Wednesday, May 06, 2009

Copyright Office DMCA Hearings

Exemption for educational uses, part 1 (posted in multiple parts because long, long, long). Sorry I didn't make it to the morning hearing.
Dave Corsin of the office began, noting the exemption issued 3 years ago: AV works included in the media educational library of a college etc. for media studies professors.

Peter Decherney, Penn: Existing exemption enables teaching more efficiently and effectively for thousands of students. 62% of faculty members in 2007 made clip compilations; the number now is probably much higher. The leading professional organizations have joined as copetitioners, demonstrating broad support in the field for renewal and expansion. None of the reply commenters opposes renewal or expansion of the exemption to full university libraries, allowing people who don’t have department libraries to take advantage of the exemption. But more is needed: lawfully purchased copies owned by a faculty member, etc.

The MPAA has proposed licensing a clip library with USC. This is interesting but speculative. No faculty at USC had heard of the venture; the USC deans didn’t respond to any inquiries. It’s too early to count this. Time Warner proposes that we ought to ask permission every time. This was offered as an alternative in 2006, and it still doesn’t work. Licensing in the classroom could turn into censorship: stockholders could ask why the company condoned or refused permission for use. Should a clip from Batman be allowed in a course on queer images in mass culture? In addition, licensing is currently labrynthine and confusing. One example: Time Warner told one professor that using a clip from The Wizard of Oz was fair use (true) but falsely told the professor that s/he still needed to get permission from SAG.

Joint commenters suggest limiting the exemption to cases in which all existing copies have access controls—this is an impossible condition. Sites like, which allegedly allow clip creation, are moving targets, making it impossible to know if (1) availability will persist and (2) policies have change. In January, FX pulled It’s Always Sunny in Philadelphia from hulu without warning.

Exemption for student work is also needed: use of multimedia clips in student projects is a common practice, and students need clips for the same reason as faculty. 63% of faculty assign in-class projects using high-quality clips. Students need to use their studying time efficiently. And they need high quality to show the details they’re analyzing. Professors now assign visual essays instead of writing assignments; students therefore need high-quality digital clips. One colleague has students annotate clips as an assignment. Another: a student project on media violence and children. It was ineffective, not because it wasn’t well edited—the students used YouTube clips, and so they couldn’t show the power of blood spurting from a severed arm or the impact of showing a gun in a child’s hand. How do you grade a smart but ineffective project?

MPAA suggests that the increased scale will pose enforcement problems, though they admit there’s no known abuse of the existing exemption. Responsible faculty members would also be overseeing the assignment. Students could learn the boundaries of fair use and the DMCA.

In 2006, we only had evidence of media professor practices. Now we’re hearing from language professors, history professors, and many others of their needs. And if professors need it, K-12 teachers do too.

Jonathan Band, ALA, Ass’n of College and Research Libraries, ARL: The MPAA etc. concede they have no objection in substance to the media studies exemption, including expansion to DVDs in a general library. The only question is whether all classes should benefit. They assert that film classes are the only ones that need high quality clips. But sound quality is critical in language classes to allow students to understand; music and theater classes also require sound; nuances of communication in expressions and hand gestures are vital in sociology, psychology, and other classes.

Criminal justice prof: police officers need to develop skills in observing and interpreting behavior. Using professional video is a cost- and time-effective way of letting them practice—the scene leading up to the shootout in Tombstone is a great exercise for students practicing predicting violence and describing specific behaviors. Top actors are really good at nonverbal communication, making feature films ideal for teaching these skills.

Camcording as an alternative: proves too much. Why does the MPAA bother using CSS and supporting the DMCA?

Screencapture tech such as SnagIt: The quality isn’t comparable. Also Microsoft Vista blocks the implementation of SnagIt and similar tech.

“Permission” alternative offered by Time Warner is conditioned on getting publicity rights waivers from the actors; it’s not a real alternative.

Why object? These uses don’t harm the market. And, the exemption won’t affect the level of infringement. Indeed, content owners should proactively declare that they won’t bring DMCA claims against educational uses. They insult us by treating us as likely infringers not competent to use technology any 12-year-old can download from the internet.

Renee Hobbs, Temple Center for Media Education: Offers the “Media Literacy Remote Control” to introduce the idea of thinking critically about media—books, film, newspapers, magazines. What’s accurate and inaccurate? Who profits from this message? What values does it endorse? Media literacy is an expanded concept of literacy—the ability to share meaning through symbolic form, including critical viewing and response. Introduces students to analysis of authors and audiences, methods and meanings, etc. All media messages are constructed, and produced within particular contexts.

Middle school students spend 4-6 hours/day in screen activity, and 4/5 say no one talks to them about the media message they encounter. Moreover, we need to help students develop 21st century literacy for a knowledge economy: analysis, critical thinking, ethical judgment about new forms of communication; and ability to work in groups.

A functional use-based exemption is necessary to build critical thinking and communication skills.

