DMCA: remix

Proposed Classes to be discussed:

7B.      Audiovisual works on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System, where circumvention is undertaken for the purpose of extracting clips for inclusion in primarily noncommercial videos that do not infringe copyright, and the person engaging in the circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use.

7C.      Audiovisual works that are lawfully made and acquired via online distribution services, where circumvention is undertaken for the purpose of extracting clips for inclusion in primarily noncommercial videos that do not infringe copyright, and the person engaging in the circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use, and the works in question are not readily available on DVD.

Rebecca Tushnet, Professor, Georgetown University Law Center.  Proponent for proposed Classes 7B and C.

Thank you for the opportunity to testify again.  My name is Rebecca Tushnet and I teach law at Georgetown.  On behalf of the Organization for Transformative Works I’m asking for a renewal of the 2010 exemption, as well as a version of the exemption that would cover works that are not available on DVD but are available through authorized sources, such as the recent television shows used by vidders like Giandujakiss and cultural institutions like the Lear Center, which commissioned Joe Sabia’s Prime Time Terror as part of its report on how popular culture depicts torture in the US.

Every month I see the positive impact of the 2010 exemption when we are able to tell vidders and other creators of noncommercial transformative works that they can contest takedowns sent by copyright owners because they’re making a fair use—the kind of advice that we couldn’t give before the exemption.  And no one we’ve ever worked with on a counternotification has ever heard back from the copyright owner, one indication that when transformative works get individualized review, copyright owners understand that they’re fair uses.  A remix exemption is simple to understand and hard to misuse, consistent with the ethics of remixers, who purchase copies of the works they then use as the building blocks for their own creative works.

I think it’s worth spending some time talking about what lines we can expect artists to understand, because I think the opponents have some misconceptions about how people who don’t do copyright law for a living can reasonably be expected to think about the practice of taking short clips for use in creating new works.  People don’t understand counterintuitive rules, and the rules without an exemption are counterintuitive.  Last year, I was involved in a discussion on a trademark email list—one for practitioners who submit marks for registration to the PTO—and they discussed using a video clip as evidence that a term was generic or descriptive and thus not entitled to registration as a trademark.  When I mentioned the DMCA on the list, several people kindly explained to me that there could not be a DMCA violation because use of a video clip as evidence was fair use, which of course it is.  These are conscientious lawyers working on behalf of trademark owners in a coordinate field to copyright, and yet they had no idea that the DMCA potentially made it illegal to present relevant evidence to a court in the most useful, convenient and persuasive format.  Now imagine what it’s like for an artist.

The broader point is that people (highly experienced lawyers among them) generally try to figure out what makes sense and guide their behavior thereby.  It does not make sense to a non-copyright lawyer that a fair use might still be in violation of the anticircumvention law, and so they don’t think of it or even believe it.  The idea of “alternatives” to circumvention like screen capture is not meaningful in this environment.  The question is whether fair uses carried out through circumvention are going to be made illegal despite the resulting harm to fair users and the failure to decrease infringement.  Vidders and noncommercial artists generally only find out about the DMCA after the fact, when they receive a takedown notice.

This dynamic—where the alternatives don’t make sense and therefore provide no practical alternative to circumvention, is one that I’ve called a “digital literacy test,” like the classic literacy tests used to disenfranchise minority voters in the past.  And this problem is enhanced by further uncertainty surrounding the supposed alternatives.  First there’s legal uncertainty: We aren’t worried about being sued by AACS or DVDCCA.  We’re worried about the studios, and it’s not clear that Mr. Metalitz can bind any individual studio; even if he could, as far as I can tell the major anime producers aren’t members of the MPAA, and there’s a huge genre of anime vidding, as described by Mimi Ito and by our reply comment.  

