DMCA: accessibilty

Proposed Classes to be discussed:

9A.      Motion pictures and other audiovisual works delivered via Internet protocol (IP) protected by technological measures that control access to such works when circumvention is accomplished to facilitate the creation, improvement, or rendering of visual representations or descriptions of audible portions of such works for the purpose of improving the ability of individuals who may lawfully access such works to perceive such works.

9B.      Motion pictures and other audiovisual works delivered via Internet protocol (IP) protected by technological measures that control access to such works when circumvention is accomplished to facilitate the creation, improvement, or rendering of audible representations or descriptions of visual portions of such works for the purpose of improving the ability of individuals who may lawfully access such works to perceive such works.

9C.      Motion pictures and other audiovisual works on fixed disc-based media protected by technological measures that control access to such works when circumvention is accomplished to facilitate the creation, improvement, or rendering of visual representations or descriptions of audible portions of such works for the purpose of improving the ability of individuals who may lawfully access such works to perceive such works.

9D.      Motion pictures and other audiovisual works on fixed disc-based media protected by technological measures that control access to such works when circumvention is accomplished to facilitate the creation, improvement, or rendering of audible representations or descriptions of visual portions of such works for the purpose of improving the ability of individuals who may lawfully access such works to perceive such works.

Panelists:

Blake Reid, Staff Attorney, Institute for Public Representation.  Proponent of proposed Classes 9A-D.

Dr. Christian Vogler, Ph.D, Associate Professor and Director, Technology Access Program, Gallaudet University.  Proponent of proposed Classes 9A-D.

Andrew Phillips, Policy Counsel, National Association of the Deaf.  Proponent of proposed Classes 9A-D.

Mark Richert, Director, Public Policy, American Foundation for the Blind.  In support of proposed Classes 9A-D.

Dean Marks, on behalf of AACS LA.  Opponent of proposed Classes 9C and D.

Steve Metalitz, Partner-MSK, representing Joint Creators and Copyright Owners.  Opponent of Classes 9A-D.

Linda Kinney, Senior Vice President and Associate General Counsel, MPAA.  Opponent of Classes 9A-D.

I missed the opening remarks, but I came in on Marks saying that the hearings were about DRM, not about preventing research on how to caption and sync, and that if the community is seeking an exemption we’re happy to provide a license so you don’t have to circumvent and work with content.  Whether the software itself that may do the descriptions/CC is open source isn’t necessarily relevant to us, though we can’t speak for content owners who may have issues over putting descriptors on without consent.  But as licensor we have no problem with issuing a license to allow research work to be done.  Could our license shield them from 1201 liability?  Yes, because you’re authorized. 

Carson: Not sure that what you described is accurate, though would be delighted to be wrong.  1201(a)(1) makes it a violation to circumvent without the authorization of the copyright owner. Does AACS have the authority to give a license that would absolve one of liability to the copyright owner? 

Metalitz: one problem he’s having is that he doesn’t understand the basis for the claim that there’s a DMCA violation.  One thing the proponents want to do is research to figure out ways to generate their own captioning/description and link that up with the works.  Marks is offering that if they need to remove the DRM, you might need copyright owner’s agreement in a particular case. But to the extent that use of their tech would be required, they’re willing to grant that for free so that you could figure out how to do it without circumvention—a reverse engineering issue. But he’s still mystified what the DMCA violation is.  Do they want to distribute new copies with captions?  Do they want to distribute new devices that would have captions in them?  Need a more concrete idea of what they want to do.

Marks: technically, Carson is correct that we aren’t the copyright owners. But we own the TPM. If we license someone to do the research, like a device manufacturer, it would be a hard road to climb that following the license agreement constitutes circumvention.  Content owners have to license from us, so the tech is ours to license.

Carson: but do you have authority to act on behalf of them, so when you give permission to circumvent under or with their authority?

Marks: needs to think about that.  (Clearly there is an underlying question as to what circumvention is, and the statute does appear to put a kink in that.)  They’re not circumventing because they’re not bypassing, avoiding, hacking, etc. but using.

Carson: but it’s the same thing as done without a license, but by virtue of being licensed it’s no longer deactivating/impairing?

Marks: yes.

Carson: love to get there but not sure he’s convinced.

Reid: the problem is that the stuff we release is open source, and so we wouldn’t be able to release our software without your DRM which is in violation of your license.

Marks: a DVD player descrambles the CSS too.  Manufacturers who license the tech aren’t thus at risk of suit.

Reid: we’re speculating about the license here, which is not before us.  We aren’t just talking about Blu-Ray, CSS, but also online DRM.

