Wednesday, May 06, 2009

Copyright Office DMCA Hearings: Q&A

Rob Kasunic, Copyright Office: Is there any way of distinguishing between the different types of uses we’ve seen? The film exemption was fairly narrowly tailored because of particular pedagogical needs of film professors to show aspect ratio, angles, etc. only available on DVDs. Not seeing the same level of necessity with all the examples here.

Decherney: He’s convinced of the need beyond media studies. Facial recognition, medical staff thinking about patients; sound; body language; substantial similarity in infringement/de minimis cases—clear that you need a high level of image. Is there a catchall other than disciplinary status? He can’t think of one. A necessity standard is too abstract. Who determines that?

Kasunic: But if necessity formed part of the basis of the last exemption, and now we discard it, aren’t we in a different environment? More towards a class/use exemption.

Band: Aspect ratio etc. were examples of the kind of sharpness of image, the quality you need for effective classroom use. There may be some cases where you’re talking about general plot it’s less important, but in many situations quality is important, or where the lack of quality distracts from the ability to understand what’s going on or to pay attention. People are used to high-quality images. Blurry images distract from the educational message. Largely because of how the MPAA et al. have changed our expectations, we need that quality across the board, or it just doesn’t work in the classroom.

Kasunic: But use of older films were being shown in some of these works. Why were they included?

Band: Those are legacy materials, and they were distracting—when you see an old B&W movie, you think “that’s kind of fuzzy.” (I agree, Kasunic is talking mostly about the Texas example, which was explicitly offered as an example of materials that no longer worked because students didn’t react well to them.)

Decherney: What about materials only available on DVD? Classroom time devoted to shifting disks—that was important in 2006. Quality was not the only issue in 2006.

Attaway: A camcorder version of Decherney’s example would have been fine, because he’s just lecturing about the use of digital v. live action.

Decherney: He might have agreed until he saw it in lower resolution, the form displayed here. Yoda’s ears are important to the scene he analyzed, and they weren’t very visible here.

Hobbs: The importance of context: it’s one thing to work in a place where you can turn off all the lights with one button. If you work in a public school where the blinds are broken, your experience is different. Image quality needs to be superior for it to even be visible when you’re working on bad equipment, as many teachers are.

Kasunic: Should we take conditions into account in a particular school? Hobbs testified that schools disallow access to YouTube, which would seem to be an important component of media studies.

Hobbs: Well, you need to look at clear images to be able to ask students—grade 4, 7, 10—what techniques are used to get your attention? Schools use filters for a variety of good reasons. YouTube is bad, especially if you have a bad monitor. Where a 32-inch monitor is the standard in the corner of the room, as in most schools, the only presentation method that works is DVD.

Kasunic: Additional content contained only on DVD—in terms of quality from alternative means, is that kind of quality something that would be acceptable?

Decherney: The MPAA has better interns than 3 years ago; this is a better camcorder clip. There were still issues. One, the camcorder used telephoto lens—noticeable distortion, always will be. Still muddy/blurry/bleedthrough, and a red cast. Showing dark scenes, a lot of detail was lost. Obviously, don’t always need absolute highest quality, but doesn’t know how to craft that into an exemption: a necessity standard is too abstract.

Kasunic: Is higher quality necessary? You didn’t focus on particular aspects.

Decherney: He was hoping to show that two kinds of images were used that were supposed to look similar, but didn’t—CGI v. man in silver suit. In high quality, you can tell the difference. (Kasunic says he could tell the difference here.)

Kasunic (at the copyright owners): In many cases, a camcorder may be sufficient quality for many uses; if there was a way to take away impediments by using a computer instead of a separate camcorder, would that be sufficient? He showed a clip taken with SnapZ or maybe SnagIt. If we allowed that, would that mostly suffice?

Decherney: this would be acceptable in a tiny percentage. It’s distorted not so much by the pixelation but by the frame rate—like a silent film played at the wrong speed. It’s also a potentially infringing technology.

Kasunic: Aren’t film profs more likely to have the kind of equipment the MPAA is talking about? Isn’t filming part of film studies?

Decherney: No. It depends on whether you offer production courses. Many people teach film studies, not film production.

Jackson: The separation of production and the content of film studies happens on many campuses. Production is often in arts & humanities—there’s a digital divide on campus between humanities and the “big money.” No UMd profs have their own equipment, though the language media lab tries to help people out. A central facility to do this capturing would be impossible—too many professors, too many possibilities.

