DMCA hearing: university exemption

Copyright Office: Jacqueline Charlesworth

Michelle Choe

Regan Smith

Cy Donnelly

Steve Ruhe

John Riley

Stacy Cheney (NTIA)

 

Proposed Class 1: Audiovisual works – educational uses – colleges and universities

This proposed class would allow college and university faculty and students to circumvent access controls on lawfully made and acquired motion pictures and other audiovisual works for purposes of criticism and comment. This exemption has been requested for audiovisual material made available in all formats, including DVDs protected by the Content Scramble System (“CSS”), Blu-ray discs protected by the Advanced Access Content System (“AACS”), and TPM-protected online distribution services.

 

Proponents:

Brandon Butler, Glushko-Samuelson Intellectual Property Law Clinic, American University: Why these uses are lawful.  (1) Most important thing is that uses will very likely be transformative fair use.  (2) Short portions has never been the law of fair use and isn’t necessary to require tailoring to purpose. (3) Close analysis is not the law of fair use either. 

 

Transformative: every use will be educational, which is independently important, but also for criticism or commentary, core transformative purposes, not substitutional, productive, use existing materials as building blocks.  Core First Amendment uses.  Quite significant that this criticism/commentary is educational context as well, relative to entertainment. Transformativeness is a function of the relationship between the purpose of the user and the creator.

Charlesworth: are all educational uses transformative?

 

A: no. But if something wasn’t made for use in an educational setting, then its use in education is likely transformative, also evaluated with relation to whether what you used was reasonable in relation to purpose.  To point (2): amount is only one of the factors.  Two striking examples where the outcome untethered from quantity.

 

Charlesworth: Campbell remanded on quantity.

 

A: but said parody can take more.

 

Charlesworth: enough to conjure up, but had to evaluate amount in context of the use—not more.

 

A: Parody requires more than parsing a single sentence from a poem.

 

Charlesworth: depends on the work.

 

A: but that’s the larger point: it depends, from work to work and use to use, on the facts of each particular case.

 

Q: have you submitted evidence where the short portions was insufficient?

 

A: Our friends intervened to make this point.  We submitted an example we thought excellent, Dr. Wallace’s use of what we believed to be short portions, he described as “longer excerpt.” Can something be both?  There are longer and shorter short portions, but this is too vague and subjective, which is why we don’t like the short portions language.

 

Charlesworth: When we write these exemptions, saying it’s fair use is just circular/doesn’t give guidance. We need to give guidance to the public.  More likely to be fair use if it’s a short clip. But we didn’t say 15 seconds. We have to be specific and targeted, and you have to show a substantial likelihood that it’s fair use.  [“Fair use” gives exactly as much guidance as the law requires: if it’s not fair use, it won’t be entitled to the exception, which more than satisfies “substantial likelihood.” You can even say, it’s more likely to be fair use if it’s a short clip—that’s the standard articulated by the law.  This standard as articulated by Charlesworth presupposes that some fair uses ought to be excluded, which is not what the statute says.]

 

A: Standard of criticism and commentary/use appropriate to the purpose incorporates that. 

 

Charlesworth: full film?

 

A: reasonable people know you don’t need to do that.

 

Charlesworth: doesn’t know that’s the case.  [What is the record in this proceeding?]  Could comment on the trajectory of this film.

 

A: this is what courts do when they decide fair use. The rightsholder who thinks this is a violation of the DMCA would go to court and do exactly what they did in litigating the fair use question.

 

Charlesworth: the question is general, not individual.  [So is §107.]  Unlikely an educator would win by copying the whole film, which is why the exemption reads the way it does. [Short and whole are not necessarily the full spectrum!  Why is “short” so much more clear?]

 

A: appropriate amount, or tailored amount. 

 

Charlesworth: amount needed to engage in the criticism.

 

A: fair use doesn’t require necessary, but you could go there.

 

Q: Negative impacts: you pointed to Dr. Wallace and argued that the current exception was vague, but he relied on it.

