(D) For educational purposes by college and university faculty, college and university
students, and kindergarten through twelfth grade educators.
(ii) For purposes of this exemption, ‘noncommercial videos’ includes videos created
pursuant to a paid commission, provided that the commissioning entity’s use is noncommercial.”
- “Motion pictures and other audiovisual works on DVDs that are protected by the
Content Scrambling System, or that are distributed by an online service and protected by
technological measures that control access to such works, when circumvention is accomplished
solely to access the playhead and/or related time code information embedded in copies of such
works and solely for the purpose of conducting research and development for the purpose of
creating players capable of rendering visual representations of the audible portions of such works
and/or audible representations or descriptions of the visual portions of such works to enable an
individual who is blind, visually impaired, deaf, or hard of hearing, and who has lawfully
obtained a copy of such a work, to perceive the work; provided, however, that the resulting
player does not require circumvention of technological measures to operation.”^806
a. Scope of the Network Connection Exemption – The
TracFone Cases
In TracFone Wireless, Inc. v. Dixon,^807 the court ruled that this exemption did not apply
to the defendants’ resale of unlocked TracFone phones that would work on wireless services
other than TracFone’s, because the defendants’ unlocking activity “was for the purpose of
reselling those handsets for a profit, and not ‘for the sole purpose of lawfully connecting to a
wireless telephone communication network.’”^808 Thus, under this court’s view, the exemption
appears to be targeted to acts by individual owners of handsets who circumvent the phone’s lock
to enable their personal use of their own handset on another wireless network. It is unclear from
the court’s brief analysis whether the exemption would cover those who sell the “computer
firmware” referenced in the exemption (and not the unlocked phone itself) that enables an
individual to accomplish unlocking of his or her phone. It also unclear whether the reference in
the exemption only to “computer firmware” means that it would not apply to services rendered
by a third party in assisting an individual to unlock a phone for a fee.
In TracFone Wireless, Inc. v. Riedeman,^809 TracFone brought claims under Section 1201
of the DMCA based on the defendant’s resale of TracFone phones for which the prepaid
software had been disabled. The defendant failed to file a response to the complaint and the
clerk entered a default against the defendant. The court entered a judgment finding that the
defendant had violated Section 1201 by circumventing technological measures that controlled
access to proprietary software in the phones and by trafficking in services that circumvented
technological measures protecting the software. The court also ruled that the Copyright Office
(^806) Id. at 65278-79.
(^807) 475 F. Supp. 2d 1236 (M.D. Fla. 2007).
(^808) Id. at 1238.
(^809 2007) Copyr. L. Dec. ¶ 29,500 (M.D. Fla. 2007).