7D. Motion pictures that are lawfully made and acquired from DVDs protected by the Content Scrambling System and Blu-Ray discs protected by Advanced Access Content System, or, if the motion picture is not reasonably available on DVD or Blu-Ray or not reasonably available in sufficient audiovisual quality on DVD or Blu-Ray, then from digitally transmitted video protected by an authentication protocol or by encryption, when circumvention is accomplished solely in order to incorporate short portions of motion pictures into new works for the purpose of fair use, and when the person engaging in circumvention reasonably believes that circumvention is necessary to obtain the motion picture in the following instances: (1) documentary filmmaking; OR (2) fictional filmmaking.
7E. Motion pictures that are lawfully made and acquired from DVDs protected by the Content Scrambling System or, if the motion picture is not reasonably available on or not reasonably available in sufficient audiovisual quality on DVD, then from digitally transmitted video protected by an authentication protocol or by encryption, when circumvention is accomplished solely in order to incorporate short portions of motion pictures into new works for the purpose of fair use, and when the person engaging in circumvention reasonably believes that circumvention is necessary to obtain the motion picture for multimedia e-book authorship.
Jim Morrissette, Technical Director, Kartemquin Educational Films. Proponent for proposed Class 7 D. Screen capture: stuttering, dropped frames that can never be replaced because they were never recorded. Not acceptable for public broadcast. Audio sync: lags behind. Vast majority use Macs; latest Macs don’t allow screen capture when playing DVD or iTunes media. Not a workaround that we can work with.
Smartphone capture. Aliasing: when the dots on the screen don’t align with the dots of the recording device. Specifically forbidden by the latest public TV tech specifications: must be free of artifacts such as those associated with scanning.
Hardware solutions are also impossible because the hardware won’t allow it. Component outputs are disappearing. Without analog source from protected disk, the equipment is worthless. Hardware scan conversion is also costly and complex, and doesn’t work with HDTV. Kartemquin was able to use the current exemption to pull clips from DVD for A Good Man. Public TV now wants only HD, and they have a severe limit on any SD clips up-rezed through analog etc.
Both alternatives proposed won’t work for broadcast specifications. We’d be rejected. Hardware upconversion and scan are both very costly, require an engineer to operate, degrade the image (creating image detail out of nothing with math tricks, not HD).
Gordon Quinn, Artistic Director, Kartemquin Educational Films. In support of proposed Class 7D for documentary filmmakers and the IDA. We produce for PBS, cable outlets, theatrical release. We are rightsholders and rights users. We are unusual in that we do have a technical director with an engineering background; we are a resource for the larger community. Morrissette gets calls all the time: part of our mission to help others engage in fair use.
We are seeking this renewal to preserve the fair use we reclaimed with the statement of best practices in fair use. The Interruptors, just on Frontline, had plenty of fair use clips. We just want it updated to deal with new technical standards from broadcasts and theatrical presenters. Any solution that involves licensing, managing copies, streaming—that involves us having to go and ask permission from the people we may be critiquing, parodying, arguing about—any of that is unacceptable. We are exercising a right: it is important not to require permission.
Two examples of close-to-original quality importance: A Good Man: Bill T. Jones is talking over a fair use clip, he’s dancing, bare to the waist. He says: He became very aware that he was a black body viewed by white bodies. You can see the muscles rippling, the sweat on his skin: every detail of this body. I need that quality to get the message across. Another project about a major film critic: who constantly argues that people should see films in theaters. When we make our film, we need to be able to show the sensual and subtle qualities of an image he’s talking about. It has to be a high quality. Benefits everyone who watches movies for this critic to take them inside his work and help them read what’s happening. And we have to meet the technical standards of PBS and theatrical presentations.
There are other films coming out only on Blu-Ray or encrypted streaming. Important to get that.
3 years: no abuse. No case in which documentarians have decrypted to engage in fair use and that’s ended in abuse. We care about piracy too.
In a democracy, we need to be able to comment and contextualize all the culture. There should be nothing off limits, within the confines of fair use. We live in a digital age; the quality of the image is more and more important. We have to be able to come close to that quality in order to critique it.
