Thursday, May 19, 2016

1201 roundtable, renewal of previously granted exemptions

Rulemaking Process – Renewal of Previously Granted Exemptions
This session will explore the process for renewal of exemptions granted under a prior rulemaking, including consideration of proposals for presumptive renewal when there is no meaningful opposition.
Andrew Moore, Kevin Amer, Regan Smith, Jason Sloan
Ben Sheffner, Motion Picture Association of America: Consensus that there should be some sort of streamlined process as to previously granted exemption: waste of time for proponents and CO staff to go through full process w/no meaningful opposition. Even w/in details, there aren’t dramatic differences.  How we think this should work: proponents of previously granted exemption should make a very simple filing stating they’d like the exemption to be renewed and why they think it should be renewed, 1-2 pages. If an opponent wants to come forward and wishes to oppose, it can briefly give the reasons, then it would go into regular process.  Under existing statute, CO could do this and allow the exemption.  Should be limited to renewal of particular exemption granted; it’s been the exceptional case where there have been opponents to previously granted exemptions—we’d opposed some in the past, but if people came back and asked for a renewal, we didn’t oppose extensions.  We wouldn’t want to cover expansions; burden should be on proponent to make their case.
Andrew Goldman, Knowledge Ecology International: should be presumptive renewal of previously granted exemptions. Burden should shift to © owner.  Waste of time, difficulty, especially when exemptions unopposed as for literary works for blind/print disabled.  Exemptions have gotten increasingly complex/lengthy over time. 2010: 100 word exemption became 750 words in 2015; this shouldn’t be so complicated and burdensome for people trying to make noninfringing use.
Jonathan Band, Library Copyright Alliance: Sheffner’s proposal is a good start.  CO can do a lot right now, without any amendment.  Way too much deference to one sentence in one committee report directed to a different rulemaking, one to be conducted by NTIA.  No need for any deference, but even if you did want deference, de novo determination doesn’t mean de novo evidentiary submissions.  Even if there is opposition, should still be truncated so that new evidence doesn’t need to be submitted. If we want additional info, we can, and so can opponents, but the whole record should be included and considered.
Q: we’d be interested if you agree that under current law there is flexibility.
Decherney: Time doesn’t stand still, so it’s unusual to have a renewal that would look exactly the same.  Should start where we left off, not necessarily w/expansions but just accounting for current state of tech. 
Q: consensus about short form filing prior to rulemaking.  Would that work?
Gabe Cazares, National Federation of the Blind: Need to be fleshed out, b/c current procedures are too burdensome.  Look at how many disability organizations participated—demonstrably lower than other groups b/c of burdensome evidentiary requirements, inconsistencies in triennial cycles; coming up with a sensible proposal would be an interesting conversation.
RT: Goldman and Band are right about current law: of course there’s flexibility, not just from legislative history. That’s what de novo means for courts! It doesn’t mean new factfinding.  Incorporating by reference: we do that already; why isn’t that a way to put in all the previous analysis?  Interacts w/proper definition of classes.
Q: do you think that you have to make a new showing? You did submit new evidence.
RT: We didn’t think so, but the CO’s current position made it uncertain.
Sam McClure, Institute of Scrap Recycling Industries, Inc.: should be purely presumptive renewal without even the initial filing.  Then we can give notice. W/r/t meaningful opposition—just a filing of an opposition shouldn’t immediately kick people back into the regular process.  Opponents of old exemption should have to show that the facts have changed.
Turnbull: agree w/Sheffner.  Bringing forward the evidence from the record—you can see previous comments and hearings.  The notion would be that w/r/t exactly what was done before, if there’s no meaningful opposition, that goes forward, and the argument becomes about the difference, not the whole overall issue.  Would help streamline and minimize burden on either party.
Q: statute requires determination in rulemaking proceeding that persons who are users are / are likely to be adversely affected.  Can you really say enough in one sentence? 
Brandon Butler, University of Virginia Library: Be cognizant of who the participants are and how they’re represented.  Big collective action problems; a different student team every 2 years; our representation ends after the process ends, so it’s not one responsible atty.  Trap for unwary problem of having to file a one-pager, if you had the help of a clinic three years ago.  One option is the TM registration practice—have an institutional email address, and when relevant events happen, there could be a notification system.  Let past proponents know. That would be fairly simple.  There is substantial reliance on these exemptions in big institutions—educational exemption has been granted/renewed for long enough that they buy DVDs in part based on the value proposition of being able to make clips: $30,000/year for UVa.