Adding to the legal uncertainty is the technical uncertainty: the most Mr. Metalitz is willing to say is that if screen capture technology works a certain way, then it’s not circumvention.  But no one using the technology to make video knows whether it does, or whether a particular technology is on a list that’s been tested by AACS and hasn’t been changed since it’s been tested.   Without an exemption we’d have to factor in the possibility of a battle over the unknown facts of circumvention even if there is a clear fair use.  That’s a huge deterrent to an artist, especially one who isn’t making any money from her work.  Without an exemption, an artist is frankly better off having downloaded source from bittorrent rather than buying the DVDs or paying for an authorized download, and that’s a very confusing and counterintuitive result for anyone.

Even if copyright owners really committed to the message that screen capture was ok—something the FBI warning on every DVD and Blu-Ray seems to educate against—that would still be a confusing message, because it’s detached from the underlying question of relevance to any artist: is the use a fair one?  Is the new work one that conveys a new message? 

And I haven’t even mentioned the biggest problem with screen capture from an artist’s perspective, which is whether it works.  And let’s talk about basic functioning first, then artistic success.  As our comment and the experiences of others indicate, whether screen capture even produces an output is unpredictable depending on the particular DVD, the setup and the particular program. 

You saw one user review; I invite you to check out the others on Amazon and Cnet, which have a dual hump distribution of five and one star reviews—works well for some people, badly for others.  Here’s a competing review of Camtasia: “$300 is a lot to spend for something that doesn't work and wastes your time - see the attached video for an example and proof.  … I'm using Camtasia 7 on a brand new, standard Toshiba laptop with an i7 CPU … , 6 Gb of memory, (which is a lot), a high speed video card, and Windows 7. …The final video that Camtasia produces file shows a completely black video.”  Another one from Cnet: “It gets bogged down and sometimes crashes when you work with higher resolutions. For the price I would expect better performance.”

This isn’t a matter of convenience; in order to do what the opponents want, a vidder would have to have both a Mac and a PC, and five programs in case one works where the other doesn’t.  This would function as a sort of digital poll tax for someone who wants to comment on culture.  Moreover, the speech of people who give up after Camtasia fails is lost for good—it’s not replaced by someone else’s commentary.

The opponents concede that screen capture produces lower quality, which among other things contributes to the difficulty of explaining the rules to a non copyright lawyer in the absence of an exemption.  We don’t generally tell our artists that they have to use bad tools. 

I should also mention that clip licensing services are completely inadequate—studios offer a few clips of the parts that they think are important or cool for use as promotional tools.  By contrast, vidders take films and shows apart and focus on the parts they think are important, or sexist or racist, or important because they’re sexist or racist.  Take the clips of sexual exploitation and violence that Giandujakiss uses to critique Dollhouse, or the footage that Thingswithwings uses to identify and critique the repeated trope in popular culture, which she tracks across over thirty different sources, in which harm to a woman is only important because it gives her man a reason to become a hero: those clips are never going to be offered to remixers, and even the limited clips available for embedding can’t as a technological matter be edited in order to comment on them; even if they were editable, they also invariably have restrictive licenses that prohibit offensive or critical uses—precisely the uses that are the most fair.  And as we discussed in the previous hearings in 2009, underlying agreements with performers prevent the studios from licensing many uses at all, leaving a huge number of films and shows simply unavailable for clip licensing.

The bottom line is that remix, like textual quotation when the subject of discussion is text, is an important source of cultural, artistic, and political criticism and commentary.  Vids are exactly the socially beneficial kinds of uses that fair use is designed to promote: they are transformative in meaning and message, they copy only small parts of the original, they often say things that copyright owners don’t want to have said about their productions, and they’re made not in order to achieve commercial success but to express something about the world. 