Peter Brantley, Director, Bookserver Project-Internet Archive. In support of proposed Class 7E. Expertise in books and new media; works on standards for ebooks, which have been recently updated to support greater interactivity. Rapid advances in ebook authoring tools have made it possible to create multimedia books with relatively little technical expertise. Alternatives require financial resources they mostly don’t have time, or result in deteriorated video quality that consumers find inadequate. Alternatives don’t work, especially for mobile display devices—they need very HQ content.
Ebooks started out as translations of analog/print to digital. Authors are now being able to explore new affordances, aided by increasing integration of ebook standards into web standards. Epub3 is now being coordinated with html5 to support HQ audio, video, and other features. Redium: render epub files directly in browser without any other software necessary. New tools are emerging, enabling drag and drop authoring of multimedia content.
Licenses: doesn’t work; fees and terms are structured for commercial use, not individual authors/users seeking educational/informational uses.
Video quality expectations are changing. Devices are improving; video standards are changing. Browsers have coalesced around a common standard. H.264 supports HQ video, and next version will support even greater HD. Beyond DVD.
Bobette Buster, Film Professor at USC, screenwriter, and producer. In support of proposed Class 7E. Edison thought films were like lightbulbs; DW Griffith understood that storytelling was the key. I teach how you take an idea and do what visionary filmmakers have learned to do. You create a big idea by combining two colliding ideas. Showed clips from The Godfather and Toy Story 2. Emotional power created by juxtaposition. Power of rhyme—Schindler’s List. Cinema is about the orchestration of emotions: delight at industrial productivity to horror at industrial genocide.
I seek to make an ebook of my course because it’s all about technical wonder. Rebuffed by studios at every turn. Don’t return emails or phone calls. Once they do, they quote high price, or say I have to reach every descendant of everyone in the scene and the composer of the music. Even got a C&D.
She wants to make an ebook that would allow her to communicate her life’s work. She’s tried to do this with 200 people/year by teaching a course. Would like to be able to share it with thousands via ebooks.
Alex Cohen: documentary filmmakers/fictional filmmakers/ebook authors: First, there should be no question that these are fair uses. Everyone agrees, for good reason. These groups are supervised by conservative gatekeepers, the insurance companies that monitor for fair use. Filmmakers have statements of best practices and are rightsholders in their own right.
For the ebook exemption, only asking for DVD and digitally transmitted video. Capability of ebooks is at or above Blu-Ray but we’re asking for the bare minimum to ensure effective fair use.
Fair use discussed and shown by Buster requires the ability to make nuanced and detailed analysis—when you need to see the dust on the floor in Toy Story 2, that’s not possible without an exemption. No alternative is sufficient—expensive, complicated, and don’t satisfy technical standards set by distributors/broadcasters. A lot of discussion about hardware scan conversion: Morrissette is at the top of his field, over 40 years of experience; there is almost no one else in the US who would know how to do what he does. Filmmakers call him. That’s the reality for the majority of filmmakers: they don’t have access to the knowledge or financial wherewithal to use the alternatives.
If no exemption, only a handful of filmmakers would be able to attempt fair use, and frequently they’d fail broadcast standards. Same with ebook authors.
Two small points about things said at prior hearings: Morrissette briefly mentioned upconversion for CNN. CNN broadcasts its own stuff and doesn’t have to meet the standards that a third party like Kartemquin has to in order to get shown. The sources that allow upconversion are also disappearing.
Sending out a clip for upconversion: we want to clarify that the tech standards for film festivals are very different for distribution/broadcast—the latter are extremely stringent and don’t generally allow upconversion.
Finally: when people do talk to Morrissette, they end up giving up on the use because they don’t have his resources and the alternatives can’t meet their needs.
Brendan Charney: Screen capture is a broad term that covers many methods that operate within a black box that users don’t understand and that can be automatically updated. If the Office said screen capture was an alternative, filmmakers wouldn’t know whether any given product would violate the DMCA; many would fear crushing liability/sanctions—not worth making fair use in a particular instance. That’s exactly the harm this rulemaking is designed to prevent.
Licensing: forecloses critical uses. Nearly every license has a nondisparagement clause that prevents film criticism and other things allowed by fair use. Even for noncritical uses, one license isn’t enough. Other rightsholders can still bring DMCA claims. Most licenses contain standard clauses—the license isn’t complete; may require licensee to receive permissions from all others who might claim rights in the footage. Congress created rulemaking in order to prevent licensing from supplanting fair use.
