Don't start a competing business using your boss's equipment

Nedschroef Detroit Corp. v. Bemas Enterprises LLC, 2015 WL 2453511, No. 14–10095 (E.D. Mich. May 22, 2015)

 

Defendants Rigole and LePage were Nedschroef employees in Detroit who formed a competing company, Bemas, while still working for Nedschroef. Nedschroef makes industrial machines that produce metal fasteners, such as nuts, bolts, and screws, and the Detroit operation provided service and replacement parts for US customers.  Rigole was the highest ranking Nedschroef employee in North America, while LePage was a project and service engineer.  Both possessed significant authority and access to proprietary information.

 

In late 2010/early 2011, the Nedschroef Detroit employees were told that the Detroit operation would be closed unless business improved, and employees received a pay cut.  Rigole and LePage, using the names of their significant others, formed Bemas a few months later.  While the individual defendants were still employed by Nedschroef, Bemas sold replacement parts for Nedschroef machines and serviced Nedschroef machines.  Nedschroef presented evidence that they copied proprietary drawings of replacement parts (rather than reverse engineering from the parts), though defendants denied this, and also denied obtaining a customer list from Nedschroef’s private server, claiming instead that Rigole learned their names from his years working at Nedschroef.  They said that, when people contacted them in their capacity as Nedschroef employees and said that Nedschroef’s price was too high or delivery time too long, they’d tell customers about Bemas and provide a quote.  Though they maintained that they had little control over Nedschroef pricing, which was set at the corporate level in Belgium, they had access to Nedschroef’s price list. Amost all of Bemas’ customers were first customers of Nedschroef, and almost all of the goods and services offered by Bemas were offered by Nedschroef.

 

Nedschroef further alleged that defendants used Nedschroef’s employees, equipment, warehouse and other resources to run Bemas and compete against Nedschroef. For the first two and a half years of Bemas’ existence, Rigole and LePage conducted the company’s business while employed by Nedschroef and using their Nedschroef-owned computers. Suppliers shipped parts to Bemas at Nedschroef’s warehouse, where Bemas would use Nedschroef’s forklift to unload the goods and then ship them to Bemas’ customers. Nedschroef alleged that this caused consumer confusion, such as an email in which Rigole discussed an order with a supplier and said “please do not send emails concerning Bemas to my Nedschroef email address,” getting the response “[the order] is a Nedschroef order, is it not? Greg quoted this to Nedschroef and I assumed this is who we sold it too [sic], so [the order] is for Bemas?” Another person sent a “Nedschroef Order” to Bemas, and other suppliers appeared confused.

 

The court easily found misappropriation of corporate opportunities and breach of fiduciary duty and the duty of loyalty, as well as misappropriation of trade secrets (even if defendants’ version of events was true, they got proprietary drawings from Nedschroef customers who received them from Rigole and LePage; the defendants knew that the drawings shouldn’t have been given to customers except in “exceptional circumstances” after consultation with Belgium).  The evidence also established conversion of the drawings and other property used to compete directly against Nedschroef.  Nedschroef also won on unjust enrichment and civil conspiracy.

 

Interestingly, the court found no false designation of origin/false advertising under the Lanham Act because defendants didn’t use any “false designation of origin, false or misleading description of fact, or false or misleading representation of fact.” Any confusion was due to the individual defendants’ dual roles as representatives of Nedschroef and Bemas.  The Michigan Consumer Protection Act claims failed because it requires a consumer transaction, and these were business transactions.

 

However, the district court found common-law unfair competition because of the likelihood of confusion. The parties sold the exact same goods/services and the same marketing channels (that is, Rigole and LePage), and defendants’ conduct caused actual confusion among suppliers, which allowed an inference of likely confusion among buyers.  (Hmm, price and sophistication would seem to cut against that for the consumers, but ok.)

 

Finally, the court found tortious interference with prospective economic advantage despite defendants’ arguments that Bemas only provided parts for and/or serviced Nedschroef machines if customers previously requested a quote for the same part or service from Nedschroef and rejected the quote. But before Rigole and LePage formed Bemas, there was only one source in North America for the majority of the parts needed for Nedschroef machines: Nedschroef. Without an alternative, the customer would have had to purchase the parts from Nedschroef Detroit at the price quoted or go without the part. “Presumably the latter option was not a realistic one where the customer relies on the parts to operate their Nedschroef machine.”

The defendants were permanently enjoined from further unfair competition to sell Nedschroef  parts or services because their conduct, the court found, “caused a loss of goodwill and competitive market position … which courts have recognized cannot be fully compensable by monetary damages.” Nedschroef doesn’t have a huge market share, so an injunction precluding defendants from providing replacement parts for Nedschroef machines left substantial legitimate business for them to seek.

 

Nedschroef also was entitled to the return of compensation paid to the individual defendants, to Bemas’ profits from their breach of fiduciary duties, and treble damages plus costs and attorney’s fees from the conversion. [How are the damages from the conversion, as opposed to the other conduct, going to be measured?]

DMCA hearings: visually impaired/ereaders

Copyright Office: Jacqueline Charlesworth

Michelle Choe

Regan Smith

Cy Donnelly

Steve Ruhe

John Riley

Stacy Cheney (NTIA)

 

In and out: this took 15 minutes.  This exemption will, I predict, be granted.

 

Proposed Class 9: Literary works distributed electronically – assistive technologies

This proposed class would allow circumvention of access controls on lawfully made and acquired literary works distributed electronically for purposes of accessibility for persons who are print disabled. This exemption has been requested for literary works distributed electronically, including e-books, digital textbooks, and PDF articles.

 

Proponents: Blake Reid, Samuelson-Glushko Technology Law & Policy Clinic at Colorado Law

 

You’ve seen contentious exemptions and complicated issues; this one is very basic: the right of people who are visually impaired to read books. Basic human right, key to democratic society, uncontroversial renewal. We’re not asking for modifications, largely unapposed including AAP (notwithstanding reservations); circumstances have changed only marginally and circumvention is still necessary on individual and institutional level. Use is noninfringing, even more after HathiTrust; still very limited availability of noncircumventing alternatives. Only material changed circumstance is the Marrakesh Treaty, which makes this exemption necessary for compliance.

 

C: Thank you and students for helping to make a record in this class. It’s been very helpful to establish a need for an exemption.

 

Jonathan Band, Library Copyright Alliance: No one’s opposing.  Marrakesh Treaty point deserves to be reiterated: if treaty is ratified w/in the next 3 years, we need to have the exemption in place for compliance.

 

C: Can you elaborate on intersection of exemption and treaty?

 

Band: the treaty has a provision that countries need to have a way for visually impaired/authorized entities to circumvent to take advantage of any access authorized by treaty. Better to be statutory and not in need of renewal, but this would at least enable people to take actions authorized by Treaty.

 

Q: AAP mentioned epub and HTML5 format—could you provide more info?