Marks: understands that, and wants to make sure that his remarks are appropriately cabined in terms of the license he can offer for researchers to study to the extent that it’s prohibiting access to content.  That’s what the license would be about.  To the extent that he’s talking about incorporating it to interact with a piece of software that would be released, that would obviously be problematic.  We understand the request to be about research for testing to see if the programs sync up with the content. We will license to avoid DRM barrier.

Carson: what do we know about whether/the extent to which your problems are caused by DRM.

Reid: Netflix just told a federal court in Mass. that they’d love to caption all their content, but we can’t do it because to do so we’d have to circumvent an access control.  Huge fraction of online video comes from them.  That’s in the public record.  W/r/t our activities, that’s in our brief in careful detail.  (1) Overlaying a visible transcription of the audio portion of a work or vice versa; you can see what YT does without DRM: API exposes the playhead to the accessibility software so that it can sync timing/captions.  Only works with YT, Vimeo, html5; doesn’t work with Netflix and Hulu because the playhead isn’t open. (2) Extracting caption/video description data to fix errors in captions.  If you go to captionfail.com, you’ll see an endless parade of errors that are funny if you can hear but not so funny if you can’t.  We could come up with a database that collects errors and software that allows the corrections to be inserted. We can’t do extraction or overlay without cracking the DRM.

Carson: is that true w/r/t DVD and Blu-Ray?

Reid: yes, impossible to access to the caption files.  Vogler concurs.  (3) Improving quality of rendering: adjusting font and color.  The video programming accessibility advisory committee Congress convened identified several components on this front. Presentation; semantically signficant format such as italics, colors, etc.; timing of the formatting; support for 64-color palette; allowing users to override default color; varying opacity; varying fonts; allowing users to select default fonts; backgrounds with adjustable opacity (instead of the black background, which can cover up text or other things you might want to see).  Some others; quite detailed standards.  Congress’s committee ID’d these as important, and we need access since this isn’t being included on commercial DVD players. 

Another issue specific to captions is the difference between captions and subtitles and subtitles for the hard of hearing.  CC comes in text format; its display can be manipulated as in Microsoft Word. Subtitles or subtitles for the deaf/hard of hearing are images overlaid over the top of the video; can’t change the font, like a piece of paper taped over the video. A lot of subtitles are in that format now. In that case we may need to extract the file, run it through OCR, transcribe them/review them, then turn them into an accessible format. Detailed in our proposals.

Reed: do you need frame accurate timecode?  Even protected content gives you minute/second information in the display of Hulu/Netflix, so why isn’t that enough?

Reid: distinguish the “you” in this situation.  Accessibility software overlaid on top can’t see the screen and interpret it.  It needs to penetrate DRM to get the information.  The software doesn’t see what the eye gets at.

Vogler: sometimes a screen capture is not possible. DRM also will say that the area of the screen is not accessible.  Even if in theory you could capture the information, specific programs don’t allow it.

Reid: a variety of different user interfaces render it differently. Conceivably we could design a piece of software to do on the fly OCR of every possible variation, but that’s not realistic.  Access to the playhead is the standard and is actually feasible.

Someone who was probably Phillips or Richart (sorry, obscured view and unfamiliarity with the faces): you can have a buddy describe stuff to you or you can try to record a describer; or you can weave the soundtrack into the product that needs to be described.  To do that you need to get behind the scenes and fiddle around with the audio track. It’s not just a case of putting our own audio track on in place of the original, but the engineers say: it’s a real trick to make sure the description appears on the center channel to make sure it’s rendered appropriately for the user.  Again, this isn’t just entertainment but also education.  Inefficient/low quality to have a live describer or sync a separate track.

Reid: if the industry were committed to providing the API to the relevant organizations allowing overlays/mixing, then we wouldn’t have to interfere with the DRM. We understand why you use DRM.  We’re not here to tell you don’t use it.  But we don’t have the reality where we don’t need to circumvent.

Carson: what’s your end product, w/r/t physical media.  What will you provide the community?  The original DVD plus software, or something else?

Reid: ideally we won’t create copies of the works.  We’re talking about players; lurking distribution issue: they’ve got all the accessibility and playback stuff but not the circumvention component. Then the user can download that code, or perhaps get it from AACS LA.  And experts like Vogler need to design the players, which also requires circumvention. Perhaps ancillary content: corrected captions, video description; we won’t reproduce corpus of the movie, but might have a database of errors etc. publicly available.

Carson: end user would get original DVD/Blu-Ray and then you provide software?

Reid: yes, our definition says for users who have “lawful access” to the underlying content, whether that’s buying DVD or paying for Netflix.