Q: is that a reason to do the renewal, or to have a permanent exemption?  Supposed to be a fail-safe; exemption might become ossified.
Butler: absolutely permanent! Third best is renewal, after permanence and legislation supporting fair use.  VHS tapes that have never been put into subsequent format; those tapes are still being used and digitized. The same thing will happen w/DVDs.  We (libraries) will always need to decrypt DVDs. That’s in the nature of the way tech works.
Sofia Castillo, Association of American Publishers: AAP open to some sort of streamlined proceeding.  Not a presumption, but some form of improving the renewal process. But might be problematic to have complete burden shifting so opponent has to oppose an exemption that has already been granted.  Opponent doesn’t have all the evidence necessary to show it’s no longer necessary or has been used in the past three years or is likely to have adverse impact.  Automatic renewal presumption would be similar to permanent exemptions, and for purposes of renewal it’s important to take into account that having it every three years helps account for changes in the marketplace.  [Though the only time they rejected a previously granted exemption due to market changes, Congress didn’t like that much.]
Harley Geiger, Rapid7: we hire lots of white hat hackers, without legal assistance/knowledge; they get threat letters with vague DMCA threats.  Burden of initial filing: we support automatic renewal.  1-page wouldn’t hold for very long, so the opponents ought to make the filing.  If restricted to single page, once again you’ll need legal expertise.  “Meaningful” opposition—not the right standard.  If anybody objects, then we go back to the initial process, but we’ve seen in previous rulemakings that the same arguments are trotted out again and again, and there’s no reason to think that wouldn’t happen here.  Instead of “meaningful” opposition, material change in circumstances—changes in marketplace, tech.
Q: so burden would be on opponents.
Geiger: yes!  If we’re talking about an expansion, we think that the process ought to be about that expansion, not expansion + original. We don’t think that non-© interests ought to figure into the denial of the exemption, including rebutting presumption.
Q: lack of meaningful opposition.  Is there an alternative?  Presumption automatic?  If standard is meaningful opposition, would the © Office have discretion to determine how meaningful an opposition is?
Sheffner: we do oppose presumption of renewal. CO’s own reasoning in 2000.  Statute with exemptions—those rules of statutory construction and admin law say the exemptions should be construed narrowly and that the burden should be on the proponent of the exemption.  No change in general principles of statutory construction or admin law.  This is anyway largely academic: (1) at least in the last round, there is virtually no opposition to previously granted exemptions. (2) burden should remain on proponents; if there is a presumption of nonrenewal, the proponents start at 49% and opponents at 51%. But minimal evidentiary showing will overcome that.
Turnbull: Burden on making an initial statement, yes we want to review, could be a check box on a form. CO could email that to prior proponent.  Shouldn’t be a burden.  But under the statute, CO needs to go through the process of actually getting a request, using the prior evidentiary record as the basis.  The opposition issue: it’s true that making the same argument over again is a waste of time, but some kind of changed circumstances—change in law, abuse of the exemption, or a circumvention tool that turned out to be a huge marketplace problem--can justify looking at this again.
Band: changed circumstances—to some extent this whole discussion of presumptions and burden shifting isn’t appropriate to a rulemaking. Those are adjudicatory terms.  This rulemaking has over time taken on more of an adjudicatory quality, but that’s not necessary.  If we want an expansion, that’s on us, but just a renewal. Evidentiary burdens could be considered in the course of a rulemaking context as opposed to an adjudicatory proceeding.
