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Before the U.S. COPYRIGHT OFFICE LIBRARY OF CONGRESS Washington, DC 20559 In the Matter of ) ) Exemption to Prohibition on Circumvention of ) Copyright Protection Systems for Access ) Docket No. RM 2011-07 Control Technologies ) ) COMMENTS OF THE ENTERTAINMENT SOFTWARE ASSOCIATION IN OPPOSITION TO PROPOSED CLASS # 3: COMPUTER PROGRAMS THAT ENABLE LAWFULLY ACQUIRED VIDEO GAME CONSOLES TO EXECUTE LAWFULLY ACQUIRED SOFTWARE APPLICATIONS, WHERE CIRCUMVENTION IS UNDERTAKEN FOR THE PURPOSE OF ENABLING INTEROPERABILITY OF SUCH APPLICATIONS WITH COMPUTER PROGRAMS ON THE GAMING CONSOLE Christian Genetski Simon J. Frankel Christian Troncoso Lindsey L. Tonsager ENTERTAINMENT SOFTWARE ASSOCIATION COVINGTON & BURLING LLP 575 7th Street, NW, Suite 300 1201 Pennsylvania Ave NW Washington, DC 20004 Washington, DC 20004 Telephone: (202) 223-2400 Telephone: (202) 662-6000 Facsimile: (202) 223-2401 Facsimile: (202) 662-6291 February 10, 2012 TABLE OF CONTENTS I. INTRODUCTION AND SUMMARY OF COMMENTS ................................................... 2 II. EFF FAILED TO MEET ITS BURDEN OF DEMONSTRATING THAT ITS ALLEGED ADVERSE IMPACTS ARE “SUBSTANTIAL.” ............................................ 7 A. The Need To Purchase Alternative Computing Resources Is Not An Adverse Impact That Is Cognizable In This Rulemaking And, In Any Event, EFF Has Not Established That Such Need Is Substantial ............................................................................................ 9 B. Limitations On Users’ Ability To Install The Linux Operating System Or “Homebrew” Video Games And Applications On The Video Game Consoles Do Not Result In Any Substantial Adverse Impacts On Noninfringing Uses ....................................................... 12 C. Limitations On Users’ Ability To Backup Video Games And Transform The Video Game Console Into An FTP Server Do Not Demonstrate That Access Controls Have A Substantial Adverse Impact, But Rather Show Why Granting EFF’s Exemption Would Be Inappropriate ................................................................................................... 16 III. EFF FAILED TO DEMONSTRATE THAT HACKING A VIDEO GAME CONSOLE IS A NONINFRINGING USE ......................................................................... 18 A. The Purpose And Character Of The Use Is Commercial And Not Transformative.......... 22 B. The Nature Of The Copyrighted Work Is Creative ........................................................... 24 C. The Amount And Substantiality Of The Portion Used Is Not Reasonable ........................ 25 D. EFF Has Not Established A Lack Of Harm To The Market For Or Value Of The Copyrighted Works ........................................................................................................... 27 IV. ANY ALLEGED ADVERSE EFFECT CAUSED BY THE PROHIBITION ON CIRCUMVENTION IS SIGNIFICANTLY OUTWEIGHED BY ITS POSITIVE IMPACT ON THE AVAILABILITY FOR USE OF COPYRIGHTED WORKS AND THE MARKET FOR AND VALUE OF COPYRIGHTED WORKS ................... 28 A. Availability For Use Of Copyrighted Works. .................................................................. 29 B. Availability For Use Of Works For Nonprofit Archival, Preservation, And Educational Purposes ...................................................................................................... 35 C. The Impact That The Prohibition On The Circumvention Of Technological Measures Applied To Copyrighted Works Has On Criticism, Comment, News Reporting, Teaching, Scholarship, Or Research ............................................................................... 35 D. The Effect Of Circumvention Of Technological Measures On The Market For Or Value Of Copyrighted Works .......................................................................................... 36 E. Other Appropriate Factors .............................................................................................. 37 V. THIS RULEMAKING IS NOT AN APPROPRIATE FORUM TO RECOGNIZE A RIGHT TO REVERSE ENGINEER FOR PURPOSES OF INTEROPERABILITY OF COMPUTER PROGRAMS IN THE VIDEO GAME INDUSTRY BEYOND THAT RECOGNIZED SO FAR BY THE COURTS OR BY CONGRESS IN SECTION 1201(F) OF THE D ................................. 38 VI. CONCLUSION ..................................................................................................................... 