[00:00:00] Speaker 04:
Case number 25-5328, Medical Imaging and Technology Alliance and Advanced Medical Technology Association Appellants versus Library of Congress and Todd Blanch in his official capacity as Acting Librarian of Congress. Mr. Kimberly for the appellants and Ms. Myron for the appellants.

[00:00:17] Speaker 03:
Good afternoon. Can we start?

[00:00:25] Speaker 02:
Good afternoon, Your Honors.

[00:00:27] Speaker 02:
A standalone market exists for the works that are at issue in this litigation. It's the market for machine maintenance and repair.

[00:00:35] Speaker 05:
In the exemptions... You did not pop up in the waiting room.

[00:00:39] Speaker 00:
Oh, okay.

[00:00:42] Speaker 00:
What is... Yeah.

[00:00:45] Speaker 00:
Okay.

[00:00:49] Speaker 02:
Shall I proceed?

[00:00:50] Speaker 06:
One second. Do we need to adjust anything?

[00:00:55] Speaker 06:
There's no surprise judges for you.

[00:01:05] Speaker 03:
Okay.

[00:01:05] Speaker 06:
Sorry, I apologize. Don't worry.

[00:01:09] Speaker 02:
A standalone market exists, Your Honor, as I was explaining.

[00:01:12] Speaker 02:
For the works that are at issue in this case, it's the market for device maintenance and repair.

[00:01:19] Speaker 06:
And the exemptions entire- Where did you argue?

[00:01:24] Speaker 06:
to the librarian and demonstrate that there is a separate, distinct, as you said, standalone market for, I take it you mean standalone software as well?

[00:01:40] Speaker 02:
So the market is the market for service and repair. It includes a market for licensing the software that is used by both manufacturers and separate third-party servicers in the provision of those services.

[00:01:55] Speaker 06:
These are cases about the work itself, which is the software. Is there standalone repair software? Yes.

[00:02:08] Speaker 06:
Is it, in all or most cases, distinct and separately accessible software?

[00:02:14] Speaker 02:
Correct, yes.

[00:02:15] Speaker 06:
Where did you argue that? To the librarian?

[00:02:18] Speaker 02:
To make a record on that? Sure. I would point the court, among other places, to JA 1361, which is— And Your Honor, maybe even before JA 1361, which is where we made the record, I'd point the court to JA 1055.

[00:02:39] Speaker 02:
This is a declaration by Robert Wheeler, who is the founder and then CEO of Transstate, one of the principal proponents of the exemption at issue here. And at page, excuse me, paragraph 15 on 1055, He explains, in explaining the need for this exemption, that machine manufacturers, quote, compete with ISOs for the post-warranty servicing contracts through which the works are monetized.

[00:03:07] Speaker 06:
That's just work. That's not, when I say work, I was talking about the copyrighted work, not labor. This is just, there's labor to be done. But that's not, labor is distinct from a market for the copyrighted work itself.

[00:03:25] Speaker 02:
So two responses, Your Honor. One, respectfully, is a factual matter. I don't think that's correct.

[00:03:31] Speaker 06:
The way this software... It's a legal matter under the Copyright Act.

[00:03:35] Speaker 02:
Well, but the question is, how is this software marketed, right? How is it monetized?

[00:03:39] Speaker 06:
This doesn't say anything about that. This just says that...

[00:03:42] Speaker 06:
manufacturers compete with non-manufacturers to service these things. Correct. Okay. Now, what else do you have? So that doesn't make an argument that there is, I'm really most interested in, just so I can be clear for you to be fair to you on this, is any showing that there was, there is freestanding software, as opposed to the fact that they use this integrated software to, as part of the repair process. So there's freestanding repair software that is licensed separately from the license to have what we'll call the clinically operational software.

[00:04:20] Speaker 06:
So what I'm looking for is more as to the copyrighted material.

[00:04:24] Speaker 02:
So Your Honor, I think you can look at page 1361. Page 1361, a comment by AdvaMed. This is the fourth volume of JA.

[00:04:39] Speaker 02:
We're about 2 thirds down. There is a market for some medical device software modules as standalone works. Some software on medical devices is activated and maintained through a subscription model.

[00:04:51] Speaker 06:
STEPHANIE DESMOND- Some. So again, where do you tell the librarian who's making a rule about access to operational software for purposes of repairs that there is some is talking about that. This is just some. This is way too vague to put them on notice. And that's the same thing on the next page, 113.62. There's another, some software programs.

[00:05:20] Speaker 02:
DAVID SANGER- Your Honor, I would point the court also to 2JA.631, where the librarian acknowledges that some system features are separately licensed through a subscription service.

[00:05:31] Speaker 06:
Yeah, but some doesn't say that.

[00:05:33] Speaker 02:
Your Honor, while you consider this, let me add, there was no dispute in the record. It was the proponents themselves who were crystal clear that what is at issue in this case is machine servicing software. This is software that is used to identify and resolve malfunctions.

[00:05:51] Speaker 06:
No, that's the portion of the software they wish to access. Right. They need to go into, as my understanding is, that they need to go in and turn the machine on. Maybe look at an arrow log.

[00:06:06] Speaker 06:
They need to be able to test the machine to run it operationally to see if they would fix something.

[00:06:13] Speaker 06:
And so you sort of have to look at what runs to figure out what's not running. But that's very different from what I understood, and this is what I thought was really stark in your briefing here. It wasn't until your reply brief that you seemed to come out full bore with, oh, there's this freestanding, separate, distinct software system that is just for repair and maintenance, and it has a valuable market. It wasn't until your reply brief that I saw that in your briefing here.

[00:06:46] Speaker 06:
Otherwise, it was things about, well, there's a market for this work, that kind of service, this service, this repair service that's provided, and they access these services operational software as part of their repair so that they can do repairs no no your honor uh and i just didn't see you okay show me where you argued to the librarian the same thing you are you're arguing now because you even told him there's no distinct market we said i'm sorry we said there is a distinct market okay that's 1361 1361 for what what does 1361 say the market's for says for some software modules.

[00:07:33] Speaker 02:
Your Honor, I mean, all this case has ever been about from day one when the petitions for this exemption were submitted was a diagnostic and machine service software, software for that purpose.

[00:07:49] Speaker 06:
Where do you tell them that it's freestanding as opposed to using the operational software as part of the repair process?

[00:07:57] Speaker 02:
Well, Your Honor, I'm not sure.

[00:07:59] Speaker 06:
It just says some modules. There's a market for some modules, right? And I would have assumed That if there were, in fact, if there were just two entirely different categories of software in every one of these machines, slot A is the operational software. That's where that is. Slot B is where the repair software is. That's freestanding in your work. Right.

[00:08:27] Speaker 02:
That that would have been said in those same direct terms that you- And respectfully, I think it was by the proponents themselves. They described the software at issue here. And I'll come back to another point that there are also elements here that are not software. Can you tell me where you're coming from, first of all? I'm reading from page 1031, and most of these are descriptions in sworn declarations by witnesses that Transstate itself put in the record, and they describe the works that are issued as diagrams This is page 1024.

[00:09:03] Speaker 02:
Diagnostic software and data files. Diagnostic software is not operating system software. Medical equipment servicing materials on 1031. This is sorry, just trying to follow you on 1031 here.

[00:09:21] Speaker 02:
Medical equipment and servicing materials. So this includes, in addition, Your Honor, written works like service manuals, which provide instructions for servicers when they're confronted with a machine that's malfunctioning. I mean, this is like a PDF file that has instructions on it.

[00:09:44] Speaker 02:
So I'm looking at page 7 and 8 in our reply brief.

[00:09:47] Speaker 06:
Sorry, I'm just on. Sorry. Sorry, the language on 1031 you're relying on is...

[00:09:54] Speaker 06:
You say computer programs, and in particular, subset of electronic servicing materials for diagnosis, maintenance, repair of medical equipment.

[00:10:00] Speaker 02:
Exactly, yes.

[00:10:00] Speaker 06:
Yeah, but the subset isn't a freestanding thing.

[00:10:03] Speaker 02:
Well, but Your Honor, freestanding is an economic concept, I think, with respect to what's going on here. There is a separate licensing market. To access those materials, you have to pay a separate license. That makes it a freestanding market. Your Honor, I would note that the Ninth Circuit back in 1995... Okay, maybe this will work better.

[00:10:24] Speaker 06:
Tell me where you talked about a freestanding market.

[00:10:28] Speaker 02:
I'm sorry?

[00:10:30] Speaker 06:
Where did you tell the library about a freestanding market?

[00:10:34] Speaker 02:
Your Honor, I'm sorry. I think there is a focus on this concept of freestanding market as sort of an idea independent of owing separate licensing fees.

[00:10:47] Speaker 02:
So the question whether there is a market is whether there is something of value for which the author of that work expects to be paid. And all throughout the record, all throughout the declarations that TransState submitted, in Philip's comments, in Avomed's comments, it's clear that there is a separate market for licensing these works. If there were not such a separate market, there wouldn't be a need for this exemption.

[00:11:12] Speaker 06:
Okay, I think that's a different point. Licensing them is...

[00:11:19] Speaker 06:
We'll unlock the key for you to get into our software and these medical devices, which is sold as a piece with the medical device.

[00:11:28] Speaker 02:
No.

[00:11:30] Speaker 02:
I'm sorry, but that just isn't correct. This software is not sold with the device. That's the whole point.

[00:11:37] Speaker 06:
Software isn't in the device?

[00:11:39] Speaker 02:
No, Your Honor. It's like purchasing a computer. No, Your Honor.

[00:11:43] Speaker 02:
To say that it is stored on the device is not to say that it is purchased with the device. When you buy a computer, for example, the computer is stored on the device. It is stored on the device. When you buy a computer, Your Honor, it may come preloaded, for example, with antivirus software, like McAfee antivirus software. The fact that the machine comes with that software doesn't mean you're buying the software with the machine. It comes on the machine. And then if you want to use the software, you have to pay a separate licensing fee. I have never understood there to be a debate in this litigation that that is how this all works.

[00:12:16] Speaker 06:
And I would note you- So 1372, which I think is NIDA, or whatever we're calling it, medical imaging tech, right near the top of that third line.

[00:12:29] Speaker 06:
The fact that there is no independent market for the medical imaging device software beyond the devices themselves

[00:12:37] Speaker 02:
And I'm sorry, where are you reading this, Your Honor?

[00:12:40] UNKNOWN:
1372.

[00:12:40] Speaker 06:
1372. I think it's about three lines down from the top, and I think this is needed comment.

[00:12:56] Speaker 02:
I'm not sure. Your Honor, I have not looked at this line before, and this obviously is not something that the librarian either briefed before this court.

[00:13:04] Speaker 05:
But is that the repair software or the operating slash clinical software?

[00:13:09] Speaker 02:
Yeah, I think that's likely what it's referring to.

[00:13:11] Speaker 05:
I think this is the operating software, not the repair software.

[00:13:13] Speaker 06:
Okay, again, where did you tell them? But these are separated out softwares. Because I don't know, you can't repair something without using the operating software. I get that you are licensing it separately, but that it's a distinct package of software that could be accessed without also accessing the clinical.

[00:13:30] Speaker 02:
Your Honor, I think when you refer to something, for example, as a diagnostic tool, which is the way that these were described, I have 1381, 1409, and 1422 all referring to diagnostic tools.

[00:13:48] Speaker 02:
I take that as sort of a common sense understanding that a diagnostic tool is not the same thing as operating software.