 

Reid: we’re actually very hopeful about those formats someday being adopted on a widespread basis and provide a noncircumventing alternative in our lifetimes. Someday I may be able to avoid seeking renewal b/c all books come out in epub3 accessible, interoperable formats that work with text-to-speech and ereaders and braille readers. Unfortunate reality: not there yet, and not in next 3 years.  At this point, adoption is inconsistent; availability of titles in those formats and interoperability of titles purchased on particular platforms still isn’t there. I hope to have a different answer next time.

 

Band: even if we get to a point where all new books coming out meet that standard, you still have a legacy problem.

 

Reid: worth noting that addressing access to the archive will be a really hard problem. Every year that goes by w/o accessible format creates more archive that isn’t accessible. There are other challenges like user interfaces on tablets and phones; the tech has a long way to go. Encourage you to discuss w/relative, family member, friend who’s visually impaired—ask them how they use a tablet to access even a noncircumvented book.  You will think it’s broken: the computerized voice is bad; the tech has a long way to go. This exemption won’t fix everything, but it’s a helpful band-aid for folks looking to engage in self-help or to make books available to students or clients at an authorized entity.

DMCA hearings: medical devices

Copyright Office: Jacqueline Charlesworth

Michelle Choe

Regan Smith

Cy Donnelly

Steve Ruhe

John Riley

John Morris (NTIA)

 

Proposed Class 27: Software – networked medical devices

The proposed class would allow circumvention of TPMs protecting computer programs in medical devices designed for attachment to or implantation in patients and in their corresponding monitoring devices, as well as the outputs generated through those programs. As proposed, the exemption would be limited to cases where circumvention is at the direction of a patient seeking access to information generated by his or her own device, or at the direction of those conducting research into the safety, security, and effectiveness of such devices. The proposal would cover devices such as pacemakers, implantable cardioverter defibrillators, insulin pumps, and continuous glucose monitors.

 

Proponents: Andrew Sellars, Cyberlaw Clinic, Berkman Center for Internet & Society, with

Benjamin West, computer researcher/software engineer

 

Sellars: designed to ensure that ongoing research can continue now that devices, largely at the suggestion of independent researchers, have begun to adopt TPMs.

 

West: Type 1 diabetes; use a variety of medical devices incl. insulin pumps and continuous glucose monitors; they contain a wealth of important info, but that’s delayed or even unavailable to me. So I started investigating how they work. There’s a sensor under my skin for the CGM and a handheld receiving computer that displays current value and trends.  My collaborators and I are likeminded patients or parents of patients who used reverse engineering to analyze data. Vendor’s own software can retrieve up to 3 months; we used hardware and software to create transcripts. Community as a whole obtained valuable info on device that’s not always shown or available to patient. The delta: difference between current and five minutes ago.  We were able to provide that to patients and show it on mobile phones.

 

Q: why is that important/useful to you?

 

A: there is a display w/current number; depending on what that number is, I may need to take action—leave the room, take medicine.  B/c it’s changing all the time, getting a sense of changes is very important. Changing 1 point v. 10 points in five minutes is an important cue for what I need to do; v. “trend” is just up or down, no numerical value. People can now miss less school w/ remote monitoring which required more than the device, it required the mobile display. 

 

You can be ok for the next three hours, but it’s difficult to predict beyond that, so you need action every three hours. Too much insulin could be harmful. Schools aren’t always prepared. The mobile device allows parent to monitor and keep in touch w/people taking care of child.  These are often scenarios where the child might be withheld from school, or walks w/grandparents, or sleepovers. Remote monitoring allows someone to keep track remotely and allow the school or trip.

 

Q: the child has the info too?

 

A: children younger than 14 typically don’t perform the therapy.  They’re usually not monitoring themselves to do it on their own.

 

Q: do they take a phone or device that is the monitor w/them?

 

A: typically: we provide the child a rig, in their bookbag or a belt, and that stays w/them. Someone else then provides the interpretation and tells them what to do and coordinates the care w/someone present. If a child is low during school, parent can call and tell them to pull kid out of gym class to give them sugar if they have too much insulin.

 

Q: specific children who took advantage of this?

 

A: we have a FB group called CHM in the cloud, w/12,000 members. Around 4000 have adopted this kind of system. Very popular.

 

We also want to check the number for being stale or inaccurate; there are a variety of reasons that could happen like a new insertion or dehydration. But device/sensor data is still available. Our research has been able to get the raw data out of the device; otherwise you’d get none at all.  Metadata can be used accurately to estimate glucose. Our research also figured out what could cause inaccurate/false readings, like pressure on the insertion—the raw data can tell you what’s inaccurate or when the device is beginning to fail.

 

Current version is unencrypted, but the next version—already sold overseas and soon to replace our devices in the US—has encryption. I’m asking for this exemption so the work we’ve done to improve quality of life can continue.

 

Q: Is all you’re doing pulling data? Are you changing the software in any way?

 

A: Right now, our design behind all of this is to read only. We are not affecting behavior of device. We’ve gone to great lengths to match exactly what the vendor itself does to monitor the device.

 

Q: so is an exemption necessary if only data is being accessed?

 

Sellars: on many devices on the market, and on more coming out, even accessing data requires circumventing a TPM. Some of these devices have protectable and unprotectable outputs; largely depends on selection of info.  Also, West is one of four types of researchers analyzing source code/outputs. Some is personal safety/monitoring.  Sometimes cardiac event symptoms can be indistinguishable from day to day events like fatigue or dizziness. My device knows but wouldn’t necessarily let me know.

Q: is West’s device about cardiac symptoms? Is the info West is addressing the sort of data that anyone has asserted © of?

 

A: statements of Advamed and manufacturers have asserted rights over SQL databases and the like. Also, some data is batched; which leaves greater room for claims about selection/arrangement. 

 

Q: is there any detail on this?

 

A: Advamed asserts © on West’s device. In many cases it’s not clear whether the data would be protected. Where a court could find a work, the exemption is appropriate.

 

Q: are you accessing data off the sensor only or the vendor’s monitor/data there?

 

West: it’s both. Several projects.

 

C: Are you able to audit your device?  Are you printing out a report?  How are the data presented? [Excellent use of plural!]

 

West: Glanceable data—I have a watch I use.  We also store all the information in a database, owned and controlled by the user.  The device has a database in it already. We’re pulling out the records from that, then duplicating and storing in our own DB.  Our DB is off the shelf open source.

 

Sellars: let’s point out that extracting data is fair use/noninfringing use—copy made to perform extraction in house is fair use.