 

A: now we have a high profile proceeding claiming he was wrong, and GC might read that and wonder.

 

Q: you’re on record contesting that. 

 

A: I love to work with nice people like professors, but we have small bandwidth to help people.  I’m happy to talk about “short portion” but a lot of people don’t have access to those resources.  Read listservs where professors & librarians are, they talk about that as a grain of sand for an oyster.

 

Q: wouldn’t they just be fretting over whether this is fair use in your standard? [But they should be! And they must be anyway!]

 

A: purpose based definition: they know what their purpose is!  She shouldn’t have to worry about short portion, but rather about purpose to teaching.

 

Charlesworth: that’s not the law.

 

A: I didn’t say that using it in the class was fair use. She’s using it for teaching and it wasn’t made for teaching.

 

Charlesworth: that’s not the law.

 

A: yes, it is.

 

Jonathan Band, Library Copyright Alliance: Note that opponents aren’t opposing renewal, so we’re only talking extension.

 

Quality issues: this argument has been made before, and makes no more sense than before. If quality doesn’t make a difference, why do they sell high quality?  If Blu-Ray has an advantage, those advantages shouldn’t just be available for entertainment and not education. If screen capture is adequate, why bother with any TPMs?  Of course screencap exemptions should be renewed in case they involve circumvention.

 

Image quality makes a difference. If it doesn’t look right, it doesn’t have the impact the author intended, or the viewer might only see distorted image, with impact on educational purpose.

 

Charlesworth: Is there a distinction b/t close analysis and illustration, based on the record/need for high quality. 

 

Band: You need quality to understand the image: Saving Private Ryan, immediacy and authenticity.

 

Charlesworth: are there cases where not every classroom experience requires that?

 

Band: you could come up with some examples, but why would we need to bother with that limitation?  Why make it difficult to apply an exemption we concede we need, making it hard to use?  There’s never been any infringement resulting, so why not make it easy for educators?  Instead of having them parse out which quality they need for this particular clip—that would save educators and the Office time, with zero impact on infringement.

 

Charlesworth: opponents say they’re concerned about Blu-Ray.

 

Peter Decherney, University of Pennsylvania: Saving Private Ryan was made with a special process on the film stock; this can be captured on Blu-Ray but not DVD.  Material on studies showing that students feel the impact of HD—there’s an emotional, physiological response that’s been quantified.  Educators have been talking about harm from 2000 on, and we haven’t seen any viable alternatives yet. 

 

Are there cases in which low quality is enough?  There are many instances when we need DVD or VHS, when we teach the history of media. What I don’t teach is Blu-Ray because it’s banned from classrooms.  Conceded by opponents that there’s real educational value from creating excerpts.

 

Exh. 13: Titanic, showing how bad the CGI looks in retrospect.  Blu-Ray uses a very different technology from DVDs.  Blu-Ray = progressive scan, not interlaced, so as you scrub through you always get a clean frame no matter where you stop, never have an interlacing issue. 

Charlesworth: If we looked at DVD, it would look different?

 

A: yes: you wouldn’t see the detail in the figures, which reveals them to be bad CGI. Also if you scrub through you wouldn’t get a clean frame—they aren’t even frames, but horizontal lines of video, replaced by additional horizontal lines. In a Blu-Ray you see still images in succession. 

 

Charlesworth: CGI looked cartoonish, not real.  Are you saying that if we watched in DVD, we wouldn’t see the difference? Would it look more real?

 

A: it would look like you were looking from a different lens. They’re just different ways of rendering the world.  “Soap opera effect” experienced on new TVs is actually a better image. Newer TVs put in extra frames to try to make older images look better, but we experience them as different, stage-like rather than screen like. It’s not a continuum, but different ways of experiencing the image.  It’s not just b/c it’s better, but different, and access can create a different or better educational experience.

 

Charlesworth: we heard of more pixels in Blu-Ray.  Higher quality/resolution/detail.