Carson: for streaming, the progam would live on the user’s computer?

Reid: yes.  Universal subtitles: they embed a video from YT; still coming from YT, but overlaid on top is the subtitle.

Vogler: a lot of deaf/hard of hearing people buy DVDs and watch online; they should be able to improve/customize the DVDs.

Phillips/Richart: Could also put it in the hands of an educational institution.  Some DVDs can allow whether description can be heard or not.

Reid: open captions are embedded into the video: subtitles you can’t turn off.  Video description: open video description plays whether you like it or not. Closed: can be toggled on or off.

Carson: proponents seem to be correct that they made a fair use case.  Do you want to respond to that?

Metalitz: Now I know more about what they want to do.  If it’s not distributing new copies or altered copies, that could have an impact on the fourth factor.  (Could?)  That improves the fair use argument.

Reid: Netflix is not in the room, but when they talk about needing to circumvent, they are distributing accessible content after the fact, presumably pursuant to a license, and we don’t know what their licenses say. Hard to argue without information, but we think that if Netflix has to crack the DRM on the videos to make them accessible, we think that’s fair use nonetheless in streaming.

Metalitz: not clear on what your point is.  They’ve represented that they can’t do what you want?

Reid: yes, they said that to a district court.  Read a quote from their submission.  2012 WL 1578335 (D. Mass.).

Kinney: as of September, content provided to Netflix will be provided with a captioning file.  All our content, which is TV, will provide them the captioning file so they won’t need to caption it individually.  Going forward, the content owner will put it in postproduction. 

Carson: when?

Kinney: Sept. 2012 for prerecorded content; another 6 months for live/near live content.  Sept. 2013 for edited content (edited version of Sex in the City).

Reid: Let’s be clear—6 more months for archival content; stuff on Netflix now without captions, then shown on TV later with captions for the first time in syndication, can stay uncaptioned for another 2 years.  There are 15 categorical exemptions for programming: they don’t have to caption if it costs too much, if they’re small, if they’re young businesses; not the entire world of programming but rather some of it.  Netflix says 80% of our streamed hours are captioned, but that just means that people watch shows that are captioned and don’t watch shows that aren’t.  We’d like to fix that for them but we can’t.

Kinney: we’re investing enormous resources to make this content accessible. To the extent it is, we don’t think there should be an exemption. Studios are going above and beyond FCC requirements for things like archival content. Our request at a minimum is that an exception isn’t available for an accessible work.

Carson: are you ok with an exception for a nonaccessible work?

Kinney: concerned with overbreadth at a minimum.

Kasunic: that comes back to what accessibility is: e.g., customizability.

Reid: we appreciate what you guys are doing. We don’t want to waste volunteer time on already accessible stuff.  But wants to emphasize that customizability; hard of hearing and visually impaired consumers exist; they have different needs for font size, color variations, and so on.  We want to make sure that “accessible” means that it meets customizability requirements.

Vogler: Again, definition of accessibility is important.  Deaf and deaf/blind individuals vary substantially.   If you have good eyesight, then you can use regular captions, but if you don’t or can’t see, captions converted to Braille might be necessary for accessibility.  Need to account for differences in the general population.

Marks: The end goal is to create players that can interact with a product sold in the marketplace, at least for DVDs/Blu-Ray.

Carson: sounds like CleanFlicks/ClearPlay.

Marks: Yes.  So, wants to put down a marker that we’re willing to engage not just with the research, but also with a player.  AACS would like that player to be a licensed player that decrypts then adds overlays and ends up protecting the content.  We would rather do that than have a person download a circumvention tool.  With our license comes certain obligations: doesn’t allow digital output in the clear. We’d expect a player to conform to other obligations, but plenty of software players do.

Reid: even better would be if the manufacturers would make these, instead of asking FCC to exclude them from the rules!  But no one here can speak on behalf of them!

Marks: Also a board member of DVD CCA.  Believes DVD CCA would support these positions AACS LA took and would allow free licensing for researching/player manufacturing.  Would advocate for that as a board member; if panel asks the DVD CCA to submit a written reply, we will submit one and he expects the answer would be positive.

Carson: you should sit down and work something out together to avoid the uncertainty of where we’re going to end up, since we want to act fast.