 

Some of the other uses in the coalition: Radcliffe, researching security of these systems, particularly insulin pumps/continuous glucose monitors. Opponents stipulate his research spurred reform.  Heart monitors that often don’t share data w/patients except for 60-90 days later.  If I told you you shouldn’t eat what you ate for lunch on Feb. 28, you would probably not be able to figure out what went wrong.  Researchers can get info more regularly, often daily, to figure out effects of what you eat and do.  Karen Sandler: research into security at software level.  She published a study, “Killed by Code,” which goes into vulnerabilities and reform.  Something often missed in the discussion of medical device security: while we always look to espionage/hackers for romantic reasons, what Sandler & Moy showed is that what affects patient lives most is bad code, design flaws, power management issues, restart that doesn’t tell anyone and thus doesn’t function right.  Recall history: hundreds of recalls per year for software issues on medical devices, w/deaths attributable in the 100s. While attention has been given to vulnerability intrusion, the more fundamental concern is the devices not working properly. Having more people studying and testing and simulating environments always tends to improve health.

 

We are also in an area of regulatory overlap. FCC, FDA, Homeland Security all have regulatory roles.  As has been said many times by this Office and as a matter of good practice, primary responsibility here should be about noninfringing uses. On the questions of copyright and piracy, the opposition commenters offer next to nothing on whether there’d be piracy. Software can’t replace the need for the device itself—the source code of a pacemaker is not a pacemaker.

C: regulatory compliance isn’t a copyright issue, but isn’t it a bigger concern?  [For the FCC/FDA?]

 

Sellars: While I agree that the opposition said that, they offered no substantiation. Opposition misses that the research is happening now, it’s standard, and the FDA not only tolerates it but promotes it—holds hearings inviting independent researchers to improve their regulations. When a person discovers a vulnerability, there’s a FDA reporting mechanism, and there’s also a reporting mechanism for Homeland Security.  The history of the research completely refutes the suggestions of opponents.

 

Q: would you accept a reporting requirement limiting the exemption?

 

A: Disclosure has been suggested. While I agree that the standard course is vendor-first, there are times when it’s appropriate to go to someone else, to an agency or to the press, for example when a vulnerability isn’t related to something a hacker could use but just a design flaw: tell the world there’s a problem w/the device. We also have a sad tradition of medical companies knowing about problems and not telling the public until after a tragedy.  Cited in the record.  Hardware problem known for 3 years but they didn’t tell people there was a problem until a 21-year-old man died and the NYT uncovered knowledge. Wired stories about Hospira pumps w/known vulnerabilities, not addressed until Wired was ready to publish.  While the medical companies wish to be proactive, they are at times unfortunately reactive. It would be a bad policy, and also raise serious concerns of unconstitutional conditions if a benefit, even a discretionary one, is premised on a speech based restriction—and restricting the audience is a serious content based restriction as 10^th Circuit said in US v. West.

 

Q: will the exemption be able to pull data from devices that could otherwise be subject to test/exclusivity laws that would be submitted to regulatory agencies? Where it’s pending approval?

 

A: experience shows there are postmarket and premarket issues. FDA has a couple of options for a new device, from notification to premarket approval.  Often at funding of mfgrs, and studies show that industry-funded studies have an industry bias. A lot of issues found are on devices already in the market.

 

Q: You are asking for data readouts from actual patients as well as security/vulnerability testing: explanted devices for the latter that wouldn’t be used again?

 

A: that is our proposal, but the two exemptions are linked, as West’s comments noted. When you’re accessing device data from a patients, you often learn how the device functions, for example the CGM error related to pressure. 

 

Q: I see them as distinct but blended requests. Scope in one case is in use by patients, and not in use in another.  Concern over fact that tested devices shouldn’t go back into clinical use.

 

Sellars: my understanding is that tests out of package make device unsterile. 

 

Sherwin Siy, Public Knowledge: Copyrightability—Advamed/opponents have made © claims; our uses would be fair uses/uses of uncopyrightable elements. © works are contained in software and those works will be accessed, if not necessarily copied, through these uses.  Copies may be made in RAM for testing, and modifications might be made in the course of testing.

 

C: what are the other sources of law relying on to access those works or data compilations?

 

Siy: access isn’t itself an infringing use.  Essential step copies would be §117, as would modifications in use.  Even if the software itself isn’t “owned” by the patient, fair use applies incredibly strongly.

 

C: do you know what the practice is in terms of what mfgrs say?

 

Sellars: they own the software ©; we have no evidence suggesting anything other than the patient being the owner of the chattel device. There is no license. That speaks to the lack of an aftermarket as well.  There is no reasonable way to lose ownership of a pacemaker [if a so-called ‘license’ were revoked].

 

Siy: written submission covers issues of reverse engineering. The existing statutory exemptions might apply, but they don’t cover the field.

 

Laura Moy, New America’s Open Technology Institute: Record from multiple parties: vulnerabilities need to be discovered to fix them; there’s no other way to do it. We know there are serious bugs and other vulnerabilities. Code inevitably has bugs; eliminating them before going on the market is almost impossible.  Bugs can lead to death.

 

C: Inappropriate third party access?  If you circumvent can you get into other patients’ records? Is that a real possibility, and how would we address that?

 

A: I’ve seen nothing to suggest that researchers are looking somehow at mfgr’s multiple-patient database records.

Sellars: Best paper on these concerns is Daniel Halperin & Kevin Foo & others addressing pacemaker vulnerabilities. He noted privacy concerns—my understanding was that the data is unidirectional, going to the server. He didn’t uncover any way in which you could use a device to access the servers of Medtronic etc., and oppositions didn’t suggest any way this could happen. Anyway this is regulatory overlap, with CFAA. That’s not a copyright problem.

 

C: Are you saying it’s not possible to access a central server with an individual medical device? Is that a possibility? Could circumvention allow you to do that?

 

A: I haven’t found a situation where that’s possible. Unidirectional.

 

Moy: also the result of my research. Where info is broadcast in the clear, the reason is so the hospital can get it easily. That’s how sensitive patient info goes.

 

Q: could you configure devices to transmit only data transmitted by design?  Could we bar something like battery drainage from triggering transmission of data beyond ways mfgr designed it to transmit?

 

Moy: security research w/individual devices typically done on explanted device, so drainage is not typically a concern. Performing vulnerability research is something that can prevent battery drainage/other vulnerability from exploitation in the future. 

 

C: but there was another claim that pinging a device a lot could drain a battery. [© Office as design engineers.]

 

Sellars: that’s an implant v. attached device issue.  Batteries for outside devices are replaceable. Ways in which getting info can be quite relevant to patient care. Turning to pacemakers, the research to date largely concerns passive interception.  There are devices called interrogators [yikes!] in hospital environments.

 

C: I’m not a medical device researcher, but I don’t feel like that answered my question.  Pacemakers have limited battery life, hard to replace: you circumvent a TPM and you are making your own interrogator much more frequently than contemplated by manufacturer—could drain battery in unexpected way. How would you address that concern?  [Um, not with ©?]

 

Sellars: hard to figure out what the concern is. Repeated/continuous interrogation can drain battery, but these sorts of experiments for better access are often done in collaboration w/a doctor: informed consent and the judgment of the doctor is part of our proposed language.

 

C: but one of the pitches was immediate access to the data? [depends on what it is you want to do!]

