Suggestions for narrowing the existing exemption: if the Office finds the burden of persuasion met, the joint commenters don’t oppose the existing exemption. But the evidence still is about DVDs protected by CSS, except for stray examples, and any exemption should be limited to that. Second, should only apply when truly necessary to circumvent. Specifically, when there is a consensual/permissions path is available, the exemption should not apply. “Necessary” has been used before. Also: all existing digital copies must contain access controls. This isn’t an unworkable standard, and has also been used before. You can’t circumvent if there’s a reasonably available alternative means that doesn’t require circumvention. Any exemption should be limited solely to the purpose of creating clip compilations. And it should specify who is allowed to engage in the circumvention: now that exemptions are defined by uses/users, clarity is key. We disagree that it should be extended to students. That’s an exponential increase in the universe of people entitled to use it and a big step towards circumvention becoming normative behavior, which we dislike.
Briefly, for the record, on SnagIt: Rob Kasunic played clips from DVDs he’d extracted with SnagIt, and the question was what the joint commenters thought of SnagIt. As far as Metalitz knows, that was the first mention of SnagIt. A response requires a full understanding of how SnagIt works and how it reacts to CSS. The commenters think it’s not clear whether it violates 1201. They strongly believe that proponents of exemptions haven’t satisfied their burden that 1201 has a sufficient adverse impact on the noninfringing uses they wish to make.
Alternative means are available satisfying legitimate pedagogical needs. Camcording excerpts will work. Permission/consent is available. Not in a position to give views on SnagIt today.
Fritz Attaway, MPAA: We have no issue with the proposition that clips are an effective educational tool. The issue is whether movie clips are readily available without having to engage in circumvention. Jon Band pointed out that the circumvention utility for CSS is readily available. We all understand that. Nonetheless, CSS has been an extremely effective protection measure because it’s inconvenient and the copies it produces are not always of optimum quality. That’s what keeps most people from illegally using a circumvention utility. That’s what makes CSS effective. If you accept inconvenience or lack of optimal quality as justification for circumvention, you basically void the anticircumvention provisions of the DMCA and frustrate the intent of Congress. Convenience/quality shouldn’t be the standard. The standard should be whether film clips are reasonably available without circumvention, and our testimony is that they are.
The Second Circuit has said that we know of no authority for the proposition that fair use guarantees copying by the optimum method or the ideal format. The Office has repeated the same thing. Convenience and optimal quality are not the standard. The vast majority of AV works are available in some form in the clear: VHS, broadcast, cable, satellite, frequently the internet. There’s no justification/need for a DMCA exemption for those. For material that is not available in the clear, or when it’s not convenient to access that material, there’s another way: by taking screenshots off of a TV or computer monitor. The Second Circuit and the Copyright Office have mentioned that as a legitimate, effective alternative.
His colleague Dan Seymour will show that readily available, affordable equipment can easily produce camcorder clips comparable to those we’ve seen today.
Seymour: Played a camcorder demo. Tripod to minimize shaking. Focused on a flat-screen TV monitor. Captured audio directly from DVD. Can get multiple clips from mutliple disks this way. Completely dark room. Clip from some Harry Potter movie, including subtitles. Also showed a camcorder recording taken from a computer monitor. Compared to a DeCSS version from Professor Decherney, which had different coloring but appeared roughly comparable in quality (though Decherney objected that this was not the file he shows in class, but a file that had been reconverted for internet display).
Standard consumer Sony camcorder, $900 HD camera—don’t need HD for a standard DVD, Seymour said. The monitor was $300.
(What about the flatscreen TV? What about the space required to get the camcorder an appropriate distance away, because it wouldn’t work at a closer separation? I don’t think my living room has as much space and I can’t think of an interior room (that is, one that could successfully be made completely black, also required to get that quality) at Georgetown Law that does.)
Universities have better equipment than we used. (Query: does the Lansing Community College?)
Attaway: It wasn’t that hard to set up and make the recording. (Was this the first try?) It may not be as easy as using a circumvention tool, but it is pretty easy. Convenience simply cannot be the standard.
