the Copyright Office had determined that an exempted class must be based primarily on
attributes of the work itself and not the nature of the use or the user. In its 2006 ruling, the
Copyright Office determined for the first time that in certain circumstances it would be
permissible to refine the description of a class of works by reference to the type of user who may
take advantage of the exemption or by reference to the type of use of the work that may be made
pursuant to the exemption, and the Copyright Office applied this refinement to some of the
classes of works exempted.^788
The exempted classes of works in the 2006 ruling were the following:- “Audiovisual works included in the educational library of a college or university’s
film or media studies department, when circumvention is accomplished for the purpose of
making compilations of portions of those works for educational use in the classroom by media
studies or film professors.”^789 This exemption was the first one to define the class by reference
to particular types of uses and users. - “Computer programs and video games distributed in formats that have become
obsolete and that require the original media or hardware as a condition of access, when
circumvention is accomplished for the purpose of preservation or archival reproduction of
published digital works by a library or archive. A format shall be considered obsolete if the
machine or system necessary to render perceptible a work stored in that format is no longer
manufactured or is no longer reasonably available in the commercial marketplace.”^790 This
exemption is the same as the third class in the 2003 ruling, except that a definition of what
renders constitutes an obsolete format was added. - “Computer programs protected by dongles that prevent access due to malfunction or
damage and which are obsolete. A dongle shall be considered obsolete if it is no longer
manufactured or if a replacement or repair is no longer reasonably available in the commercial
marketplace.”^791 This exemption is the same as the second class in the 2003 ruling. - “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 either of the book’s read-aloud function or of screen readers
that render the text into a specialized format.”^792 This exemption is similar to the fourth class in
the 2003 ruling, except that the two requirements in the description of the access controls is
phrased in the disjunctive, whereas in the 2003 ruling it was phrased in the conjunctive. - “Computer programs in the form of firmware that enable wireless telephone handsets
to connect to a wireless telephone communication network, when circumvention is accomplished
(^788) Id. at 68473-74.
(^789) Id.
(^790) Id. at 68474.
(^791) Id. at 68475.
(^792) Id.