 

Sellars: that’s a distinction b/t types of projects.  People concerned about cardiac events/better data access would consult w/doctors.

West: you can’t build an interrogator by accident. 

 

C: You might know that, but a naïve person might not.

 

West: to create that device, they have to build it to drain the battery.

 

C: but the opposition’s concern is that some heart patient might not know about their home interrogator’s negative functions. That person might not realize that reading their data frequently could drain their battery in a dangerous way. We’re not the FDA here, obviously, but we’re trying to understand the parameters of the exemption.

 

West: it seems like informed consent would be important there.

 

C: who would be doing the informing?

 

West: the installer?

 

Sellars: note that there are no TPMs preventing this today, and it is not happening. Instead we see passive interception.  Siy said: the device is often accompanied w/monitor and base station. I’d find the concerns completely unfounded. They’re pretending like this activity isn’t happening yet and TPMs are the only barrier, but there are lots of unencrypted devices now.

 

Q: would it be appropriate to limit exemption to passive monitoring for implanted devices?

 

Siy: No. Oppositions suggest hypothetical drain in certain uses; drawing a bright line rule based upon what’s being transmitted rather than characteristics of battery seems a poor fit. Many of the problems we’re seeking to address come from insufficient information received through existing process dictated by manufacturer.

 

Q: is there are scenario where there is an implanted glucose monitor w/ a ten year battery life expected, but using your technique to gather additional data, it might only have an eight year battery life, requiring extra surgeries?  Could a patient decide the extra information is worth having that more regular surgery? Are there scenarios where the additional information would be a decision the patient would want to make for themselves?

 

West: absolutely conceivable. You could also come up with an auditing technique that would make the device last longer—that’s an equally probable alternative.  Or you could provide much better value.

 

Sellars: Personalizing and customizing care is in accordance w/national policy. Consider patient more as individual—better health outcomes.

 

Moy: Doctors and patients should be able to weigh concerns about device vulnerability in their decisions. They have a right to know, especially for implantation, and disclosure helps informed choice. Info about security research could affect cost/benefit analysis, says one opponent—but that’s precisely as it should be! One of the researchers in this area got into it precisely to engage in her own cost benefit analysis for her medical decision.

 

Other agencies like this: FDA is informed by security research. FDA’s additional security steps respond to important work of independent device researchers.

 

C: record suggested that a lot of devices don’t currently have TPMs, and FDA has stepped up its interest. Can you say how many devices currently have TPMs?

 

Sellars: pp. 6-8, citing vendors themselves. We often have to rely on vendors.  Some appendices disclose others.  FDA issued new guidance for devices in October strongly encouraging encryption.  When the FDA strongly encourages something, that’s de facto law. It’s not conjecture; the FDA now wants it as part of approval.

 

West: Medtronic’s pump is what I use; my next pump will have encryption and I will lose access to the data.

Siy: to the extent the Office is concerned w/overlapping jurisdiction, this research is already happening and TPMs are coming, altering the status quo. What’s changing is that the FDA’s exclusive jurisdiction is now suddenly being shared with the © Office and we just want to maintain the status quo research environment.

DMCA hearings: remix

Copyright Office: Jacqueline Charlesworth

Michelle Choe

Regan Smith

Cy Donnelly

Steve Ruhe

John Riley

Stacy Cheney (NTIA)

 

Note that my recap does not reflect all Qs because I was participating.

 

Proposed Class 7: Audiovisual works – derivative uses – noncommercial remix videos

This proposed class would allow circumvention of access controls on lawfully made and acquired audiovisual works for the sole purpose of extracting clips for inclusion in noncommercial videos that do not infringe copyright. This exemption has been requested for audiovisual material made available on DVDs protected by CSS, Blu-ray discs protected by AACS, and TPM-protected online distribution services.

 

Proponents: Corynne McSherry, Electronic Frontier Foundation

 

(1)   Urge you to look at record submitted by all sides. You stressed in the NPR that you wanted a record.  Some of the evidence: we submitted many examples of the kinds of videos this exemption would protect and why a court would likely find them fair.  Opponents offered very little on why our examples aren’t fair use, just blanket statements not applied to our example.  Record on harms and statutory factors: ample evidence that artists are relying on Blu-Ray source. And the existing exemption is not controversial so it’s just Blu-Ray.  Opponents conceded Blu-Ray is for bonus features, exactly what vidders might want to comment on.  Currently remix artists use the existing exemption to defend themselves against improper takedown claims. People who use Blu-Ray don’t have that protection, and they don’t know it until they get a takedown, talk to a lawyer, and find out they can’t fight back.

C: did you provide specific examples of uses where the content was only available on Blu-Ray.

A: we do—a whole collection of uses.

C: they may have used it, but setting aside quality, you were talking about bonus features.

A: yes, in our Reply/Coppa’s statement.

W/o exemption 1201 is a trap for the unwary. Trying to do the right thing and ensure creators get paid. Tripped up later by a confusing message that you did the right thing but used the wrong source material.

What is not in the record: any evidence that proposed expansion or current exemption cause harm to availability of copyrighted works. They’ve suggested people won’t make works available on Blu-Ray but that’s speculative. Blu-Ray may be emergent model, but so is streaming, and online streaming services know the existing exemption hasn’t hurt their emerging business model.

C: are you aware of situations where vidders have used HD online content and has that been a workable option?

A: Turk will talk about that.

Opponents have suggested that allowing circumvention might lead to piracy. If that were true we’d have evidence from DVDs and online streaming/downloads. Your Office asked for that evidence and didn’t get it. Pirates don’t want or need this exemption. Remix artists do.

Alternatives: record shows that the technologies opponents might work won’t work. Inadequate for editing that artists need to engage in to produce high quality work taken seriously by audiences they’re trying to reach.

C: artists—how do you define that?  The exemption doesn’t use the word artists.  Is it mainly to allow artistic production?

A: using it as a catchall for a broad array of communities. Wouldn’t tie it to any particular community.  Fanvidders, political remixers, professional video makers who are having their work displayed in museum.  If we tried to try it to an artistic endeavor that would be confusing because of the different communities.

We’ll show you importance of high quality. Dispel a different source of confusion: notion that fair use doesn’t entitle user to particular tech.  Corley is inapposite—discussed in our papers. Artists get the quality they need for transformative purpose. Also a red herring—whether they need the best quality source speaks to the question of adverse effect under the statute.  If it is putting their work at legal risk that’s an adverse effect.

C: most supportive cases?

A: Bill Graham, Warren v. Spurlock, Swatch, Sony v. Bleem (real images were necessary for accurate comparisons)—courts repeatedly take into account what’s necessary for the purpose, and HQ is needed for the transformative purpose.