Bruce Turnbull, DVDCCA: Our interest is particular to the preservation of CSS. That’s what 1201 was principally aimed at. When you consider exemption requests, ask that you start with that proposition in mind. This proceeding is intended to be a failsafe, not the ordinary course.
2006 decision to define a class based on use/user was a mistake. You should go back to the previous understanding of the law and avoid a can of worms.
To the extent that the 2006 interpretation is maintained, we don’t generally impose the renewal of the exemption or the inclusion of libraries where the profs teach, though it should be limited to cases in which other means of achieving professors’ goals are unavailable. We do oppose the expansion of the exemption for a number of reasons.
Proposals would exponentially increase the current exemption, and exponentially increase the risk to the viability of the technology. Educators at large do not all have the same pedagogical needs; media instructors are concerned with image qua image. There are alternatives—camcorders; for a number of the requesting professors, the Pioneer player would be an adequate alternative (demonstrated in 2006)—it allows queuing of DVDs to several different places in a particular disk. Where a single disk is at issue, that player is a perfectly good substitute. A percentage of the uses discussed were limited to a single disk. A number of educators plan their courses in advance, and seeking permission is a full solution to their situation. The studios are in the process of setting up a movie server that will be available on demand.
Students: the proposed exemptions would confound efforts to administer and police circumvention. It would allow them to use CSS under the guise of class assignments. It would be hard to distinguish activity that falls under the exemption from those that don’t. Professor Hobbs says educators can be gatekeepers, but they can’t realistically monitor the exemption. And if students need to become familiar with manipulating AV materials—they can do so with sources other than encrypted movies, or they can use a camcorder. Expansion would undermine the tech/legal underpinning of CSS, the underpinning of the DVD system.
Sandra Aistars, Time Warner: Attention needs to be paid to the purpose and standard of the proceeding. She’s sympathetic to educational uses, and WB works to enable them, but the Office shouldn’t accept the rhetorical technique of “difficulty to anyone, anywhere, any time=exemption.”
The USC film project: on behalf of WB: WB has been working along with other MPAA members to facilitate educational uses of film clips by film professors. Decherney spurred us to work on this. Film profs could register and create an account for themselves, browse a full copy of each available title, and use a custom player application to select clips and submit a request for those clips. Clips would be made accessible to them either by way of download or secure URL. No charge is contemplated, and no requirement that professor or school establish that they have a copy of the film for which the clips were requested. We’re working with USC to develop a list of films/TV titles most critical to have available. Additional titles would be added over time. The goal: identify an ISP. Has an RFP out. Beta test goal is later this year. Admittedly, not up and running, and not all issues have been addressed, but there are good faith efforts to accommodate educational uses. To the extent an exemption is granted, it should be limited to instances where it is necessary and not where the film server is available.
WB also works with educators to enable uses of clips. Infrequent/declining requests from educational users—only 99 in 2007 and 38 in 2008—so there’s no evidence of demand for these clips. (Gee, why would people not bother to ask?) One instance this year, asked to supply a clip, and did so, absorbing the lab fees for this. Decherney calls it labyrinthine: it’s not a licensing scheme, but we will work cooperatively to get clips when it’s brought to our attention. As copyright owners, we do grant “no objection” letters to educational users, usually based on §110. They aren’t intended to be a new licensing scheme, just explanations that no license is required. We waive our rights to the fullest extent we can. There are others who potentially have an interest—SAG, actors. So we direct educators to appropriate contacts to waive those rights. We’ve had no feedback from educators that indicates that waiver has not been forthcoming. (Because they’d obviously provide such feedback.)
Concerns about censorship: There is no evidence of this. We did grant rights to a documentarian wishing to critique the depiction of African culture in popular media of the 1930s, including clips from Tarzan. (Wonder if there’d been the same result if the critique had focused on WB’s depiction of African culture in the 2000s?)
BDLive (apparently this was demoed in the morning session): demo of ways of adding narration, AV or audio, while playing back a copy of the movie. Can be used in the classroom or through a community screening function that can be used by other BDLive users. Editing suites are also contemplated.
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