Rebecca Tushnet: I’m here to support the EFF’s proposed exemption for AV works on DVD where circumvention is undertaken for the purpose of extracting clips for inclusion in noninfringing noncommercial video.
The adverse effect on fair use the EFF’s proposed exemption addresses is on the whole system of fair use. The technologies at issue here are important because they are readily available to individuals and, to a layperson, especially to the artists who are inventing remix culture on the fly, they are not distinguishable from other readily available technologies; the current regime is a trap for the unwary.
The joint commenters concede that there is a substantial amount of noncommercial fair use by ordinary citizens, which is by definition noninfringing. The statute requires us to show an adverse effect on noninfringing uses; once that effect is shown, an exemption is on the table. The alternative is to say that some noninfringing uses, especially fair uses, just don’t count. It’s worse than that: there’s a Catch-22—the oppontents say that we need a judicial determination of fair use before an exemption is justified, but we can’t get a judicial determination if noncommercial fair users will inevitably lose under 1201.
The proposed exemption is limited to a class of works where there is a demonstrated problem: works on DVD, not Blu-Ray or other media. It’s limited to a class of users with particular difficulties: noncommercial clipmakers who are in the worst position to know the distinctions between technologies the opponents of the exemption think they should be making.
The idea that DVD clipping is simply a matter of convenience compared to other methods is deeply flawed as applied to noncommercial remix. Yesterday’s distinction between inconvenient and abnormal is useful here: it’s abnormal to distinguish between methods of getting a digital file and so it’s no wonder fair users don’t know that they’ve walked into a trap. As we’ve heard from the joint commenters, some of the best copyright lawyers in the business cannot tell whether SnagIt counts as circumvention—nor apparently can the Copyright Office—and most artists aren’t lawyers.
An institution with substantial and varied technological resources may be able to figure out workarounds, but individual citizens participating in political, cultural, and artistic exchanges don’t have AV departments. What we have here is essentially a digital literacy test and a digital poll tax imposed on fair use. The literacy test, as you may recall, required prospective voters to interpret an often arcane provision of the law. Here, the test proposed is that they understand that a digital file created in one way is illegal, while a similar, albeit degraded, digital file created another way is fine.
Then there’s the poll tax: you have to purchase the proper equipment to create the second digital file. It’s expensive and nonstandard for an individual artist—we were offered the prospect of using a $900 camera, plus a several-hundred-dollar tripod, plus a large flat-screen TV in a large, completely darkened room. The noncommercial artists we represent are often pink-collar workers; $900 is regularly more than a month’s rent for them; it would be a crippling requirement. And they don’t ever get paid for the works they create. This is not an investment for them. This is their free speech; this is how they react to popular culture—addressing it, critiquing it, changing it.
And the poll tax is inherent in the responses from the opponents of an exemption: their argument that camcorders somehow preserve the technology inherently presumes that the camcorder solution is one that won’t be used by fair users and therefore fair uses will be suppressed. To the contrary, the possibility of camcording proves that the proposed exemption will not cause any harm to the opponents. They say camcording is easy and is good enough to watch. In that case, that’s the mode pirates will use. They cannot maintain that camcording is a substitute for fair use clipping and also that the exemption will degrade protection for CSS compared to camcording.
We got rid of the literacy test and the poll tax because they deterred people from participating –people whose voices weren’t heard otherwise. We did this even though some brave people defied the laws and persevered. Some even managed to register and vote. The problem was all the people who didn’t have the time or the energy or the resources to persevere, and all those who looked at the costs and didn’t even bother to try. That’s the problem here.
Any distinctions between output files should make sense from the perspective of an ordinary user. Fair use is a reasonably intuitive concept, as is the distinction between transformation and pure copying. Indeed, the Center for Social Media has also developed best practices for fair use online video, along with best practices for filmmakers. It is nonsensical, even contemptible, that one way of making a fair use remix is illegitimate and another is legitimate. The last thing that copyright law needs is another rule that doesn’t match up with individuals’ understandings of reasonable copyright rights. It will deter risk-averse remixers from making fair uses and even the ones that continue may find themselves unable to assert fair use defenses for fear of DMCA liability regardless, as Fred von Lohmann of the EFF testified and as we’ve seen at OTW in our conversations with remixers who have received takedown notices, wanted to make fair use claims, but decided that they couldn’t because they were unsure about the method they used to capture the clips.
This has a substantial deterrent effect on the development of fair use jurisprudence.
The exemption process inherently contemplates that the DMCA may interfere with fair use, or any other noninfringing use, so much that an exemption should be granted. Especially when the opponents concede that the technology is widely available and widely used, such that deterrence arguments are simply implausible, it is arbitrary and even cruel to tell the noncommercial fair users who do want to fight for their uses that it is too late for them—they should have gone to law school before they started remixing.