 

Francesca Coppa, Muhlenberg College: Writing a book on vidders, but to speak to question before—remixers think of selves as artists and cultural critics, increasingly understood as broad art practice.  Already using Blu-Ray or other HD footage in practice. Whether or not they use Blu-Ray depends on some things, including technical or geographical (not everyone has broadband)—all across the country. Blu-Ray is significant source for many people in different parts of country. Using HD for two reasons: (1) they bought it and the idea that they can use one kind of disc and not another is not intuitive; (2) you’re asking them to use lower quality or spend more money for worse footage. HQ allows them to make the transformations they want. They don’t want to play it back. Edit it, crop it, color it, mask it, layer it. The more info in the original footage, the better it stands up to processing and the more complex an idea you can articulate.  Vidders date from 40 years ago, always on the cutting edge of media b/c they care about the quality of image so our image is watchable and not pixelated.

 

Q: distribution—can vary in types of quality.  Today, if you make something to be distributed into lower output can you explain why it matters?

 

A: it isn’t. Even YT has a HD option. Many may be seen in theater-style setting on projector. Hi-retina displays. Emerging practice of remastering older vids in Blu-Ray to keep the artwork watchable and vibrant as an artifact in the community. 

 

C: what’s the process of remastering?

 

A: Turk—but you match the clips and cuts, replicating their process using better quality footage.  On a shot by shot basis.

 

Artistic reasons for doing this: bring background to foreground, as with M video or Captain America vids—a lot of people using those deleted scenes to create critiques of the military industrial complex in Captain America. If you want background to be forward, you can crop and still have a watchable picture if you start w/BR. Deleted scenes often things that editor didn’t think significant, and vidders are often about reprioritizing—having an argument w/the director, what you thought was important isn’t!  Another case for Blu-Ray only content, John Carpenter vid, wasn’t planning to use BR because he was trying to say something about Jamie Lee Curtis over 30 years. Needed to use BR across b/c differences between 1977 and 200X would have been too jarring to the viewer. The last film was only in BR.  Multiple visual sources, trace a theme, make an argument, you need to match aspect ratio, color palette so that the eye goes to the argument the editing is making so it’s not disrupted by images that look widely disparate. It’s a way of talking visually.

 

Vids and other remixes have been featured in major exhibitions at museums and art galleries.  GIFs made with Blu-Ray; starting to see museum exhibitions too as borderline b/t film and photography.  Many times they’re projected on the walls.  It matters what they look like. Increasingly appreciated as artform and grassroots form of film criticism.  Centerpiece for discursive arguments about pop or high culture.  Michael Pidgett called vidders grassroots cinephiles who spot something latent in an image and feel the need to make it prominent and clear to others. HD/BR is important to this and a natural extension of this.  We naturally start with the most info dense images b/c we lose quality in processing. They think they’re doing the right thing.

 

Tisha Turk, University of Minnesota Morris: I’m also here as a vidder, an artist w/in the community.  Emphasize that I’m not a film or TV pro.  No Jim Morrissette. Know b/c I’ve been creating for 15 years. Two points: (1) Quality matters to video remix. The distinction is between what I need as consumer and creator. Consumer doesn’t always need highest quality for its own sake—I might stream Netflix to watch on the couch. Remix video – I need tools that work. The video is something I’m using and manipulating. Vid transforms genre, narrative, meaning—and that requires transforming individual clips. HQ allows me to do that without compromising the end effect.

 

Alternatives to circumvention don’t work. Multiple reasons. Some are aesthetic. Visually acceptable results for Blu-Ray not shown by opponents. Single frame of DVD video: 345,000 pixels. BR: over 2 million pixels—6 times as many. Screen cap can’t keep up.

 

Q: that’s true for material you grab online? If you screencapture from Netflix.

 

A: yes, if it’s 1080p, that’s just the number of pixels that it has. If you capture it, the software can’t deal w/ it all. Lots of things affect this. It’s a lot to ask of software not designed to do this.  It’s designed to make videos where you show your mouse moving.

 

C: Are you saying every vidder would necessarily need HD quality?  There’s no vidders only showing things to their friends? Existing exemption says you should need it.  Does every single vidder need access no matter what their purpose is?

 

A: vidders have a wide range of needs and backgrounds and access to stuff. My audience may not be the same. 

 

C: a beginner might not need to be circumventing Blu-Ray—she might be able to use screen capture. There might be variation.

 

A: variations are possible, but the ceiling is getting higher. What someone wants to do at 14, if they’re interested and keep doing it, in 2 years, they might have very different aesthetic needs and sense of who they’re communicating with. They might want to use more effects. They might want to focus on a character who’s in the background.  There’s a range, but the high end of that range is very high and getting higher as more people get used to high def.

 

Q: Vidder v. remixers. Vidder = subset? Perhaps maybe more of a need to use HD, or remix at large?

 

A: remix at large. Vidders particularly b/c we are fans of the things, our audiences tend to care very much about the source and know it very well. If someone loves a show or a movie in HD and you’re asking them to watch it with pixelization that would turn off our community.

 

Coppa: younger people are more footage-conscious because they have processing power and have lived with shiny screens their whole lives. Unbelievably good editing chops at 18—working in the industry at 22, came in running in a way we’ve never seen before.

 

Turk: It’s not just aesthetic reasons that alternatives don’t work. There are technical reasons. Video can look good to a casual viewer and not be editable or exportable which is in some ways more frustrating.  I tried to submit a video and captured footage wouldn’t work. The point of being remix artist is to edit, not just to look at. Opponents are thinking about alternatives from POV of viewer and consumer. You can see that in the record—they capture. Did you pull it into premiere or final cut, did you apply effects to it? There’s no attempt to transform. I have to assess alternatives from the perspective of a creator, not just a viewer. May be watchable for pirates, but screencap is not good enough to create.

 

Q: Alternative of HD downloads/streams.

 

Turk: People do use them and there are circumstances under which that works. Potential problems or reasons to use BR instead. Some reasons are geographical. Rural Minnesota w/intermittent broadband.  HD downloads are beyond my ability. Being able to get Blu-Ray is useful. The other thing is that HD and BR are not actually the same thing in the way they’re encoded. Different compression algorithms.  BR comes on a disc and there’s no need to download—BR holds a very large amount of data.  Download is encoded to produce a smaller file. If you look at the relative size of 720p versus 1080HD download is not as different as you’d expect given 2 ½ more pixels. The reason is that video is encoded using any of a variety of codecs. There are three different codecs BR supports.  Each has multiple options for compression algorithms. What is the bitrate?  Variable bitrate: if a scene doesn’t have a lot of motion, bitrate is lower—allows better distribution of the data.  Different algorithms serve different purposes. Some maximize sharp detail—something animated needs that. Some maximize smooth motion. Some are designed to produce small file size. You can’t have all of what you want. You have to trade off. Sharp detail = less smooth motion. You make decisions about what’s the most important. HD downloads are aggressively compressed—really big file, but way smaller than what you get if you rip a BR.  BR is not as compressed. Watching, that makes very little difference. But it can affect editing, when you need to do something to that footage. Unpredictable results.  Compression affects the underlying data. There’s a big range within lossy compression algorithms—you lose different things.