[00:13:55] Speaker 06:
And again, it's sort of like saying- Having an error log is a diagnostic tool, but it's also part of the operating software, right?

[00:14:02] Speaker 02:
No, I don't think that's true.

[00:14:03] Speaker 06:
How can it operate independently of the software? It has to know what's going on in the operational software.

[00:14:07] Speaker 02:
Well, I think that's true of any software module that is created to repair a device. I mean, any software written to repair a device has to have the device and its operating system to be used meaningfully. That doesn't mean it isn't entitled to copyright protection.

[00:14:22] Speaker 06:
So, I mean, the fact that you- We know that the fact that you have this software and that you lock it up behind a key and then sell for access to it doesn't create a market in the work itself.

[00:14:40] Speaker 06:
That was a Lexmark case.

[00:14:43] Speaker 02:
This provides a separate service from the operation of the machine. If you want to run a diagnostic module that identifies and resolves malfunctions in the machine, and these could be physical malfunctions, so they identify, for example, part replacement needs, that is not the same thing as Windows or Linux, which is used to run the machine. It just is not the same thing, Your Honor. And, you know, I don't, again, don't understand this to have been a contested issue anywhere in the way that this case has been briefed to this point or before the library.

[00:15:21] Speaker 02:
I would point the court to page 1337 of triad systems. This is the Ninth Circuit's decision confronting analytically this exact scenario. And there the Ninth Circuit responded to this argument.

[00:15:35] Speaker 02:
Southeastern contends that the district court's analysis was flawed because Triad's copyright does not extend to the service market. We disagree. Triad invented, developed, and marketed its software to enable its own technicians to service Triad computers. Southeastern is getting a free ride when it uses that software to perform precisely the same service in competition with Triad. That is this case on all fours.

[00:16:03] Speaker 05:
So the thing that's very strange to me about this case is that the parties seem to be talking past each other. You've written a whole analysis assuming that the software at issue is the repair software. Software and I guess repair materials, manual software, et cetera, that goes to repairing the machine. Whereas it seems to me that the librarian and the district court wrote a whole opinion analysis based on operations software, operations clinical software, things that you need to turn on the machine and have it run the way it's supposed to run.

[00:16:41] Speaker 05:
So I just feel like the two sides are talking past each other. And as I read this exemption, it applies to computer programs that are contained in and control the functioning of a lawfully acquired medical device or system and related data files. And to me, that exemption does not encompass repair software or repair materials because that is not software or materials that control the functioning of the device or system. And it's not related data files because it's not data.

[00:17:15] Speaker 05:
So my thought was, I don't see why this exemption, which to me doesn't, seem to include within its scope repair software stops you from going and enforcing your repair software copyrights or the anti-circumvention provisions for repair software.

[00:17:34] Speaker 02:
So I have two responses to that. The first is if this court is inclined to resolve this case by interpreting the exemption as it was adopted to apply only to operating system software and is not extending to... To be clear, I think there are three types of software.

[00:17:51] Speaker 05:
There's the operating system, like the Linux stuff. Then there's whatever software it is within the machine that makes it turn on and do what it's supposed to do. And then there's repair software.

[00:18:02] Speaker 05:
Right? There's really three types, because I think the Linux stuff is a different thing.

[00:18:05] Speaker 02:
I think our concern, and I'm sorry to interrupt, Your Honor, but our concern here is the repair software and the repair documentation.

[00:18:12] Speaker 05:
Exactly. I don't see why you didn't just take the district court opinion and say, that's a win for us. It doesn't include repair software. Why even appeal this? Let's just go to court and keep enforcing our repair software policy.

[00:18:27] Speaker 02:
So that's the second part of the answer, Your Honor. And that's that one, the district court did go on to say, even if our interpretation is correct, nevertheless, ISO's use of repair software is still fair use. So the district court did reach that question.

[00:18:45] Speaker 05:
There was that additional reasoning she had about that, too.

[00:18:48] Speaker 02:
And I would add that the march through the fair use analysis wouldn't be necessary if the librarian weren't also construing this as applying to more. Because if all that's at issue is the software necessary to activate and run the machine, you've got section 117C, which already allows- I actually don't think that that applies.

[00:19:10] Speaker 05:
But it seems to me that there is their comments, et cetera, in the record that says, in order to repair, you need to access the operating clinical software. And that seems to me to be the focus of this exemption and the librarians' analysis. But the way you frame the issue on appeal confused me because You're asking us to say the exemption doesn't mean what the librarian says it means and then asking us to knock down your interpretation of the exemption.

[00:19:41] Speaker 05:
But I think the issue is really that you're concerned about the repair software. The way I see it, the more straightforward argument for you is this exemption doesn't include the repair software and we just want clarification of that. And then that allows you to do what you need to do.

[00:19:57] Speaker 05:
It's just, the words of this exemption, to me, don't encompass repair software.

[00:20:01] Speaker 02:
Well, and so I don't want to look a gift course in the mouth, Your Honor. I think if you were to write an opinion saying that the exemption doesn't cover the software and other protected works that the proponents expressly sought permission to access, and effectively the librarian failed to issue the exemption they asked for, we'd be happy with that.

[00:20:26] Speaker 05:
I agree with you that in the applications for the exemption, they talk a lot about the repair materials and the repair software. But then the exemption that's actually issued says computer programs that are contained in and control the functioning of a lawfully acquired medical device or system and related data files. And that doesn't, the words of what they adopted to me doesn't seem to encompass that.

[00:20:48] Speaker 02:
the repair stuff well like i said we we were looking at the two together uh and we understood the exemption as granting what the proponents had asked for again if the court is inclined to say the proponents didn't actually get what they asked for and to be clear they asked for i don't even understand how you can do a repair without then being able to turn the machine on We're not contesting it.

[00:21:16] Speaker 06:
And see if it works, which requires you to have access to what we call the clinical operational software.

[00:21:23] Speaker 02:
Your Honor, what we are objecting to is their circumvention of technological protective measures to access what is described at 1381 and 1422 as diagnostic tools, what is described elsewhere, for example, on 1409 as specialized service tools, and what is described elsewhere is as the documentation that comes around.

[00:21:47] Speaker 06:
Those are in there embedded in the thing. I'm really...

[00:21:52] Speaker 06:
I'm really confused about the record in this case, because you're now saying there's three distinct boxes of software in each machine. There's the operating system.

[00:22:08] Speaker 06:
There's in the operating software, the clinical software, makes say an MRI run. And then there's a whole separate box called repair and maintenance.

[00:22:21] Speaker 06:
But Mita, again, this is J1552, said the 2021, that's the eighth round exemption, fails the Warhol test. The use of the copyrighted work, the medical device software, by third-party ISOs, they're using the medical device software.

[00:22:45] Speaker 06:
has exactly the same purpose and character as the original copyrighted work, enabling the functionality of the medical device.

[00:22:54] Speaker 06:
The original work, the device software before repair, and the secondary use share the same exact purpose to enable the device to function. Now, if the copyrighted work has exactly the same purpose and function as the copyrighted work that they're accessing, to enable the functionality of the medical device, that suggests to me that there are not. That it's part of one set of software that necessarily includes It necessarily includes if the functioning part of the system has to talk to the malfunctioning part of the system.

[00:23:35] Speaker 06:
They have to have communications. They're not walled off in separate hermetically sealed boxes. You can't repair and maintain something without having the error logs from the clinical operational software You have to be able to check and see what's not working in the clinical operation software.

[00:23:56] Speaker 06:
What ISOs asked for was to get past the locks so that they could access the software for the purpose of maintenance and repair.

[00:24:12] Speaker 06:
Whatever part of the software is needed, an error log, how do how is this you know what do the mris look like right now are they foggy are they clear what is the problem let me see i have to diagnose the problem by operating the machine and then i will fix it and then i have to test and see if it's fixed that they really aren't hermetically sealed so i just didn't see this argument to the district court so i'm just really confused about how it seems to have evolved over the briefing

[00:24:46] Speaker 02:
Your Honor, respectfully, this has been the argument that we've made all along, that it's distinct. So just I'm going to try one more time in reference to the record, J.A.

[00:24:55] Speaker 06:
I'm sorry. I think if you're saying distinct as in what you care about them accessing are the components of the software that are relevant to maintenance and repair.

[00:25:05] Speaker 02:
And that are licensed separately.

[00:25:07] Speaker 06:
Well, the license licensing access to them.

[00:25:11] Speaker 06:
Right, right, but that's a different thing. You care about them getting into the clinical operational software because they're using it not to conduct an MRI, but to compete with your service programs and your service plans for these machines. So you don't want them getting in there and being able to do, to use this one box of software that has both clinical operational and repair and maintenance and diagnostic and tracking what's been done and not done on the machine and what's working and not working, which is one solid mass of software.

[00:25:49] Speaker 06:
You just don't want them in there for the purpose of maintenance.

[00:25:53] Speaker 02:
It is not a single solid mass of software, Your Honor. And I'll point you to page 1,119 of the joint appendix. This is...

[00:26:04] Speaker 02:
Volume 4, paragraph 5. This, again, is yet another declaration.

[00:26:09] Speaker 06:
Sorry.

[00:26:11] Speaker 02:
Sorry. Volume 4.

[00:26:12] UNKNOWN:
1,119?

[00:26:12] Speaker 06:
1,119, yes. OK.

[00:26:13] Speaker 02:
Sorry.

[00:26:14] Speaker 06:
I was doing 1,019.

[00:26:16] Speaker 02:
So I'm looking at paragraph 5 on that page.

[00:26:24] Speaker 02:
The types of software and data files that- I'm sorry.

[00:26:27] Speaker 06:
Sorry. Which paragraph you said?

[00:26:28] Speaker 02:
Paragraph 5.

[00:26:30] Speaker 02:
the types of software and data files that OEMs restrict or limit access to through the use of TPMs. And that's what this is about, getting around TPMs. So the TPMs are blocking access to service logs, comprehensive diagnostic tests, error codes, remote diagnostics, Windows access, yes, and backup system settings, yes, but software updates for compatible hardware.

[00:26:59] Speaker 06:
Backup system sentence?

[00:27:01] Speaker 02:
Comprehensive diagnostic tests, remote diagnostics.

[00:27:05] Speaker 06:
But this, I mean, this just proves that it is all one set of soft, I mean, this is oversimplifying my language here, that once you have walked away from people, there's access to the software for the purpose of...

[00:27:23] Speaker 02:
so if i could perhaps get to a point a part of it yes i don't disagree i i don't disagree with that my point is it is just these are distinct software modules right these are not this is not the software that operates but there are i mean when you say operating system are you talking about windows windows or or what judge pan has characterized as the clinical software

[00:27:49] Speaker 06:
Okay, well, this definitely includes clinical things, right? Windows access, touch panel calibration, backup system settings, software updates, right?

[00:28:01] Speaker 02:
It does, Your Honor. The question about all of this, just to come back to the original point, is, like, is this fair use?

[00:28:08] Speaker 06:
Is it likely to be fair use looked at overall en masse for the next five years?

[00:28:16] Speaker 02:
Yeah, I mean, likely is sort of a judicial gloss. That doesn't appear in the statute itself. The statute says, are they likely to be inhibited in their ability to make non-infringing use, not likely non-infringing. Sorry? Not likely non-infringing use.

[00:28:33] Speaker 06:
I mean, I think let's just say there's a question of statutory interpretation about what the likely modifies as we go down that statute.