The opponents of exemptions have mentioned enforcement concerns: However, the proposed exemption only applies if there’s an underlying fair use—copyright owners are free to challenge anything that they don’t agree is a fair use, and indeed we welcome the opportunity to develop fair use jurisprudence in the context of noncommercial transformative uses.
No noncommercial creator would say “I know this isn’t fair use, but the prospect of statutory damages isn’t enough of a deterrent; only the additional prospect of DMCA liability is enough to prevent me from infringing.” Thus, any extra deterrence achieved by the absence of an exemption is only achieved by deterring fair uses. The public shouldn’t have to subsidize copyright owners’ enforcement decisions by being forced to forego fair uses.
The enforcement concern is mistaken in other ways as well. As we’ve said, and as the joint commenters readily concede, that these technologies are already widely available on the internet. But that’s not as important as the bigger point: these technologies are not great ways to infringe; they’re great ways to get clips.
Downloading a 700 mb movie at 2 megabytes per second, a fairly standard broadband speed, takes roughly 45 minutes—less time than it takes to rip specially chosen clips, or even to rip a high-quality version of a whole movie if you were inclined to do so.
And this ties back into the point about making the law comprehensible to ordinary people—it is laughable to ordinary artists that downloading an entire movie or TV show is less problematic from a circumvention perspective than buying DVDs—providing the copyright owner with remuneration—and then making short clips.
Screen capture software has also been offered as a solution. We want very badly a real answer from the joint commenters about this; we note that if using a camcorder on the screen is not circumvention, it is hard to see why using the screen as a camcorder would be, as Rob Kasunic pointed out.
However, screen capture does not produce clips of sufficient quality to make the artistic point that our artists want to make. Other experts will testify about the importance of high quality to remix artists, though I will say that we would not tell other artists that they could only use crayons and not pencils, or paraphrases and not quotes.
One random example of how quality is important to show you things that aren’t easy to see in the original: a video called “How Much Is That Geisha in the Window?”—a critique of a science fiction series, Firefly, by Joss Whedon. Firefly is supposedly set in a future where Chinese and American influences are about equal. Low-quality doesn’t let you see what you need to see, which is the details of the Asian setting, the constant references to Asian cultures, and the fact that nonetheless there aren’t any Asian characters except in deep background—the critique is meaningless if you can’t tell why the artist is complaining because one pixelated person looks pretty much like another.
All the suggested alternatives end up limiting the source materials that people will draw from in various ways. There’s a wide range of people creating out there and a wide range of creative practices. Some potential fair users will be discouraged because they misunderstand the distinctions between technologies. And well they might. Without an exemption, the rules trying to distinguish technologies will be arbitrary because they don’t relate to the nature of the artistic activity—the output.
A separate point about screen capture software: it does not work on many systems and with many DVDs—I know this from personal experience as well as from conversations with others, including Roger Skalbeck, who testified yesterday—it appears that content owners are using mechanisms to prevent screen capture software from working.
Vista already includes a variety of new technical protections measure for video content (Protected Media Path). It was put in there at the insistence of the MPAA companies, as a condition of making digital formats like Bluray available. One of the stated design goals of PMP was to block "screen capture" tools like Snag It and SnapZ. PMP is already deployed in every Vista PC that has shipped, and every one that will be shipped in the next three years.
Just as neither institutions nor individuals should be expected to hang on to their VCRs forever in order to take advantage of obsolete technologies, neither should they be expected to hang on to old operating systems so that they don’t fall prey to new mechanisms of defeating fair use.
Indeed, the movie studios and their partners have a very strong incentive to begin implementing additional measures to block "screen capture," as those tools will otherwise make all next-gen video formats vulnerable. A DVD exemption is actually a much more targeted way of addressing the current problem.
Finally: some of the discussion until now has suggested that fair use is only for the elite, the educated. That’s not the right way to think about it. Fair use is for citizens. This exemption is the only way they will be able to do it and defend their fair uses.
Francesca Coppa: Historically remix comes out of minority culture: racial minorities, women, gay/lesbian/bisexual/transgender/queer cultures. The remix we work for comes almost entirely from minorities. Vidding—a female-dominant form of remix, recontextualizing and critiquing popular culture. It’s a visual essay responding to pop culture using its own language. Art and cultural commentary that doesn’t happen inside the academy or high art circles. Recently being brought into museums and other high art; New York magazine singled one out as best of the year. These practices are analogous to collage art, MoMA appropriation art.