 

Q: what’s the scale of the compression? Raw to BR to HD 1080p.

 

Turk: I’d have to look it up.  Raw file is unmanageably enormous.  BR is compressed but not so much.  HD download v. BR would be big size difference.

 

Q: talk about editing limitations.  What would those limitations be?

 

A: the one that comes to mind is cropping and resizing—you would lose quality through HD.  Other kinds of things that might be affected: slo-mo.  Color possibly. Zooming, speed changes.

 

Coppa: After Effects: you can use internal cameras to move a camera over a piece of footage—you need a lot of processing power. I’m not that fancy.

 

Q: have you personally worked with HD downloads?

 

A: I haven’t had much time to vid. 

 

Coppa: vidders I interview for my book have done that. One vidder melted her graphics card—renders can take 26 hours to render one clip.

 

Turk: Vudu HDX—I did a quick look. Direct quote: brings down the average bitrate of 1080p from BR’s dizzying 35 mbps to more manageable 12 mpbs. Which is great for streaming but not editing.

 

C: why?

 

A: It’s less data.

 

Rebecca Tushnet, I’m a professor at Georgetown Law and I’m here as a legal academic who’s studied these issues for twenty years and on behalf of the Organization for Transformative Works.

 

Thank Office and NTIA for hard work on these issues.

 

(1)        Want to emphasize the wide variety of fair uses involved here: political commentary like that from the Native Americans and anti-abortion groups, historical analysis in National History Day, film criticism from Tony Zhou, cultural and political criticism through remix like soda_jerk and gianduakiss and many others.

Show “Worthy” to 1:35.  You’ll see here a bunch of techniques that can’t be done without HD input. None of the text effects exist in the original.  Swapped out backgrounds using masks (e.g., at 1:15) and altered elements of a character’s face (also at the end which I commend to you: that’s entirely added by the vidder).

(2)        Exemption is a two step process.  First, we’ve submitted evidence that a substantial number of remixes made using circumvention are likely to be noninfringing. This satisfies the statutory demand for showing we are “adversely affected … in [our] ability to make noninfringing uses of that particular class of works.”  Second, the question is then how to word the exemption for which we concededly qualify.  Under our formulation, if it’s not fair use, it won’t be entitled to the exemption, which more than satisfies the standard for “substantial likelihood” of fair use.  You can even say in the exemption that it’s more likely to be fair use if it’s a short clip—that’s the standard already articulated by the law.  A contrary formulation presupposes that some fair uses ought to be excluded from an exemption, which is not what the statute says.  Other standards will inherently add uncertainty over and above the irreducible flexibility of fair use.  [Encourage the Office to recognize that that “limited beyond fair use” and “providing guidance” are not equivalent. Most of the non-fair use-based limits the Office has imposed in the past have been unclear rather than providing guidance, as the debates in earlier panels have indicated.]

 

(3)        Opponents didn’t offer evidence about the quality of Blu-Ray screen capture. Since Blu-Ray is the only exemption they’re opposing, that absence speaks volumes. Even screencapture applied to DVD produces bad results, and opponents haven’t provided and can’t provide evidence that screencapture works even that well on Blu-Ray given Blu-Ray’s higher quality and computer processing demands.  [Show Captain America 2 Blu-ray, captured using SnagIt on a PC: I tried to upload it to YouTube but YouTube rejected it—not on copyright grounds but on quality/size grounds] This is before any editing, which would cause further degradation.  She got lucky. Here’s what vidder Thuviaptharth said: “I spent an hour with WM Capture and 45 minutes with Camtasia Studio, and I can't get either of them to record the Blu-Ray video.  They record the audio, but I can't get it to record Blu-Ray video at all.  The Start menu and the mouse pointer show up, but the video is just black. I tried it with two different Blu-Rays with the same result.” [Also a PC; Mac doesn’t currently support Blu-Ray] Given the evidence we submitted of artists’ actual experience, opponents would need to provide evidence that their purported alternatives would work for Blu-Ray, and they have not done so.

 

(4)        The exemption process looks at adverse effects in the real world. People are using Blu-Ray to make their fair uses.  Absent an exemption, they risk violating the DMCA regardless of the theoretical alternatives.  By contrast, we can currently counsel vidders and others who use downloads and DVDs that they can counternotify when they believe they’re making fair uses, and that’s made a real difference in willingness to do so.  That’s a real lifting of the chilling effect.  Remixers are not lawyers and shouldn’t have to be. 

 

Our testimony comes from women, each of whom have more than a decade editing video, who’ve won awards and been featured in magazines and museums and scholarly articles.  It’s disconcerting to see men who admittedly don’t make or edit video discredit their experiences.  The MPAA has access to real film editors, and I respectfully suggest that there’s a reason that none of them are here to confirm the opponents’ assertions about file quality and editing.

 

A point on adverse effects: in previous panels we’ve heard the opponents suggest that Mac owners should go out and find a completely separate computer for screencap, and make sure it’s old.  Pink-collar workers and teenagers can’t do that, and I note the Register previously held w/r/t the print disabled that having to use multiple expensive devices is itself an adverse impact.

 

Q: Wouldn’t you have to buy a PC to use Blu-Ray anyway?

 

RT: I don’t know.

 

Turnbull: Could you connect a standalone BR player to Mac for playback, potentially. You’d have to circumvent something to capture video that was being played back. It shouldn’t play back.

 

Q: why?

 

Turnbull: AACS requirement. External drive is supposed to authenticate itself. Output you could connect to PC—the output itself would have protection.

 

Q: and screencap?

 

Turnbull: screencap operates on the decrypted video, so it wouldn’t attack HDCP or AACS but could be imposed by Apple or Windows.

 

Turk: Size of uncompressed video: 10 bit BR is 667 gigabytes per hour.  40 minutes on iTunes: about 1.75 gigs. So there’s a pretty significant size difference.

 

McSherry: sometimes your purpose is speed/commenting—HD downloads might be sufficient.  But sometimes your purpose is artistic for display in museum—then you need more.

 

Q: people may take the best quality they can w/out needing.

 

McSherry: they just guess wrong about their source. Counterintuitive.

 

Coppa: “Worthy.” Body in the foreground is mismatched—how difficult it is to integrate text.  Screencap looks like you’re writing on a frame whereas editing so that text moves with the body as if it’s on the body is incredibly difficult.  If someone’s done their job right you  might not see it at all b/c it looks like TV even though it was done by a pink-collar worker.  One vid: the main character hadn’t been in any of the scenes. The editor just put them in.  It’s hard to explain the hours and days of work.

 

While people aren’t using BR all the time, younger people use it b/c they think it’s the thing they have.  And it’s used by people who think they have something to say.  They want to say this matters—if they think their work is fair, they should be able to defend it. Maybe the 14 year old doesn’t think her speech is important to fight a takedown, but I’m interested in the person who is.

