Copyright Office: Jacqueline Charlesworth
Stacy Cheney (NTIA)
Proposed Class 5: Audiovisual works – derivative uses – multimedia e-books This proposed class would allow circumvention of access controls on lawfully made and acquired motion pictures used in connection with multimedia e-book authorship. This exemption has been requested for audiovisual material made available in all formats, including DVDs protected by CSS, Blu-ray discs protected by AACS, and TPM-protected online distribution services.
Proponents: Bobette Buster, Busterfilms: presentation of Exh. 22. Do/Story: how to tell a compelling story, best-selling book. Wants enhanced ebook: lectures are 6 hours long—deconstruct a particular film, 16 clips for the first ebook of a total of 13 minutes. Found an agency to embed this. Different concerns: size (2 gigs now); iBooks Author dominates the market with self-creating books. EULA requires quality control. They aren’t accepting SD, because why would they? Apple is in the business of creating extraordinary wonder, as the products get better each year. They want best possible environment.
Charlesworth: Apple doesn’t accept anything but HD? Have you seen this policy in writing? Have they said that to you?
A: No. I’d have to commission $1000s of work to submit it. They say you have to read what they say. What they say is they’ll decide once we see your fully embedded document.
Previously showed Schindler’s List, Godfather, Toy Story 2; now showing Shawshank Redemption w/a maggot being pulled out of breakfast, then fed to bird (universal symbol of freedom). Visual metaphor of abstract idea. You can’t see him letting the bird go in SD; you shouldn’t have to be knocked out of the emotional moment by asking “what is he doing in that black chunk of the screen?” It eventually becomes clear but too late for the immersion.
Charlesworth: can you show me in Blu-Ray?
A: no, I have a Mac. The King’s Speech: a guy put against stripped wallpaper to show his humiliation and embarrassment: he’s been stripped raw. Climax of film: he has to give a live speech. You should experience the 3D a-ha experience of the gold line going straight through his skull—I have to do a lot of description to show what you should see. Incredible sense of expansion. The king is framed in gold in various settings, a metaphor for his majesty. Final shot: framed in gold and white, which is crystal clear in HD, but in SD it’s all fuzzed out. He’s offcenter because he’s been set aside by the king.
I was doing a major documentary about innovations in storytelling in sound design, quantum leap w/George Lucas, who says “art is technology.” He had to invent the tech for Star Wars. All art is moved by pushing the limits/boundaries of tech in order to move the culture forward. Created the industry we exist in now. Major studios ask me to present my insights on storytelling; backwatered by SD b/c entire industry is now set up on technological wonder. We’re the 8-track of the industry. This is how I inspire the creators of the content that drives Hollywood. Strange that I’m made archival, and it won’t sell b/c people have tech in their hands that makes it look decrepit.
Up-rezzing: a specious argument. People can see it on their retina displays. It’s just filler. Your audience wants to see what they saw in the theater or broadcast, which will no longer accept SD. I would like the right to use the best available tech.
Q: you mentioned 13 minutes of clips in total? Would these clips be in the ebook?
A: 16 clips, total 12:53 in ebook. Yes, and the ones you saw 3 years ago.
Q: does Kindle have guidelines on image quality as well?
A: kindle is more unstable platform—not easy, downloadable, gig size issues. Teams I’ve talked to say only iBook author is stable. Not possible to make it available now. There are possible apps, web streaming—but it’s hard to do with the current issues.
Q: are you aware of others rejected by Apple?
A: digital collective in Berkeley—when they saw the level of embedding, they weren’t willing to use their platform. They suggested iBook Author.
Charlesworth: the platform couldn’t support SD?
A: the number of clips is a problem—the fear is it takes too long to download.
Charlesworth: wouldn’t HD be bigger?
A: iBook Author now allows 2 gigs. We’d have to see how it would be used up. I’d like to do a series and continue expanding this.
Charlesworth: tradeoff between level of definition and amount of content you can include in the ebook? Could you have more SD clips than HD clips if you’re limited by the amount? [She says Apple wouldn’t accept SD, so no.]
A: I would like to present the intended quality the audience expects, b/c I talk about all the elements, color, art direction, cinematography, costumes, etc.—they all have to be as filmmaker intended and studio released. I always suggest they see the full film.