One of the reasons I’m not showing vids: they are often made to show at live gatherings in bigger screens, made in very high resolution as a form of art. Vidder might offer a HQ download, 90 or 100 megs. Some vidders might put a streaming version online, but others won’t because of the quality degradation; streaming often serves as a preview.
What vids do: “How Much Is That Geisha in the Window”—vids often emphasized the thing that was not foregrounded in the frame. A vid may draw your attention to something that is not obvious. A high quality file is important because you’re trying to emphasize patterns not apparent in the original. In “Geisha,” that means paying attention to how human beings are treated as exotica. “Women’s Work” is about Supernatural, which features no sign of the stars, and instead focuses on the women who are there to be cannon fodder/motivation. By editing these one-time-only characters into the foreground, you learn more about the ways in which women are used as props. “Wouldn’t it be Nice” surveys the buddy cop genre to make an argument about gay marriage, recontextualizing them. “Martina” shows a character who’d previously experienced a sexual assault tracking down a serial rapist, artistically trying to articulate the show’s insensitivity to how that character would have reacted.
Vidders are cultural critics and fine artists. They don’t simply watch, but make things with footage. They strategize to draw your attention to things you weren’t supposed to see. You need to see the chair in 12 Monkeys to see the copyright infringement issue. With vidders, it’s often facial expressions or characters that you need to see clearly.
Where’s the harm? Vidders communicate through a series of online tools. Increasingly, often due to algorithms, material is subject to random takedowns. YouTube did a big purge in January. Many of them provide dispute mechanisms. If you make a fair use, you should be able to dispute. We’re finding because of lack of clarity, some people refuse to dispute. In one particular instance, Coppa encouraged a woman to dispute, and the woman’s daughter had made the vid so she didn’t want to bring her daughter’s process into question.
Coppa has started to write about vidding because these people already represent marginalized positions. They already don’t see themselves in popular culture, that’s why they’re vidding. Female vidders have historically been reluctant to step up and claim cultural legitimacy. Vidders may already be nervous about asserting their perspective. Coppa can’t even clearly tell them what method to use. She can identify a transformative work, but not a process. It’s also hindering mainstream recognition.
It would be a shame if vidders and other cultural critics were forced to work in degraded images. If pop culture has luscious imagery, and you have to speak in ugly form, your work is already marginal and gets worse off by having to look incompetent.
Tisha Turk, U Minn: her academic expertise is novels that rewrite other novels, and that’s a short step to videos that remix other videos. She’s also a remix artist, a vidder.
Remix video doesn’t harm copyright owners. Vidders are terrific consumers. Her DVD collection is pretty impressive, especially for an English professor. Often she buys those DVDs because she saw a remix video from someone in her community. She has circumvention tech and she knows how to use it and yet she buys DVDs; that’s what she does with source she enjoyed. She’ll buy it multiple times. Her videos encourage other people to watch and enjoy the source, saying it’s worth your time.
Turk says: Vidders are cultural critics, but also artists. If I want to write an essay about a visual narrative, I write an essay. Other times, I want to work in the same medium as the visual text, and needs to juxtapose images to embed a critical commentary, in the same way that you have political literature and not just op-eds. We see it in film, visual arts.
Quality is important. Not all digital copies are created equal. As a consumer, I don’t always need highest quality for its own sake. I watch TV shows on Netflix’s Watch Instantly. That’s fine for certain kinds of cultural consumption, if not ideal. When I’m watching for the story, trying to decide whether to buy the DVD, I might use “good enough” source. I listen to mp3s for convenience. When working as a creator, not a consumer, quality is important. I need tools that work.
Much of the time I’m transforming the clip. That means transforming the appearance of the video. I’m not the most tech-savvy, but these are things that I routinely do with clips: change the speed—very common, to match music or to emphasize a particular object. SnagIt clip: suddenly it goes jerky. You can’t slow down or speed up footage that looks like that; you can’t work with it even if you could watch it for the plot. Might want to alter the color to create a different mood. Those clips from yesterday have been desaturated. We know that color affects mood. Garbage source prevents you from doing that, or from matching colors for two different clips. Might need to adjust contrast or light levels. What is that beige blur in the corner? It might be a face. Might want to crop clips, and if you work with low-resolution source and have to crop 1/3 to see more closely the fact that two characters are holding hands, or that something is off to the side, she’s already losing resolution even if she’s working with high quality. If she’s not starting with high quality, she may lose the image entirely. It’s not just a matter of wishing it were prettier.