 

Opponents: Bruce Turnbull, AACS LA: There is a vigorous community using existing tech and exemptions without exemption for BR. There are sites on the internet that tell vidders how to use screencap. There are HD quality videos we’ve talked about through HD content under existing and renewed exemption.  There are flavors of HD available online.  HDX is likely to be the highest quality and the largest file. There are some complaints that it took a long time to download which suggests it was big [667 gigs]?

 

Reply cited the use of HD downloads as a good thing [b/c more timely than BR, though]. In terms of content only available on BR, there’s a de minimis amount of that, and some of the online downloads contain bonus features as well.

 

Our view that Corley is good law and is the most directly relevant law. Covering the same law that we are considering. Applying to the same kinds of tech. Applying to video, where cited cases are about audio or posters.  Is from the direct finding of the court on the First Amendment and fair use; was one of the three reasons the court found for the Ps in that case.

 

Harm to market: Recent case in which the judge in SDNY found irreparable harm to AACS from the distribution of tools used to circumvent AACS. Our view that enabling of the further distribution would have similar irreparable harm to AACS. DVD exemptions is commentary on differences b/t BR and DVD b/c DVD hack ubiquitious.  [and difference b/t BR and streaming/downloads?] We’ve been able to contain the circumvention tools to some degree and the use of those tools would cause harm.

 

C: One claim is that complex editing goes better w/BR.

 

Turnbull: I’m not an editor.  I take the point as made. People did make perfectly good remix videos using alternative forms of video. 10 years ago, people would have said this was quite compelling.  You can do it without that. HD content, editing is possible.

 

We don’t maintain that screencap of BR is an alternative. That probably doesn’t work. 

 

C: what about the aesthetic claims?

 

A: under our laws you don’t always get what you want.  Going back to Corley, the fact that a critic might have had a better piece of criticism if he’d been able to take a camera into a theater doesn’t mean it’s legal to go into the theater and use a camera.

 

C: claim is that the bar is getting higher in terms of quality.

 

A: Yes and no.  Companies very much hope everyone will rush out to new ultra HD BR players. On the other hand, DVD is still the dominant optical medium.  Notwithstanding BR’s existence for 9 years.  Online video = people watching all kinds of different resolutions.  When I watch on big screens, it frequently down-rezzes to deal with bandwidth. It isn’t just everyone watching HD all the time.

 

McSherry: On Corley: it wasn’t a fair use case.  Actual fair use cases go the other way.

 

Harm: what opponents cited was a brief court decision saying there’s harm. What they haven’t submitted is any actual evidence. They suggest there’s a distinction b/c with DVDs the circumvention tools were widely available. Based on what we’re hearing from vidding and remix community, these tools are widely available b/c people are using them—that’s in the record. There’s no distinction to be made on that theory of harm.  Many opportunities for opponents to submit some evidence of harm from previous exemptions; never been able to do that.

 

Your Q: Turnbull suggested 5 years ago people were happy with tech, but of course standards evolve.  Many of us aren’t thrilled we have to do this every 3 years but the one benefit is opportunity to see if exemptions need to evolve to new tech and practices.

 

RT: people don’t know about this proceeding! This is in the record: we’re the only ones who present evidence about remixers’ actual knowledge on the ground. Relevant both to alternatives and to alleged harm. May be unfortunate, but you can’t affect the prevalence of BR circumvention no matter what you do in this proceeding.

 

Q: Chilling effect on vidders: what is it?

 

RT: Inability to counternotify: recognized as a problem in 2009; now we have an exemption.

 

Coppa: DVD exemption has been hugely helpful in fighting automated takedowns—allows us to say go ahead and counternotify.  I worry about people who don’t know about BR.

 

McSherry: people incurring legal risk w/ no idea. Not a traditional chilling effect, but a harm: the sword of Damocles, and they have no idea. That in and of itself, given that they’re otherwise making fair use, should be taken seriously.

 

Q: does this encompass ultra HD BR?

 

McSherry: don’t know the difference. We’ve crafted it to cover all BR.

 

Turnbull: we would object to including Ultra HD BR, which is totally different and different tech based on existing AACS technology. No evidence of harm.

 

Q: is it out yet?

 

A: No.  [ok.] When this was raised in LA, their answer was we aren’t talking about that. I would have hoped that would be the case here.

 

Q: if there’s nothing in the record on this format, will you concede that’s not what you mean.

 

McSherry: there’s no record on what’s not yet available. Forward thinking exemption: same problems will apply. There will not be a distinction.

 

Coppa: we’re expecting change—people respond to better technology. No sense there’s a trap.

 

RT: There is something in the record: they use it b/c they bought it, they are not pirates, and they don’t know these distinctions—that relates to any format that might be created in the future.

 

David Jonathan Taylor, DVDCAA: Videos: Matrix clip.  A different clip!  Demo of using that clip with Premiere.  And then comparison of original screencap clip versus what we actually produced in Premiere w/effects.  Images that have been upgraded/processed taken from screencap settings.

 

WMCapture—output as mp4 and we learned that Adobe Premier doesn’t handle mp2.  The clip has crazy aspect ratio and is weirdly squished.

 

C: did the aspect ratio on that change?

 

A: I kept the image size at 720x486, what we talked about w/broadcasters. I couldn’t tell what image size they wanted, so I kept it at 720x486, and the aspect ratio should be 4:3.  You can change the aspect ratios you want, so if you want 16:1 you can choose it. [But apparently you didn’t?]  I don’t know what the original aspect ratio was. It was predetermined by WMCapture’s settings.  It will record it for you optimized for iPad or iPhone. Not necessarily 4:3. 

 

Q: Turk talks about frame size and framerate?

 

A: I did change it from the original. Not sure what original size was. Did change it to 23.97 fps.

 

Then Premiere demo: importing it into Premiere.  Now it’s on the timeline. They wanted us to zoom and crossfade.  We did zoom and crossfade.

 

Exhibit 33: Side by side comparison of what was produced w/Premiere.  Rendered.  A couple of zooms and crossfades of a few frames each.

 

Q: could you add a character into an existing frame?

 

A: we used screencap as source, and then you can use their preferred software in Premiere to do the same things they said they wanted to do.

 

C: Could you import a different film and add an image to this film using screencap and Adobe?

 

A: we created it from screencap software. You could add as much as Adobe Premiere can handle. [They showed a Matrix image in which Trinity was cut out of the scene, which I can’t help but find symbolic of this whole process.] Ex. 34: Powerpoint called Family Guy.  Still images that are typical of the results. If you process it you can improve the quality of the image. That’s the point in all of this. Any image you have can be edited and processed to improve its quality.

 

C: what did you do?

 

A: upscaled from 720x46 to 720x540.  Video editor algorithm NNEDI3: it takes the interlaced frame made of two fields and drops the second field and reproduces the first to get you a better image when it’s deinterlaced.  You can see clearer details, pixelization disappeared. Strikingly clear.