It’s unwise, as a matter of respect for authors, to say, it’s true that these are transformative works and it’s true that you made them to communicate a message rather than for profit, but you nonetheless don’t deserve an exemption because people outside your artistic community believe that you could have made a less beautiful video that works almost as well.  A core reason copyright has a nondiscrimination principle is that it’s not a great idea for lawyers to judge the merits of art.  The vidding community, as the comments in our submission show, highly values  quality footage, which among other things allows more advanced editing techniques that contribute to the meaning of vids, and those artistic judgments are worthy of respect even if not everyone has the same reaction.  We don’t tell oil painters that they could get okay results with watercolors, or sculptors that they could achieve many of the same results with a trowel instead of a knife.  In part we don’t do this because most lawyers aren’t particularly expert painters or sculptors and it’s easy to make a mistake about the technical potentials of a medium.  But we also don’t do that because it’s not the law’s proper role.  Perhaps an art critic could say “that would have looked fine at a lower frame rate with more pixelization,” but the Copyright Office shouldn’t, once it makes the initial determination that noncommercial remix includes a substantial number of fair uses.

Everyone agrees that screen capture, when it works, makes a copy that could suffice for pure entertainment purposes.  This makes the question of balance irrelevant—anyone who wants to make a full copy of a work for pure consumption purposes can concededly do so.  The only question is how an exemption would affect people who are making clips for other purposes.

With an exemption in place, we can focus our educational efforts and our assistance to fan artists who do receive takedowns on the crucial question of fair use.  And as our submission details, there are numerous transformative, noncommercial remix videos put online every day. The opponents haven’t contested the fair use status of any of the examples we and our members identified, such as the remix that commented on a widely publicized storyline on Glee about a gay teen’s experiences.  The opponents haven’t shown any harm from the current exemption, or anyone who’s misunderstood it to suggest that you can, for example, distribute an entire work instead of a new remix you made yourself. 

Francesca Coppa, Associate Professor of English and Film Studies, Muhlenberg College. In support of proposed Classes 7B and C.

Vidding predates the digital; used slides, footage taped off TV, then VHS, then DVD.  Shown at conventions; discussed afterwords; released and discussed online.  This is an advanced artform with sophisticated though amateur, noncommercial. Started to appear in art museums, film studies journals, mainstream media. Distill 2 hour movie or multiseason TV into 3 minutes is to radically change the story; edit footage to emphasize its musicality. Lyricism, tone, emotion.

Creative and transformative act even before we get into the content: 5 seasons of the Wire into 3 minutes is significant transformation.  Vids tell stories and make arguments from vidders, primarily women, sexual/racial minorities.  Feel the need to change the focus and the form of mass culture to make sense of their reality and change it to their taste. Queer, feminist readings. Implicit criticism comes from changing the perspective. Vidding is being part of a conversation: a grassroots art world.

Exemption has been extremely helpful: easy to explain, fits within internal ethical codes. Fans believe that you buy the DVDs and should be able to make something new.  Paying for your source v. not paying for your source.  Mainstream culture as an invitation to participate in cultural discussion. We’ve been able to say you can fight a takedown. That is particularly important b/c vidders tend to come from demographics that don’t assume their voices are legitimate/wanted.  We’ve seen a rise in people being able to challenge commercial systems and ask for restoration.  Vidders come from a culture of fear, where they assume their speech isn’t valuable; that’s what it means to come from the margins.  I often speak about vidders who are the highest artists, people with similarities to Cindy Sherman and other artists; many vidders are teenage girls and don’t assume their voices are wanted or defensible; others are pink collar workers who are differently vulnerable—easier to go away if you get a takedown. Important to say to these artists that you should take a chance because mostly you are the victim of an algorithm.  Exemption thus encourages diverse kinds of speech.

Lastly, in film and media studies we talk more about multimedia literacy. Fan artists and remixers are being studied in art schools etc. because they’ve been having multimedia conversations longer than the rest of us—noncommercial remix is the source of innovations that the mainstream now comes to copy. It’s important to leave a window so that you don’t have to be an authorized speaker to speak, to protect those whose voices are most fragile. Don’t set up a high speech (glossy) and low speech (degraded vernacular).

Tisha Turk, Associate Professor of English, University of Minnesota-Morris.  In support of proposed Classes 7B and C.