Rife: As a teacher, she’s seen people get lower grades for pixelated images. A teacher should respond to quality. If high quality is a sign of hacking, that’s a problem.

Kasunic: That’s not our fault—if teachers are imposing undue restrictions on students given the law.

Rife: Writing teachers care about quality. Don’t go down a road saying that student work doesn’t need to be high-quality. That’s unjust.

Dave Carson, Copyright Office: Can you explain what you mean by “writing”?

Rife: Writing is broadly defined: National Council of Teachers of English definition—writing isn’t only alphabetic writing. Writing includes montage; it could have text or not.

Skalbeck: Tried SnagIt and tried with 3 different DVD playback technologies to duplicate this with Se7en. He got a blank screen with each. (Kasunic says this can be fixed with configuration.) But Vista is trying to lock down the delivery of information. He tried higher end capture software, Adobe Captivate—he was able to capture a low-res version. But it doesn’t allow simultaneous capture of sound. He tried and is not convinced that the software or the OS guarantees the ability to use SnagIt as a substitute for the next three years.

Kasunic: You don’t need to move to a new operating system if moving would prevent you from making a use you want to make. (And you should hang on to your VCR, apparently.) The software capture essentially does what a camcorder does. If this tech was doing effectively what the camcorder does, removing some of the obstacles, would that be okay?

Metalitz: We’ll look at the tech.

Kasunic: If there are capture technologies other than a video camera, that may alleviate the educational concerns.

Band: This is surreal. Either the quality is equivalent or it isn’t. If it isn’t, as we’ve seen, it’s not enough. If it is, the DMCA is irrelevant and has no speed-bump effect at all. Another question: If we’re concerned about normative behavior, and we don’t want to encourage circumvention—ignoring the fact that we live in this sea of circumvention, and people here are trying to do the right thing—so instead, we want to encourage camcording? Talk about normative behavior: the MPAA has been going around getting states to pass laws against camcording. Put the MPAA demo on YouTube! Why would you want to make this so difficult? Why go through all these convolutions, ignoring the extent of infringement that occurs regardless? Why encourage camcording or encourage instructors to break the law? To encourage normative behavior, tell them to circumvent for fair use.

Turnbull: You don’t want to have the circumvention tool become something that is available and out there in the legitimate marketplace. We’ve failed to prevent availability, but the tool shouldn’t be ubiquitous and accepted. The use of the camcorder for the limited purpose to make what is stipulated to be a fair use does not threaten the technology; it allows fair use but doesn’t threaten the technology.

Attaway: Convenience simply can’t be the standard. It’s not just educators and professors that have the ability under copyright to engage in fair use. Everybody can. If inconvenience is the standard, everybody should be able to circumvent because everyone is entitled to engage in fair uses. That would void the circumvention prohibition.

Band: It’s not just about inconvenience.

Attaway: Even if this utility did nothing more than what a camcorder does, under 1201 if it is marketed to avoid, bypass, remove, deactivate or impair a tech measure it’s still a circumvention device.

Carson: We’re trying to get that evaluation out of you folks.

Hobbs: Teachers want to make lawful noninfringing uses, and to help their students understand their rights and responsibilities under copyright law. They want to help students distinguish fair use from pirating. We’re on copyright owners’ side: we think that if we enable unlocking CSS for fair use purposes, it provides the perfect teachable moment to understand the difference. Teachers/students are ignorant, and fed propaganda misinforming them about copyright. Students don’t need to go through decryption to pirate—that’s readily available. What we have now is erosion of respect for law. We’re here because we’re deeply concerned that without enabling students to make legitimate noninfringing uses, erosion of respect will continue. Students and teachers want to respect copyright and understand the desire to limit copying, but we also respect our fair use rights. You say you don’t mind fair uses, but you think access to the tech will destroy your market. To the contrary: we can help all Americans understand the distinction between fair use and piracy.

Kasunic: Use in legal/medical education: to what extent is variation in quality important? In a couple of clips, they’re available on

Skalbeck: he doesn’t know all the sources. He bought the DVDs. Quality is particularly important where the question is substantial similarity—what does the chair in 12 Monkeys look like? Also in Se7en where the lighting is dark. You could get across some of the points with lower quality.