 

Q: how long does it take to upscale a 1-minute clip?

 

A: 20-30 minutes.

 

J. Matthew Williams, Entertainment Software Association, Motion Picture Association of America, Recording Industry Association of America (Joint Creators and Copyright Owners)

 

A lot to cover: As w/ebook issues, my clients not opposing renewal of existing exemption for remix videos. Opposed to expansions proposed, including uses beyond short portions, coverage of primarily noncommercial, coverage of uses other than criticism and comment, including Blu Rays, and coverage of all AV works instead of just motion pictures. Many of these limits are critical to ensure that the uses at issue are very likely to be noninfringing. We aren’t saying that using a portion of a motion picture is never a fair use, and we didn’t take the position that remix is generally infringing. We take the work vidders do seriously, and I’m not here to criticize it as an artform. That doesn’t mean every remix is a fair use, and we do have to discuss that fact in this proceeding. Despite my readily apparent gender limitations [J] I will try to discuss the factors. Some are just for entertainment value, and that needs to be licensed, which is an option. [For vidders? Not at all!] Online video best practices acknowledge that these types of uses can be infringing—use shouldn’t be so extensive or pervasive that it ceases to function as critique and satisfies taste for the thing or kind of thing.

 

Q: In the record?

 

A: that’s an exhibit to the proponents’ comments.  [We don’t remember that offhand, but we don’t deny its existence and we think they’re pretty cool.] Discussed at documentarians’ hearing. Where a use is a pretext to exploit the popularity or appeal of the work employed or amount is excessive, fair use shouldn’t apply. My clients rely on fair use, even in entertainment, but pure entertainment isn’t at the heart of fair use so we want existing exemptions.

 

Q: do you have opinion about the SPN clip we saw?

 

A: I think I’d need to know more about the series.  I did see what was added and subtracted which seemed significant, but I don’t know which way I’d go.

 

Proponents say we aren’t qualified to evaluate transformativeness. I’m not qualified to talk about quantitative value, but lawyers and judges have to be qualified to apply the fair use factors objectively otherwise no one other than a defendant could opine on fairness.

 

Q: have you opined on their examples?

 

A: we did not try to provide an opinion on every example, and we aren’t claiming there aren’t a significant number of fair uses; my statements today are more about preserving the limitations that are in place, and not everything out there is noninfringing and caution is called for. We only pointed to a couple of videos, and they gave more information about the meaning of the videos; I still have questions about them but they did explain them.  I don’t think the only person who can have the answer is a defendant. [Really not what we’re saying.] What audience takes away is relevant. [Yes!] And it’s not only the intended audience. [No!] It has to be a reasonable observer.  Targeted community is relevant, but can’t be the only question.  Salinger v. Colting: defendant wrote an unauthorized sequel to Catcher in the Rye and there was an expert witness. Second Circuit affirmed Dct.

 

Williams: need good definition of what this covers. Some of what we’ve heard was helpful. Would take more drafting, but sounds like remixes and mashups that are either parodies or satires. Traditional core political statements.  Art display presentations.  [these are the kinds of additions that don’t provide guidance; they take guidance away.]

 

Q: Are you objecting to noncommercial, current description?

 

A: we want that to stay, but we want more than a reference to noncommercial—starts to swallow up other things not intended to be swallowed up.

 

Q: what are some examples of things that weren’t intended under this exemption?

A: currently, K-12 are not covered by educational exemption but there’s an argument for noncommercial video covering them.

 

Q: proponents have used National History Day—should that be excluded.

 

A: I don’t recall that. Is that students creating vids?

 

C: Could be remix video illustrating historical events from films.

 

A: I’m hesitant to speak to that. I’d respond in a letter.

 

Q: are you aware of instances where the prior exemption was abused?

 

A: I have seen on various blogs mention of the lack of clarity and maybe the noncommercial exemption covers K-12 but not claiming abuse. Ability to collect evidence of abuse is really not possible and unfair to put that burden on us.  [You study sources of piracy all the time.] We are honestly concerned about threat of harm.

 

Q: are you seeing an uptick in infringement?

 

A: there are lots of marketplace factors at issue.  I haven’t heard any study of the exemptions increasing infringement.

 

C: Underlying concern—forget about overlap with other exemptions. What’s too broad?

 

A: we think it’s important to cover conduct vetted during the process.  Trying to identify three types of conduct arguably noninfringing a large portion of the time. [fair use = noninfringing all the time] Just saying noncommercial videos is potentially very expansive. [what bads does it cover?] Not all noncommercial uses are fair uses [which is why we say fair use in our proposal] we want the definitions as clear as possible for each exemption so things that aren’t intended to be swept up will be kept outside.

 

Footnote 7 of opening petition: Screencrave.com—10 best YT trailer remixes ever.  Some are old. Some of them seemed pretty clear but others were questionable fair use. #10 is a video asking the question “what if in Ferris Bueller’s Day Off he were sick the whole time?” It’s funny.  I don’t see the real criticism or commentary there. Another if Home Alone was really a horror film. It’s entertaining but borderline.  The genius is it doesn’t change the genre but cranks it up to 11. You didn’t go for plot but for things exploding and this trailer shows it—the movie we wish was made. Sounds like most entertaining portions. Depends on how you perceive it.

 

Q: and you want us to look at the HP Lexicon case?

 

A: yeah, that’s more extensive copying, but those cases support caution.

 

Small sliver of stuff only available on BR. Only 2 examples.  As in 2012, Register decided it was insignificant.

 

Q: do you object to clarifying streaming v. download?

 

A: that’s a bit of a wrinkle. Current exemption – distributed. You could read that narrowly, but I think in the Recommendation the looser language implies streaming video was supposed to be covered. We wouldn’t oppose clarification but are hesitant on short portions, if you haven’t paid for access to a full copy, you shouldn’t be able to walk away from your streaming subscription with a bunch of full copies of works.

 

No streaming providers here: note that MPAA member studios are partners/investors in streaming services and they want cautious approaches.  I regret there’s no business executive witness, but we did produce them in LA, including Chief Tech Officer of Disney.

 

Q: exemptions for screencap?

 

A: we need it for a few situations especially political remixers and given the uncertainty we need it.

 

Q: and motion pictures?

 

A: we’re cool with that as long as it includes TV.

 

Q: primarily language.  We did try to clarify that paying for production can be considered noncommercial.

 

A: we’re totally happy with putting that in the guidance.

 

RT, what I didn’t get to say: [on transformativeness: we don’t think it’s the creator’s own view; have the interpretations of flourishing existing community; Mr. Williams has given an excellent explanation for why you shouldn’t put other limits on the exemption, precisely so courts can apply these factors. Our limit is perfect; his limits don’t work and take away guideposts.  Bleistein’s antidiscrimination principle: don’t judge what you don’t understand. A judge would hear this evidence.]