Charlesworth: so you’d rather have fewer HD than more SD.
A: yes. There is a black and white ebook of students enacting film scenes from Blade Runner—that was the only way to describe how the cinematography works. Totally inadequate experience. There’s a lot of experimentation with best way to embed clips/engage audience. Engagement problem b/c audience expects high quality.
Q: are there examples of Apple accepting HD clips?
A: for iBooks Author, no, but in Al Gore’s app Our Choice, there are excellent clips created using a proprietary technology. You could do it with an app, but I haven’t seen anything that successfully takes clips from movies.
Q: so it may be impossible?
A: I can do it in iBooks Author platform [distribution seems to be the question]. Daunting to do it, and not up to my standards.
Charlesworth: will Apple distribute it? What if they don’t allow it?
A: EULA says I might be able to use another platform to distribute the book created on the platform, but their legalese suggests they can come after you.
Charlesworth: have you reached out to Apple? You’re high profile.
A: They are very formal. Any contact: they say “read our specifications and we will decide.” Asked iPad designer: it’s a closed door policy, not open to individual questions. They decide.
Q: have you approached publishers?
A: I looked at other platforms, which were promising but had issues of fair use. Possibility of Vimeo Plus, private channel, but I deconstruct major films frame by frame.
Charlesworth: why would the fair use issues differ platform to platform?
A: They have nowhere near the marketability of iTunes, but how do I let the audience know about it? I am building my profile, but the expense of doing it on my own in a different market universe is too much.
Lerner: exemption only permits short portions. So if she had to scrap the ebook idea and go to documentary on Vimeo, she wouldn’t be able to do as extensive a presentation as she’d like.
Charlesworth: that leads to whether the longer portions are fair use, which may less likely be fair use.
Lerner: Amount is a factor but she could discuss a huge portion of a film if she’s analyzing it clip by clip and presenting commentary on each clip—easily transformative. Given the extensive analysis that she does frame by frame even a large portion would be a slam dunk fair use.
Charlesworth: she’d still be using short clips, but a lot of them.
A: I can take a film like The Godfather and talk about it in sequence for 6 hours (a 2 hour film). That’s why he’s saying it’s a slam dunk fair use. Maybe I would create a lecture that is sequences in order to comply.
Charlesworth: are you saying you’d put 6 hours of the Godfather on an ebook?
A: no, that’s not supported now. We’re talking about the Vimeo alternative. 500 people get my lectures each year, and I’m trying to democratize access.
Charlesworth: in an ebook, would you be using individual clips that you wouldn’t consider short?
A: I would use them as determined by the four fair use factors and the documentarians’ standards. I may take 3 or 4 moments from a movie, 8 seconds up to 1:30 (minutes:seconds) and framing them together relating to an important teachable moment. What I do when I’m teaching live is showing the setup and payoff. Longest clip is 2:30.
Q: For your book, it sounds like using a publisher to get on iBooks is something you’re no longer pursuing?
A: publishers are not interested b/c it’s financially daunting to create the ebook w/no assurance that Apple would allow it.
Q: so those concerns are based on fair use, not DMCA?
A: everybody would require me to prove fair use and I’d need E&O, but the issue then is the expense of creating the iBook and the possibility of it being rejected because of inferior tech.
Q: sound quality of high def?
A: SD is inferior to what the audience is used to now. Films have been mixed with 5.1 or better. HD promises the right mix. SD is generically mixed with some levels too high and too low. Of course I talk about sound design, and interview the major sound designers, who all lament the insufficiencies of older tech; they’ve remastered older films to give them the best sound design possible. The Godfather was a groundbreaker—and I often end up saying “what you should hear is children laughing in the background—a critical emotional device/signals impending murder.”
Q: you can hear laughing in HD not SD?
Charlesworth: have you submitted that?
A: no, but I have it on my laptop. I don’t have before and after.
Blake Reid, Michael Wolfe, and Molly Priya McClurg, Samuelson-Glushko Technology Law & Policy Clinic at Colorado Law (representing Authors Alliance)
Wolfe: Authors Alliance—primarily academics, including Nobel Laureate and US Poet Laureate. Most of our work is info/resources for authors—often means helping them take advantage of new opportunities from tech. Multimedia ebooks provide significant opportunity to advance knowledge. Example: copyright education—copyright in characters, idea/expression.