Kasunic (to opponents): How is one to go about figuring out if content is available from other sources? For example, things go on and off

Metalitz: We suggested that limitation on any exemption because you’ve used the standard before in the ebook context. It’s true that there’s a reasonableness question. You’ve put reasonableness into the dongles exemption, for example. A lot of these examples are on DVD. A lot of TV is in the clear, so you wouldn’t need to circumvent to get them. Hulu and network websites are sources. People who are reasonably savvy would know where to look for an unencrypted digital version. You couldn’t be absolutist. But there should be a necessity standard; if an unencrypted version is available, no exemption for you.

Kasunic: To what extent are there works only available in Blu-Ray?

Attaway: We don’t know of any.

Decherney: The question was whether an exemption should be restricted to DVD: sometimes Blu-Ray is better. Sometimes people teaching media classes teach from videogames. We don’t want to discriminate. There’s a range of media, and a range of quality.

Metalitz: That points out the slippery slope when you start talking about quality. You can’t go into a theater and take a copy of the print. The question is not optimality, but enough to meet the legitimate pedagogical needs of teachers, and camcorders meet those needs.

Corsin: Last time around, we concluded that for certain uses, best quality or even really really good quality is what you need. Assume that we still hold to that conclusion. Now Blu-Ray is out there.

Decherney: The 2006 exemption wasn’t limited to DVDs. It covered AV works. As far as he knows, it hasn’t destroyed the market for Blu-Ray. Extending it would not do so either.

Carson: Do you know of any profs who’ve circumvented Blu-Ray?

Decherney: No. He’d like to but doesn’t know how.

Metalitz: We continue down the slippery slope. Videogames are new! (The exemption covered AV works, as was just pointed out.) Every single example was circumvention of CSS on DVD. The Office didn’t conform the exemption to the evidence, but the evidence now is limited to DVDs. The statute requires a finding that people are now impeded in their ability to make noninfringing uses, or that they’re likely to be impeded in the next 3 years. We are seeking a narrowing of the existing exemption in that regard.

Attaway: The competence of the person doing our demo improved markedly, but aside from that technology has improved markedly. We need to take another look at the exemption to determine if it’s still justified in light of today’s tech.

Kasunic (to WB): Issue about permission requests: it seemed like the letters submitted with WB’s testimony initially required conditions for WB’s permission, including conditioning WB’s lack of objection on obtaining permission from the persons appearing in the clip, which may possibly come from SAG. Later WB simply said it was only disclaiming its own rights. What’s going on with that? Isn’t it an additional hurdle on the permissions process?

Aistars: As we submitted our testimony, we provided you the only examples that had come in. The criteria in the first letter informed the requester of the criteria for the §110 exemption. The statement that WB doesn’t necessarily control all the rights is simply a statement of fact. Our current practice is now not to condition permission on obtaining other permissions, but merely to make clear that WB is only waiving WB’s rights.

Carson: So, a prof asks for permission to use a clip. How quickly can one anticipate a response.

Aistars: We rarely get those requests. Typically we send out a standard letter with the §110 requirements, and that WB waives whatever rights it has (which it doesn’t have any under §110, but whatever). Depends on whether the key person is in the office; most are issued the same day they come in or the next business day.

Carson: Let’s assume that if you were to write to a studio to ask permission, you’d get a response within 3-5 days.

Hobbs: Huge obstacle—in the course of a single day long staff development program, I might use 30 clips. 30 letters, 30 pieces of paperwork. For K-12 teachers, it’s worse. When they explore that option with students, just finding the right address and the right contact person is a challenge.

Decherney: Agrees—finding who to ask is a problem.

Carson: There are only 4-5 studios, though.

Decherney: That’s not true of film studies—major studios produce only a fraction of the films taught. Descendants of rights holders are at issue.

Band: Foreign films: add a layer of complexity. But remember the statute says: is there an effect on lawful use? If the status quo ante was free, unrestricted use under §110, then having to ask permission is an adverse effect under the statute.

Aistars: If you’re working in the US, someone has the US rights, and typically it’s a logo at the beginning of the film. Typically you don’t have to contact five layers.