Exemption won’t lead to harm. Nobody has alleged any piracy flowing from previous exemptions, or even confusion. The exemptions cover a clearly defined group of responsible creators who themselves rely on copyright.
Dean Marks, on behalf of
AACS LA. Opponent of proposed Classes 7D, E, G and 8.
We haven’t seen AACS protected works identified that are unavailable for noninfringing uses. Very small set of directors’ cuts are only available on Blu-Ray. Ebook creators didn’t specify Blu-Ray and we are just confirming they aren’t seeking an exemption.
Alternatives for documentarians: use the work on DVD. They say SD doesn’t work in broadcasting standard, but the PBS website says PBS will accept SD video and upconvert it. It may well be that clips they seek to use aren’t available in HD—the Zapruder footage, for example. Public TV stations aren’t going to ban documentaries that include the Zapruder footage. For filmmakers who have the wherewithal to obtain D&O insurance, we believe upconversion is not beyond their reach.
For filmmakers: unlike the panel this morning, they typically have access to very high quality cameras because they use them to shoot their films. Displayed a clip from a Panasonic $28,000 camera, available on eBay for half that. Video capture is acceptable for educators, but we wouldn’t expect them to have high end cameras, as people making HD films do. Camcording is a perfectly reasonable alternative.
Clip licensing. We believe that the studios have really made incredible progress in making clip licensing easier. Universal has an online site. WB regularly responds to clip requests within 48 hours. We appreciate that critical/disparaging uses often are barred by license provisions, so it isn’t the answer for every use, but we believe it shouldn’t be dismissed out of hand as not viable.
For documentary filmmakers: National Film Archives in College Park—filmmakers can go in and access the archives and create a good copy by using AV cables, permitted by the Archives.
Tamsin Rawady, A Practical Guide to Fair Use, available at proponents’ website: said she ended up mastering from a variety of materials, including VHS and low-quality downloads—typical to access many materials of various qualities to put together a final product. In a few cases, she decided to pay for licenses to clips that were fair use simply to get the HQ master. Studios work with filmmakers to deliver most useful format.
Don’t confuse fair use and access controls. A no objection letter may say you may need rights from musicians/performers; we’re not objecting to your use. Talent rights have nothing to do with access control measures. If you’re confident your use is fair, you don’t need to seek consent from the underlying talent. So a no objection letter saying that there might be talent rights shouldn’t be any problem for you.
Blu-Ray is new and deserves special protection. Growing but DVDs are still king. Augurs for caution in granting exemptions.
Bruce Turnbull, Counsel for DVD CCA. Opponent of proposed Classes 7A-G and 8.
DVD-CCA doesn’t object to renewal of documentary exception, but does object to fictional and ebook exemptions. Likelihood that a use is fair in the broad categories described: more likely in documentary. To have broad exemption for all fictional films would invite the possibility that the uses wouldn’t be fair. We don’t believe it’s been demonstrated that a sufficiently high number would be fair use. The same is true with ebooks. The experience is much less because this is new. We don’t believe the numbers of uses put forward in the broad category would necessarily lead to a high percentage of those uses being fair. (Comment: This isn’t the standard adopted by the Copyright Office, which is a substantial number of fair uses.) We also think filmmakers can hire videographers with expensive cameras so you don’t even need to own a $20,000 camera. Similarly, video capture software can work for some purposes.
Steve Metalitz, MSK, representing Joint Creators and Copyright Owners. Opponent of Classes 7A-G and 8. Important to distinguish among types of uses now covered by a single exception, which represent distinct cases. Are the uses that are intended to be made in fact noninfringing? And if that burden is met, are there alternatives available to people who wish to make those uses that don’t involve circumvention? Both are at issue here, but the mix is different.
Charney said this was fair use because there are gatekeepers. This overstates the case, but people with E&O insurance are more likely to be fair use than the category proposed of someone making a documentary film or a fictional film who reasonably believes circumvention necessary. Nothing in the proposal requires safeguards like gatekeepers or E&O insurance. If that’s the basis on which this assertion is made, should appear in the exemption. There are others besides Morrissette who won’t be intimidated by difficulty in tech, though I would be (comment: and as a lawyer and not an engineer, he might possibly not be qualified to make that determination? Hollywood has a bad habit of assuming that the tech can do whatever the lawyers would like it to do, see SOPA/PIPA.).