[00:28:40] Speaker 02:
Okay. Suffice to say, Your Honor, the question, I'm not sure that fundamentally the analysis changes. The question here is, are ISOs putting what is undeniably copyrighted works to their intended use? And if it is an intended use to facilitate maintenance repair, it's an intended use.

[00:29:01] Speaker 02:
And it cannot be transformative to put those sorts of diagnostic modules to use to their precise intended purpose.

[00:29:09] Speaker 06:
STEPHANIE DESMOND- So this argument, this is what I feel like is where librarian was, is that we have our software in these machines, pieces of it are particularly for software maintenance, or sorry, excuse me, repair maintenance. Error logs sort of cross cut both areas, because it could be the operator's error as opposed to something wrong with machine error. So error logs, both things.

[00:29:41] Speaker 06:
And so the question is, and the original owners, the holders of the copyrights to the software, have precluded access to that software unless someone buys a license for purposes of repair and maintenance.

[00:30:00] Speaker 06:
That's fine. That's the argument I haven't understood all along. So it's the purpose with which someone comes in to repair and maintain.

[00:30:09] Speaker 02:
Right, and so I think the distinction between the two kinds of software ultimately comes back to the question whether this was an original intended use of the software. And whether or not you think that it is marketed separately or not, obviously the use is an original intended use. Obviously, too, there is a market for both the service and repair work through which these separate works are monetized and through licensing.

[00:30:41] Speaker 05:
So before you get there, I just think that the critical issue in this case is defining what does the exemption cover and what type of software or computer program we're talking about here. And in terms of the record citation, the part that caught my eye is at JA 120 to 121, where this is one of the applications for the exemption, Transstate. So It says, the alleged TPMs prevent or hinder medical equipment owners and lessees and their lawful agents from repairing, diagnosing, and maintaining the medical systems and devices that they own by restricting or denying access to, and this is the key part, electronic service materials installed in the medical equipment or otherwise provided via electronic media.

[00:31:29] Speaker 05:
So that's the electronic service materials. That's the software that's aimed at actual repair.

[00:31:35] Speaker 03:
Right.

[00:31:35] Speaker 05:
And then if you skip down, it says further to perform the servicing activities, it is necessary to activate the computing processors and to execute software to operate the various components of the medical equipment. So to me, that's a different bucket of software. Further, you also have to activate the computing processors and to execute software to operate the various components. So in my mind, we have at least two buckets, the electronic service materials and the operating or clinical software.

[00:32:05] Speaker 05:
And it seemed to me that the exemption that was actually adopted focused on the operating clinical software both in terms of the analysis and its reasoning, it focused on the operating clinical software. And I think depending on which type of software you're looking at, the whole fair use analysis just falls into line. Because if you're looking at operating use software, repair is transformative, repair. And repair doesn't interrupt the market for the operating clinical software, and the exemption is fine.

[00:32:43] Speaker 05:
But if you define the software we're talking about as the repair software, then the fair use factors favor your clients, which is we made repair software You're using it for repair. That's not transformative. You are interrupting our market for repair, which is what we're doing. So I just think the key issue in this case is to define what is the scope of this exemption? What is it talking about? And I look at the plain language of the exemption, and it does not talk about repair software. Repair software doesn't fall within exactly what it says, which is computer programs that are for the functioning of the...

[00:33:22] Speaker 05:
functioning of the, whatever the language was, the functioning of the software or the device. And I don't think data files can cover repair manuals or repair software either. And I don't see the ISO manufacturers or people here as an intervener. It seems that you both win. We uphold the exemption and it doesn't include repair software. And I think that that's the best reading of this exemption.

[00:33:51] Speaker 02:
And I would say, Your Honor, I think we've been operating from the perspective that the library granted the proponents the exemption that they asked for. I don't want to argue against myself, though.

[00:34:01] Speaker 06:
So if you are inclined to approach the case in that way— It seems like you would be most inclined of all to read the exemption that way, if it could be read that way. But let's just read it.

[00:34:12] Speaker 06:
Computer programs that are contained in and control J652. Mm-hmm.

[00:34:19] Speaker 06:
Because the eighth one was just carried forward in the ninth. Computer programs that are contained in and control the functioning of a lawfully required medical device or system.

[00:34:29] Speaker 06:
That includes both the repair stuff and the clinical operational stuff. How does the repair stuff control the functioning? And related data files.

[00:34:40] Speaker 06:
When circumvention is a necessary step to allow the diagnosis, maintenance, or repair of such a device or system. Okay.

[00:34:50] Speaker 06:
Now, yes, and I will tell you have read that from day one, both in the eighth and the ninth, and you've protested vehemently to the librarian.

[00:35:00] Speaker 06:
But you're opposed to it.

[00:35:03] Speaker 06:
With the full understanding of everybody. That this includes when it says computer programs, it's all of them that are in the device, right?

[00:35:17] Speaker 06:
contained and in control, repair things control. How you repair it controls the operation or the functioning operation of a lawfully required medical advisor system.

[00:35:30] Speaker 06:
It's all those computer programs. I guess you could have brought a challenge that says, we aren't sure what this covers. It's too vague to understand. You could have said, we're going to read it as not doing exactly what the librarian thought she was doing and what was asked for and what we vehemently protested against for pages and pages and pages and brought a fair use challenge.

[00:36:03] Speaker 06:
This is just a protection against.

[00:36:06] Speaker 06:
infringement, right, of determination as to infringement, but you still can challenge something as a fair use in a particular place, right? If she's making sort of a global likelihood assessment, you could have gone after them and made this argument, and that would be the place to sort that out.

[00:36:23] Speaker 06:
But the district court, I mean, you and other medical device manufacturers throughout the 8th and the 9th rulemaking procedures have were quite, not quite, I'm gonna use the wrong verb, exercise, I don't mean that in a negative way, but quite vehement in your opposition to it.

[00:36:45] Speaker 06:
Because you read computer programs that are contained in and control the functioning of a lawfully required medical device or system includes those components of the computer programs that assist with maintenance and repair and diagnostics.

[00:37:02] Speaker 02:
Well, and I will tell you, regardless how we were interpreting it, that's how the 10,000-plus ISOs are interpreted.

[00:37:08] Speaker 06:
That's why you're here, because that's how you've interpreted it. Well, it's how we've... That's why you went to district court, and that's why you're here, because you've interpreted it as allowing the very access.

[00:37:18] Speaker 02:
As I answered to Judge Pan, we have understood the exemption to be a grant of the exemption that the proponents requested, and the proponents were very clear that they wanted access to... I'm thinking that maybe...

[00:37:32] Speaker 06:
you've thought about this more than just, well, that's what they argued for. Because people who are on opposite sides of litigation don't always just go, well, if you argued for it, you must have gotten it. I mean, that's what this language encompasses. You guys are the copyright holder.

[00:37:47] Speaker 06:
That's how you've read it, as allowing what you consider an appropriate infringement of your copyright. Are you of the view that the eighth and ninth rulemakings unlawfully allow infringement of your copyright in the computer software and these devices.

[00:38:05] Speaker 02:
Well, yes, Your Honor.

[00:38:07] Speaker 06:
I think if you read the explanation... Even though all it allows is access necessary for repair. You've still read that as... I mean, this is your position here, right? That unlawfully, when it allows access only as necessary for repair and maintenance, it is infringing your copyrights in the computer programs that are embedded in your medical device?

[00:38:32] Speaker 02:
Our position, Your Honor, has been that when it allows access to separate diagnostic and maintenance-related service tools and written works... Is that access to your computer programs that are embedded in your medical devices in which you hold a copyright? Your Honor, I'm not sure what embedded means. I will agree they're stored on. Embedded is not...

[00:38:56] Speaker 02:
concept, really, that I understand in this context.

[00:38:58] Speaker 06:
I will use this one, that are contained in.

[00:39:01] Speaker 02:
Yes.

[00:39:01] Speaker 06:
Is there a difference between embedded and contained in?

[00:39:05] Speaker 02:
Embedded to me sounds like inextricable. I mean, these things can be uninstalled, right? I mean, it is a software program.

[00:39:11] Speaker 06:
That's my choice. All right. So contained in, right? So, I mean, your copyright is in the software that is contained in your medical devices, your clients, to be clear. Right. Yes. Right. And you don't want access to that. You've opposed it when your protections, your keys, are allowed to be circumvented as a necessary step for diagnosis, maintenance, or repair.

[00:39:44] Speaker 06:
Yes. That's what this thing authorizes. And you say that is what's unlawful because they allow circumvention of your copyright protections For diagnosis, maintenance, or repair.

[00:39:57] Speaker 02:
Yes.

[00:39:59] Speaker 02:
I think we've been consistent about that.

[00:40:02] Speaker 02:
But here again, Your Honor, I'm not going to argue against myself and Judge Pan's view that maybe the librarian did not succeed in giving the proponents the exemption. Twice.

[00:40:15] Speaker 02:
The breadth, well, twice. I mean, it just...

[00:40:19] Speaker 02:
Agreed to uphold it again the second time.

[00:40:20] Speaker 06:
I'm unclear why were you coming back to oppose the ninth rulemaking if you're perfectly content with the eighth?

[00:40:28] Speaker 02:
Well, but again, Your Honor, I mean, like lawsuits like this are broad based in practical reality and not just abstractions about how to read these things. ISOs have interpreted this exemption as permitting them to circumvent.

[00:40:40] Speaker 06:
But you could say we don't and we're going to bring a fair use suit against any or an infringement suit against any individual that does so.

[00:40:48] Speaker 02:
Yeah, although circumvention of a technological protective measure is a different issue from infringement.

[00:40:56] Speaker 05:
You bring enforcement actions for this measure, though.

[00:41:02] Speaker 05:
I'm sorry, I don't follow. It's all over the record that OEMs aggressively bring enforcement action, lawsuits for circumventing your TPMs.

[00:41:15] Speaker 02:
Yes, there is a lawsuit in the record that concerns pre-exemption efforts by TransState to circumvent the technological protective measures at issue here.

[00:41:25] Speaker 05:
So Judge Melez is saying you can continue to do that and just say that this exemption doesn't

[00:41:29] Speaker 02:
Yeah, I mean, that is an option. That doesn't mean that bringing an APA suit against the exemption is not also a valid option.

[00:41:37] Speaker 06:
I'm just back to saying I'm not sure what language in here doesn't cover the components of your computer programs.

[00:41:45] Speaker 02:
So, Your Honor, that sounds like a disagreement maybe with the way Judge Pan is conceptualizing the case, but that just puts the highlight on our fair use argument.

[00:41:54] Speaker 06:
Well, I guess there's no dispute that, well, if it's a computer program, which it is, you're not handing out paper manuals, repair manuals.

[00:42:04] Speaker 02:
Right. No, we know. Actually, we are. I mean, part of what's going on here is covered by this.

[00:42:09] Speaker 06:
No, they are right.

[00:42:11] Speaker 02:
I mean, that's related data files. So that would be like PDFs of of repair manuals for with instructions on how to diagnose and repair the machine. That is like a classic written work.

[00:42:24] Speaker 06:
I didn't know you guys still did classic written work.

[00:42:26] Speaker 02:
Well, there you go. I mean, it's there. And that's covered. We think that certainly ISOs are reading it as being covered by the data files.

[00:42:34] Speaker 06:
I just thought it would be under the types of keys that are regulated by the DMCA.

[00:42:37] Speaker 02:
Well, I mean, it's a bulk. If you want, yes. I mean, it's behind a technological protective measure. It's just like an MP3 is covered by the DMCA.