No technical background. Vidders need high quality source for technical and aesthetic reasons.

15-20 years ago we were all accustomed to fuzzy backgrounds.  Still used to seeing them in certain contexts, YouTube cat videos.  Those are home movies essentially, and most of us are forgiving about media quality. But people are starting to lose their tolerance for fuzzy versions of mainstream TV.  Even Netflix has improved dramatically.  When people see bad versions of good source, they hit the back button.

So if I want to comment on or critique or even celebrate Mad Men etc. I need high quality source, both to communicate and to meet my own artistic standards.  Impressed by how easy the demo made screen capture work.  Preparing ripped DVD footage for editing is complicated: .vob file, which most editing software can’t handle directly.  Feed it through a program, deinterlace it in order to edit.  Anamorphic encoding is standard: image must be resized to look right and get correct aspect ratio.  Then it has to be clipped because you can’t just put an hour of video on a timeline without crashing the system.

The problem with screen capture is that the process is easy but results are terrible.  Intended to capture tutorials onscreen: top reviewed capture programs generally don’t mention DVD.  Replay: she tried it.  Captured at 24 fps and ripped the same 10 minute scene. First one looks fine: minimal motion and relatively low light contrast one frame to the next.  Tim Short’s example: he used a scene that is essentially sepia toned talking heads.  That might be great for ethics discussion, but visually uninteresting.  Once there’s motion or light, the differences start to increase a lot.  Pixellation.

We often think of digital copying as duplicating. This is true of mp3s.  Editing video is different. When you add effects, when you export it, when you compress it, you lose quality. It’s more like a photocopier.  Photocopy of a book is readable.  If you copy the copy, you start to degrade—a lot like analog.  Losing frames: quoting Microsoft: every time you save your file in a lossy format, it discards more of the data, even if you’re saving it in the same format. Move to a lossy format only as the final step. Conversion means losing quality. IF original quality good that’s manageable, but if it’s not, then things immediately get ugly. Closeup on character’s expression: pixellation rapidly becomes unwatchable.  There is nothing that can be done to fix that top image.  Easy to degrade source quality and almost impossible to improve it. So if I start bad I can’t say what I want to say either because they won’t watch or they won’t see what I’m trying to do.

In this movie, and most movies that are vidded, will get okay quality for some frames, but not very many of them: low contrast, low motion shots.  Vidders use still shots, but a lot of shots with contrast, motion in frame, or motion of camera.  If I’m limited to those, I can’t vid. The whole point of multimedia is to use the images as part of speech.  You can see our comparison in the OTW test suite: dropped frames, out of sync, blocky and pixellated.  If screen capture is that great, would seem to be good enough for piracy.  Can’t work with these as an artist.

High quality source doesn’t guarantee great art or successful communication. There’s a lot of ineffective or bad pro art, to say nothing of noncommercial art. I’ve made some pretty bad vids.  But I have also made good vids that my community has responded to pretty. If I fail I want it to be the result of my failure, not that of my tools.

Martine Rife, Professor of English, Lansing Community College.  In support of proposed Classes 7B, C, and G.

Exemption as crafted currently is appreciated and used.  If you just inserted “noncommercial or educational” you could cover a lot of the needs. No reason to separate out media studies students as eligible for one exemption, and then noncommercial videomakers as eligible for another.  Be clear that qualifying for any one of these is enough to qualify.  Students make documentaries too.

Corynne McSherry, Intellectual Property Director, Electronic Frontier Foundation. Proponent for proposed Classes 7B and C.

W/r/t this exemption, reams of paper and hours of testimony.  What we haven’t had: evidence of harm.  Noncommercial videos too.  We’ve heard speculation that copyright owners might feel uncomfortable, but that’s entirely speculative; we’ve heard that digital distribution depends on DRM, but this exemption doesn’t bar DRM; just takes away the Sword of Damocles for fair use. We’ve heard about a message being sent.  The right way to respond is more and better education about 1201, and the content owners are in a good position to get that message out.