 

A: Cell biology: can be better image than DVD.  Media studies = show differences.  Saving Private Ryan is actually about physiological impact on students in history class.  They would just understand the DVD differently than Blu-Ray.  Three different ways of using Blu-Ray—there isn’t just one reason.

 

Charlesworth: any other exhibits?

 

A: no. [Though you can see the progressive scan interlacing effects on their exhibits.]

 

Opponents:

Bruce Turnbull, AACS LA: Corley says that no particular resolution is required for fair use.  Goes into the uses we’re talking about.  Second Circuit: film critic has no constitutionally valid claim that a technologically superior review would be allowed from filming in a theater.  Fair use is not a guarantee of access. [Even if that weren’t dicta and contradicted by Eldred and Golan, that’s not the standard!  1201 asks if the uses are likely noninfringing once made. 1201 exemption process exists to determine whether likely noninfringing, even if constitutionally

 

Haven’t shown how clips would be made from Blu-Ray. It’s our understanding that there are only commercial decryption products that require payment. [Um, so what?] And that they aren’t limited to decrypting short portions. They decrypt the entire work. You may only use the short portion, but you have access to the entire work. There aren’t technologies we are aware of that allow you to capture 30 seconds. [Of course those technologies exist no matter what happens in this proceeding.] The harm to the ecosystem—methods and systems used will be important. Not the same as DVD case—no one has ever shown harm from previous exemptions, and part of the reason is that the hack of DVD was pervasive and ubiquitious.  [And the streaming stuff?] You didn’t need an exemption to find a tool and make a copy if you wanted. [Also true now.]

 

Charlesworth: how do you decrypt Blu-Ray?

 

Decherney: MakeMKV, plus Handbrake, plus editing. 

 

Charlesworth: is that commercial?

 

Decherney: yes, it’s commercially available.

 

Turnbull: using technologies that are of the sort specifically found to be illegal.  AACS itself sued a similar tech, DVDFab, which was enjoined. Motion to quash injunction denied.  MakeMKV works differently but similar to illegal Slysoft product in Antigua.  How this actually will work, and if there’s a “legitimate” use then what does that do in the context of other cases/markets.

 

We’ve been given a number of examples, shifting process to respond to that.  We’re not prepared to respond to the Titanic because that’s the first time it was presented.  Existing exemption, and screencapture.

 

Q: does any screencap provide Blu-Ray quality?

 

A: No.  Longer answer: the screencap Taylor will demonstrate was able to capture the particular elements the proponents said were important—wires in Wizard of Oz and others.  We were able to recreate those.

 

Q: but you don’t know of any tech that will get higher than DVD?

 

A: there are ways of upconverting signals, and there are progressive scan outputs from DVDs. But he doesn’t know of any where HD screencap exists.

 

Q: is Titanic Blu-Ray decrypted [in the wild]?

 

A: He suspects so. [As do I.]

 

Screencap is viable.  Ultraviolet/Disney anywhere is also available.

 

Q: you’re not contending Ultraviolet has the right range of content for universities?

 

A: they don’t natively have content. You bring/purchase your content, but if you bring a Blu-Ray, there are 1000s of titles available for conversion and use. It’s not so much how much they offer as how much you can put in. Many 1000s.

 

Q: For Disney everywhere, they only support kids movies. Ultraviolet, doesn’t it need a studio affiliation, instead of a science Blu-Ray?

 

A: yes.

 

Charlesworth: Could you play Titanic on Ultraviolet?

 

A: Believes so.

 

David Jonathan Taylor, DVDCCA: 3 quick clips from screencap/video capture.  First: in the DVD, you can see cables pulling lion’s tail in Wizard of Oz, and thus also w/video capture.  Second: exhibits showing compilations can be used in classroom setting with sufficient.  Third: demo of using the WMCapture software to show how easy it is.

 

Q: are these noncircumventing?

 

A: yes. [How does he know?]  The Camtasia/WMCapture issue—I’ve used SnagIt, which is for recording video capture, to show my process.