One critique: class of users too broad. There are 56 million students. 85% of middle-school students get some kind of media literacy education in the context of health class: critically analyzing the representation of alcohol and tobacco. Only 20% of secondary students do this in English classes, though it’s a growing trend. Most students will never take a film class in college; 50% of urban students won’t make it to college, so they need media literacy education in K-12 years.

Another critique: Other tech options exist. Schools are behind in tech. Schools don’t have the ability to hook up VHS machines to projectors. Decherney’s reasons for difficulty using non-DVD clips also apply to K-12 teachers. Students get distracted as the teacher tries to fast-forward past the previews on a DVD, which destroys the pedagogical effect. Many schools make it impossible to use video websites like hulu or YouTube because of filtering.

Example: Mrs. Scheffler’s High School English Class in Texas, where media literacy education is required: she wanted to analyze depictions of romance in popular culture and how they affect actual experience, using literature and contemporary film. Students would then analyze a personally relevant excerpt from a contemporary film or show and write an essay about it. She formerly used a clip video that she’d made to illustrate her form of analysis; but over time, her 14-year-old students no longer reacted to it because it didn’t show movies and TV with which they were familiar. She was unable to update it because of technological restrictions. Her students need the chance to reflect on how media depictions of romance affect their own understanding of relationships. But if she wants to use clips from Juno to illustrate how media messages work to shape our understanding of teen pregnancy, contraception, and responsibility in a 50-minute class session, she needs this exemption.

The language of the image must be a stimulus for critical reflection, not an invitation for hypnosis (Umberto Eco).

Jeff Clark, Consortium of College & University Media Centers: Support an exemption for DVDs used in face-to-face teaching in any discipline both in colleges and K-12 situtations. (4A according to the copyright, for those of you counting.) It should include DVDs that faculty members own as well as library copies. It should cover commercial DVDs subject to sale; licensed products are likely to be subject to contractual terms. Online content is often of lesser quality. And DVDs often contain content unavailable elsewhere. VHS releases of feature films have stopped; standalone VCRs are being discontinued. Dual VCR/DVD decks continue to be made, but their numbers are dwindling as well; it’s a matter of a year or two before their availability ceases. Diminishing access to software and hardware channels the availability to DVD or Blu-Ray; those are copy-protected.

Other testifiers have noted the limitation in the existing exemption on type of institutional users to a film/media studies educational library—doesn’t speak to the reality of institutional organization. Multitype libraries that house collections on behalf of departments are more common. Faculty often also use personal copies, or acquire them for an “informal” department collection using department funds. Those avenues of acquisition are no different as long as they’re lawfully made copies.

All content on the DVD—ancillary or supplemental along with primary—should be available for purposes of the exemption. Much of that material is unavailable elsewhere, even on the now fully obsolete laserdisc. It’s all useful to faculty—documentary supplemements often give historically relevant material, useful to humanities and social sciences, even when the primary film isn’t. This is especially useful with older films that include documents/archival materials of the period. Copy protection hasn’t really spurred the inclusion of these materials—they’re mostly included in DVDs for marketing purposes; consumers expect ancillary materials and are disappointed when they’re absent. For an educator, the supplements can be valuable as new content, even when the primary film isn’t.

All disciplines should be allowed to take advantage of the exemption: Multiple fields; literature can look at translation into film; subject-specific treatments can give examples of particular skills, historical situations, etc. Incidental aspects of a film or AV work can be used to illustrate set design, architectural studies, etc. Many other educational examples.

Pointing a camcorder at the screen has quality and efficiency problems. Quality is just as important to other faculty as to media education specialists. Fidelity and clarity of details matters in other disciplines—visual arts, humanities, nursing or other applied/physical sciences. The experience of support staff everywhere is that faculty are demanding on this account. Also, staff-intensive solutions like camcordering are difficult and expensive, and can’t be scaled to be part of education in general. Circumvention is a more efficient way of meeting needs outside of a tiny niche; practically, less efficient/effective solutions ghettoize clip use.

Every artifact is a potential object of study: a text. Don’t let anticircumvention take that away selectively.

Roger Skalbeck, American Ass’n of Law Libraries, Medical Library Ass’n, Special Libraries Ass’n (and Georgetown law librarian, whoo!): Supports exemption for curriculum-relevant uses by faculty members in classroom settings. Preparing students to diagnose patients, handle ethical problems, and deal with other practical problems is best done with examples, and the juicier—the more real—they are, the better. TV and movies offer many examples, but faculty need an exemption to make the relevant clips.

IP classes: may need to show examples of multiple works to clarify a point of law that no amount of words can illustrate without examples. Without clips, you get a poor-quality and often time-consuming, anti-pedagogical process that obscures the point of using the clips in the first place.

Examples: Ringgold v. BET: A scene from Roc: A poster of a quilt appears in the background. The creator sued; the court held this wasn’t de minimis use. Contrasting, a scene from What Women Want shows a pinball machine in the background; the court held that this use was de minimis. Showing students both helps students understand the difference; it might be pedagogically unsound to deny them this key information (the courts deciding the cases, of course, had the benefit of watching the key parts in high quality). Others: Devil’s Advocate: copyright lawsuit over sculpture copied in background; Se7en: copyright lawsuit over photographs copied in background; etc.