Notion that screen capture is acceptable for remix artists is simply mistaken. Don’t treat remix as a second class art form. It’s important and old, and marginalized until recently. Existing exemption sent a message that their work is legitimate, and that’s important to help people come in and defend their fair uses.

Clip licensing. Not viable: cost—many on limited or no budget; logistics; figuring out what you need.  Elisa Kriesinger: I need the whole alphabet; I can’t pick in advance.  For remixers engaged in criticism/commentary, licensing isn’t work.  Twilight wouldn’t have authorized Jonathan McIntosh’s critique of the movie.

I don’t think our exemption is broad: numerous limits; we heeded the limits in 2010.  For-profit uses need not apply; the artist must reasonably believe that circumvention is necessary; only authorized purpose is extraction of short clips; you can only use digital distribution if the content isn’t on DVD; fair use is a requirement.  Finally, we have no objection if you want to build in language on commentary and criticism, because that’s what they’re for.

Designed to bring existing exemption up to date with tech and practical developments and ethical practice.

Bruce Turnbull, Counsel for DVD CCA.  Opponent of proposed Classes 7A-G and 8.  WB is willing to endorse and agree with the positions taken by DVD CCA on screen capture not violating the DMCA.

Loss in DVD revenue as overall matter. Video entertainment is in decline. We don’t say there’s a causal relationship with the exemption, but you need to take the marketplace into account.

No requisite showing of adverse effect.  Needs to be a direct link between the works distributed on DVDs that requesters have been unable to make use of if they didn’t enjoy the benefit of the exemption.

Takedown notices don’t include 1201 violations.

Streaming sites—there are many people with smartphones too.  We appreciate the concession that the results might be good enough for a biology class.  In many instances screen capture is good enough.  Demonstration didn’t show action scenes/special effects, but that’s because we gave this to our teacher and asked how he’d use it.  (War Horse?  Really?  I don’t think so.)  We’ve done another use, which shows a BSG action scene with many special effects. Looks like something I’d be perfectly happy to watch.  And then we enhanced it and it looked ok too.  Video editing options exist for Mac and PC: vidders say so. 

Burden remains on requesters to show they’d be harmed with no exemption.  Vidding takes time and effort, so can spend time to enhance the alternative—not a significant burden to make her do more.  If you’re cropping, there may be circumstances where it’s not ideal, but there are many purposes for which it’s acceptable.

Steve Metalitz, Partner-MSK, representing Joint Creators and Copyright Owners.  Opponent of Classes 7A-G and 8.

Turk says screen capture is easy, but others find it too difficult.  These are different cases in terms of viable uses. 

Two tier system is legitimate concern to address in definitions, but we are talking about two different types of animals between documentarians and vids.  Test suite: virtually no original material.  Authorship consists in selection, coordination or arrangement. Doesn’t mean it’s not fair use, but in somewhat different category.  Affects likelihood that they’re noninfringing.

1201/512 interplay.  Now with this exemption clients feel free to fight—this is a non sequitur.  You can’t send somebody a takedown for a 1201 violation.  Counternotification isn’t about 1201.  Counternotifications are very rare, even after this exemption.  Once counternotifications are made, copyright owner’s only option is to file a lawsuit.  There’s no evidence this exemption has affected that one way or another. Doesn’t seem credible that copyright owners who think use isn’t fair would only sue if they also had a 1201 claim.

“Reasonable belief in need” doesn’t work.  Approach taken by beneficiaries is irrelevant: they don’t know what circumvention is and isn’t and isn’t a factor in decisions about making their works.  So it seems to me that this is meaningless limitation.

Three concerns about expansion: the move to primarily noncommercial is troubling, way beyond examples in test suite.  Infomercials would be covered, anything that isn’t simply a commercial—any type of use whatsoever.  (As an advertising law scholar, I’m willing to commit to the proposition that an infomercial is a commercial.) 

