MR. ENGLUND: So just briefly, I think "teaching" clearly does have to be viewed as an expansion relative to private use, and whether it is a fair use depends on context, as is always the case in a fair use determination. The example that I was thinking about while preparing for this hearing was what about a preserved word processor program. Is this exemption something that would allow providing access to a class to use a preserved word processor program an emulator for purposes of writing papers for class? I don’t know. But I think, once you include "teaching," you need to think through those kinds of scenarios.

[...]

JONATHAN BAND, Library Copyright Alliance

MR. BAND: Well, we’re happy to talk about the scope of teaching uses if you want. I mean, there’s no question that, you know, you can make all kinds of classroom uses. And, I mean, the reserve situation described, I mean, you know, certainly, that there are sometimes physical reserves, but you also can make, you know, multiples copies, not just one copy. And so, you know, certainly, that was true when I was a student and it’s certainly true now that multiple copies are available and then even far more for classroom uses and that’s routine.

And, again, what we’re talking about, remember, this is all in the context of preserved works, and even if we were dealing with the situation that Mr. Englund was talking about, you know, if it’s access to a preserved word processing program, you know, sure.

Look, we can construct any kind of ridiculous scenario we want, but do you really think that anyone is going to be trying to avoid, you know, licensing a word processing program in 2024? I mean, we all have word processing programs on, you know, our computers and our phones. I mean, you know, this is kind of the farfetched scenarios that we’re talking about here. It’s not realistic. People want to use this exemption for preservation and then making access to those preservation copies for research purposes, for learning purposes. You know, it’s not going to harm the market, and everyone here knows that.

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ROBERT ROTSTEIN, MSK LLP, on behalf of Joint Creators and Copyright Owners

MR. ROTSTEIN: Yes. Just responses. Yes, there might be multiple copies back in the day even in reserve, but if there are five multiple copies, only five users can take advantage of them at a time with books on reserve, and that is the model and that model with teaching has been abandoned essentially.

And I think there can be harm to the market. One of the examples that the proponents use is Final Draft 7. If you look on eBay, actually, you can buy Final Draft 7 and there are comments saying it’s not useless, but the people who wanted to buy it apparently tried to use it in order to write screenplays. And if you do that, you know, you’re not buying Final Draft 13, which is harm to the market. It’s harm to a derivative work.

So, yes, there can be market harm because these older versions of software often do have, if they could be circumvented, have utility for the purpose, you know, for which they were initially created.

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KENDRA ALBERT, Harvard Law School Cyberlaw Clinic, on behalf of Library Copyright Alliance and Software Preservation Network

MX. ALBERT: [...]

I also think it’s worth noting that none of the opponents here actually represent the rights holders of these word processing companies, right? The Business Software Association has not opposed this exemption. They have not sort of shown up and suggested that there will be any market harm, and they are the folks who produce the software in function here unless I’m unaware of CSS, ESA, DPCCA, AACS, RIAA, or MPA getting into new business models. On the Final Draft 7 point, you know, my understanding is that Final Draft 7 is no longer available from the primary purchaser -- or from the company which was originally making it. That’s why we use it as an example.

I think that I, you know, in some ways turn this back a little bit to the conversation about sort of the benefits and barriers of emulation, which is to say that the experience of sort of using these kinds of tools with remote access provided by preservation institutions is useful for folks who are sort of seeking to understand the historical experience or access particular software-dependent materials that rely on an older version. It is not a particularly good -- it is not a particular competition for the existing versions of the work, which is, I believe, why there are no rights holders that represent those organizations here to oppose this exemption.