marketplace. The Librarian determined that this exemption is necessary to allow archiving or
continued use of computer programs and video games that are subject to “original media only”
restrictions, are stored on media no longer in use, such as 5.25” floppy disks, or require use of an
obsolete operating system.^782
- Literary works distributed in ebook format when all existing ebook editions of the
work (including digital text editions made available by authorized entities) contain access
controls that prevent the enabling of the ebook’s read-aloud function and that prevent the
enabling of screen readers to render the text into a specialized format. The Librarian defined
“specialized format,” “digital text” and “authorized entities” to have the same meaning as in 17
U.S.C. § 121.^783 The Librarian determined that this exemption is necessary in response to
problems experienced by the blind and visually impaired in gaining meaningful access to literary
works distributed as ebooks.^784
For the Copyright Office’s rationale for rejecting an exemption for a host of other
proposed classes of works, see 68 Fed. Reg. at 62014-18. One of the more interesting proposed
exemptions that the Copyright Office rejected was one submitted by Static Control Components,
Inc. in response to the district court’s ruling in the case of Lexmark International, Inc. v. Static
Control Components, Inc.,^785 discussed in Section II.G.1(o)(1) below. In that case, the district
court ruled on a motion for a preliminary injunction that Static Control violated Section
1201(a)(2) by distributing microchips that were used to replace the microchip found in plaintiff
Lexmark’s toner cartridges so as to circumvent Lexmark’s authentication sequence that
prevented the printer engine software on the Lexmark printer from allowing the printer to operate
with a refilled toner cartridge. In view of this ruling, Static Control submitted a proposed
exemption to the Copyright Office to permit circumvention of access controls on computer
programs embedded in computer printers and toner cartridges and that control the interoperation
and functions of the printer and toner cartridge. The Copyright Office concluded that the
statutory exemption set forth in Section 1201(f), discussed in Section II.G.1(g) below, already
adequately addressed the concerns of toner cartridge re-manufacturers.^786 The rationale for the
Copyright Office’s conclusion is discussed further in Section II.G.1(g) below.
The Exemptions of 2006. On Nov. 27, 2006, the Copyright Office issued the third
determination of the classes of copyrighted works that the Librarian decided should have an
exemption, with the exemption to be in effect until Oct. 27, 2009.^787 In previous rulemakings,
(^782) Id. at 62014.
(^783) Id.
(^784) Id.
(^785) 253 F. Supp. 2d 943, 948-49 (E.D. Ky. 2003), rev’d, 387 F.3d 522 (6th Cir. 2004), reh’g denied, 2004 U.S. App.
LEXIS 27422 (Dec. 29, 2004), reh’g en banc denied, 2005 U.S. App. LEXIS 3330 (6rh Cir. Feb. 15, 2005).
(^786) 68 Fed. Reg. at 62017.
(^787) 71 Fed. Reg. 68472 (Nov. 27, 2006). On Oct. 27, 2009, the Librarian of Congress extended the 2006
exemptions on an interim basis until the Copyright Office and Librarian of Congress could complete their
decision with respect to the next classes of exemptions to be granted. See 74 Fed. Reg. 55139 (Oct. 27, 2009).
The extension period turned out to be 9 months, ending on July 26, 2010.