Motion pictures: audiovisual works is a broader category; nothing other than motion pictures is in play. 

7C: when works are not readily available on DVD.  This is an exceptionally risky approach for Office: bad message that would be sent to the producers of content who are seeking new channels for distribution.  (But saying that screen capture is awesome is apparently okay.)  Office should insist that proponents bear their burden of showing they can’t make the noninfringing uses without circumvention.

McSherry: Concerns about market harm.  Turnbull concedes that exemptions can’t be linked to exemptions; rise of alternative services. MPAA has been touting record profits for years now. The notion that vidders might be contributing to that is fundamentally wrong. Vidders are fans. They buy every version.

With respect to streaming services: pretty well entrenched and growing. Encourage Office to look at circumstantial evidence. 12 years ago we had DVDs and CSS and heard that if there was an exemption DVDs would never take hold, even though CSS had been long since hacked. It didn’t ruin DVDs, just made it harder for legitimate fair users to rip DVDs. Don’t wait another 10 years where we know that there are already tools available.

1201/512.  No one claims there are 1201 notices.  When people get a takedown based on their video, if they consult a lawyer, the lawyer can say “slam dunk fair use, but how did you make it?” The answer to that question is very different without an exemption.  Similarly with a dispute about Content ID on YouTube.

Adverse effect: how can I show adverse effect for an exemption in place?  We are able to do this positive thing with counternotifications.  With 7C, we have people incurring legal risk who likely don’t know it. That’s an adverse effect.

Are these videos noninfringing? What we’re hearing is that remixing isn’t original so might not be fair use.  No court would agree.  Look at the videos we submitted, of which there are many.  All fair uses and there are lots of them.  It’s telling that none of those examples have been picked apart.  Not just noninfringing, but socially beneficial: people are participating in cultural conversation.  Core First Amendment values.

Question of whether reasonable grounds for believing language has any meaning.  No question that artists want high quality.  That’s not the end of the story.  Reasonable grounds provides an opportunity for a court to evaluate that.

My reaction:

1. Opponents are saying that vidders should be making different art, without cropping and without effects, which is not really the role of the Copyright Office or of a fair use determination.
2. Story is not straight on whether DVDs are in decline or going strong.  Also still no link between short clips made for remix and full copies.
3. Your ability to speak shouldn’t depend on your ability to navigate technical hurdles unrelated to the content of your expression, or in fact your position as one of the 1/3 of Americans who can afford smartphones.
4. Turnbull’s quote from the fan video site: your great Mac and PC options are Handbrake and Mac the Ripper.

Turk: The nature of remix is that we take existing source and make new art.  Smartphones are not necessarily affordable or usable.  The other thing about effects: if you look at the Test Suite, you see the extreme cropping and zooming that my examples are intended to illustrate is often the norm. Not always zooming/cropping, but other effects: changing speed, altering color.  Imagine changing color of pixellated result. If you’re not familiar with the original source, you might not notice, but we’d be happy to provide a walkthrough: the whole point is that the effects can be made invisible if the quality of the source is good enough; you might think it always looked like that.

Carson: did you look at the vids?

Metalitz, yes, Turnbull, no. 

Carson: are most, some, or all fair uses?

Metalitz: didn’t look at them with that in mind.  Many of the vids probably are fair use.  Exemption is extremely broad and it doesn’t just cover the OTW.  Especially if it’s expanded, don’t think you can indulge in the assumption that this use is in fact noninfringing.  There is a meaningful difference between pro and amateur; less knowledgeable about legal issues.  Documentarians and fictional filmmakers are differently situated.

Carson: suppose we agree that many vids we’ve seen are noninfringing, and there’s no real way to get the quality you need without circumventing.  We seem to be en route to an exemption.  How do we cabin it?

Metalitz: don’t have a very good answer to it, because he questions the premise.  Proponents haven’t given much to grab onto to narrow it.

Rife: Focus should be on the class of work.  EFF has fashioned these two classes so as not to distinguish between types of human beings. 