Q: from a rulemaking perspective, can we speak more about building upon a declaration
RT: Can a one-page statement meet the statutory burden as the CO has interpreted it?  Yes, if it says “nothing has changed.”  Other administrative proceedings: facts that aren’t contested are routinely accepted, even without going back to the bedrock.  PTO works that way.  PTO is allowed to treat an uncontested claim of 5 years of exclusive use not just as true, but also as having legal consequence (making a descriptive term registrable, in that case).  Meaningful opposition: “our arguments apply to both existing and proposed exemptions, but we do not oppose renewal”—that’s what we hear. How is that to be interpreted?  Does that represent meaningful opposition to the existing exemption?  Law prof hat: If that evidence is relevant to both existing and proposed exemptions, then adjudicatory model allows you to ignore that fact because parties are allowed to make strategic concessions, but a rulemaking model might not.  (Statement somewhat against interest, I know.) Decide what this proceeding will be and then some of the answers will follow.  Quality: as a practical matter, they keep coming up with new screencapture programs.  So we’d always be fighting anew again.
McClure: if you don’t presumptively renew, you get one organization tied to the exemption. But it’s something that benefits the public at large; shouldn’t have to depend on whether they come back year after year.
Peter Decherney, University of Pennsylvania: comments we always get are: we are not opposed in general, but we propose these 10 limits.  Even though it says it’s not an opposition, it is in fact an opposition.  Another structural issue: if you draft the exemption well, you stop the harm from occurring, so you can’t show that harm will continue.
Turnbull: The CO has appropriately taken our concessions as concessions, but that wouldn’t be possible in a renewal model. The procedure would naturally eliminate the problem and identify whether there was a change we wanted to argue w/r/t the old exemption, or whether we only want to argue w/change. Should be renewable by anyone taking advantage of the exemption.
Cazares: NFB fully supports presumptive automatic renewal.  2010 cycle: another organization, AFB, came very close to losing the exemption it had secured b/c of evidentiary requirements. There’s something to be said about the statute and its limitations, but it’s also safe to say particularly the blind/print disabled, our status isn’t going to change and it can be argued that we’d be adversely affected by not having an exemption.
Geiger: more consensus on what meaningful opposition ought to look like: change in circumstances. Relates also to evidentiary standard.  In thinking about renewing, interests that don’t have to do w/copyright rights, including access, shouldn’t be weighed.  Most of the opposition w/r/t security research has no relation to ©. It’s about safety.  Hacking cars and nuclear power plants are already illegal. By and large, the DMCA issues for us are about computers the researcher already owns.  © and 1201 are not the right tools to protect the asserted interests. 
Q: 1201(j): should it be updated for permanence? 
Geiger: 100% yes.  Less preferable than updating permanent. Tech evolves; so will security research; probably not new circumstances relating to copyright, though, so they should be dealt with by other agencies with expertise.
Q: relying on prior record.  Is there some point in time at which that old record would get stale?  What about 10 years? 20 years?  Determination is whether users are or are likely to be adversely affected, says statute.
Band: I would imagine that, even after we check the box, someone will show up at the hearing. Don’t make it more complicated than it needs to be.  Are people still making remixes?  Yes, they are.  The question is whether we need a zillion new examples from the past three years.
Q: triennial: short, medium, long could get complicated quickly.  Don’t increase the complexity of an already complex rule.
Band: reduce number of classes: we’ve gone from educational and noncommercial to 8-9 in the same category. We don’t need 11-12 exemptions on embedded software; we need one and you wouldn’t have to worry about the auto industry. These things can work in tandem to streamline.
RT: Mr. Cazares’ point interacts w/Band’s: patterns of protected uses and users persist over time.
Q: how should we separate statutory or admin change for new exemptions/tech v. renewal of previously granted exemptions?  Accommodate evolution.
Sheffner: Stale, old evidence. We wouldn’t not oppose incorporation by reference of evidence submitted in previous rulemaking.  Self-correcting in revised system. If proponent files one-page, potential opponents can look at that and consider whether the evidence has gone stale b/c the situation has changed in case law or business model or new tech. This would be rare, but the opportunity to oppose would exist.
Q: what about 4K instead of Blu-Ray—how do we deal with renewal + new issues?
Sheffner: we would support a streamlined process for dealing with renewal of exact same exemption. If people want an expansion, in practice it may be streamlined, but burden should remain on proponents. Smaller fight than fighting over whole thing.
Butler: largely true that it wouldn’t apply to increase from Blu-Ray to 4K, but the logic underwriting the presumption should also mean that arguments could be shorter, b/c we’d agree that the planned use was lawful—if it’s fair use of a Blu-Ray, it’s fair use of 4K, and the adverse effect/pedagogical need for using in classroom would already be in the record.