 

Wizard of Oz:  marked the cable pulling the Lion’s tail with an arrow.  [NB: I … can’t really see the cable, though I see the arrow.  Peter Decherney says as a student in the fourth row he can’t see it (I’m sitting behind him).]

 

Q: did you use any editing tools?

 

A: we had to use video editing software to stop it and put an arrow in. 

 

Charlesworth: To Decherney: Could you see the cable?

 

Decherney: there was one moment when it was swinging that I saw it.

 

Exh. 15: compilations: Q: different technology from other exhibits? These clips were made from Camtasia. They’ve been edited to be shorter. But the capture is the same. [I note huge differences in frame size across the different clips, which would be important in vidding. Not clear if any of the frames are standard size.] Some interlacing, but many frames are sufficient for our purposes to see what’s going on.  A little motion blur, but again there is sufficient color to see what’s going on. Video capture allows compilation for instructional purposes, and quality includes the details proponents want to show.

 

Exh. 16: me making use of WMCapture technology, recorded his process using SnagIt.  [Note that this is indeed easier than converting Blu-Ray, which means that bad guys who don’t care about quality will readily use it, and it doesn’t have any problem copying whole works, meaning that the ecosystem is wide open right now.] Big chunk of his screen is taken up with the interface.  Detects content in window and will predict what you want to record.  Lines up almost perfectly with the content he wants.

Q: is it your opinion this is just as easy/easier than ripping/circumventing? 

 

A: I’ve never ripped a DVD.  This is very intuitive. I imagine there are nonintuitive programs. What I understand is that other circumvention products have made it fairly easy as well. 

 

Q: so no additional time demands?

 

A: no.  If you’re going to prepare a lesson, you should prepare a compilation of clips, and this would be quick and easy.

 

Q: others have said some capture does require circumvention. How do you know? Is one higher quality?

 

A: I assume that if it’s circumventing the content on a Blu-Ray, it’s going to give you perfect quality and recording.

 

Charlesworth: is it your contention that some screen capture tech may involve circumvention and some not?  We’re trying to understand whether there’s a need for an exemption.

 

A: none of the video capture tech I’ve used circumvents. [How does he know?] There are products that claim to record Blu-Ray that first circumvent.

 

Charlesworth: is there a way to tell for a consumer?

 

A: ultimately, by looking at output and seeing if it’s less than perfect. If it’s less than perfect, it’s probably not circumvention. If it’s perfect, it’s probably circumvention.

 

Charlesworth: it is possible to have DVD screencapture that does circumvent?  Is that your testimony?  Or is all DVD screencap noncircumventing? [There is no such thing as “DVD screencap.” It’s screencap, whatever’s on the screen.]

 

A: can’t speak to all. There is a product billed as screencap for DVD/Blu-Ray that is in my opinion a circumvention tool.

 

Q: and the reason you know is the better quality? And you don’t need to analyze the output, you can eyeball it?

 

A: … I wouldn’t say that.  I’d be more suspicious when it’s nearly perfect.  You’d need to go frame by frame.

 

Q: has anyone looked under the hood of these programs?

 

A: I don’t know.

 

Continuing explanation: he’s set a framerate, a mp4 output, and a filename. In his opinion it’s straightforward and intuitive, like the old tape recorders. Easy for any instructors to use and make a compilation.  The quality of the video capture is sufficiently high to see lines, colors, etc. Much better alternative than it’s ever been before.

 

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

 

We aren’t opposed to renewing the existing exemption. No reason to expand based on this record.  Proponents’ record is almost identical to last time and shouldn’t be expanded when more formats are available now. We acknowledge there are lots of fair uses, we wouldn’t be comfortable as a “just do it” approach.  We would prefer to keep a balance in place.  [A balance between things that are fair use and also ok to circumvent and things that are fair use and not ok.] We think “short” is a good limit, and we don’t know whether “extensive quotes” is too much but it looks to us outside the exemption.  There are lots of HD quality downloads.  HDX is very close to Blu-Ray and you can circumvent that under existing exemption.  There are only 2 examples of Blu-Ray exclusive content—the Terminator: Salvation director’s cut, which is available on SD, but only one bonus feature.