PBS as gatekeeper requiring high quality: encourages Office to challenge that. If it were the case that anything not native HD is banned, we’d lose a great deal of history.
Legislative history says intermediaries are outside the scope of the rulemaking, so you shouldn’t consider that anyway. (Sure, you can’t change 1201 itself, so an exemption can’t exempt anything other than circumvention itself. But it’s ridiculous to say you can somehow evaluate the impact of the law on fair use without taking the overall context of uses into account, including broadcast standards. A fair use no one can make helps no one.)
Ebooks: record is less well developed both in terms of whether there’s an equivalent to the gatekeeping that increases the chances that the use will be fair. This covers everybody, not just the uses we were shown today which he has no problem with. One thing we know has changed is that the alternatives have become more robust: licensing (partial answer), screen capture and editing technologies. That has to be taken into account v. 3 years ago. But if you have an exemption must define it so that it won’t include infringing uses.
Carson: what is Joint Creators’ position v. DVD-CCA on the existing exemption?
Metalitz: we don’t think the existing exemption should continue. Should include gatekeeping safeguards if the proponents sitting at this table abide by them.
Carson: is your position that they haven’t met their burden or that there’s no need?
Metalitz: they haven’t met their burden of showing a need.
Carson: with respect to exemptions now in place, please react to building in additional gatekeepers.
Donaldson: you asked that last time about insurance, and that won’t work—comes way too late in the process. Wouldn’t work, isn’t needed. The exemption has helped literally hundreds of filmmakers make films that are more impactful, give better messages, without any adverse impact.
Carson: E&O comes last after the film is made—is that true?
Metalitz: true, but realistically there is a risk of a lawsuit that you want to avoid. Unlikely that suits would be brought before the film comes out, because the potential plaintiff wouldn’t be aware until then. At that time, there either is or isn’t insurance. If the producer hasn’t gotten insurance, that should be taken into account. This isn’t a copyright infringement lawsuit so it doesn’t have the same remedies (hunh? As I recall injunctions are available, which is the death knell). So these aren’t likely to arise unless a film is distributed.
Carson: yet in trying to craft an exemption, you’re suggesting we come up with a conditional exemption. The exemption is from liability for the act of circumvention, which of course comes before E&O review, and you don’t know the result.
Metalitz: but you have to know what use you’re going to make: solely for short portions.
Carson: but you’re trying to put in a requirement of future review, and that’s rather odd. Good faith intention to go to E&O? (What if, for example, the E&O review says “take out one clip” and you’re fine? Is that clip now violating the exemption?) Fair use is a question of law, but what should the factual prerequisite be? A postrequisite strikes him as difficult.
Metalitz: reasonable judgment; exemptions can have factual components. Wouldn’t be clear at the time whether you’re entitled to the exemption, but if you’re in the business of making documentary films, you’re probably going to seek insurance.
Marks: E&O insurance doesn’t just review the final film; it’s an ongoing process. In Tamsin Rawady’s article about fair use advice, she talks about how you need to consult with the lawyers as you’re in the process of making a film not when it’s finished. Gatekeeping functions don’t all happen ex post facto.
Donaldson: Last Sundance festival, we had 19 films; 2 C&Ds prior to the first screening at Sundance. The Queen of Versailles: subject of film ended up not liking the description of him, and sued before it showed publicly based on publicity. Sequencing of when you find out you have a problem is different. We had insurance for that, but for the other one he didn’t have insurance—a black & white film that won’t have much monetization.
We were involved early in Rawady’s film, which was pre DMCA. Before exemption we told people they couldn’t rip. If you look at that article, it’s about the downside of fair use; producer goes on to describe those things as what she had to do because she couldn’t rip the DVD. Classic case of why the exemption is needed. Did end up running into resistance with some techie who didn’t want to accept it because the degraded clips were too numerous.
Carson: typically, when you make a documentary destined for an E&O carrier, is there intermediate legal review?