Turnbull: there is a difference b/t a new tech and one that’s 10 years old in terms of harm to development of the market. [Does this mean that all the stuff in the morning about enabling the new markets is now obsolete?] Blu-Ray is now 10 years old, and enabling market matters.  [I thought last year he was telling us that granting a Blu-Ray exemption would destroy the market.]
Band: [expresses unease about great agreement w/Turnbull and Sheffner] Building on identified issues, the CO can help manage, w/aim of reducing workload: you know by now what the issues are in general terms w/DVDs, educational use, remix use.  One can easily imagine there’s a way to treat renew + expand with something like a prehearing conference where you can figure out what you need to know from us. That could reduce our burden as well as yours.  We’re talking about a relatively small universe of clusters—motion-picture-related; screen readers; a couple of others. 
Q: So if the CO provided guidance about what evidence they wanted, could avoid some of the burden?
Band: yes.  Be a little more informal; that could make it work better.
Butler: flip side of what Turnbull is saying about a young format’s market realities—there will be a mirror image on the side of proponents. When a format is young, we’ve typically shown that there are one or two titles with unique content—but then the answer is that that’s one or two, which is because they’re young formats.  So recognize how that plays out on both sides.
Turnbull: agrees w/Band.  Always a hybrid b/t adjudication and notice and comment, which is inevitable in the process. Unrealistic that CO would go out and know what people were doing w/any given © work. People who have the need to use something have the info to come forward. End of day, CO has obligation to have a rule reflecting the evidence.  Proposed rule process would be more like notice and comment, but leading up to it would be factfinding [driven by parties, I think he means].
Q: streamlined rejections—how about that? 
RT: No: structurally unequal; if the proponent wins, © owner can still go to court on infringement/secondary infringement, but if the proponent loses, they can’t even try that. So mirror image treatment is inappropriate. Also, such a rule would have to deal with situations like exemptions that have changed over time. Could you not go back to the original 44-word educational exemption because in some sense it’s been “rejected” by the additional restrictions added over time?  That would be inappropriate.
Band: no, circumstances change and rightsholders get more comfortable w/certain activities. If proponent will work to amass new evidence. If rightsholder was confident before, they can stay confident of past arguments incorporated by reference.
Butler: right, it’s enough work that people who don’t have a real interest will be deterred.
Q: we get a lot of repeat players.

Q: meaningful opposition: we talked about showing that the exemption wasn’t used, or there’d been changed circumstances/harm.  How much opposition would be needed?  If proponent is just checking a box, it could be a minimal showing to oppose that. Where should the line be?
McClure: need to know how much of the new record is pulled in.
Band: Not sure you need to specify the precise level of how material the opposition is.  If Turnbull/Sheffner’s clients make submissions, you’ll look at them and decide whether to kick it over.  Hard to challenge that decision in court; you’ll have a lot of discretion one way or the other.
Sheffner: we weren’t terribly specific but I envision it: a prescreening process that the CO would employ before the regular process.  See if there’s a real fight in the rare case of opposition to a previously granted exemption.  Identify why there’s meaningful opposition: they’ve discovered great harm.
Q: if prescreening determined it insufficient, could we ask for more?
Sheffner: sure: wouldn’t want to make it too complicated.  Screen out fake fights.
Turnbull: Add that the nature and quantum of evidence/argument will depend on the previous grant. If it was a close case might be different v. if previous was 3 times granted.  Might need to describe the new tech in order to reopen evidentiary hearing.  Would have discretion to prompt opponent for more info.
RT: Not “just” checking a box any more than checking a box saying you’ve submitted truthful information your tax return is a meaningless or trivial act, it is an affirmation that the conditions underlying continue to exist—an opponent of renewal should have to show that those conditions and laws have changed.  If you want me to, I will submit the entire record from the last three rulemakings as attachments so that you can consider them submitted but that seems trivial—I would be happier if you considered the checkmark to be me making that submission.
Geiger: Also would be good to let proponent show the opposition isn’t meaningful, which could inform CO’s discretion before the whole process starts again.
Butler: getting complicated!  We need to know what the reasons are; opponents should disclose that, or sometimes that one page will be on its face rejectable.  As long as everyone’s ok with being killed at that stage and not going forward.

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