[House Hearing, 113 Congress]
[From the U.S. Government Printing Office]



 
                         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
         
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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
SPENCER BACHUS, Alabama              SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
RAUUL LABRADOR, Idaho                JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina       DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]

           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.,         JERROLD NADLER, New York
Wisconsin                            JOHN CONYERS, Jr., Michigan
LAMAR SMITH, Texas                   JUDY CHU, California
STEVE CHABOT, Ohio                   TED DEUTCH, Florida
DARRELL E. ISSA, California          KAREN BASS, California
TED POE, Texas                       CEDRIC RICHMOND, Louisiana
JASON CHAFFETZ, Utah                 SUZAN DelBENE, Washington
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina       DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia                ZOE LOFGREN, California
RON DeSANTIS, Florida                SHEILA JACKSON LEE, Texas
JASON T. SMITH, Missouri             STEVE COHEN, Tennessee
[Vacant]

                       Joe Keeley, Chief Counsel

                    Heather Sawyer, Minority Counsel
                    
                            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



                         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 
(Vice-Chairman 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 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 proceeding 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 intellectual 
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 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:]
    
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                               __________
    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 Birmingham-Southern 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 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 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 anti-circumvention 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\
---------------------------------------------------------------------------
    \1\ For more information, see http://www.afb.org/info/about-us/1.
    \2\ For more information, see http://www.colorado.edu/law/
academics/clinics/technology-law-policy-clinic.
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    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 deaf-blind author, activist, and teacher, 
once wrote about the importance of access to books for people who are 
blind or visually impaired:

        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\
---------------------------------------------------------------------------
    \3\ Helen Keller & Annie Sullivan, The Story of My Life 117-18 
(1924).

    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\
---------------------------------------------------------------------------
    \4\ Helen Keller, Speech Honoring Louis Braille at the Sorbonne, 
Paris (June 21, 1952), http://www.afb.org/section.aspx?SectionID=86& 
DocumentID=4620.

    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.
---------------------------------------------------------------------------
    \5\ United States Library of Congress, The History of the Edison 
Cylinder Phonograph, http://memory.loc.gov/ammem/edhtml/edcyldr.html.
    \6\ Frances 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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \8\ Harry G. Lang & Bonnie Meath-Lang, Deaf Persons in the Arts and 
Sciences: A Biographical Dictionary 302-303 (1995).
    \9\ Id.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \10\ See generally Karen Peltz Strauss, A New Civil Right: 
Telecommunications Equality for Deaf and Hard of Hearing Americans 205-
273 (2006).
    \11\ See 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.
---------------------------------------------------------------------------
    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 
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\
---------------------------------------------------------------------------
    \12\ Library of Congress, NLS Factsheets, Copyright Law Amendment, 
1996: PL 104-197 (Dec. 1996), http://www.loc.gov/nls/reference/
factsheets/copyright.html.
    \13\ See 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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \14\ See 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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \15\ See 17 U.S.C. Sec. 1201(a)(1)(C)-(D).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
    \17\ See 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. 
Sec. 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.
    \19\ See 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. 
Sec. 201.40), available at http://www.copyright.gov/fedreg/2006/
71fr68472.pdf.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \20\ See 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. Sec. 201.40), available at http://www.copyright.gov/
fedreg/2010/75fr43825.pdf.
    \21\ See 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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \22\ 2010 Final Rule, 75 Fed. Reg. 43,838-39.
    \23\ Joint 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. Sec. 201.40), available at 
http://copyright.gov/fedreg/2012/77fr65260.pdf.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
    \25\ See 2012 Final Rule, 77 Fed. Reg. at 65,270-71, 65,278.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \26\ See 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/.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \27\ 2010 Final Rule, 75 Fed. Reg. 43,839.

    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.
---------------------------------------------------------------------------
    \28\ See H.R. 1892 113th Cong. (2013), available at https://
beta.congress.gov/bill/113th-congress/house-bill/1892/text.
---------------------------------------------------------------------------
    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 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 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:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    
                               __________
    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 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:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    
                               __________
    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, 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:]*
---------------------------------------------------------------------------
    *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.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]



                               __________
                               
    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 computers 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 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 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 out-swell, up-swell to do 
what we did on telephone, you know, if you will portability 
rights?
    Please.
    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 exploring 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.]
    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:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    

                               __________
    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 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 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? 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.
    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 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.
    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.
    The short answer is yes. We would support comprehensive 
top-down 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 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?
    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 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 user-friendly 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 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.
    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 exporting 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.]
                            A P P E N D I X

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