Charlesworth: James Bond?
A: yes, which would involve looking at film clips. Need for specific examples. Not a unique case—academics reference things to the best of their ability. Text is easy.
Charlesworth: project would be to analyze character as he appears in film?
A: would also incorporate Fleming’s novels, but yes.
Charlesworth: ultimate goal would be ebook?
A: yes. Academic endeavor is necessarily cumulative, deals w/what’s come before. Might be historical significance of film, or representation of history in a film, or a scholar in any field engaging w/documentary of relevance. Accuracy and integrity are of the utmost importance to the academic process. Citations can sometimes suffice, but not always. Often the most damaging/helpful to present the actual excerpt. It’s the same for film as for text. When you write an ebook, part of the reason it’s so important to enable fair use is that it can continue to teach—quality has to be future-proofed and can’t be what’s mediocre today. It would be as if in archival sound recording you’d have to do it by humming.
Charlesworth: digital preservation—platforms may disappear, but that’s beyond our scope.
A: a few salient features of contemporary publishing—things are different now than 10 years ago. Self-publishing is larger now than it has ever been by orders of magnitude. Increasingly disintermediated and independent publishing economy. When it comes to putting together works of this sort, that rely on third-party copyrighted content, the idea of being able to engage in a licensing discussion as an individual, it doesn’t work. Overwhelming/threatens projects right from the outset.
Q: how many of those self-published works were ebooks/regular texts?
A: I wish I had the figures; the overwhelming majority that are at least ebook though they may also be print on demand. The multimedia book may be the canonical edition or only available digitally—they’re the ones Authors Alliance members want to be preserved.
Q: how much has the exemption been used already? Has there been some success in using it?
A: this rulemaking cycle: we want the exemption opened up to authors who fall outside the relatively narrow band of film criticism/film scholars.
A: fair use that relies on third-party copyrighted multimedia content.
Charlesworth: any author who wants to use a motion picture regardless of purpose? It’s not limited to any particular author: “film analysis” is the current limit.
Jack Lerner and Aaron Benmark, UCI Intellectual Property, Arts, and Technology Clinic (representing Authors Alliance and Bobette Buster)
Lerner: Film analysis limitation has, we think, definitely affected how many people can use this. Our understanding is that a number of film scholars have been working on ebooks, and we have material on the record on this. Not very useful now because they feel they need HD and can’t get it under current limit. There are many types of non-analysis. Samuelson is using film clips to explore copyright law. If you consider that film analysis, that’s fine.
Charlesworth: examining films to comment or criticize them might be helpful?
Lerner: sure, if you wanted to say that, though we think fair use would be more appropriate. There are museums creating catalogs w/multimedia content. People are analyzing things like gaming—Steve Anderson, USC. There are a number of uses out there that aren’t clearly film analysis.
Charlesworth: tell me more about gaming in an ebook.
Lerner: you might have a scholar discussing what kinds of messages games are sending. How they portray women. Montage of game clips to facilitate that discussion.
Charlesworth: are there specific examples of scholars who’ve sought to do this?
Lerner: Steve Anderson’s extensive scholarship on multimedia/gaming. Happy to follow up with that.
Charlesworth: with the film analysis, sounds like the concern is that people fear it’s limited to Buster’s type of work as opposed to Samuelson’s example where you want to examine cultural references or social construction. You’re using the film as a focal point of discussion.
Lerner: yes. And if it said analysis that involved films as focus, that would be clearer. Again, this goes to whether exemption should say fair use in creation of multimedia, then we don’t have to worry about interpreting what that means and we can rely on 30 years
Charlesworth: oh, and fair use is so clear. [/sarcasm] We are tasked with creating targeted and narrower exemptions [narrower than what?]. Saying something is fair use doesn’t give a lot of guidance. We try to build in guideposts so people understand what’s intended. [clearly all those caveats that we’ve been fighting about for two weeks are working very well as guideposts] [/RT’s sarcasm] That’s not to say you can never use a long chunk [which is exactly why the guidance if any should be in the comments, not in the rule that governs criminal liability], but we’re looking for adverse effects.