[00:42:48] Speaker 06:
Oh, so it's still a computer file. Your PDF. I'm sorry. It's a printed out PDF.

[00:42:51] Speaker 02:
Correct. Correct. No, no. I'm sorry. Yes, no, it's a PDF. I'm old enough to remember paper manuals. Yeah, so it's part of the, yes. Yeah, but it isn't like a software file, right? It is a written work that you read on a screen or you can print out if you like, but it's still a written work.

[00:43:09] Speaker 06:
Access to a computer program. Do you have to get into the... I assume you have to get into the computer programs on this device to see those.

[00:43:15] Speaker 02:
I think it's just a stored file on the device, Your Honor.

[00:43:18] Speaker 06:
On the device.

[00:43:18] Speaker 02:
Yeah. I mean, so you need to activate the device. And this case is not about the copying necessary for activation. We concede that's covered by 117C. So that's not what this case is about. This case has never been about what's necessary to turn the machine on.

[00:43:31] Speaker 05:
If this exemption was intended to cover all computer programs within the device, it would just say computer programs... contained in the device, but it says contained in and control the functioning of the device. And the control, the functioning sounds to me, the plain reading of that is the operation clinical software. Like you don't need repair software to control the functioning of a device.

[00:43:56] Speaker 03:
Yeah, you do.

[00:43:57] Speaker 02:
Yeah. I mean, I think ISOs disagree, Your Honor. Do you disagree?

[00:44:02] Speaker 05:
Can you explain how that would work? How did the repair...

[00:44:07] Speaker 02:
That hasn't been just candidly. It hasn't been a litigated issue in this case. So that is not something I'm prepared to explain, Your Honor.

[00:44:15] Speaker 06:
I will argue that you haven't argued that it's not included.

[00:44:19] Speaker 02:
Well, it's a question about the interpretation of the exemption. And this is an APA case challenging.

[00:44:24] Speaker 06:
You have consistently interpreted it.

[00:44:27] Speaker 06:
To recover.

[00:44:29] Speaker 02:
Yes. We are challenging it consistent with the way in which the proponents requested it. That's correct.

[00:44:38] Speaker 06:
We have taken as given that the grant- Are you aware of any medical device manufacturer that has interpreted the eighth or the ninth same thing differently?

[00:44:48] Speaker 02:
I'm not privy to how my client's members have interpreted the exemption.

[00:44:56] Speaker 00:
And I just want to jump in here for a little bit. Just a couple of things with respect to the 10th triennial rulemaking. What, if at all, effect do you anticipate from that rulemaking with respect to this case?

[00:45:10] Speaker 02:
Well, Your Honor, that rulemaking hasn't commenced yet. It's going to commence, I anticipate, next month. I imagine and certainly we are expecting that ISOs will seek a renewal of the exemption. If it is not renewed, it will expire on its own terms at the end of the three-year period from the 9th. So we expect them to renew it and we expect to make the same arguments that we've been making all along in this litigation.

[00:45:32] Speaker 06:
What is the date of expiration?

[00:45:35] Speaker 02:
It's October 2024, so October 2027, it will cease. Okay.

[00:45:45] Speaker 06:
Are you all planning to oppose the extension or renewal?

[00:45:48] Speaker 02:
Is it renewal or whatever it's called? I expect we will oppose it on the same grounds that we have, that these uses are not fair uses. They're substitutive commercial uses that by no means constitute fair use.

[00:46:02] Speaker 02:
And that obviously is where the thrust of this litigation until now has focused.

[00:46:09] Speaker 05:
Why do you put your repair materials on the device? Because if you really want to maintain control over them, you don't have to put them on the device, do you? Or your clients don't?

[00:46:17] Speaker 02:
Yeah, I suppose they don't. I think it's the same reason that you might put reload antivirus software on a computer. It's more likely that the end user will end up paying for a license to use that software if it's already there and readily accessible. There may be other conveniences. There may be other security reasons to do it.

[00:46:39] Speaker 02:
I don't know for certain, Your Honor, but I think the premise of your question, could these devices be delivered without the software, I understand the answer to that question to be yes.

[00:46:48] Speaker 00:
And I just want to be clear, when you're talking about the functionality of the medical device, what is the distinction between those programs or files versus what you perceive are required to diagnose, perform the maintenance, or repair the medical device? Or are those overlapping?

[00:47:08] Speaker 02:
And I'm sorry, Your Honor, those are overlapping with what? What was the first category?

[00:47:11] Speaker 00:
Well, the functionality. Functionality versus diagnosing, performing maintenance, or repairing.

[00:47:19] Speaker 02:
JOSHUA SHARFSTEIN. Right. So we understand the functional software, the operating software, to be the operating system, which we've explained is typically Linux or Windows, plus what Judge Pan has described as sort of the clinical operating software that runs the machine itself. That's distinct from the diagnostic tools, which, for example, will run diagnostics on the hardware itself and identify faults with with hardware, maybe identify hardware that needs to be replaced and that isn't working properly.

[00:47:52] Speaker 02:
It might also indicate where software faults are happening and also includes things like error logs, which record historically where faults have happened.

[00:48:05] Speaker 06:
And all of that is... Sorry, are error logs part of the clinical operating system?

[00:48:13] Speaker 02:
Or solely for... I don't understand things like error logs to be necessary for a machine like this to operate. So certainly the way that we have conceptualized it is that it is distinct from the operating system software.

[00:48:28] Speaker 00:
And then for the Warhol case, do you see there being a distinction in that case between repairing a device and operating a device?

[00:48:36] Speaker 02:
I don't, Your Honor, and I think Warhol is really clear about just how substantial a difference it must be to qualify as a transformative use.

[00:48:48] Speaker 02:
And Warhol is, I think, especially helpful because it frames it in terms of the first principles of copyright law, which is about protecting the authors of creative works from copyists who want to put copies of those works to use in a substitutive commercial way.

[00:49:07] Speaker 02:
If a use and purpose of a copy is so different that it isn't substitutive, which might be the case, for example, with a parody or criticism, then it's likely to be transformative. But that obviously does not describe what's going on here.

[00:49:23] Speaker 00:
But it also seems that you don't have a lot of evidentiary support in the firm of declarations from technical programming experts or market experts with respect to all of these technical distinctions.

[00:49:37] Speaker 00:
Was there a reason for that?

[00:49:38] Speaker 02:
Mr. I guess there are two answers to that. The first, Your Honor, is the evidentiary burden is on the proponents of the exemption. It's not on opponents of the exemption. And we, respectfully, Judge Mileta, I understand you may see it differently, but I think we were clear in our comments, and I think the declarations in support of the proponents were clear that these were competitive services that were using the software for the same basic reason. And so it was not on us to explain why it's not transformative.

[00:50:09] Speaker 02:
It was on the proponents to explain why it is. And they certainly didn't carry that burden. They seem to have acknowledged that there is a commercial substitutive effect here. And really, that was built as the purpose of this exemption.

[00:50:21] Speaker 00:
And you mentioned the triad systems case, but that came out before the Digital Millennium Copyright Act. So tell me about what you perceive as the relevance.

[00:50:31] Speaker 02:
Yeah, well, I mean, this is about fair use and fair use obviously predates the Digital Millennium Copyright Act. The DMCA didn't alter the fair use analysis. Triad Systems came out one year after Campbell and the librarian herself at the time at page 600, excuse me, not.

[00:50:51] Speaker 02:
Not fair. Sorry, I don't. I think it's 868 of the joint appendix says that between Campbell and Warhol, there was no meaningful, relevant change in copyright law, in fair use law.

[00:51:08] Speaker 02:
and that all Warhol and Google did was confirm the same basic analytical framework that Campbell applied. Well, Triad Systems applies the Campbell framework. It came out one year after Campbell, and it checks all of the same analytical boxes that the court's contemporary fair use analysis does. So I think to hold here that this is not that this is a fair use to put these works to use in the service and maintenance market competitively with the authors of the works would create a square circuit split with the 9th.

[00:51:43] Speaker 05:
Well, I think the argument to distinguish triad systems is that we're talking here about the operating system clinical software and whether that's being transformed for use in repair. The triad is straight on about repair software.

[00:51:56] Speaker 02:
Well, I will acknowledge, Your Honor, the caveat of my observation is that we're talking about the diagnostic tools and other service-related materials that the proponents sought the exemption to cover. Again, if they failed in actually getting an exemption to cover those materials, we'll take that as a win.

[00:52:13] Speaker 05:
I mean, the reason I have trouble with that analysis is the whole fair use analysis doesn't address repair software. It addresses the operating clinical software. That's why they're saying it's transformative. It's transformative to use operating clinical software for repair services. That's not what the operating clinical software was for. And using operating clinical software for repair services doesn't, impinge on the market for operating clinical software, but the analysis you posit is different because you are assuming that it's the repair software.

[00:52:49] Speaker 05:
It's very confusing because you're arguing counterfactually to what it seemed to me the exemption was holding and what the reason for upholding the exemption is. It focuses on the clinical operating software.

[00:53:03] Speaker 02:
So, and Your Honor, if you were to write an opinion to that effect, I think it would be a very important direction to the market. It is not consistent with the way the market is working right now.

[00:53:14] Speaker 02:
ISOs are relying on the exemption for the sorts of diagnostic software and tools and other service-related materials.

[00:53:23] Speaker 02:
that are discussed in the administrative record. And so I think it would be very, very helpful for all of us for the court to state expressly and plainly that the exemption, in fact, does not cover those materials. And as I say, if the court were to take that approach, I think we would be happy with that outcome.

[00:53:41] Speaker 00:
Is this about essentially intentionally leaving ISOs out in terms of being able to repair any of these devices?

[00:53:51] Speaker 02:
No, ISOs are free to purchase licenses on their own. Of course, they won't be able to provide services at 50 percent less if they do. That's the whole point.

[00:53:59] Speaker 02:
They can also develop their own diagnostic software and repair manuals.

[00:54:04] Speaker 02:
The fact is they don't want to do that because they don't want to be subject to FDA regulation. They don't want to take on the cost of research and development necessary to do it, and they don't want to pay a license. They just want a free ride.

[00:54:16] Speaker 02:
So they have options, but those options don't allow them to undercut the authors of the works 50% off. So they're not going to do it.

[00:54:31] Speaker 06:
Tell me how a repair person shows up. So with this exemption, let's assume the exemption is letting them come in to access the computer program so that they can do repair.

[00:54:44] Speaker 06:
is there, which are otherwise under some sort of digital lock, So does this exemption mean you unlock, that you give people? How physically does this happen?

[00:54:57] Speaker 02:
CHRISTOPHER KREBS- Yeah, so there are different tools for circumventing these measures. One is called just brute force.

[00:55:05] Speaker 02:
They potentially cause damage to the code when they do it. But suffice to say, they break through the encryption, the password encryption. And once they do, the system is open to them. It's open to them, I would say, by the way, in ways that would be inconsistent with training and safety requirements set by FDA.

[00:55:23] Speaker 06:
STEPHANIE DESMOND- Are they separately encrypted, these things that you call the subcomponent or set of software? Is it separately encrypted, or is it just an encryption for the programs?

[00:55:33] Speaker 02:
DR. I understand it to be separately encrypted, and it may be that there are two different steps of decryption necessary.

[00:55:41] Speaker 02:
I will say that's not in the record.

[00:55:44] Speaker 06:
So do they first have to get into the programs?