Jackson: Has experience with performances on campus. We use traditional sources to find appropriate rights. But time after time, for international film festivals etc., we find holes where we can’t just find the rights—we use film industry sources and rights clearance organizations, and often there’s still nobody. We find a former rights holder and never get a response back, because we can’t find the right person. We always need 5-6 backups for our film festivals, and it happens more often for the important, unusual films we want to teach than for the ones available at Blockbuster.

Also, note that non-film studies people are not used to trying to negotiate film rights. Teaching is so serendipitous that in a week there will always be something that it would be useful to add. Those people aren’t set up to look for rights week after week just in case. He has a list of 100 classes teaching visual culture that want to use 10 clips a week, and they are none of them taught by film people. It’s impossible.

Turnbull: 3-5 day turnaround is something that is often possible long in advance of actual use. There may be a number of different solutions to the issue that need to be publicized.

Carson: So you’re suggesting that permission can sometimes be excused. How do we write that into an exemption?

Aistars: Not suggesting that’s a first step. There are uses such as the camcorder where you’re not circumventing; it’s a usable clip and can illustrate many points. It can be edited with other clips; no need to contact us.

Metalitz: Did provide a proposed revised exemption as a starting point.

Turnbull: Reasonableness is not an unusual standard.

Decherney: Reiterate the point about spontenaity and the ability to rework lectures the day of the class, which happens to teachers all the time. Students are also on the table. If we think about students, the impact of a permission system on them for doing coursework would be horrible. Also, don’t take the censorship question too lightly. The documentary filmmaker analogy is a good one: they’re often turned down in clip requests. Anyone who’s ever wanted to use a clip from The Simpsons gets a letter from Fox turning them down. Students asked ESPN for rights to use a clip and got a response that because the students couldn’t prove their argument that permission was denied.

Band: Reality. Big decentralized institutions with hundreds/thousands of faculty members. A lot of them are using this content, and more want to do so. They’re not all lawyers, and don’t understand the nuances of copyright, let alone of paracopyright. To have a workable, practical solution for these various people making spontaneous decisions, we shouldn’t have two sets of rules (one set for film studies, another for everyone else) and we shouldn’t have other layers of complexity/nuance: did you search enough websites? Is your use of sufficient quality to need circumvention? What’s realistically going to happen? Let’s come up with a rule everyone can follow, as opposed to a contorted rule that just pushes people to illegal content. Bottom line: teachers are using this material in their classes. Why not make it work, instead of making it difficult?

Aistars: Equally unreal to suggest that we should legitimize an illegal tool.

Band: We’re here to get an exemption. We want to do it legally. We don’t think camcording is good enough, but even if it were, why is that a desirable result?

Aistars: The Office doesn’t have power to grant an exemption to marketing those tools.

Band: And yes, this is a farce and a sham.

Attaway: Don’t rely on Band for reality. Look at the record. Censorship: there is no evidence of censorship in this context. The proponents have an ideological aversion to requesting permission. They think lit profs don’t need permission to use quotes in class, so they shouldn’t need to license. (Um, that actually is true.) But that isn’t the statute. A permitted use is a noninfringing use, and if available vitiates the need for the exemption. Three anecdotes of censorship, none involving classroom use. WB’s submissions show that they grant permission even to show works in an unflattering manner.

Metalitz: Doesn’t understand the inability to copy someone’s speech as censorship. That’s not how courts interpret the First Amendment.

Carson: Metalitz said all these uses were noninfringing. Does that include uses by students?

Metalitz: Not shown many uses by students, but yes, the general types of uses by students are noninfringing.

Carson: Assume we are where we were 3 years ago about Decherney’s exemption. Now we look at Decherney’s students, whose projects are on the same topics on which he’s lecturing. At least some of them have exactly the same needs, right?

Metalitz: Two main concerns. One, exponential expansion. 20x as many people have the ability to circumvent. This gets to Turnbull’s point about normalizing the behavior. Decherney is respected and admired, but he can’t control his students outside his class. If they use the exemption to copy an entire movie in the clear, then make clips, then they still have the clear copy on their computer. (And this differs from the camcorder … how?) It’s not the same as Decherney having it on his computer. It further undermines the prohibition.

Attaway: Why stop at students? Why not anybody?

Carson: We’re trying to find a particular need.

Attaway: Students is so far down the path that in 3 years you’ll have a hard time stopping there and not allowing any fair user in. And then you have a standard that circumvention is okay if you’re engaging in fair use, and that was clearly an issue in 1996. That’s not the law.