Donaldson: ideally, we like to get in early at the concept stage and educate the filmmaker for his or her particular film. December: when Sundance announces, we get a flood of people who didn’t have an attorney and have just been told that they need review. Filmmakers made movies out of credit cards & family and friends and didn’t have a spare nickel for insurance. So some films—This Film is Not Yet Rated and the Rawady film—have a lot of advance review, but that doesn’t usually happen. Today, with this work being better known, not quite 50/50; 60% of films come in late in the game.
Jack Lerner: Our point was that we couldn’t make fair use because we couldn’t get HQ. If you require E&O at the outset, you end up pricing out filmmakers who can’t afford that at an early stage or who make fair use calls of their own that aren’t a problem. We have resources in the community—the statement of best practices.
Quinn: Speaking for the entire class: E&O can be good. But for 20 years we lost the right to use fair use b/c of the aggressive tactics of content owners, writing C&Ds and threatening to sue; never suing. But the gatekeepers wouldn’t have it. We spent years talking to people—teachers, broadcasters, insurers, lawyers—to reeducate them about the law. Finally we got some traction with PBS; we didn’t have E&O insurance with PBS. We’ve had no cases of abuse in the last 3 years. If you’re concerned with filmmakers out there not making fair use, then go after them for that. The problem with the DMCA is that the mere act of acquiring something for legal use has been made illegal, so you never get to test the question of fair use without the exemption. We can have E&O and still be sued; we understand that. But if we can’t get that into the courts, we’re screwed. There are many kinds of documentaries, all kinds of new markets.
When do lawyers get involved? Donaldson is right, but let’s be clear: different filmmakers work with lawyers at different points. This Film Is Not Yet Rated—yes, before we even start. But many films, including A Good Man and The Interruptors, involve classic fair use. I’m experienced; I get my letter near the end of the process, when I’m in fine cut, because I’m confident that I’m making a fair use. Other filmmakers may need earlier. We do both kinds of things. We don’t need more stringent gatekeepers. We need the exemption so that when there are test cases we are discussing the proper issues.
Metalitz: no cases of filmmakers accused of violating 1201.
Carson: resist having an E&O/lawyer review requirement, even though it’s wise.
Carson: we have heard a lot about how E&O/lawyers are important to control use. Should we ignore that?
Quinn: we’re talking about a process. If I’m a filmmaker and the piece I need is on a Blu-Ray to make my point, that’s my need. We’re talking about a right. I can’t tell you every filmmaker’s needs. I can tell you that we’ve tried to be very responsible with this exemption. We are saying don’t confuse locking something up with fair use. We need the exemption to be able to use fair use. We bring up E&O because we understand most high-visibility documentaries, that’s the reality, but there are important films playing a role in the range of information in our democratic society that are fair uses without E&O/lawyers.
Cohen: we think E&O is just one factor; statement of best practices; being rightsholders in their own regard; it’s not all or nothing.
Charney: we’re not saying that talent/contractual rights are the issue. Anyone with a right protected by the Copyright Act can sue for a violation of 1201—that makes it very hard to avoid via licensing. People whose recordings are used could sue. If a filmmaker signs a license, often obligates them to seek such other licenses.
A page before the language quoted from the legislative history, a very telling section: the harm is flowing from the implementation of the tech protection measure. To measure harm, we have to look at the facts confronted by fair users. Congress: committee is concerned that market realities may someday result in less rather than more access to works. They created rulemaking as a failsafe to prevent that sort of harm.
Marks: that standard about less access: we haven’t seen one shred of evidence that TPMs have led to less access to copyrighted materials. In fact there’s been a growth released into the market because of TPMs that give copyright owners the security to release content.
Lerner: please read our submissions, which discuss many such situations.
Ruwe: looking for a better idea of what an ebook is. What is an ebook? Anything multimedia?
Brantley: epub specification is informally referred to as “website in box”—a set of constraints on html display that limits what an author can do. Epub3 can be embedded in browser. Defined set of allowable behaviors.
Buster: What I’d like to do is show salient points. Lerner/IDA have done excellent job of educating the documentary community with specific guidelines. I would use the discipline of that in selecting clips.