Lerner: At this point, for nonfiction authors, fair use is not that difficult at all. Refuge from the Storm article by Michael Donaldson. That’s why you have insurers who routinely and often blithely issue policies that cover this. This type of scholarship is an easy case.
A: in the context of authorship, it’s fairly clear generally; much clearer with nonfiction but also clear w/fiction. Zero problems with saying multimedia authorship/fair use. No effect, as none of these exemptions have had.
Q: if it hasn’t been used, then there won’t be much abuse. [And if we ban cars very few people will die in car accidents, and if we ban all copying then there will be very little copyright infringement—oh wait, that last one isn’t true; we tried!] Incremental expansion? Maybe nonfiction is more likely to be a fair use so we should try that instead of all authors. Are there fiction authors in the record?
A: no. But many exemptions have been used extensively, including the documentarians’, and that hasn’t led to even an allegation of abuse/harm. Quite a bit of evidence that people would do this if not barred. Burden now shifts to opponent to provide evidence of harm. We don’t have to take an incremental approach if there’s no evidence or allegation of harm.
Wolfe: (1) current state of using this exemption. Clarification would be great, but in broader sense there’s significant use of multimedia writing, largely in the more informal sphere of blogging. Academic blogs now incredibly important [aw, shucks] but that doesn’t have the sense of completeness or legacy-building as writing a book does. A tool that people use on blogs, they’d use in books, if they have the opportunity to do so. §512 enables current embedded uses in blogging. Bringing that possibility to books would be a tremendous service to the people already doing this.
(2) We talked about availability of multimedia ebook services. 3 years is an eternity for these technologies. Kindle 2007, iPad 2010. The major players are working on further developing tech, but there are also a shocking number of startups and small businesses interested in making multimedia ebooks available to more authors.
Reid: We’re not being speculative about likelihood of tech improvements. Apple’s App store has had a similar 2 gig size requirement, just recently doubled to 4 gig. Moore’s law is at play here—some of the constraints are device size, broadband speed, and we’re seeing monumental increases in those. Order of magnitude of increase in flash memory on iPad from first version to now. Mother just jumped from 10 megabit broadband to 1 gig municipal fiber. Those are factors driving current limits, which are likely to go away for enough people to make this economically viable.
Dealing with Apple: some authors can talk to Apple, but many more can’t. Not available to self-publishers w/out an agent. Even for Buster, that’s very difficult. It’s not fair to expect as a condition of the exemption to have to go through that level of negotiation.
Lerner: We are aware that iBooks has HD titles.
Reid: Example: Beginner Blues Guitar Solos with Audio & Video, over 53 minutes of HD instruction. Where people film themselves in HD, they can use the platform.
Buster: Yes, there are cookbooks in HD. Just not in my field.
Lerner: AAUP is one of the proponents of this exemption, 47,000 university professors interested in doing this kind of thing. This is a very large group of folks.
Charlesworth: record is murky whether or not Apple would allow fair use.
McClurg: Who else is in this field; state of industry/tech; need for high quality. Our authors are content creators and rightsholders themselves, who respect copyright. We’re the good guys/content creators. Authors have a long track record of doing this responsibly.
Tech/rapid changes in market: new devices with new capabilities just in this year.
Charlesworth: do other platforms accept HD?
A: not sure what they accept, but transitions in market envision HD content, especially when you look at the devices people are using. There’s a clear trajectory towards increasing pixels, HD visibility. That’s going to become the minimum. What readers expect. I wouldn’t want my own work to be represented in anything less than full quality.
Charlesworth: do you have a description of the James Bond stuff?
A: well, that’s the problem—description and actually seeing that, down to the scuffs on his watch.
Charlesworth: can you see that detail in SD?
A: Don’t know for sure, but you can see the problems in Buster’s presentation.
Blu-Ray keys were decrypted many years ago. These authors have a clear fear of the law and aren’t engaging in piracy.
Issues of scope—it’s our contention that drafting could further chill the marketplace by cutting out paradigmatic fair use. The DMCA seeks to protect underlying works but shouldn’t chill fair uses at the fringes.