Turnbull: 2003 basis leads to no exemptions at all. 

Metalitz: took the wrong fork in focusing on users.  But even then the focus was not on the work produced, but the statute is the focus as to which access controls are being circumvented.

RT: First, the limitation here is to remix that is primarily noncommercial, done as speech rather than profit seeking: big thumb on the fair use scale as per Sony.  Second, being noninfringing is part of the definition of the proposed class.

Metalitz: defining out the infringing uses isn’t really a limitation.

RT: “Create a new noninfringing work” is a perfectly good standard if you want a limit.  Selection coordination and arrangement is a classic way to define a new work.  Educational uses of single clips could then be treated separately.

Metalitz: we don’t like that any better.

McSherry: Creative Commons definition of noncommercial may also help: folks that are noncommercial but we want to remove ambiguity: Jonathan McIntosh and his Kickstarter program: makes his videos available freely, but wants to take donations to keep the lights on.

RT: In the Cut, the website that does shot for shot analysis; Joe Sabia getting commissions for Prime Time Terror.

Carson: Documentary?

RT: ok, could define it that way, though it’s really multimedia.

Metalitz: commercial speech has a First Amendment definition, but different in copyright.  We agree that Hollywood films are noncommercial. But if you’re using something in a Hollywood film, may not do well with fair use argument.

Carson: is the screen cap usable?

Turnbull: wouldn’t defend the image presented as acceptable for the use to which they want to put it.  Screen capture was not usable for this purpose.  But can be usable for variety of other instances.

Carson: what do we do with that?  You acknowledge it doesn’t do the job.  Do we just say “too bad”? 

Metalitz: Whether the software was used to its greatest effect we don’t know.  Ought to be used where it can be; small number of cases remaining after you filter those out would not justify an exemption. 

Carson: was their tech demonstration fine for any conceivable purpose?

McSherry: reasonably believe that circumvention is necessary.

Turk: two examples, Gattaca and Star Trek.  I would not capture the Gattaca footage because it’s boring. As a remix, that’s not the kind of thing I want to make.  You can’t know going in what the screen cap will do, but you do know what the DVD rip will give you: all the frames, all the visual information.  If I had taken that 10 minute scene and wanted some clips to make a vid, I would have to capture the entire thing, then scrub through it, and perhaps one of those 2 usable moments would be something I’d want to use. Having captured, I would then have to go back and rip that chapter to get the stuff I decided couldn’t reasonably be used.  Practically it seems stupid and counterintuitive. 

RT: Again, artist is being asked to master a skill orthogonal to her art, despite her testimony that it won’t work for her, and we’re told she must have been doing it wrong despite the fact that she’s spent more time with video editing than the rest of us put together.  This fits into the message that women and minority artists often get: your concerns don’t matter; your priorities don’t count.  And when you lose one of these to a black screen, it doesn’t get made up by another piece of speech.

Coppa: first capture is the starting point. You need a higher quality to bend and stretch it.  You don’t accidentally make a remix.

Turk: 10 years ago there was more of a limit to the effects you could practically put on a piece of footage because your computer would start to choke.  As computers have gotten more powerful, iMovie can do things now that programs I used when I started could barely handle.  When you think about younger users who use what came standard with the laptop they got for their 16^th birthday, they use a lot of those effects, now standard at the entry level packages.  We see more people with a default to fool around with the contrast, stylize the footage, make it glow. I’m old school and do less of that (though I do quite a bit); not an advanced user.

Coppa: young generation of women who do this is going to film school/art school.

Metalitz: This isn’t a reasonable belief you have to circumvent. How would a court resolve that?  Every vidder would rip.  Would never occur.  If you have to try using capture first, that might be one way to approach it.  If your authorship is taking all the most interesting parts of a motion picture, we have case law on taking the most interesting parts, trailer litigation: Video Pipeline.

Carson: that’s not really what they do. 