Another effective use of clips: seminar, The Law of 24, taught by a senior attorney in the intelligence division at the Department of Defense, focusing on the law of counterterrorism. Short clips from 24 served as a catalyst for classroom instruction. The exemption would allow similar courses, for example Medical Ethics using House, or Legal Ethics using Boston Legal. Complex subject matter, but clips can keep students engaged—and short clips/compilations allow focused discussion, instead of having the class be about entertainment.

UNC prof used The Verdict and Anatomy of Murder used clips to illustrate concepts about ethics for litigators. Another professor used clips from American Gangster to illustrate concepts of trademark law. Another prof (me) uses a clip from Homicide to illustrate the difference between the Baltimore Colts and the Baltimore CFL Colts (part of our discussion of the lawsuit by the Indianapolis Colts). Another prof uses a clip from Braveheart to introduce the concept of feudal estates. A psychiatric nursing class uses a clip from Tom & Viv to illustrate the rights Viv loses as a result of being committed to an institution. A number of other examples are also available.

His example DVD showed several clips, edited to reflect precisely the legal points being made—he made the point that, done efficiently, all the teacher needs to know is how to play the clip compilation DVD.

12 Monkeys: the issue is one of substantial similarity between a drawing and a segment of the movie. You need to see it in high quality to assess whether there is infringement. Se7en: whether a use is de minimis: it’s dark, poorly lit, and hard to see in the original—the issue is the use of black & white photos on the wall. Again, you need to see it in high quality to understand the nature of the use complained of. Anatomy of a Murder: research done in a law library, using the ALR. Shows the history of legal research and the relevance of secondary sources. The Devil’s Advocate: The sculpture behind the characters was at issue in a copyright suit. He needed to edit it so that it ended before a sex scene started; if you can’t edit, the surrounding material can be a big distraction from the pedagogical purpose. The Long Kiss Goodnight: A clip from the Three Stooges played in the background; the subject of a trademark claim—showing it allows you to illustrate the nature of the claim.

Carleton Jackson, Media librarian, U-Md College Park: Central AV research facility for the university and the state system. Part of the film/film studies working group at his university. Also a member of other organizations supporting the exemption. His is one of the largest & oldest video resources in higher education, opened in 1973.

You need multiple clips to teach media courses; you can’t and shouldn’t show a full film in a 50-minute class. You need to be able to compare same or similar sequences across multiple works; to incorporate clips into PowerPoints—that’s now a central teaching technique. Before the DMCA, our professors knew how to use clips and how to employ fair use. DMCA is a roadblock for media-literate faculty—it prevents them from doing their jobs legally and fully. There are no workable technical alternatives—it’s clear to any teacher that shuffling multiple DVDs doesn’t work. Inserting a disk and finding a chapter takes well over a minute and is time lost to teaching. We shouldn’t tie the hands of tomorrow’s educators.

Martine Courant Rife, Lansing Community College/Michigan State U: Studies the impact of copyright law on chilling digital speech. Professors and students care about copyright law, and want to do the legal/right things. But it can be very hard for them to understand what the legal thing is, and thus there is a major chilling effect.

Learning takes place in and out of the classroom. Students want to make sure they’re not creating infringement problems in their internships, for example. The exemption should not be limited to face-to-face teaching—if it is educational, it should be allowed if part of an assignment or part of digital teaching. Many classes are now online or partially online—don’t disenfranchise teachers and students working online. Also, don’t limit it to library collections: the community college has 2% of the books that Michigan State does. Michigan State has 75% more digital resources. Thus, the current exemption disenfranchises community college students. Neither the community college nor Michigan State owns popular recent movies, thus you couldn’t do a study of media representation in popular recent movies. Students should be able to use DVDs like they use books: if they’re lawfully owned, then the exemption should be applied. Teachers would buy DVDs if they knew they could use them in class.

Don’t conceive of students as passive consumers. They are active creators.

Permission as an alternative, as per Time Warner: The idea of permissions depends on a false, linear model of the writing process. Writing is not linear, but recursive. The writer revisits decisions and synthesizes. When you decide 3-5 days in advance what texts to use, permission is impossible to get. Realistically, does the MPAA want 1000 requests just from Rife’s own students each year? She has five assignments per class, and all of those would require multiple permissions if she could give clip assignments.

The objection from mere convenience: There’s a difference between convenience and normalcy. It’s not just “convenient” to type in a quote from a book (or, I’d add, to copy and paste from a digital document). It’s abnormal to walk away from the computer, find a camcorder, set it up, etc. The computer is the tool we create with now. The camcorder “solution” is like requiring someone to handwrite the quote she wants to use from a book, go outside and take a picture of the book, then bring the picture back into the house and hook it up and retype the quote—from the book that is sitting next to her computer. The DVD she owns and that is in her computer is no different.

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