Ben Golant, Copyright Office: Then what about extending the exemption to high school media studies?

Attaway: Then you’ve made my point.

Decherney: In his experience, students are no more prone to unethical/illegal conduct than faculty. There are no known abuses of the exemption. Size: still very limited. Students in media studies are a small percentage. A 1201 exemption is not a license to violate copyright law. If a student is sharing a full copy of a Hollywood movie, the laws still apply.

Kasunic: Focus on the particular factors the Librarian needs to consider, including nonprofit archival preservation and educational uses, and the effect on teaching, scholarship and research. Keeping within the realm of students is at least a favored area.

Attaway: The question is still where you draw the line. High school students have a legitimate need to engage in commentary and fair use. And individuals do whether they’re in school or not. (Yes. Yes, they do.) Decherney’s response is: just rely on the copyright law, and that’s what he’d like the law to be. That’s not what Congress did. That’s the law, like it or not. (Though Congress also provided for exemptions on a proper showing of harm to legitimate uses; that’s the law, like it or not.)

Kasunic: Go to §110(1)—it allows performance/display by instructors or pupils. Many of these uses deal with in-class teacher or student use. Isn’t that a basis for extension?

Metalitz: They may be noninfringing uses. But what does it do to the integrity of the provision to go from a relatively small number of professors to thousands of students? Be careful about broadening the universe of people entitled to take advantage of this exemption.

Hobbs: We see the other paradox. Say you don’t broaden the exemption: Then we tell students—“do as I say, not as I do. You aren’t entitled to the privilege I have.” That perpetuates a “grab anything and go” mentality. We can’t help students distinguish between piracy and fair use without helping them put their hands on the distinction.

Metalitz: This isn’t the only instance in which students and teachers are treated differently.

Jackson: Our students know a lot about new tech, assisting professors.

Decherney: It’s possible to stay within the confines of §1201 and still open up a class that includes professors and students. A lot of fair use is being choked off by anticircumvention, but using a class of students is a way of only helping some of that and of limiting the use and the users.

Carson (to Metalitz): Joint commenters suggest a number of limitations, including a requirement that no digital copy without access controls is available. That assumes that all digital copies are created equal. YouTube copies are digital, but they aren’t very good on a big screen. Don’t we have to be more nuanced?

Metalitz: Sure, not all digital copies are created equal. It gets back to the question of whether we draw a line on quality. How many pedagogical purposes can be met without circumvention? It’s not wholly insufficient to show lower quality versions.

Carson: yet your proposal bars Decherney from circumventing, even if he needs to show details of Yoda’s ears, if the YouTube version is available.

Metalitz: He could use the camcorder version. But you could also refine our distinction.

Jackson: Not only are not all versions created equal, not all distributors/rightsholders are created equal. Educational distributors usually have clear rights and contact points, and some support this exemption.

Golant: What if any harm has come from the exemption in place?

Aistars: We have no way to tell whether people are using the exemption properly.

Metalitz: Opaque to us. No cases of abuse to bring forward.

Attaway: Our concern is erosion of the principle that circumventing a technological measure is against the law. Erosion is going to be slow, and we can probably never empirically prove harm, but we would be harmed as more people feel they have a right to circumvent and that it’s not against the law. Technological protections allow us to make our movies/TV available to millions of people who never had them before in the form/convenience they have. Maintaining DRM is essential to our business.

Chris Weston, Copyright Office: Clarifying question about permissions and the USC project. Are we envisioning a situation in which a person writes and asks for permission to circumvent? Or does a person ask for a high-quality clip?

Aistars: The film professor marks the clips and they’re automatically provided. There’s no interaction with the studio. With respect to current experience, it’s not something we often get, probably because people are getting access to clips in other ways and they don’t think they need to contact us. Usually the letters say “we think this is fair use; do you agree?” We don’t opine on fair use but say we have no objection. Once, we provided a clip to a professor.

Carson: If you had a dozen requests a week, you wouldn’t provide that level of service, right?

Aistars: Right. But usually the person contacting WB has the clip in some manner—we don’t inquire how.

Carson: Do your “no objection” letters cover circumvention?

Aistars: We’ve never been asked. Taking into account the camcording demonstration, there are ways to get usable clips. She’d anticipate the educator would make her own assessment of using the camcorder as fair use and WB would never hear from them.

No comments: