DMCA: personal copying

Proposed Classes to be discussed:

10A.  Motion pictures on lawfully made and lawfully acquired DVDs that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the noncommercial space shifting of the contained motion picture.

10B.  Legally acquired digital media (motion pictures, sound recordings, and e-books) for personal use and for the purposes of making back-up copies, format shifting, access, and transfer.

Michael Weinberg, Staff Attorney, Public Knowledge.  Proponent for proposed Class 10.

Millions of Americans simply be able to watch their movies in a way that makes sense for them, the way they do for music they own.  CSS makes that illegal for DVDs.  There is nothing illegal about personal space-shifting.  9^th Circuit cited Sony and described space-shifting as paradigmatic noncommercial personal use.  Widely accepted by the public and industry.  Applies to published work; no cognizable impact on value.  Opponents have no case law to the contrary.  Closest case is mp3.com, involving a business purchasing CDs and making them available.  One would expect more cases if it were in fact unfair, since it’s so widespread and since large content owners have never been shy about enforcing their rights. They’ve avoided bringing personal space shifting claims. The RIAA, represented here today, told the Supreme Court that space shifting was lawful; RIAA and MPAA have extensive agreements with Apple, which builds space shifting right into the software. Exemption wouldn’t prevent a court from finding that space shifting infringes, if it does.

All the relevant factors weigh in favor of exemption.  Impact on availability of copyrighted work: actual impact, availability in other formats, alternative means of access. Widespread access to CSS circumvention tools hasn’t harmed the willingness of producers to use DVDs to distribute. Given one-click circumvention, no impact on availability from exemption. While some motion pictures are available on non-DVD formats, huge backlog of DVD-only. Unreasonable to ask consumers to repurchase what they already own.  The alternatives are insufficient—camcording and screen capture are technically difficult and time and resource intensive. Compared to one-click space shifting; imperfect and inadequate result.  HDTVs aren’t just sold to film studies departments; millions are spent on special effects; PBS has tech standards because average viewers can tell the difference.

Statutory factors on nonprofit/critical uses don’t apply, but aren’t a prerequisite.  Impact of exemption on value of work: no negative impact.  Won’t confuse consumers; register recognized this in the past and nothing has changed. 

2010: Register formally recognized that CSS is predominantly being used to prevent reproduction, not access. Socially beneficial uses are adversely affected by the prohibition. True then, and true today.

Register would do a disservice to public if it failed to recognize the true state of affairs. CSS has been cracked for well over a decade. Piracy is widespread.  There is no latent infringement capacity waiting to be unleashed by the recommendation.  This is not about confusing the public; people space shift every day and can understand the difference between space shifting what they own and downloading what they don’t. This exemption protects consumers who play by the rules.

Dean Marks, On behalf of AACS LA. Opponent of proposed Class 10B.

Wants to make clear there’s not a request for Blu-Ray; of personal requests to circumvent, no requests provided information about how DRM on Blu-Ray was harming noninfringing uses or offered a sufficiently narrowly tailored class.

Bruce Turnbull, Counsel, DVD CCA.  Opponent of proposed Classes 10 A and B.

Not met burden of demonstrating uses are noninfringing.  First, the class is not narrow and refined as essential to an exemption. Second, an exemption of this breadth would overwhelm CSS to detriment of the industry.  Third, ways in which content is now available satisfy the desire to have content widely available.

First, the proposed class has been considered and rejected before.  Need to preserve the prohibition on other classes, and this exemption wouldn’t do that.  Motion pictures protected by CSS as a class has been rejected before.  Broad exemption would undermine incentives.  No successful proponent has demonstrated a need to make a full copy.  Others like the vidders (!) have conditions to ensure avoiding misuse, but we can’t find limiting principles like gatekeepers that would keep this away from everyone.  (To be clear, I think everyone is capable of critical speech; the limiting principle we want is that the use should enable the creation of a new work out of short clips, rather than making full copies, not some permission-in-advance scheme or some category of Americans who aren’t good enough to speak.  But otherwise I agree that our exemption won’t be misused!)

Licensing: harm to integrity of the licensing system was enough to justify an injunction against Kaleidescape (distance DVD watching system), and this is the same thing.  Market alternatives allow access to content in many ways.  Ultraviolet is available and growing.  Digital copy is also prominent with many movies distributed now, including Blu-Ray. Array of online sources; these are alternatives to circumvention.  We aren’t suggesting screen capture or cellphone recording is an alternative to recording a prior work; we don’t like that either.  We only want people to do that to get clips.

While DVD remains king, the market for DVD is in decline and our concern is very much that a broad consumer exemption available to every human being would contribute to the rapidity of that decline.

Matt Williams, MSK, representing Joint Creators and Copyright Owners.  Opponent of Classes 10A and B.  (The Copyright Office panelists have an even rougher ride, but the only panel Metalitz and Williams skipped, as far as I know, was for an unopposed exemption.  I congratulate them all on making it to the end.)

Case law hasn’t changed.  PK hasn’t cited anything new. Space shifting is clearly distinct from search engine thumbnail copying.  Sony: copyright is supposed to incentivize effort. Even noncommercial copying may undermine reward Congress intended.  9^th Circuit opinion on mp3 players cited Wall Data: using a copy to save the cost of buying additional copies is not fair use.  There may be some instances of space shifting that can qualify, but burden not met.

Convenience is still not valid reason for exemption, but this one’s primary purpose is to avoid inconvenience.  Consumers’ ability to use works as they do on CD, personal devices that are most convenient: that’s an express challenge to the no-convenience ground rule.

Providing consumers with cost-effective methods of consuming content isn’t grounds for an exemption either.

What has changed? The factual record on the marketplace availability of shows and movies.  Undermined the case that space shifting should be presumed legal.  Licensing has expanded: exploiting and developing potential markets. Can offer different levels of access at different price points. Buying one copy of a work doesn’t transfer a license to copy as many times as one chooses; that’s the foundation of copyright law.  Napster: impact in the audio CD market doesn’t deprive copyright owner of right to develop other markets, like digital download.  UMG v. mp3.com, while distinguishable in some respects, has relevant statements: Subscribers couldn’t gain access unless they’d already bought.  But any allegedly positive impact in no way justifies impairment of a further market.  Tenenbaum, which isn’t generally his favorite opinion, is relevant: judge said that def’t argued that copyright shouldn’t protect outdated business model.  Even if P is still making money, that’s not the measure of fair use.  Congress hasn’t capped the revenue copyright owners can derive from their monopolies.

PK claims that some titles are not available in other digital formats, but haven’t pointed to any in the record, which forecloses reliance on this argument.

Proposal lacks contours; doesn’t define space shifting, doesn’t limit to owners v. lawful possessors/renters.  Again, though PK says it’s about unavailable titles, it hasn’t limited the proposal to such titles. 

Customers seek to access content on multiple devices; we’re trying to do that through licensed and secure methods to create new models that benefit consumers. Don’t undermine this.  Brief video describing some of these new services.

Kasunic: we had examples at the tech demo of Wal-Mart conversion.  Does that fulfill this need?

Weinberg: No.  It charges a second time for something they already have. Creates a completely unnecessary burden, both logistically and financially per disc.  Paying for a license for something you don’t need a license to do. It’s true that you could have a business model of charging consumers to make that copy, not one that Copyright Office should endorse: like charging consumers for each time they wanted to move a CD to their iPod.  Doesn’t make it a legitimate business model.

Carson: of course we have a specific provision allowing consumers to do that with music, suggesting Congress didn’t think 107 covered that.

Weinberg: Case law distinguishes between business and people making personal copies of media that they own.  People expect to be able to back up.

Carson: how are expectations relevant to legality?

Weinberg: goes to the question of legitimacy of CSS.  There’s no threat that consumers will misunderstand; restores the world to the way they think it is now.

Marks: One point on fair use: one case that really dealt with this, Sony, court made clear that the premise was that this was for time-shifting—later viewing, then erased, not space-shifting permanent copy.  There’s a dramatic difference.

Weinberg: there is a difference, but the lack of case law specifically endorsing space shifting doesn’t suggest it’s not a fair use; the reason there is no case law is because it is an activity that is so far from objectionable that rightsholders haven’t seen fit to sue people doing it.

Turnbull: a reason there’s not caselaw is because of fundamental difference in the product market. In the video realm, market has been based on licensing CSS, AACS, access controls.  The machine that receives the product has to obey certain rules. That’s very different from distributing music on open media.  (But we haven’t seen lawsuits saying space shifting isn’t fair use, except for the 9^th circuit rejecting that argument.)  Services that strayed from this like Kaleidoscope got sued.  That’s why there haven’t been cases.  You can’t go into Best Buy and buy a device that copies the DVD.  You can get them from various websites, we concede, but that’s how the internet works.

Carson: so what do we know about how many people make backups of video?

Marks: disk-to-digital service launched by Wal-Mart—we’ve gotten a lot of positive feedback on ease and convenience; haven’t heard people saying they wouldn’t do it anyway.

Carson: They probably wouldn’t tell you.

Weinberg: our post on the issue was one of our most widely popular posts; a large number of people don’t think they should have to pay.

Carson: but do we know how many people make personal copies?

Turnbull: no, but many people think watching a movie once is just fine.

Carson: you don’t have small kids, do you?

Turnbull: ok, but then you have the DVD.  Don’t need to copy it for lots of purposes.  Also, until relatively recently, the file size of the movie was really big.  Many wouldn’t bother.  We’re reacting to increase in storage space (Ultraviolet): response to relatively new demand to have movies on a bunch of devices.

Carson: Weinberg says there’s evidence/practice on personal copies; with music, that’s likely true, but what about video?

Weinberg: we lack numbers, but we have comments from 100s of people who want to do this: some do have kids and want to move the movies when they travel.  Some people have 27 linear feet of DVDs and want to travel with their movie collections.  One with an autistic kid who doesn’t want to spend a lot of time switching DVDs.  Very specific/surprising uses, all in the record.  One person wrote in to correct our misperception that it was illegal now to make a personal copy of a DVD.  (I recognize that reaction!)  Rep. Issa told people on Reddit that it was legal to rip a DVD for personal use.

Williams: other proposals—there was argument that services weren’t necessarily adequate for repurposing as opposed to pure entertainment. Here, the proposal is that people want to access digital copies for entertainment purposes, and these services are an alternative.

Marks: Shifting on iTunes.  Want to emphasize that that’s in the context of a license from content owners. (Not my rips from my hundreds of CDs.)  Entire system is protected by DRM.  (Not the mp3s I buy from Amazon and even now from iTunes; didn’t Steve Jobs make a big announcement about that?)  Balance the effect on the environment of licensing.  That damage can’t be ignored.  “I own it, so I get to add more functionality as it comes along” is specious. When people bought DVDs, they weren’t allowed to copy them. Now that’s available, that doesn’t mean you should get it for free. If my cellphone didn’t have a text function, and Samsung comes out with a new model that does, I don’t get a new cellphone for free. Owning a copy doesn’t mean getting to do more functionality.

Weinberg: you can rip any CD in iTunes.  That’s built in from the beginning.  Couldn’t have licensed that carte blanche.  In terms of these services: two points. First, the selection on any of them, or even all combined, when compared to the universe on DVD, is incredibly limited.  Anyone who’s searched on Netflix or Amazon Prime has had this experience.  Foreign films; documentaries; TV; anime.  I own 19 DVDs, but of the 19 I own, 3 of them not available in any other format. Even if they were adequate services, they wouldn’t cover a huge corpus of DVDs.

These services are inadequate anyway because they do require you to repurchase what you already own. And a lot require internet connections, and that doesn’t work in a huge number of situations. PK’s mission outside here is to increase access to high speed broadband, but that’s not what it should be; restrictive data caps in many places even for those with connections.  You can get 1-2 a month. Not real substitutes for taking what you own and making a copy.

Balance: you could say you have to buy rights to space shift.  Balance of hardships: is paying $2-4 per DVD like eminent domain?  No but it’s inconvenience to consumers, and that should be balanced against inconvenience to rightsholders.  And I haven’t figured out what that is. How to finish the sentence, if the Office allows people to make personal uses of things they own, then …?  What are we balancing against?  Ridiculous to think it will increase piracy.  Piracy exists.  People are already confused about what’s legit.  Idea that preventing resale of what people already own is a harm doesn’t seem right.

Williams: on the corpus: there isn’t one title in the record where that’s been demonstrated.  Can’t be a basis for granting the exemption.  On harm: when you buy a DVD, you are buying a right to access that copy. But all these great services providing access in different ways—multiple, streaming—that’s a different offering with a different price point, which enables my clients to work with tech companies to benefit the consumer.  The harm is clear: it’s that copyright owners and their partners offer products to recoup investments and fund new products & new services.

Turnbull: The kind of space shifting proposed here is exactly the kind of space shifting we’ve spent a lot of time to make sure that its licensees are not able to do. It’s exactly what Kaleidoscope was doing with their product. Integrity of the licensing system depends on ability to enforce. Exemption would make that difficult.

Borrow, rip and return model: there is no way to police or ensure in any way that in fact the person who makes the copies owns the DVD.  The premise of the DMCA was that we were worried that we’d only sell one copy of a work.  This is absolutely a concern with this exemption request: one DVD on the block will be enough.  CSS keeps honest people honest.

Carson: doesn’t the text of your proposed exemption allow rent-rip-return?

Weinberg: if you bought a DVD and made a copy with the intention of returning it, you’d be outside the exemption because it wouldn’t be for personal use.

Carson: I don’t follow that. I paid the price to rent it, or I borrowed it and legitimately possessed it.

Weinberg: I’d argue you didn’t lawfully acquire it.

Carson: you don’t have ownership in it.

Weinberg: this exemption is for people who want to comply with the law.

Carson: assume that’s true. Why not add in an ownership requirement?

Weinberg: no objection.

Turnbull: still, in other circumstances you have ongoing industry program, narrow group of people working together on standards for fair use.  You’re not going to conduct seminars for 300 million people.  (This assumes that they have any idea what the law is; for good or ill, and I think it hurts both sides in various ways, they just don’t.)

Ruwe: what about the argument that this destroys limited access models.

Weinberg: we think this is narrow: movies are being distributed in many different ways, and this exemption doesn’t cover any medium.  Doesn’t impact streaming or Blu-Ray.  (I would say that DVDs are regularly more expensive than these other models that offer a permanent copy, which makes it unlikely that people would turn to DVDs to take advantage of this exemption so as to avoid them, even on the counterfactual assumption that they had any idea about the exemption.  But I’m not up there.)

Ruwe: wouldn’t this displace their offerings though?

Weinberg: not a legit replacement when it demands rebuying.  If those services charge for each clip that educators want to use, it would be true that granting an exemption would deprive copyright owners of money, but the question is whether that’s a service we want to bless.