer may not authorize them to 

interact with. That is just cars. There is a whole association of 

independent repair that are worried about this. 

Mr. COLLINS. And I am very sympathetic to them and I have listened to them and we actually agree on many things. I guess what 

I am trying to get at here is consumer—we are missing the bottom 

line. And I always think about it because I represent over 700,000 

people in my district of Georgia who I am concerned about. As their 

frustration rises with their independent, where they go and try to 

get somebody else besides the dealer to help work on cars as they 

always have, as that frustration rises, the pressure is going to be 

on the manufacturers to react to that in a positive way. 

And I guess what I am trying to say is what are we doing that 

is positive in this situation and those problems are actually opportunities in this setup? You know, my time is gone. I think the issue 

here is much larger, is something we need to continue on because 

as long as we have the content, the providers and to those that 

want to make it better or change it, the marketplace itself is a 

great dose of medicine for this problem. And I think this is what 

we are seeing. And going back to old issues of a new law and saying, well, these are the chilling effects, do not take into account the 

marketplace and those who are providing this service. 

I appreciate you all being here. We will definitely get into this 

more. Thank you for your answer. Mr. Chairman, I yield back. 

Mr. MARINO. Gentleman yield back? 

Mr. COLLINS. Yes Mr. Chair. 

Mr. MARINO. All right, we are waiting. One other Member may 

have some questions. So as I said earlier, I reserved my questioning until last but we’ll do that in the interest of giving the 

other Member some time to get here. But I am going to be very 

brief on this. 

Dr. Chu did ask some questions concerning adequate legal protections concerning 1201 and I would like to ask you folks to expand on that but only from an international basis. We know we 

have a great deal of piracy taking place not only in the United 

States but even more so overseas; Russia and China are the leaders in stealing not only our software but other ideas and patents 

and trademarks and copyrights that we have here in the United 

States. 
88 

So from an international perspective, what will 1201 have, any 

impact or no impact, concerning the content of WIPO in the treaty? 

Do you understand my question? Okay. So whoever wants to start 

with this, please acknowledge. 

Mr. Genetski? 

Mr. GENETSKI. Yes, thank you, Mr. Chairman. 

I can address that from my own experience. And starting, referring back to Congresswoman Chu’s question about international 

obligations, the DMCA grew out of the WIPO internet treaties. And 

the U.S. has been a leader in, really, in exporting protection for circumvention, for acts of circumvention. And we have seen, through 

several iterations of trade agreements, putting obligations in place 

for other countries to adopt laws that track our own 1201. That 

does have a very important practical impact. 

Prior to my time at ESA, I was in private practice. I represented 

a number of game publishers. I personally was involved in actions 

around the world on behalf of game publishers with local counsel 

in those jurisdictions where we were pursuing cases under the local 

version of 1201; which often carried those same sorts of provisions. 

So it is important we have a number of our members who are involved in different parts of the world in litigation. And so, the ability to have these remedies exported and used and create worldwide 

norms for what is clearly a global online marketplace is critical. 

Mr. MARINO. Thank you. Anyone else? 

Mr. Zuck? 

Mr. ZUCK. Thank you, Congressman. I guess the other thing that 

has happened is that prices have fallen dramatically, particularly 

in our industry as well. So software that 10 years ago was $30 is 

now 99 cents. And so I think some of the incentives for piracy have 

decreased while at the same time some of the consumer benefits of 

technical protection measures have increased. So the fact that 

these technical protection measures help protect you from malware, 

for example, in the context of a curated store means that you have 

a better chance of exporting those protections, because rather than 

individually doing something like trying to jailbreak my phone so 

that I expose myself to malware, I am using cheap or freer apps, 

et cetera. 

So again, I think the environment that is being created by the 

curated store is not only decreasing the incentives for pirates but 

also decreasing incentives for consumers to make use of pirated 

goods because they are cheaper and because the downside of 

malware is also addressed by those same technical protection 

measures. 

Mr. MARINO. Thank you. Anyone else? 

Ms. McSherry? 

Ms. MCSHERRY. Just briefly. 

I have to confess, I am a little bit skeptical as to whether exporting 1201 beyond our shores has been all the effective given that, 

again, we have already got copyright penalties in place. This is just 

an additional penalty and I do not think that the evidence which 

suggests that it is actually deterring any actual piracy. 

And the only other point I would make is I worry very much 

about our exporting given the concerns that we just talked about 

today that many of us agree on. I worry very much about our ex-
89 

porting 1201 in its current form wholesale around the world given 

that I think many people would agree that even if you don’t think 

we should scuttle it all together, there are significant flaws. 

Mr. MARINO. Thank you. This concludes today’s hearing and I 

want to thank all the witnesses for being here. It was quite enlightening. Without objection, all Members will have 5 legislative 

days to submit additional written questions for the witnesses or additional material for the record. 

This hearing is adjourned. 

[Whereupon, at 11:47 a.m., the Subcommittee was adjourned.] 

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