Benmark: Screencapture! Authors can’t figure out whether screencap is circumvention. Many authors work on Mac and screencap won’t work at all. Quality is a problem: not HD. Without HD, doesn’t get past gatekeepers in the market. The Matrix was presented in 766x344 pixels, wrong aspect ratio even for SD. Simply doesn’t cut it. Authors don’t have tech expertise to use the software without creating the problems screencap is renowned for, such as dropped frames, interlacing, and doubled images. These require an engineer to deal with and most authors lack access to tech expertise.
Charlesworth: are there earlier Apple OS that allow screencapture? Why does Apple not allow screencapture? Are there workarounds?
A: My understanding, and Jim Morrisette would be better able to explain, but Apple has proprietary software that prevents bypass of TPMs.
Charlesworth: we’re told some software doesn’t involve circumvention. [It depends on how you define circumvention! Apple blocks screencap because it takes pictures w/in the computer, even though it’s post “decryption” of the disc, b/c that’s what rightsholders want it to do everywhere that isn’t in this proceeding.]
A: the only program that represents its compliance w/DMCA is WMCapture which is a Windows only program.
Finally, quality matters, whether that’s fair or not. Dropped frames, artifacts, interlacing, doubled images—your commentary and criticism will look amateur.
Opponents: Bruce Turnbull, AACS LA: (1) as was evident, the gatekeeping function that we heard about had to do with bandwidth and gigabytes, not HD quality. Evidence is murky. [Which is why there are HD books in the iBooks store now …] Not a justification for affecting Blu-Ray business. Blu-Ray keys revealed: Blu-Ray and AACS have different structure than CSS/DVD. There are millions of keys for each individual device. Those keys can be revoked when they have been revealed to be used in an unauthorized product and we do revocations every month. We’ve been able to limit circumvention tools to a very limited number. We’re engaged in a tech battle with some producers who’ve hidden their keys. When we figure it out, we will revoke their keys. But it’s a very limited number, all commercial products, there is one that is free. Most are for pay. Top ten listed are for pay. [I don’t get why this matters.]
The discussion on the need for Blu-Ray content is murky. They quote various articles saying Blu-Ray will take over, but those same articles say that Blu-Ray didn’t hit as well and is struggling to survive under VOD and downloads.
Charlesworth: need to see fine detail: can you comment on that?
A: It’s difficult, b/c understand Buster’s expertise. But I saw a bird, and a gold line and a gold frame. Not sure Blu-Ray was necessary. The record is not clear. [No, the image is not clear. There’s a difference.] We’ll show demos where you can see the kinds of features said to be important.
Harm to AACS has been recently found from distribution of circumvention tools—Judge Broderick found irreparable harm, and these are the tools that would be used if exemption granted. Same situation would occur as a result of the grant of an exemption.
David Jonathan Taylor, DVDCAA: Exhibits 23, 24. “Bond, James Bond”: compilation of video capture that we made from various James Bond titles. Used in preferred software system, Adobe Indesign. Made on an older Apple system, back when Camtasia worked (on DVD). A supercut of Bond introducing himself. You could use that to discuss copyrightability of Bond. Next demo: use of Adobe to insert these images.
Q: is your testimony these are DVD quality?
A: no, but they show the details that proponents wanted to see. [Here, the “details” were Bond’s speech.]
Q: you’d have to sharpen the image and do more processing to make it look better. We have some images that have been processed in that way for later this afternoon.
A: what about frame size?
A: my understanding is that Apple’s DVI pixels aren’t the same. It wouldn’t show you the pixels. It wouldn’t be the same.
Q: is it also a different aspect ratio?
A: I don’t think it changes between codecs. You can set the aspect ratio. You can set the pixel ratio. You can set the frame rate. We didn’t know what the proponents wanted each clip to be, so we’ve tried to go back and give you examples of what they say they want.
Q: So you could get a SD framerate, but it won’t be the same frames b/c they may be dropped or duplicate?
A: yes, that’s accurate.
Q: can you speak to limitations on Apple?
A: I just learned about this yesterday so I can’t explain it. In the OS, if you upgrade to the latest, it will prevent most screencap software from working as it has in the past. That is not a limitation in itself, because I worked on a PC. We exchanged content so others working on Macs could work on it. You can just borrow the PC of the person next to you.