Metalitz: not conclusively fair use or noninfringing.

Ruwe: do you have any evidence that people turn away from lower quality?

Turk: vidder discussion lists and LJ communities there have been examples of people recommending a vid and other people saying: it was unwatchable.  I clicked away.  People have different standards.  There are thousands of vids.  If you have a favorite character, there are vids.  Why lose 3 minutes of your life, when you can find a better one?

Coppa: practice of remastering vids for a community that can no longer tolerate the low quality of older vids, once the work comes out on DVD.

Ruwe: lossy format as a last step: is that possible?

Turk: That’s the ideal.  If I rip a DVD, and do preprocessing (anamorphic shrinking involves some data loss).  Then does all the editing.  The point of nonlinear editing is that it doesn’t change the original files. 

Ruwe: if the intermediate steps don’t degrade, would screen capture or smartphone capture degrade?  Why would editing lose data?

Turk: loses quality on export.  They both do.  The difference when I zoom in was much more exaggerated. If you start from lower quality, the hill you roll down is much steeper.  When your clip has a lot of information, each pixel getting manipulated through an effect works well. When there are missing frames or pixellization, weird things happen—get unpredictable results with blurring or color change or other effects like speed change.  So when you get the final export may look dramatically different.  I didn’t try to vid with the captured footage. 

Ruwe: social studies teacher looked at the upper right hand screen—got just what he needed. Could you do that with speed at the outset?

Turk: the thing about capturing a piece of the frame, in a larger video either I have to resize it or else I have lots of shots with full frame. I can capture just a piece, but resizing then creates pixellization.

Turnbull: but wouldn’t starting with a chunk of the frame capture more of the pixels in that chunk?  If you lose some percentage of pixels no matter what, if you start with a smaller portion you’ll get a better image of that smaller portion.

Turk: if the original frame is 720 x 480, that’s the number of pixels.  If you capture a smaller area, you’ll get 350 x 200.  You can either make a tiny frame or you can stretch it, which will turn one pixel into a block of 9.  That’s what pixellation is.

Coppa: Speed: if you played the original faster, you often don’t know what you’re matching to until you’re working with the timeline.  One Girl Revolution: 5 women running across the screen as one woman—you can’t match that until you have the footage.

Turk: the improvements in screen capture tech have not kept pace with other kinds of improvements.  It is marginally less bad now, but personally haven’t seen enough of an upswing to suggest that we are headed to the promised land.  Screen cap software is great for what it’s designed for, but capturing video is not that.

Ruwe: why shouldn’t any exemption for online distribution be limited to methods cited in the record?

McSherry: these were examples based on our research. A lot of access controls are proprietary and we don’t know how they work. The tech may change rapidly. We need an exemption that covers evolution.

Give people flexibility so that the exemption is stable for 3 years.

Metalitz: you’d be saying to content owners that any TPM used online can be hacked under this exemption.

RT: Like screen capture.

Metalitz: I’ve advised clients in this situation: we’d tell someone no one has ever been sued for violating 1201(a)(1) without a claim of infringement. 

RT: yes, but the summary judgment stage is easy: you wouldn’t bother pursuing the fair use claim when you have a clearcut 1201 violation.

McSherry: Metalitz’s clients are in a different position to take on legal risk.

Has there been a fair use case specifically on point?  That can’t be the rule.  You guys can make evaluations too.  We don’t want to end the evolution of fair use, which is what happens otherwise.

Metalitz: be cautious about ex cathedra pronouncements about fair use.  These works don’t contain one iota of original material.  May contain selection coordination and arrangement, but that’s not the same.

Coppa: Collage, appropriation, the history of feminist art—Duchamp, the mustache on a Mona Lisa. 

Metalitz: wouldn’t say these works have no artistic merit: originality is the touchstone of copyright.

RT: selection, coordination and arrangement are originality!  It’s in the statute and we’ve provided numerous examples of how selection and arrangement communicate powerfully different messages than the original.