41 Before the U.S. COPYRIGHT OFFICE LIBRARY OF CONGRESS Washington, DC 20559 In the Matter of ) ) Exemption to Prohibition on Circumvention of ) Copyright Protection Systems for Access ) Docket No. RM 2011-07 Control Technologies ) ) COMMENTS OF THE ENTERTAINMENT SOFTWARE ASSOCIATION The Entertainment Software Association (“ESA”) hereby submits these comments in opposition to the request of the Electronic Frontier Foundation (“EFF”) to exempt from the Digital Millennium Copyright Act’s (“DMCA’s”) prohibition on the circumvention of access control technologies the class of “computer programs that enable lawfully acquired software applications, where circumvention is undertaken for the purpose of enabling interoperability of such applications with computer programs on the gaming console.”1 Video game consoles are the center of an intellectual property ecosystem which makes copyrighted content easily and legally accessible, offering a tremendous benefit to creators, distributors and, most importantly, the public at large. This entire system, however, is predicated on effective, secure access controls and legal protection to support them—the very type of access controls Congress envisioned when it passed Section 1201. With respect to video game consoles, granting EFF’s exemption request would result in a weakening of Section 1201 that would enable and encourage widespread content theft and piracy, destabilizing the distribution system that earns revenues for authors and encourages the production of new copyrighted works. EFF’s 1 Comments of the Electronic Frontier Foundation, In the Matter of Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, Docket No. RM 2011-07, at 1 (Dec. 1, 2011) [hereafter, “EFF Comments”]. requested exemption would undermine this system—to the detriment of the general public and all copyright holders—in favor of speculative benefits accruing to a relatively infinitesimal contingent of “hobbyists” who have ample alternative development opportunities and platforms available for their use already. EFF’s exemption should be denied on the many independent grounds detailed below. I. INTRODUCTION AND SUMMARY OF COMMENTS ESA represents all of the major platform providers and nearly all of the major video game publishers in the United States.2 It is the U.S. association exclusively dedicated to serving the business and public affairs needs of companies that publish computer and video games for video game consoles, personal computers, and the Internet. ESA’s members manufacture the three video game consoles that EFF references in its comments—the Microsoft Xbox 360, the Wii home console by Nintendo, and the Sony PlayStation 3 (“PS3”) (collectively, the “Video Game Consoles”).3 In addition, ESA’s members create (and own copyrights in) thousands of highly-valuable, expressive works, including highly- popular video game titles, television programming, and motion pictures. These copyrighted works—along with a wide variety of movies, television, music, and live sports programming that is provided by content partners ranging from the largest media companies to the smallest independent producers and developers4—currently are available 2 See http://www.theesa.com/about/members.asp (listing ESA’s members) (copy on file with ESA’s counsel). 3 Given the statutory mandate, the Register should not recommend any exemption pertaining to a class of works for which EFF has not met its burden of proving that an exemption is necessary. This is critical here in two related respects. First, while EFF seeks an exemption for “video game consoles” generally, it only mentions three consoles in its comments. Accordingly, as a threshold manner, any exemption granted should not apply with respect to consoles that are not specifically mentioned in EFF’s submission. Second, because each of the Video Game Consoles is different and, as a result, the access controls, effect of hacking, and scope of adverse impacts allegedly caused by the relevant access controls may be different, EFF must submit sufficient evidence to support an exemption with respect to each of the Video Game Consoles individually. As demonstrated in these comments, EFF has failed to meet this burden as to any of the Video Game Consoles, and certainly has not met that burden as to all of them. 4 Attached in Exhibit A is a representative list of the wide variety of content partners and copyrighted works that are available through the Video Game Consoles. See also http://www.xbox.com/en-US/Music?xr=shellnav (showing 2 through the Video Game Consoles precisely because platform providers use access controls to restrict access to these works. These access controls were designed specifically to support the creation and distribution of copyrighted works in furtherance of the mutual interests of both platform providers and copyright owners of content playable on Video Game Consoles. In this important respect, access controls on Video Game Consoles are analogous to CSS, which is used on DVD players to protect movies on DVDs from digital piracy. Similar to the motion picture studios, ESA’s members and their content partners rely on the availability

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