[00:55:50] Speaker 02:
Yes. And sometimes the way they do it is they'll get a license key from the owner. The owner of the machine will have a license to operate the machine. They've got a license key to do so. Our position is they're violating the license to share the license key with an unauthorized third party. But sometimes the ISO will just get the owner's license to open the machine.

[00:56:13] Speaker 02:
Sometimes they'll use brute force. Sometimes there are different layers of encryption, and they'll have to use brute force for sort of secondary layers with respect to other parts of the machine. But all of this is not in the record.

[00:56:31] Speaker 02:
Oh, I'm sorry.

[00:56:33] Speaker 02:
I don't want to misspeak. The tools that they use, like the brute force and the damage that it may potentially cause both to the security and the sort of integrity of the machine, that is in the record. How, you know, whether the repair tools are subject to their own separate encryption is a separate issue. That I do not understand to be in the record.

[00:56:59] Speaker 05:
So I have a methodological question.

[00:57:04] Speaker 05:
If we view all of the software at issue or computer programs at issue to be one mass of computer programs, and it's a mix of repair materials and operating clinical stuff, how do we do the fair use analysis if it's a mix of the two?

[00:57:25] Speaker 02:
Well, fair use turns on use. So the question is, what are they using and for what purpose?

[00:57:32] Speaker 02:
Our argument about fair use does not concern the use of the operating system and what you have characterized as the clinical operating software to operate, to turn on and operate the machine.

[00:57:47] Speaker 05:
So if the exemption is meant to cover all of the programs, a mixture of the two, you can just challenge the use of a section of it.

[00:57:55] Speaker 02:
Right.

[00:57:55] Speaker 05:
A subsection of it. Right. You're just challenging the use of the research, I mean, the repair materials.

[00:58:02] Speaker 02:
That's right, Your Honor. And again, I would point the court, and I'm sorry, I've got it buried now, to the Ninth Circuit's analysis and triad systems at page 1337, where it describes how the way that these works are monetized, the way that they are marketed is in the market for maintenance and repair services.

[00:58:25] Speaker 02:
And so they are separately licensed. The access to these works is sold separately from the machine itself.

[00:58:34] Speaker 02:
And typically, the way they're monetized is you hire a manufacturer's own servicer who comes with access to these works, or you can buy a license.

[00:58:43] Speaker 05:
But I guess my question is just, I'm just thinking through like how we would analyze this, where it seems that if you do the fair use factors and think about repair software, it's one analysis. And if you do the fair use factors and you think about operating factors, it's kind of a different answer. And we're looking at one exemption and whether it's arbitrary or capricious or not, or whether it should be upheld or not, and they're mixed together.

[00:59:15] Speaker 05:
So I don't, I don't know how to handle the fact that these things are mixed together and you get different answers depending on which one you focus on. Do you focus on the most prevalent kind of software or computer programs that's subject to the exemption?

[00:59:33] Speaker 05:
Or if any use of the exemption can inhibit users in three years, then it's OK. Because the operation clinical stuff, I think it's not infringing.

[00:59:47] Speaker 02:
No, I think it's the other way around.

[00:59:50] Speaker 02:
So this is an APA case, so the remedy that we're seeking is in order setting aside the exemption. I don't, you know, thinking about maybe like an as-applied injunction that limits the application of the exemption. We haven't asked for that.

[01:00:02] Speaker 05:
So you want to set aside the whole thing, but it might be perfectly fine with respect to uses of clinical operation? Well, but...

[01:00:10] Speaker 02:
But 1201 requires the librarian to make a determination, quote, of whether persons will be adversely affected by the prohibition under subparagraph in their ability to make non-infringing uses under this title of a particular class of copyrighted works. So the non-infringing uses has to be tied to the class of copyrighted works.

[01:00:34] Speaker 02:
to which access is permitted by the exemption. If the exemption is giving access to a class of copyrighted works as to which use would be infringing, then it is a violation of— What if it's a mix, though?

[01:00:48] Speaker 05:
Because if the class of works is all of the computer programs, both repair and clinical operating, then it would adversely affect some of the non-infringing stuff, which is operating clinical stuff. JOSHUA SHARFSTEIN.

[01:01:05] Speaker 02:
Right. It's just to say, I think the library has to tailor the exemption to the non-infringing uses that it determines may take place. It can't write an overbroad exemption that unnecessarily sweeps in. STEPHANIE DESMOND.

[01:01:20] Speaker 05:
But that's not the argument you made, right?

[01:01:23] Speaker 06:
I have the burden of proof here.

[01:01:25] Speaker 02:
No, right. I mean, look, our position is that the exemption authorizes ISOs to circumvent technological protective measures with respect to infringing uses of a class of copyrighted works covered by the exemption.

[01:01:45] Speaker 02:
If an exemption covers a class of copyrighted works as to which there are not non-infringing uses, then it is an arbitrary and capricious exemption.

[01:01:56] Speaker 06:
Wait a minute. If you are agreeing that the exemption is fine as to what we'll call copyrighted Operating and clinical. Operating clinical software. Then it was on you to say we're only, we want a tailored, you've asked for the entire exemption, not for a tailored injunction.

[01:02:15] Speaker 02:
That's exactly right, to be clear. We have not conceded that it's okay.

[01:02:19] Speaker 06:
We have focused... So you also dispute access to the operational...

[01:02:24] Speaker 02:
Sorry, clinical. No, Your Honor, we just haven't brought that challenge.

[01:02:27] Speaker 06:
I mean, either you take it, if you haven't challenged it, you're out of time to challenge it, then you're accepting it as valid.

[01:02:36] Speaker 02:
We are challenging the exemption on the basis that it grants the right to circumvent technological protective measures with respect to manifestly infringing uses.

[01:02:48] Speaker 05:
But if there are also non-infringing uses, it seems that it would fall within this provision because there are also, it is inhibiting ISOs from making non-infringing uses of the operational clinical software.

[01:03:02] Speaker 02:
Well, I think there are two answers to that, though. The first, again, and I understand, Judge Pan, you see this differently, but I think 117 solves that problem. But set that aside, Your Honor.

[01:03:15] Speaker 02:
It's like, how do you define the particular class of copyrighted works? The library can't circumvent this limitation on granting access only for non-infringing uses by writing unnecessarily over broad descriptions of the class so that it captures both infringing and non-infringing. We are challenging the application of this. We are challenging the grant of a right to circumvent with respect to a particular class of copyrighted works as to which all uses are, we take the position, are infringing because they are not fair use.

[01:03:51] Speaker 06:
Including clinical operation, operational clinical, operational clinical software.

[01:03:56] Speaker 02:
Well, again, we haven't made that argument.

[01:03:58] Speaker 06:
No, I understand, but you're seeking to vacate the entire exemption.

[01:04:01] Speaker 02:
Well, right, and so the proponent... We don't get to. No, of course we do. No, the proponents are free to come back and ask for that narrower exemption if that's what they want.

[01:04:10] Speaker 06:
No, no, no, no, no, no, no, no. We're talking now about relief you sought from a district court, not from the librarian.

[01:04:18] Speaker 02:
Well, and I was talking about what the ISOs could be.

[01:04:19] Speaker 06:
And you're appealing the decision of the district court.

[01:04:24] Speaker 02:
Right.

[01:04:24] Speaker 06:
You never asked the district court to issue this narrow injunction.

[01:04:30] Speaker 02:
That's correct.

[01:04:31] Speaker 06:
You want the entire exemption thrown out. So...

[01:04:36] Speaker 06:
Is your answer, is that because you consider access to operational clinical software also infringing?

[01:04:45] Speaker 02:
No. We have not made that argument, Your Honor.

[01:04:49] Speaker 06:
I understand you haven't made that argument, but to the extent that this exemption covers both categories.

[01:04:55] Speaker 03:
Right.

[01:04:56] Speaker 06:
then that's worse for you. Because if you acknowledge that it covers both operational clinical software and repair software, as you must, and that's what you even told the district court in your briefing there, that you have to use both for the repair process, but then you didn't ask for relief that was tailored to- Well, it's because the APA- Not the operational clinical software.

[01:05:18] Speaker 02:
The APA says set aside. But let me say, I think it would be a strange- It's set aside in part or in whole.

[01:05:23] Speaker 06:
That's not an argument.

[01:05:26] Speaker 06:
Courts do it all the time. We do it all the time.

[01:05:31] Speaker 02:
We do it a lot. I will tell you, Your Honor, it would be an unusual interpretation, I think, of 1201A1C to say that the librarian is free to lawfully adopt exemptions that are overbroad, that cover both infringing uses and non-infringing uses.

[01:05:50] Speaker 06:
Look, agencies do things, and if nobody challenges them, whether they are overbroad or not or unreasoned, is of no interest to this court. Someone brings a challenge, and that challenger has a burden of proof, both as to the arguments they're making, the record they're creating, and the relief that is sought.

[01:06:12] Speaker 06:
And your relief that was sought was to get the whole exemption gone, even though I think you agreed that the exemption covers use of operational clinical software also as part of the repair and maintenance process.

[01:06:29] Speaker 06:
So you overshot.

[01:06:31] Speaker 02:
Yeah, look, our argument is that the exemption is arbitrary and capricious as, again, Judge Pan, taking as given that the library succeeded in granting the exemption that the ISO sought, which was an exemption for diagnostic software and related service materials.

[01:06:53] Speaker 02:
And indeed, if copying those materials and putting them to their intended uses in commercial competition with manufacturers is not fair use, then the exemption is, in fact, arbitrary and capricious.

[01:07:06] Speaker 06:
Any more questions?

[01:07:08] Speaker 06:
Hey, Shiles, do you have any questions? All right. We've kept you up a little bit of your time. I think we'll just give you some time for rebuttal.

[01:07:13] Speaker 02:
Thank you.

[01:07:21] Speaker 01:
Good afternoon. May it please the court, Laura Myron for the library. I'd like to start with a basic point of copyright law that I think might help with some of the confusion about the sort of repair software mixed fair use question. And I think the point that's really important that is missed a little bit in this case is that access itself is not copyright infringement. That in order, and this court sort of and elaborated on the distinction between access to things that are behind technological protection measures and copyright uses that are infringing on copyright in green.

[01:07:57] Speaker 01:
When it said you can access something and that's different, that might give rise to liability under 1201, but it's not copyright infringement. In order for there to be copyright infringement, there must be copies that are made. And what we're looking for is the use of those copies, not the use of the software when the technician is employing it. The repair software to the extent that the court conceives of it as such, as opposed to diagnostic tools that are embedded in the suite of software that is being sold as part of this machine, isn't itself repairing the MRI machine or the ventilator or whatever the medical equipment is that the technician is using.

[01:08:37] Speaker 01:
And the repair technician is not retaining copies of that software, not selling it to the next client who is looking to have their machines repaired, not putting it into or developing their own MRI machines. And so it is very reasonable for the librarian to conclude that those copies that are incidentally created as part of that repair technician's access to the software are non-infringing use of of those original works. And that is underscored by the fact that there is, of course, no standalone market for the original work.

[01:09:10] Speaker 01:
And as the Supreme Court highlighted in Google.

[01:09:13] Speaker 05:
So doesn't that just depend on how we define the original work, which is the thing that's confounding me? Because if you define the original work as repair software, there apparently is some kind of a market for that, like a licensing market.

[01:09:26] Speaker 01:
No, I don't think that's right. Because the question isn't whether there's a secondary market for repair technicians who might come and use the software. The question, and this is quite clear in the Supreme Court's case in Google, is the market for the original work. And so the question that the librarian is answering and that the court has to answer is whether, because somebody is accessing this software in order to make repairs, the hospital is less likely to buy the MRI machine or the ventilator or whatever it may be because they're getting what they would otherwise get from a different source.