J. Matthew Williams, Entertainment Software Association, Motion Picture Association of America, Recording Industry Association of America (Joint Creators and Copyright Owners): Clients don’t oppose renewal of existing exemption for nonfiction ebooks for film analysis. We are exposed to expanding the class—short portions, fictional authorship, criticism and comment/film analysis, Blu-Ray, all AV works such as video games. Short portion keeps this closer to what’s likely to be fair use. Critical to these types of exemptions. We haven’t seen examples of fictional authorship or when it would be necessary. Not saying it would never be fair use but there’s no evidence in the record that should be granted. Keep this proceeding focused on the record and specific adverse impacts. Fiction = less likely to be fair use. Might be used just to gain audience’s attention, which should be licensed. Nonfiction can be a difficult line to draw but we can use definitions to find something that works. [Ah, those extremely clear “guideposts” as contrasted to fair use.]
Caselaw is almost exclusively about nonfiction. Rosemont v. Random House: Howard Hughes bio. Wright v. Warner Books, also a biography. Norse v. Henry Holt likewise. Bill Graham Archives was a nonfiction book. Penelope v. Brown, writing instruction not fictional use. The only case they may use involves the play Jersey Boys, involving use of a video clip. There’s nothing in the record that justifies expanding this to Blu-Ray. We show that almost all of the items they claim are only available in Blu-Ray are actually available in other formats. The exemption doesn’t prevent them from using HD quality, but it does prevent them from using Blu-Ray discs, but there are numerous online outlets for HD downloads. The availability of those makes Blu-Ray expansion even more inappropriate.
Video games: no specific examples, only hypotheticals. [B/c it’s easy to show adverse effects when you’d have to admit to breaking the law….] Also the record doesn’t show how the circumvention is accomplished.
There’s no submission of the iTunes ToS, but gatekeeper issues aren’t our problem. Legislative history: manager’s report says that adverse impacts that flow from other sources than TPMs including mkt trends, other tech developments or changes in the role of libraries, distributors, or other intermediaries, aren’t supposed to count. So are mere inconveniences. It was clear that when the proponent can use one device to achieve a goal and not another it’s grounds to deny an exemption.
On Pam Samuelson: I believe all the Bond films that come in the collectors’ edition can be purchased in HD or HDX through Vudu. Don’t need Blu-Ray.
Q: Do you object on film analysis?
A: every example in their comments is about film analysis, except this one, but I think it arguably is film analysis b/c she’s going through the actual films to critique the character through time. Arguably film analysis; don’t know what you intended that to to mean, but relatively comfortable w/that.
Q: it’s not critiquing the film, but teaching about copyright law/illustrating a principle.
A: Sometimes you can do two things at once. She would be commenting on the films and also on how the films would be treated under © law. That’s different from saying “I want to show this to teach you something about history,” which isn’t about how a film treats history specifically but is about educating you. [How can those be distinguished? Pam’s comment on the films is “this shows you how copyright works.”] Not enough examples in the record beyond film analysis. Plus you don’t need details of Bond’s character to discuss his copyrightability, and you can see them on HDX anyway.
Q: if Apple had a policy saying we wouldn’t accept SD, and that was industry practice, are you saying we can’t take that into account?
A: legislative history suggests that by itself isn’t enough. The access controls aren’t leading to the adverse impact, but a business practice that is separate. [The access controls are a but for cause.]
Q: it’s a combination of the two causing the problem. Business practice + TPM. If there wasn’t a TPM, the business practice wouldn’t hurt you, no?
A: that’s fair.
Charlesworth: HD downloads—proponents’ reaction?
Lerner: it’s new to these hearings, and we’re glad to hear they’re available on Vudu; a little surprised that they’re throwing Vudu to the circumvention wolves but that’s their business. [Insert gif of Kermit sipping tea]
Q: would that require circumvention?
A: If you pay for the copy, you can download it to your device with TPMs that would need to be circumvented to make clips, allowed under existing exemption. Not thrilled with that, but given that it already is and we’re not opposing its renewal it’s a viable alternative.
Q: is there a difference b/t Blu Ray and HD?
Williams: my understanding is that HDX is marketed as 1080p, very close to Blu-Ray. HD copies are generally not that high, but still crystal clear when I watched them. There might be a difference in availability but I don’t know about it.