Charney: p.3 of our initial comments: we have a discussion of this. Digital files capable of displaying written words on an electronic reader, generally without internet access. So we want to put them into a device that can display offline, which is distinct from an online website even though it might be compatible. Difference is that underlying tech may have come from web, but ebook is a discrete format.
Brantley: packaged as a zip file. Uses html rendering tech, but is a packaged, portable digital file that has to be downloaded and can be consumed offline.
Ruwe: sounds extremely broad. Any narrowing principles?
Brantley: epub3 specification is very specific and detailed about permitted type of behavior.
Charney: we’d be amenable to narrowing definition to specific existing formats.
Ruwe: anything about gatekeepers?
Lerner: nonfiction ebook authors would use a lot of the same mechanisms to make sure they’re making fair use. E&O is available; statement of best practices applies very well in ebook context as well.
Donaldson: is the class intended to be nonfiction?
Lerner: no, just an example.
Ruwe: more specifics about requirements for distribution outlets for documentarians?
Morrissette: latest PBS tech specifications: one is in the PowerPoint, which talks about artifacts. In the case of archival content where no better copies are available, image still has to be free of artifacts. PBS recognizes existence of older source, but they’re saying that you can’t just throw everything in YouTube quality and upconvert it again.
Quinn: Working with PBS, the reality is that if you have the Zapruder film they’re practical, but they’re looking more and more for the overall look and feel to meet their standards. If you have an image from a contemporary film, and that’s low quality, that’s not going to be acceptable to them.
Morrissette: it was because of the current exemption that we were able to get the quality necessary to pass PBS muster a year ago. Without the exemption, we couldn’t have done it. Speaking to the high quality camera: yes, it looks better than the cellphone. Without the original to compare it, though, my evaluation was that there was excessive overexposure.
Ruwe: for ebooks: Why wouldn’t alternatives have worked for juxtapositions? For some I get it: if you need to talk about the dust, okay, but what about the rest?
Buster: I’m talking about the highest level of filmmaking: you need to see his choices. Godfather is lit like a neo-Realist film; you have to show costumes, music, sound design. I teach from the perspective of how tech affects storytelling across elements and how the director employs a central idea. I’d be laughed out of the room for using a degraded copy to show what cinema does best.
Carson: In teaching, yes, but that’s not germane to ebooks.
Buster: why would anyone want to get a low quality book?
Carson: if that’s their only alternative.
Buster: The alternative is piracy; using high quality drives people to see the real film.
Charney: degraded images don’t work better in ebooks than in the classroom. Alternatives are cumbersome beyond belief. Have to hire a specialist, raise the money to find the camera. Feels like I’d have to get a new career, and I already have one as an educator. USC: we are constantly upgrading equipment. We don’t have the old equipment (with the analog outputs, I take it).
Ruwe: non-objection letter—how relevant?
Marks: studio issues no objection letter; it’s correct that if an actor or musician who also had a right in the film decided that they felt there was circumvention, they’d have standing to sue if they chose. Hard to imagine that would really happen if the underlying copyright owner issued a non objection letter. (Then why would the letter contain these reservations and tell the recipient to get the permissions?)
Lerner: Standard nondisparagement clauses; standard clauses obligate the filmmaker to get permissions from these other people—the nonobjection letter says that they don’t object if we get other permissions.
Marks: WB’s no objection letter doesn’t contain nondisparagement provisions.
Lerner: that’s true, WB doesn’t.
Marks: not inconsequential because WB has a big film library.
Carson: Best practices in documentary filmmaking: does a filmmaker who follows those behave acceptably?
Metalitz: we have some problem with them. Not sure that everything in the statement has been done at the time the circumvention occurs, so subject to the same objection. Documentary filmmaking isn’t defined. We heard this morning that student video production might qualify as a documentary—would be helpful to sharpen and narrow it.
Carson: what if we required compliance with best practices?
Donaldson: good idea.
Charney: it’s not a silver bullet; best practices were meant to classify four categories that are as close to certain as you can get, not meant to define the outer boundaries of fair use.
Quinn: there are reasons why implementation could have unintended consequences. We do use that document in schools, with young documentarians. Not everything is ok, and we have some guidelines of when you’re within fair use. Not a catastrophe, but needs to be thought through very carefully.