[01:10:02] Speaker 01:
And that's just not a competing product. The copies that are generated as part of the use, doing the repair, are not a competing product on the market for the original work.

[01:10:16] Speaker 05:
And I think- I'm a little confused by that. If the original work is the repair software that the OEMs created, and- you're saying that other people can access and use it freely and do whatever they want. That's not an infringement?

[01:10:33] Speaker 01:
It may be. So the question of whether you can access it and whether it can lawfully be put behind digital locks is a question under 1201. So you could It is not infringement to access a product that is subject to digital protection measures if there's an exemption to 12.

[01:10:50] Speaker 05:
Because all the fair use stuff comes in when we talk about this other standard about whether they'll be infringed. It's an inhibiting and non-infringing use.

[01:10:58] Speaker 01:
Right. So I think the question is whether the copies that are made sort of incidental to the repair technicians running the program are infringing copies, because it's a copyright. It has to be a copyright use, whether those are infringing copies. And I think Google is a helpful comparator because, and I think, if I could just step back a second. So software is obviously subject to copyright protection, but it is subject to the copyright protection for its expressive qualities, not necessarily for its function.

[01:11:28] Speaker 01:
That's the Ninth Circuit's case in Sony, and also Google and other cases support that, agreeing in this court's jurisprudence.

[01:11:39] Speaker 01:
And so what you're looking at in Google is a situation in which somebody copied a chunk of software and put it in their own platform. And the Supreme Court said, and of course, that software does exactly in the new platform that runs the same functions that it runs in the original platform. And the Supreme Court said that that was fair use. And so just the fact that the software sort of runs the same function as part of its use by the repair technician Doesn't mean that the copies that are created are infringing the original copyright holder's copyright.

[01:12:15] Speaker 05:
How do you infringe the copyright?

[01:12:16] Speaker 01:
So I think if this were to be a much harder case, if the repair technician was downloading the software and taking it with him to another place, to fix the next MRI machine, or downloading the software and using it to make his own repair software that he's selling as an alternative to what's embedded in the machine, or creating some sort of secondary market for the original software. But that's not at all what's happening. What's happening is the technician is accessing the software and using it for the sort of transformative purpose of fixing the machine.

[01:12:52] Speaker 01:
And then any copies that are produced incidental to that use are destroyed. There's no sort of retention of the software.

[01:13:02] Speaker 01:
repurposing of it into something that is being sold as a, and this is from Campbell, a substitute for the original work. And I think that is what makes it a fair use. That the use, the copies that are created incidental to the access in order to repair the machine are not substitutes for the original copyrighted work. We're not suggesting that there isn't a downstream market for repair technicians, but that's not the market...

[01:13:30] Speaker 05:
Are you saying that unauthorized use of repair software is not a copyright violation? Yes. Because that's kind of what I'm hearing from the other side. We made the software. We want to license it. You're not paying us for it, so you're infringing our copyright. And you're saying that's not a copyright infringement.

[01:13:47] Speaker 01:
Yes. You might have a contractual disagreement about what exactly you purchased, or you might have, if they were in fact copying your software and making a competing product, You know, I think Google tells us that that is not necessarily a copyright infringement, but that is closer to the canonical case of copyright infringement. It is, I think, absent the exception under 1201, a violation of the DMCA to access and use the software because it's behind digital locks, because you don't otherwise have access.

[01:14:19] Speaker 01:
the ability to use it. And that's why the librarian created this exception, because it was a violation of the DMCA. The original equipment manufacturers were litigating those cases in order to protect their rights and were bringing DMCA 1201 cases. And so I would also note, as far as I know, in none of those cases Did the original equipment manufacturers include as a second claim on the complaint that also the use is violating our copyright?

[01:14:55] Speaker 01:
So they have never litigated those questions as questions of copyright infringement.

[01:15:02] Speaker 01:
Because of the way 1201 works, they didn't necessarily need to for there to be an unlawful use. But I think it's telling that they have never brought those suits as also copyright infringement suits.

[01:15:15] Speaker 01:
And I would also note, nothing in the exception precludes them from bringing the suits now to the extent they think that the librarian's fair use analysis was incorrect. The fair use analysis speaks to only the exception that is created for DMCA Section 1201 liability. It does not preclude any. So if there were, and of course, an Article III court would not be bound by the librarian's determination that this was likely a fair use in any subsequent suit.

[01:15:47] Speaker 05:
It is your intention in this exemption to cover repair software as well as operating system software?

[01:15:55] Speaker 01:
I don't think that this has ever been understood in the administrative record or the litigation to date as two separate categories of software.

[01:16:07] Speaker 01:
Different pieces of the software might have different functions and serve different purposes, but I think it has always been understood. And I have a number of record citations I'm happy to point you to, although I understand there's been some back and forth already about highlighting some of those provisions.

[01:16:22] Speaker 05:
And I think that- I would be interested in what makes clear that this is one suite of software, because when I was reading it, it looked to me like there was a lot of discussion about repair software And further, they needed to access operating software. That seemed to me to be two categories of software.

[01:16:39] Speaker 01:
So I think even if you, I guess what I would say is sort of back up before I get to the record citations, and I'm happy to provide some, is that the exception, as your honor, was reading covers Computer programs that are contained in and control the functioning of a lawfully acquired medical device or system. And that includes the functions that these various diagnostic tools are doing, right? It includes the fact that when the system malfunctions, it spits out an error code that says error 1201, or whatever the case may be.

[01:17:09] Speaker 06:
And you can- Does that control the functioning?

[01:17:11] Speaker 01:
The software, like one of the functions, I guess what I'm saying is one of the functions of these machines is to be able to tell a repair technician what is wrong with the machine. That's a function of the machine. It is not just that it takes an MRI of your brain.

[01:17:25] Speaker 05:
That's my... So I don't see how repair software controls the functioning.

[01:17:31] Speaker 01:
I think the point I'm trying to make, Your Honor, is that I do not understand there to be a sort of separate piece of the software package that is just repair software, that is a program that you can stick in that fixes the machine.

[01:17:46] Speaker 01:
The way that this has been sort of litigated both in the administrative record and before this court is that there are a number of different components of the software that serve different purposes. There are error logs. There are event logs. There are related data files. There are things that have to do with the calibration of machines. And there are half a dozen declarations from technicians that talk about the kinds of things they need access to. And this sort of starting in the record on page 1055 and going through, you know, 1063, 1067, 1072, 1078, 1119.

[01:18:17] Speaker 01:
I'm happy to. Yeah, so I think 1119, which was discussed previously, is one of our best ones. And flip to it here.

[01:18:36] Speaker 01:
So it says, the types of software and data files that equipment manufacturers restrict or limit access to include service logs, comprehensive diagnostic tests, error codes to identify specific hardware failure, servers and IP addresses, remote diagnostics, Windows access, touch panel calibration, backup system settings with licensing and software updates for compatible hardware.

[01:18:59] Speaker 05:
So you're saying that's a mix of stuff.

[01:19:01] Speaker 01:
Absolutely. I'm saying that those are things that control the functioning of the equipment and include related data files.

[01:19:09] Speaker 06:
What's going on here?

[01:19:11] Speaker 06:
Maybe what functioning means? I mean, if the way things are designed to function now is not just to...

[01:19:21] Speaker 06:
push the air in the lungs or take the MRI, but in fact, to alert medical officials when there might be a problem with the machine, just like cars functioning systems now alert me when that low tire pressure. I don't mean to mix exemptions here, but low tire pressure. How do we define the function? And is that, sorry.

[01:19:42] Speaker 01:
I think that's right. And the point I'm trying to make, I think, is that the function doesn't just include taking a picture of a brain or you know, doing the sort of outpatient facing part of it. It also includes the functions of the machine itself. But how does that control? That allow, well, the software controls the function that, for example, spits out an error code.

[01:20:05] Speaker 06:
It says control the functioning.

[01:20:07] Speaker 01:
Oh, I see. So the control of the functioning machine. So computer programs that control the functioning of a lawfully acquired medical device or system. So it doesn't have to control the function of the, like the computer program is controlling a function of the machine. One of the functions of the machine is to provide diagnostic information when something goes wrong. And instead of being an MRI machine that turns into a brick, as soon as something blows a fuse in part of the machine.

[01:20:37] Speaker 01:
So what is happening is the software is providing information, and then- They're really expensive pieces. They are, and- They need to continue functioning for clients to buy them. And the record demonstrates that how this industry has evolved is by including more and more of these functions in the software that is sold as part of the machine and that technicians are no longer able to repair the machines with the limited access that they had prior to the DMCA exception being granted and that they needed access to things like error logs and event codes and things like that in order to be able to actually repair the machine.

[01:21:19] Speaker 01:
The software is not itself repairing the machine. And I think that that is a important point that the use isn't necessarily to repair the machine. It is to enable someone to know what's wrong with the machine and then be able to repair it. And so the question of whether something is transformative of the original work and whether it's a market substitute for the original work are answered by the fact that there's There's no software being sold separate from the machines by the repair technicians.

[01:21:51] Speaker 01:
They're not retaining copies of the software to put into new MRI machines or to create a, even in cases like Sony and Sega and the Ninth Circuit, they're taking copies of software and using it to create a competing or interoperable product. And the court said that those are fair uses because interoperability, like understanding how something works for purposes of interoperability, is a fair use. And I think same here for purposes of repair is a fair use. And the plaintiff's trick is to sort of say, because it's for repair, because that is the function of the software, then therefore it cannot be a fair use.

[01:22:32] Speaker 01:
And I don't think that's quite how to understand the fair use analysis. And I'd like to say something you articulate.

[01:22:40] Speaker 04:
Why exactly?

[01:22:41] Speaker 01:
Yeah, I give you sort of if you walk through the four steps of the fair use analysis on the first factor, the question is whether the copies are being used for the same purpose. And and you have I think the way the right way to think about it is, you know, When the software person who's coding the software sits down and writes the expression of software and says what it's going to do, he or she is doing that in order to create a program that will be put into an MRI machine that will allow it to spit out a code that says there's a blown fuse.

[01:23:15] Speaker 01:
or whatever the case may be. The repair technician isn't writing code, isn't putting it into a machine that will be sold, isn't sort of selling it to somebody else who might use it in the same way. They're looking at the sort of operation of the software and saying, oh, there's a, it says in, you know, there's a blown fuse. Yeah, they're just accessing it in order to, for the content of of what it is. And, you know, in the same way that, like, not to make a new copy.

[01:23:45] Speaker 01:
And so the use is different. And I think that also, and if I could sort of as a pin, the Supreme Court has said that factors one and four of the fair use test should be sort of considered relatedly because they inform one another. And I think it's very clear in factor four that there is no competing market for the original work. There is no competing market for this software that the repair technicians are, even the independent servicing organizations, the hospital technicians who work at the hospital that purchase the software, they're not selling competing repair software to the extent you consider this repair software or even operational software.

[01:24:26] Speaker 01:
They're selling a service. And the Supreme Court has said that we don't consider downstream effects. of uh of licensing and things like that to be whether to be relevant to the question of whether something is a substitute for the original work um if we did then i think a number of you know like as um then google would come have google versus oracle would have come out quite differently um and so and also as the supreme court said in google versus oracle i think you know like if you write a really bad theater review, that is going to have an effect on the market for the original work because people won't go see the original work.