Turnbull: 1080p is full HD, and that’s what’s on Blu-Ray itself. Any given implementation might be better or worse, and some Blu-Rays are better than others, but baseline quality is 1080p.
Williams: information about Vudu is in the record.
Lerner: Delighted to look and see if they work for James Bond. I do know offerings are much more limited relative to Blu-Ray so it’s not a full solution. It’s also technically much more difficult to obtain streams, as Mr. Morrissette testified. That would make it more difficult for our clients to use the exemption, which is another reason we think Blu-Ray is useful. Turnbull says that bandwidth is the main barrier, but that’s not true. Bandwidth is an issue, and that speaks to whether “short portions” is even needed, but the key issue is that Apple’s quality control is very strict.
Charlesworth: subpoena Apple? Alas we can’t. But we heard earlier that they don’t have a written policy and no evidence they reject for lack of HD.
Lerner: we have fear and we think it’s a reasonable fear. (1) Very likely cause Apple to reject many or all of the ebooks people submit, (2) Buster pointed out that SD would be backwatered—instantly archival, jarring and disruptive to readers and viewers. Everything sold now is HD+. To go back to SD on a device like that isn’t just an adverse effect but a substantial one.
Charlesworth: agree that a lot of archival footage will look jarring, and isn’t that inevitable?
Lerner: old movies were screened in 35mm, they’re actually much higher definition. Yes, PBS footage from the 70s will be fuzzier, and audiences understand that, opposed to films that weren’t fuzzy. Audiences and gatekeepers expect better when better is available.
Reid: preserve for the record our strenuous objection to reliance on the manager’s report to determine meaning of words in the statute for which there’s been no sufficient identification of an ambiguity. The report came out after the House passed the DMCA, and I’ve never heard of relying on post-enactment legislative history. To the extent the Office is importing doctrines such as inconvenience from the report, we strenuously object to going beyond the statute, which requires “adverse effects.” We’ve established that you may need to hire a lawyer, engineer, buy new computer to use screencap. Whereever adverse effects lines are drawn, it’s surely before that process.
Charlesworth: we’ve invoked it in many occasions to understand it b/c the statute is facially difficult to interpret.
Lerner: The text doesn’t say what Williams says it says. VHS is no longer available. If VHS had TPMs on it, we couldn’t come here and say we need circumvention b/c distributors aren’t making VHS any more. VHS went away for a reason unrelated to the TPMs. Here there’s a direct relationship b/t TPMs and inability to get into the market.
Williams: I think the report speaks for itself. You’ve relied on it in the past. It can provide guidance. It’s a clear statement about these types of issues.
Reid: none of the language appears in §1201, which clearly manifests Congress’s intent to include what’s in the statute and not include what’s not in the statute.
Charlesworth: we rely on it for guidance.
Wolfe: very briefly: film analysis—Williams suggested it covers most of the universe of uses, but film can play into scholarship in important ways/paradigmatic fair use that doesn’t seem like film analysis: clear trend in scholarly communications to focus on reproducibility of experimental results by providing tools, data, etc. Psych literature is replete w/studies based on or requiring film clips in their production. For online production, including the clip on YouTube might be acceptable, but in books showing what you used in the experiment, not as analysis but as a fact in what you did, is essential.
Q: Buying a new computer—wouldn’t you also need to switch to PC for Blu-Ray?
Turnbull: there are no licensed players for Mac.
Q: have you explored using HDX for your project?
Buster: I was working w/in what I thought were the legal requirements. It would be a hardship to work with a Windows computer and work back and forth.
Q: you might be able to use HDX under the existing exemption.
Buster: once you pull the video from any computer you can exchange it.
Taylor: you could switch between environments. Other people I was working with used Macs and I used a PC and we could work.
Lerner: I just bought an external Blu-Ray player for my Mac that plays Blu-Rays. I wasn’t aware there were no licensed players.
Turnbull: there are no licensed players. [Wow, that enforcement effort is working super super well!]
Q: can you access this content in HDX downloading?
Lerner: yes, but the catalog is very limited. There’s a very strong likelihood that it won’t cover all the HD content people want.
Buster: would need to figure out how easy it was to cut the clips to be fair use.