Metalitz: there’s a lot that could be done to authorize circumvention.  Proponents have the burden of showing that alternatives are not viable for them and we’ve heard about synchronization in video description; there obviously are problems but there could be solutions, so that needs to be more fully developed.  (Implicitly: Because proponents are not to be trusted when they tell you that a method is too expensive/not technically feasible/etc.  This actually strikes me as of a piece with SOPA/PIPA rhetoric: too many in the content industry seem to think that there’s some sort of magical tech design that does what would be most convenient for the industry without any costs that the tech people are snottily withholding/lying about.  We heard this a lot yesterday too: if you were any good you would have gotten good screen capture results!)  Beware of trafficking: may not be able to achieve goal with (a)(1) exemption alone.  We’d be interested in making further submissions on that point now that we understand what they want. 

Reed: fixing, repairing, customizing content, and then the R&D underlying all of that.  The fair use calculus under each of those may be different, and the degree of circumvention too.

Reid: agrees on the second point.  No on the first.  As in our brief: this is per se fair use. Making works accessible to people with lawful access; Congress has specifically directed that accessibility be provided unless an exception applies, and if the excuse is that the content owner finds it too burdensome to do so itself then it’s core fair use for us to do so.  Content owners have told the FCC it’s too expensive/burdensome. There’s a detailed record at the FCC/Congress of resistance to doing it themselves.  DVDs got a loophole to only cover stuff that has been on TV with captions; that ought to factor into fair use.

Reed: players would have to use lawfully acquired content with some database of accessibility content.  That’s a large database of derivative works.  Is your position that’s fair use.

Reid: have to question whether it’s a derivative work.  Errata: short phrases; we don’t get into derivative work.

Reed: but what if you create a caption file for a DVD without one: that’s a transcript.

Reid: that’s true; we understand motion picture folks want to preserve their translation right, and we think the main distinction is that we’re not talking about translation into a foreign language but rather translations Congress has specifically required in a number of circumstances unless there’s a substantial financial burden; the right not to have these translations made has been deprecated.

Reed: are you alleging that content that was in full form required to be captioned is not captioned when in clips?

Reid: that’s the FCC rule; we’ve petitioned for reconsideration on it.

Kinney: captions for news are added by the content provider at the studio at the time. Unlike prerecording, where you have a caption file added in postproduction, those captions are done locally.  When you break up the broadcast and put it on the web, you only have a full length program that can’t be segmented into subcategories.  That’s the problem for news clips, though we would caption The Today Show when posted in its entirety.

Reid: to be clear, we don’t agree with most of that description, but that’s a fight at the FCC.

Reed: how widespread is that for captions not to be included on DVD?

Reid: a couple of notable examples, like Up where the studio calls subtitles a bonus feature; you have to buy the retail version; the rental disc wouldn’t have them.

Vogler: we met with a leading software company on computer prompting/captioning. They demo’ed a movie shown online; they could extract the captions and put them somewhere else. The idea that you can’t retain captions within a video clip is wrong.

Reid: we understand that some software workflows don’t allow it, but others do.

Kinney: that example is accurate for prerecorded programming; that’s how we edit Sex in the City. It’s usually the live captioning that’s the issue. Over time major studios are looking into this, but right now the tech isn’t there.

Reid: FCC’s rules aren’t specific to live programming. If this is an issue that will take more than 3 years, we submit to the Office that an exemption is appropriate.

Phillips/Richart: Derivative works: separate description track is not a derivative work but an add-on to the original work. Not a copy or other derivative work.  School example: if we’re expecting schools/educational institutions to have appropriate equipment in the short term, they can’t do sophisticated rendering of stuff with description. So the short term of description is to have a modified video program and distributed to folks with disabilities who need that content.

Reid: this argument about derivative works/copyright in captions has been made over and over again at the FCC.  They say we’re the only ones who can do captioning under copyright law, and then to have that coupled with “it’s too expensive to do captioning/requiring us to do so violates the First Amendment” doesn’t work.  Can’t have it both ways.

Metalitz: we are talking about creating derivative works, clearly (Judge Posner would disagree about the description tracks, per Ty), and we’ve heard of software that can extract tracks.

Reid: yes, for non-DRM files!  We can design the software, but we need to circumvent to do so.

Marks: would like to submit a statement on DVD-CCA’s willingness to work with player makers.

Carson: the record is what it is, and we only want responses to direct questions.  But a specific short letter would not be a problem.

Vogler: there’s been a history of difficulty with working with player manufacturers over HDMI.  DVD-CCA hasn’t helped in the past.

Reid: and again we are concerned over whether their blessing can help us against the studios.

Carson: they said they didn’t understand what you were asking.  To the extent you can make it easier for us by sitting down and working out a way to get a license, that’s to everyone’s benefit.  Even a deal that covered only part of what you want to do would be a winner, and we could mop up what didn’t get included.  May be tight timing, but you should talk about it because it’s a crapshoot for both sides.

Reid: just be aware that FCC is working on these things too.