I don’t want to rip DVDs because it’s convenient. Nothing about what I do is convenient. It’s boring, annoying work that I need to do to make the art I want to make and avoid ending up with a muddy mess that does not show what I want other people to see. One of the first rules of video editing: Garbage in, garbage out. People won’t watch the video, or they won’t be able to see my points. Result: criminalizing the creative process.
Camcording has adverse effects in that I can’t do it. It’s counterintuitive, impractical, expensive—two months of my mortgage for the camera alone, and I’m at the high end of creators. That process limits my ability to comment on the cultural texts to which I want to respond. I am convinced that my videos are fair use, but we can’t test that in the courts without an exemption.
Martine Courant Rife: References yesterday’s testimony. She’s concerned about allowing students to produce texts and still work with outside nonprofit community groups. She wants them to be able to use the skills learned in class outside of class. It’s common for writing students to work with nonprofits; she gives an example from Lansing. She wants an exemption to cover uses where students work outside the classroom. She’s concerned about claims for vicarious and contributory liability. If you give an exemption to one type of person, and not another who is working closely with that type of person, there are risks of claims for vicarious/contributory liability.
1201(c)(1): Should be no affect on fair use. Also asks to revisit the difference between copying controls and access controls. Rhetoric: Plato gave us concepts of rhetoric. Visual media in high quality has more credibility, more ethos. While we appreciate the availability of digital media, the movie industry shouldn’t be able to produce culture that can’t be talked back to in the same basic format.
Bruce Turnbull: Reminding you of what I’ve said before. Main comment: we’re in the wrong room; should be at Congress. This is an attack on 1201. Many of the uses enabled are not fair use. Developing the jurisprudence of fair use is not making fair use. Congress rejected this.
Were you to consider this, it becomes a quagmire of figuring out what’s permitted and what’s not.
Steve Metalitz: Discussed in Palo Alto. The threshold question is whether the activity generally noninfringing—that’s the standard. Vids as fair use are an insufficient basis to justify an exemption that would cover these uses. It doesn’t fit the standard.
Trap for the unwary: It’s clear that no one has ever sprung it. Takedown notices under §512 allow counternotification. There’s been §512 jurisprudence. To think that people are refraining from putback when they might get sued under 1201 when there are zero instances of suit for 1201—it’s nonsensical to think there’s deterrence of putback.
Carson: Rife’s point—you’re really here trying to protect the integrity of CSS as a copy control, not as an access control. People who circumvent are doing so to make copies. Is that fair?
Turnbull: All the given examples do involve making copies. CSS is also an access control.
Carson: Why shouldn’t we take into account that the ultimate concern is the use of CSS as a copy control, and there’s no prohibition on circumventing a copy control?
Turnbull: The job Congress asked you to do is determine whether the inability to circumvent other access controls is impeding the ability to make noninfringing uses. Anything you say here wouldn’t be relevant in a case brought under 1201(b).
Kasunic: In the context of capture: where I put a DVD into my computer drive, obtained lawful access to a lawful copy of a DVD, and then was trying to make a copy from the accessible portion, how is 1201(a)(1) implicated? It’s true that as a general principle CSS is a form of encryption that can protect access, but in the context of how it’s being done, and the uses being made, how is that not a copy control?
Metalitz: I am not going to answer you on screen capture software.
Kasunic: Put aside screen capture. If I have lawful access and I make a copy, is there an access control issue?
Metalitz: That’s the same question. Legislative history says the role of access ends when you have lawful access, but that wasn’t included in the final legislation. There may be terms/conditions on that access, and circumventing access may allow you to do things violating those terms.
Kasunic: There are no terms on a DVD.
Turnbull: The terms and conditions of being able to provide access to the method of decrypting is that there must be mechanisms used in the pathway the content takes to take it to the point of access that avoid copying.
Kasunic: That’s only relevant to the licensees (the DVD player makers), not the end users.
Turnbull: May be avoiding/bypassing under the statute.
Kasunic: Isn’t it fair to say that at least in context of understanding the impact of the circumvention law, Congress did create a rulemaking proceeding? The reason we’re here is to figure out how these tech changes/developments, for example in terms of vidding and new documentary uses, are affecting noninfringing uses?
Turnbull: Unless you’re going to fundamentally rewrite the standard, you can’t do this. A large proportion of what goes on will not be fair use.
Kasunic: If a class of works has to be a subcategory of copyrightable authorship without reference to use/users, we have a very blunt instrument and any use would be on the table. If we found such a class, we’d issue an exemption and allow anyone to circumvent.
Turnbull: The method of defining classes of work has worked in a number of instances. The question of whether you could grant an exemption for the class of works that is motion pictures protected by CSS is different: you undermine the technology as a whole.
