reasoning that “the proponents offered no legal arguments in support of the proposition that the
making of backup copies is noninfringing.”^797
The Exemptions of 2010. On July 27, 2010, the Librarian of Congress issued the fourth
determination of the classes of copyrighted works that should have an exemption, with the
exemption to be in effect until Oct. 27, 2012.^798 The 2010 ruling continued the approach of the
2006 ruling in refining 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. Indeed, in announcing the exemption, the Copyright Office
stated that the prohibitions against circumvention “shall not apply to persons who are users of a
copyrighted work which is in a particular class of works” granted an exemption.^799
The six exempted classes of works in the 2010 ruling are the following:- “Motion pictures on DVDs that are lawfully made and acquired and that are protected
by the Content Scrambling System when circumvention is accomplished solely in order to
accomplish the incorporation of short portions of motion pictures into new works for the purpose
of criticism or comment, and where the person engaging in circumvention believes and has
reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use
in the following instances:
(i) Educational uses by college and university professors and by college and
university film and media studies students;
(ii) Documentary filmmaking;(iii) Noncommercial videos.”- “Computer programs that enable wireless telephone handsets to execute software
applications, where circumvention is accomplished for the sole purpose of enabling
interoperability of such applications, when they have been lawfully obtained, with computer
programs on the telephone handset.” - “Computer programs, in the form of firmware or software, that enable used^800 wireless
telephone handsets to connect to a wireless telecommunications network, when circumvention is
initiated by the owner of the copy of the computer program solely in order to connect to a
wireless telecommunications network and access to the network is authorized by the operator of
the network.”
(^797) Id. at 68479.
(^798) 75 Fed. Reg. 43825 (July 27, 2010).
(^799) Id. at 43826.
(^800) The limitation of this exemption to “used” wireless telephone handsets was a narrowing of the network
connection exemption granted in the 2006 rulemaking.