[01:25:05] Speaker 01:
But that's not the market that we think about. The market we think about is whether or not you have created a competing play and you are using the material from the original play in a way that is infringing. And then also on the second and third factors, the second factor in particular, this is software. It is functional in its use. And the court has made very clear that that weighs in favor of fair use in this context. And of course, the third factor is how much of the software is used to be necessary for the purpose or how much of the copy is used, how much in copy of the original work is used.

[01:25:38] Speaker 05:
STEPHANIE DESMOND- How would this analysis work if it's a PDF of a manual that's now loaded onto the machine?

[01:25:44] Speaker 01:
Yeah, I think it would be the same, Your Honor, because it's not like the repair technician is taking the PDF manual with him or her to the next machine and the...

[01:25:59] Speaker 01:
they're not sort of making any copies that they're retaining or selling or using to service other machines.

[01:26:06] Speaker 05:
I don't know that the fact that it's software versus PDF makes a huge difference, but... If it's a PDF of a manual that's for repair and people are using it to make repairs, to me, that seems less transformative than your original hypothetical, which was... We've made software that spits out an error. And I'm just trying to understand how that fits and if there are some infringing aspects of this. And if so, how does that affect the analysis?

[01:26:37] Speaker 01:
I don't think so, because the question isn't whether when you read the PDF, that's copyright. that reading the PDF isn't copyright infringement. The question is whether, if you generate some copies of the PDF as part of your reading it, whether the use of those copies is a substitute for the original work. And the technician is not retaining the copies of the PDF. I think it would be different if, the technician was downloading the PDF and then taking it to the next repair appointment and consulting that PDF instead of accessing whatever is stored on the next machine.

[01:27:10] Speaker 01:
But the record makes clear that, one, that's not happening. And two, the software and the various parts here are not interoperable. And they're not taken out of one and put into another.

[01:27:24] Speaker 01:
really any support for the suggestion that there would be a market to do that because of the way these very complicated machines work. And so I don't think whether or not something is a piece of software or a PDF of the service manual makes a huge difference with respect to the fair use analysis in that respect.

[01:27:43] Speaker 06:
People can read things all the time and apply that knowledge.

[01:27:45] Speaker 01:
Yes, of course. And I think you might conclude that breaking into the PDF is 1201 It is a problem under 1201 if you don't have access because of digital locks. But reading it is not copyright infringement. And I'd like to touch very briefly on the Section 117 point and just make two quick points, if I could. The first is I don't think the court can read anything into the fact that the librarian chose to rely on fair use analysis rather than Section 117 because petitioners put forth both as possible basis is to conclude that this was a non-infringing use.

[01:28:22] Speaker 01:
And what the librarian said was, I don't actually have to think about the 117c question because I've concluded it's a fair use. I don't think you can read anything into that about whether or not 117c would also render this a non-infringing use. And I also wanted to just note that the The argument that Section 117C renders some things per se non-infringing uses doesn't have any bearing on whether other uses that may or may not, that may be outside the scope of 117C aren't subject to the full suite of copyright defenses, including fair use.

[01:28:59] Speaker 01:
And so there's no basis to conclude that that because something isn't covered by 117 ,, it can't be a fair use of software, or it can't be a fair use of copies generated as part of the use of software. That's an argument that the Ninth Circuit, in its SEGA decision, rejected as basically borderline frivolous. And I don't think there's any reason for the court to adopt any argument along those lines here.

[01:29:23] Speaker 06:
LYNN FRIEDMAN- Can I just ask you something?

[01:29:30] Speaker 06:
I don't quite technologically understand. So when the repair person comes in and a copy is made, is that because the technician is choosing to make a copy or is it because it's spontaneous? When you turn the thing on or get in there, that just spontaneously happens by design of the software.

[01:29:50] Speaker 01:
My understanding is it is the latter, and that no copies are being retained by the technician. They're all destroyed when the technician powers off the machine. The machine self-destroys them. Yes.

[01:30:05] Speaker 06:
Unless they copy it onto a USB and take it home with them, at which point we've got a whole different case. Yes, you're right. That's correct.

[01:30:11] Speaker 01:
Though I will admit my technical knowledge of how this works is also...

[01:30:16] Speaker 01:
Not 100%, but that is my understanding based on the record of how this works, that the machine itself creates the copies and destroys them, or they're deleted when the servicing technician is finished with whatever he or she is doing.

[01:30:34] Speaker 06:
Do you have any questions you'd like to ask? All right. Thank you very much. Thank you. Mr. Kimberly, we'll give you two minutes on rebuttal, if you'd like.

[01:30:41] Speaker 02:
Thank you very much.

[01:30:45] Speaker 02:
If I may, I'd like to first address this question of the market.

[01:30:52] Speaker 02:
My friend on the other side suggested that this really is not, and the idea whether there's actual copyright infringement going on here. My friend on the other side suggested that there's not copyright infringement going on because using the software to provide services is not the same as copying it for a commercial purpose.

[01:31:12] Speaker 02:
But respectfully, one, that's squarely contrary to what the Ninth Circuit held in triad systems. Second, it is just inconsistent with how copyright law works. If a singer copyrights sheet music and performs the song and immediately shreds the sheet music, The singer has still committed copyright infringement, performing the song without paying a license.

[01:31:38] Speaker 06:
That's the copy is the performance. It's the singing, uttering the words.

[01:31:42] Speaker 02:
Well, but that's right.

[01:31:44] Speaker 06:
So the way... I mean, actually, I think the sheet music and the performance are actually two separate things, but that's a different issue.

[01:31:51] Speaker 02:
But I guess my point is, so too is the performance, if you will, of the instructions for how to repair the machine or the actual putting to use of the diagnostic software.

[01:32:07] Speaker 02:
You know, the idea that-

[01:32:16] Speaker 06:
So I've got a problem with my refrigerator and they go, this book's great. Read it. I read it. It gives me ideas about repairing. My refrigerator, I use it to repair my refrigerator. Hand the book back. Don't make any copies of it. Just read the book that was loaned to me and handed it back. Repair my refrigerator. I've engaged in copyright infringement.

[01:32:32] Speaker 02:
So I think analytically, this is a difference, Your Honor, between physical books and electronic books. You haven't in the scenario that you've described, but copies are being made. If there is a PDF on a system and you open the PDF to access the PDF.

[01:32:47] Speaker 06:
The copy isn't being made by the technician.

[01:32:49] Speaker 02:
Yeah. Yes, it is. Absolutely.

[01:32:51] Speaker 06:
It's been made by your software. Your software is agnostic as to who is turning the machine on when a copy is made.

[01:32:58] Speaker 02:
Your Honor, I'm not talking about turning the machine on. I'm talking about the machine is on. You double click on a PDF that says user manual. You open the manual. A copy is made. OK, and then you read the manual for its exact intended purpose to provide a service which you couldn't provide without the manual. That is copyright infringement. And again, what's the infringement? The infringement is the making of the copy to access the PDF. And on this score, I would point the court against.

[01:33:28] Speaker 06:
MARGARET WARNER- The best case for that when they don't themselves make the copy

[01:33:33] Speaker 02:
So I mean, it's called the RAM copy doctrine, Your Honor. It was what 117c was adopted to. STEPHANIE DESMOND- Oh, the spontaneous.

[01:33:42] Speaker 06:
OK. Well, then.

[01:33:43] Speaker 02:
No, no, no, no, no.

[01:33:43] Speaker 06:
STEPHANIE DESMOND- But the machine itself creating it automatically.

[01:33:47] Speaker 02:
Well, but the idea is that when the whole concept behind the RAM copy doctrine is when you turn on the computer, the person who activates the computer is the one making the copy, right? So I'm not talking about copy of operating software when the machine is activated.

[01:34:00] Speaker 06:
I'm talking about- This argument about double-clicking on PDFs anywhere to the librarian or court?

[01:34:06] Speaker 02:
Your Honor, I would point the court to 1055 in the joint appendix. And this, again, is the declaration of Robert Wheeler, where at paragraph 12, he says manually- Let me catch up to you.

[01:34:21] Speaker 06:
Okay. I'm sorry, what page?

[01:34:22] UNKNOWN:
1055? 1055.

[01:34:24] Speaker 02:
1055, it's where he's talking about many, this is paragraph 12, many servicing activities require access to and use of computer programs and electronic manuals. So there's no question that we're talking about electronic manuals. That is part of what the exemption is seeking access to.

[01:34:42] Speaker 06:
That's what's protected by, that would be protected by the DMCA, but for the exemption, right?

[01:34:48] Speaker 02:
Correct. And that's not...

[01:34:51] Speaker 06:
The same thing as saying that they've made an infringing copy.

[01:34:57] Speaker 06:
Is every violation of the DMCA, maybe this is my problem, is every violation of the DMCA automatically copyright infringement?

[01:35:05] Speaker 02:
No, a violation of the DMCA, well, it's a violation of the DMCA. It's not, which is a part of the Copyright Act, so you might say it's a copyright violation, but it's not.

[01:35:13] Speaker 06:
Well, it's creating a whole level of protection for digital materials.

[01:35:16] Speaker 02:
Right.

[01:35:17] Speaker 06:
This has been exempted, in which Congress authorized exemption.

[01:35:19] Speaker 02:
And the violation, though, is the circumvention of the technological protection.

[01:35:24] Speaker 06:
It can't be that the DMCA creates, a protection that the librarian then cannot take away through an exemption because it's infringing under the DMCA. The whole point of the DMCA is that these things, you know, getting past these keys and protections will be an infringement unless it's in the exempted category. And then to be in the exempted category, you look at traditional fair use for copyright.

[01:35:54] Speaker 02:
Analytically, Your Honor, respectfully, I just think that's wrong. The DMCA makes it an independent violation.

[01:35:59] Speaker 06:
It's not... I get this, but it can't... The whole... Congress makes it a violation only if the librarian hasn't exempted it. So it can't be that the librarian's exemption powers are tied by the fact that the DMCA has otherwise created something to be a violation.

[01:36:17] Speaker 06:
If there were no exemption for this, right, so imagine you'd persuaded the librarian, then of course them coming in would be a violation of the DMCA.

[01:36:27] Speaker 02:
Yes.

[01:36:28] Speaker 06:
Okay. But your argument seems to be because the DMCA protects it, it can't possibly be a fair use for purposes of the exemption authority. No. Is that okay?

[01:36:39] Speaker 02:
No.

[01:36:39] Speaker 06:
No, look, I'm... You're more expert in this than me, so I'm misunderstanding the categories.

[01:36:43] Speaker 02:
Well, I mean, technically, you could put non-copyright protected material behind a technological protective measure, and it would be a violation of the DMCA to get to even non-protected material, right? you'd still need the exemption. So, the question whether it's protected by copyright and the question whether it's a violation of the DMCA are not necessarily linked. They're not one and the same. My point is only that if there's a PDF on the machine and it is accessed by a user, it is copied. That is copyright infringement.

[01:37:16] Speaker 02:
Period. Unless it is a fair use. And so the question is, is it a fair use?

[01:37:20] Speaker 05:
Is that true of all of the repair materials that if you use them, you're making a copy? Yes.

[01:37:26] Speaker 02:
All of them? The software too? Yes. I mean, that's the whole crux.

[01:37:29] Speaker 05:
Where is that in the record?

[01:37:31] Speaker 02:
Your Honor, I don't know if that is a fact in the record. I think it is known by people who practice in this area. I mean, it is the RAM copy doctrine. It dates to 1992. The MAI case, which was the basis for Section 117C, is the entire premise for the DMCA.