Kasunic: If we take the proposed exemption for documentary filmmakers, we aren’t saying what is a fair use; we allow the filmmakers to at least get to that question.
Turnbull: The film professor exemption is where we’ve said, in context, that has the kind of narrow, specific categories needed. Documentary works: there are necessary refinements, but it’s a specific category. The concern about a broader exemption is that it is undefined/difficult to define, where even the proponents admit that some of what will be done under the guise of that exemption is not fair use.
Kasunic: If we grant an exemption, and given that tools/devices exist out there, which we know they do, use of those tools is not a violation of 1201(a)(2), right?
Metalitz: True.
Turnbull: You can take into account in determining whether to issue a 1201(a)(1) exemption whether it would encourage the development of new tools.
Kasunic: Requirements for broadcast gatekeepers. How do you fix those problems with lower quality input?
Quinn: Generally the things sent back to us are not about image quality, it’s technical issues. Time, effort and money can usually fix that. When the quality is degraded, it impedes your cultural commentary.
Morrissette: There’s usually a way to fix it: we get lots of pixelation, bad-looking video, but at least it’s a legal size. Occasionally they will ask why the clips are so bad. People see it. There are ways to fix it without the DVD, but the DVD quality would avoid the issue from the beginning. Comes up far more often with stuff on the internet, processed and quality-lost; copies of copies; wrong frame size; all sorts of problems. Analog transfer is our current stopgap.
Kasunic: Is that also true of FCC compliance?
Morrissette: Yes.
Kasunic: For 11A, can you say more if we were to apply a necessity standard?
Me: This is necessary in two senses: first, people do not distinguish when they’re making the art in the first place. Second, they can’t afford to make the camcorder copies. This is not an attack on 1201. 1201 requires you to examine adverse effects on noninfringing uses. As the statute requires, we are showing an adverse effect on what are concededly fair uses, specific to CSS and specific to noncommercial users who do not have the knowledge or the ability to use other workarounds. Not only that, the exemption is written to protect only fair uses. If it’s not a fair use, then there can be a 1201 violation; we aren’t asking for a standard of arguable fair use. The slippery slope here is that an Article III judge will decide—we end up not even at sea level.
Coppa: This is done with home equipment. You can’t store full uncompressed movies, which are huge. You can store some clips. A laptop with an external drive is not set up to store full uncompressed movies.
Ben Golant: What role does free speech play?
Me: A big one. We’re losing uncounseled fair uses, by citizens who don’t have institutions backing them up.
Golant: Can we consider one of these classes and grant that exemption, and use that as a reason to deny another class because that would defeat the purpose of CSS, cumulatively?
Metalitz: True. Have to ask in each case. Some of these vids are infringing. You’d have to find that they aren’t. If you find a diminution in fair use, you have to find that it’s caused by the prohibition on circumvention. Can’t base it on speculation. There is no evidence that there are cases of people being sued under 1201 for a putback.
Chris Weston: Yesterday we talked a lot about narrowing an exemption in terms of educational use. Is there any way to narrow your proposal.
Me: We shouldn’t pick winners; that’s the core of copyright. The copyright owners can show no harm from the proposed exemption. They concede this technology is readily available and widely used. This is about what happens when a fair use has been made and gets challenged.
What will people think in the presence of this exemption that they wouldn’t have thought before?
Metalitz: Proponents argue that 1201 is unclear, but fair use is crystal clear. That doesn’t accord with his experience. The law on 1201 is clear, and not random. If you don’t know the law, the results do appear random. There’s more that could be done to improve understandings. We know there are some ways to make these uses that don’t involve 1201 liability. And fair use doesn’t entitle you to make the best quality way. Fair use jurisprudence is going along fine.
Morrissette: Are people aware that using the decryption software is illegal?
Me: No, they find out too late. This software is readily available on a simple Google search. They think they’re making art, they think they’re making fair use, and then they find out too late that they were essentially in tax law and needed counsel before they started. Anyone who works with big companies knows that even they only consult with counsel half the time; the other half, they just assume that they can do what they want to do, and only come to you later, when they’ve already done it. And these are individuals without counsel.
Coppa: They think that if you own the DVD, you can vid with it and that’s better than downloading from an ethical perspective. They think they’re being good citizens.
Turnbull: The purpose of 1201 was to enable the technology to allow the content to flow. Exemptions will undermine the technology; if we develop fair use jurisprudence then we lose the technology.
Kasunic: is there mention of CSS in the legislative history?
Turnbull: No.
I'm kind of ridiculously in love with you, Francesca, and Tisha for this.
ReplyDeleteThank you so much for posting this, and for putting our arguments forward. You are, indeed, awesome.
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