[01:37:48] Speaker 05:
The RAM copy doctrine. And what's the case?

[01:37:51] Speaker 02:
DAVID ALZATE- MAI Systems, I think. It's a 1992 case. And it's the idea that every time a file is pulled from the hard drive and copied onto the RAM of the system, you're making a copy. And that is an independent. STEPHANIE DESMOND- At any time you access it, it goes to the RAM. DAVID ALZATE- So if you had a PDF on a hard drive and you double click on it, it's going to move to the RAM. You've made a copy so that it can pop up on the screen.

[01:38:15] Speaker 05:
STEPHANIE DESMOND- And that's true of software as well.

[01:38:17] Speaker 02:
DAVID ALZATE- That's true of software as well, exactly. That's the whole premise of all of this.

[01:38:21] Speaker 06:
That's the whole reason Congress begged to differ and enacted 117 .

[01:38:24] Speaker 02:
Well, exactly. But it enacted 117 .

[01:38:28] Speaker 02:
Well, it enacted a very narrow exception of loading operating system software necessary to activate the machine for purposes of servicing and repairing the machine. And if that's all that we're at issue here, we wouldn't be here. The whole point is that the ISO sought more than that because that wasn't enough.

[01:38:50] Speaker 05:
I'm sorry. So is it your position then that making a copy is the infringement period regardless of the purpose of that copy? I'm sorry. One more time. Is it your position that making the copy is a copyright violation period regardless of the purpose of that copy?

[01:39:04] Speaker 02:
No, I mean, if it were for fair use. I mean, the purpose of the copy implicates the question whether it's fair use. Our point is this isn't fair use.

[01:39:11] Speaker 05:
So I guess then the analysis is if the copy is made just for purposes of repairing this one machine and then is destroyed and not used for other things, is that infringing or not?

[01:39:20] Speaker 02:
Yes, of course.

[01:39:21] Speaker 05:
And why?

[01:39:23] Speaker 02:
Because it is the original intended purpose, and the copy is being made for a commercial use. And not only is it a commercial use, it's a substitute of commercial use.

[01:39:32] Speaker 06:
If the ISO- It's not intended by the technician. That's just the way your software works.

[01:39:37] Speaker 02:
I don't understand, Your Honor, how you could look at a PDF file, for example, or use a software program if it literally cannot be used without making a copy. I don't understand how it could be that the service technician didn't intend to make a copy.

[01:39:50] Speaker 06:
You can't just access the originals. This is my tech. I'm a total technology let-eye here. But if the software is on the system,

[01:39:58] Speaker 02:
Well, I think this comes down to the question, and maybe this has just been a fundamental misunderstanding all along. To access is to make a copy. That is the way that it works when you're talking about electronic materials like this. And that's what the DMCA is all about. It's why Congress recognized that really what this comes down to is accessing the material when you're talking about electronic material, because to access is to copy.

[01:40:21] Speaker 06:
So if you think of traditional, pre-digital copyright, people had choices to make copies or not.

[01:40:29] Speaker 06:
And then the way our technology has advanced is people don't have those choices. Repair people don't have those choices. And to be clear, if they're intending to make a copy and do and put it on a USB or something like that and take it home with them, then they definitely would be intending to make a copy for their own purposes.

[01:40:50] Speaker 06:
They would be, Your Honor, but I would tell you- And they're not destroying it at the end as is required by this exemption.

[01:40:56] Speaker 02:
Congress was aware of exactly this issue and it enacted Section 117 to address it. Our point about 117 is only that the librarian can't use the exemption process to effectively amend 1-1-C to grant essentially a copyright exemption to substantially more than what Congress understood it otherwise applied to. And that's exactly what's going on here. And the district court, oddly enough, justified its opinion in precisely these terms, explaining why the librarian was right to use an executive rulemaking process effectively to amend a statute.

[01:41:35] Speaker 02:
That is not the way it's supposed to work.

[01:41:37] Speaker 06:
MARTHA MINOWSKI- Do you have more questions?

[01:41:40] Speaker 05:
I guess, though, yes, just to wrap up, it just seems to me that we're back to a basket of computer programs, some of which might be infringing, some of which are not. And by the plain words, it seems that if it adversely affects ability to make non-infringing use, And that means if even a subset of that is affected and it's not infringing, that this is okay, right?

[01:42:14] Speaker 05:
Because if you read that provision, it seems that the prohibition shall not apply to persons who are users in a particular class of works if such persons are or are likely to be in the succeeding three-year period adversely affected by virtue of the prohibition and their ability to make non-infringing use. So applying that here, if there's a basket of computer programs, some of which would be infringing, some which would not, the ones that are not, they're making non-infringing uses and they would be affected by the prohibition.

[01:42:49] Speaker 05:
So if it's a mix, then...

[01:42:52] Speaker 05:
the librarian wins under this provision.

[01:42:55] Speaker 02:
JOSHUA SHARFSTEIN. I don't understand how that could be the outcome, Your Honor. LESLIE KENDRICK. I'm just reading the provision. JOSHUA SHARFSTEIN. No, I get it. LESLIE KENDRICK. That's what it sounds like. JOSHUA SHARFSTEIN. But I mean, if the librarian used the 1201 process, the 1201 process, to adopt an exemption that authorizes the circumvention of technological protective measures to copy works for infringing uses. LESLIE KENDRICK.

[01:43:20] Speaker 05:
Some infringing and some not.

[01:43:24] Speaker 02:
Some infringing and some not. To suggest that then the exemption has to stand if there are any non-infringing uses within a broadly described category would be a really perverse incentive to the librarian and to proponents to seek really broad categories in hopes of sweeping in obviously infringing uses.

[01:43:49] Speaker 05:
STEPHANIE DESMOND- But wouldn't you have to litigate differently at that stage and be like, this category is too broad, the particular class of works can't be defined?

[01:43:57] Speaker 02:
DAVID SANGER- Well, Your Honor, I think there are two things to say about that. First, we have been crystal clear from the beginning that our concern is the diagnostic and service software and maintenance-related materials. We haven't argued about the other materials and whether or not it would be infringing or not.

[01:44:13] Speaker 05:
So when the secretary adopted a class of works that included the operating clinical and the diagnostic, then shouldn't you at that point have said, this is not one class of works? It's a different analysis, depending on if it's clinical versus... But what would the upshot be? The upshot would be then that... I think he'd be on much stronger footing because the fair use... analysis is stronger for you if you define the class of works as the diagnosis.

[01:44:41] Speaker 02:
And I guess my point is we have always defined the class of works that way. So I think really what this comes down to is, would it be on the table for the district court to enter, to sever the two parts, the different categories covered by this exemption, and issue a partial vacator as applied to the materials over which we've been uh, litigating all along and it's an equitable remedy. Of course, the district court could do that.

[01:45:07] Speaker 05:
You didn't ask for that.

[01:45:09] Speaker 02:
Well, we didn't ask for that, your honor, but you know, this is, this is, uh, an action in equity. We have been crystal clear that that is what we're talking about. Like having the bottom line.

[01:45:19] Speaker 05:
No, you were clear, but once, I mean, I'm just struggling with this as the reviewing court and, um, It seems that you might've had a path here, but the way I'm looking at the record and the provisions and everything now, and after the argument, it just seems that if you wanted to argue it this way, you need to, as Judge Millett was going through at the beginning of this argument, make it more clear that you're only focusing on this, which you did. But then when the librarian came out with all of this analysis that assumed it was operating and clinical, It seems that you would have had to, at that point, try to pull this apart and be like... We would have made the exact same arguments.

[01:46:00] Speaker 02:
And the arguments would have been, all we're concerned about is the diagnostic software, the service software, and the maintenance-related documents.

[01:46:08] Speaker 05:
But the exemption covers more than that.

[01:46:09] Speaker 02:
No, no, I get it. So we would have made the exact same argument, and we would have said, we're not arguing about what the librarian is focused on here in this litigation.

[01:46:20] Speaker 02:
If the librarian is concerned about that, that's not what we're concerned about. Limit the order vacating the exemption to the materials over which we, the plaintiffs who have control over the case, are complaining. So the only thing that would have changed is like we add three additional words to the conclusion, which would have been like as applied to the complaint of materials. But again, this is an action in equity.

[01:46:45] Speaker 05:
in in request for a but the thing that is troubling was not specifically objected to because i see what you're saying that you could smuggle in like say the um the thing that you've always cared about is is this the repair stuff and the isos say we don't have a good fair use argument isos but we have a really good one on operating clinical so let's which is kind of what they did. Let's ask for an exemption that seems to focus on operating clinical. It seemed that way to me, but actually will cover the stuff, like the repair stuff.

[01:47:20] Speaker 05:
And it could be a strategy, but it seems to me that it would be incumbent upon you to at that point- In the rulemaking. In the rulemaking, the class of works here has to pull apart these two things. They cannot be together. And that would prevent the problem that you're positing, which is that you can have an overbroad category that sweeps in things that are infringing with non-infringing.

[01:47:43] Speaker 06:
A record could be made on whether that's tenable or not, whether it would make sense, whether it's in fact practically. We don't know these things. There's just no record on this. You got another?

[01:47:55] Speaker 02:
On whether it's tenable that the exemption could have been written to exclude

[01:48:00] Speaker 06:
I don't know whether it's practicable at all to say that they really only want to see these five things and don't need to see the clinical operational things. Or we're fine with them seeing the clinical operation things. We just don't want them to see our PDF manuals, that type of thing. I don't know if that's even tenable as a repair plan.

[01:48:24] Speaker 05:
And we need a fair use analysis based only on...

[01:48:28] Speaker 05:
repair stuff, because it's a totally different analysis on repair stuff. And that's not on the record.

[01:48:32] Speaker 02:
JOSHUA SHARFSTEIN THROUGH INTERPRETER 1 AND 2 Yeah, but OK. JOSHUA SHARFSTEIN THROUGH INTERPRETER 1 AND 2 It's just a briefing, but not on the record. JOSHUA SHARFSTEIN THROUGH INTERPRETER 1 AND 2 Just one final observation, and I appreciate the Court's patience. One final observation on this, and that's that, again, the burden is on the proponents. So looking again at 1055, where Robert Wheeler says, I need computer programs and electronic manuals. I need, sorry, where is it?

[01:48:59] Speaker 02:
I've missed the quote now.

[01:49:01] Speaker 02:
He's talking about these particular kinds of software and manuals, explaining that it's necessary for him to do the work that his company does and that that's why he wants the exemption. If the exemption If he failed to provide the information necessary to support the grant of the exemption, then it was arbitrary and capricious for the library to grant it as to those materials. And those materials were the ones as to which my clients objected in the rulemaking.

[01:49:32] Speaker 02:
I think they were very clear about the existence of this separate market and how it would do harm to that market.

[01:49:38] Speaker 02:
I appreciate Judge Millett. You may not have been persuaded by those citations that I gave you.

[01:49:44] Speaker 06:
I'm learning through this argument, so I appreciate it. all the things you pointed us to.

[01:49:49] Speaker 05:
And also, I think this gives you a roadmap for when they want to renew this, like what the concerns might be and how you might litigate that.

[01:49:55] Speaker 06:
Judge Childs, do you have any questions? No, thank you. Do you have any more, Judge Kim?

[01:50:02] Speaker 06:
Thank you very much for your time. Thanks to both counsel. The case is submitted.