 

Q: would you be opposed to exemption for Blu-Ray exclusive content?

 

A: yes, there are alternatives.  Saving Private Ryan: showing D-day experience type footage, you can still bring Blu-Ray player into the classroom and cue that up.  Close analysis limitation should also stay in place. It’s helpful to give direction to users.  Shows them when it might be necessary to circumvent as opposed to unnecessary.  The ability to cue up copies already acquired via download/Ultraviolet is also important. Not every title is available on Movies Anywhere, but the touchstone titles are, and manufacture-on-demand DVD. We also think limit on good faith belief it’s necessary to engage in circumvention is a good idea.

 

We think it would be appropriate to change it in one way—separate it from current motion picture bundle, specifically defined for educational uses so it’s distinct from remix, ebooks—this one is crafted pretty will, but others are more vague and we’re afraid people read that to consume the educational exemption.

Charlesworth: are you suggesting an overlap, where people might think I could use the educational or noncommercial? Why is that a concern?

 

A: it’s a concern because my interpretation is noncommercial was targeted to deal with remix/mashup videos, not just all types of noncommercial videos. Because educational videos are typically noncommercial, I’d be concerned that people would read noncommercial to cover educational uses and render tailoring meaningless.

 

Charlesworth: so you view noncommercial as more broadly drafted?

 

A: yes, but the intent wasn’t as broad as one could argue it reads. Reference to types of videos in the record—remix style, mashup style.  [Also, for the record, film criticism, social commentary, political videos, and a bunch of other uses.]

 

Q for Decherney: Studies about physiological effects of high definition? Classroom setting?

 

A: Yes, they’re classroom setting HD v. SD.

 

Charlesworth: pedagogically, when would you try to elicit this response?

 

A: Effect of violence, or romance, or anything with an affective response. We try not to bore people.  Works are often being taught because people have responded to them over time.  Art history, English, even in science.

 

Q: doesn’t that depend on more factors than image quality, like darkened screen?

 

A: there are many factors.  I like blackout shades in classrooms.

 

Q: have people had trouble with the previous exemption being staggered, so you have to try screencap first?

 

A: more elaborate over time, led to some confusion. Biggest confusion is confusion over definition of “motion pictures”—that’s definitely led to confusion.  Chronicle of Higher Ed had a whole paragraph saying the exemption didn’t cover TV. 

 

Q: is there evidence of non-motion pictures, like video games?

 

A: we found only a few examples, movies made of still images like La Jetee, a French film that’s often taught; documentaries of still images, and we’re not entirely clear about their coverage b/c they don’t necessarily “suggest  movement.”  There’s a limited range of AV material, but it can be confusing.

 

Q: were you aware of anyone deterred by the prior exemption? 

 

A: we clarified—if they find us we can tell them. We don’t know who didn’t come to us.

 

Williams: if you clarify, still exclude video games b/c there’s nothing in the record.

 

Band: A couple of quick points about screencap—are the joint creators willing to certify that screencap doesn’t circumvent and indemnify educators in case they’re wrong?

 

Charlesworth: are you seeking an exemption for screencap, assuming some may circumvent?

 

Decherney: 70-90% of educational environments use Macs, which block screencapture. 

 

A: but you can screencap and then get a file that can be used on a Mac.

 

Decherney: but that means that educators, students, media labs would have to buy PCs.

 

A: you’re saying these technologies can’t be used on a Mac w/out prior circumvention?

 

Decherney: yes.

 

Taylor: that’s not my understanding. Camtasia is a product we use. Worked with several other people using Macs. We were able to use Camtasia in Apple just fine. [Oh look, here’s an article about the most recent Mac OS, explaining what happened:

 

Apple changed the way screen capture is performed, starting in OS X 10.7 Lion. DVD video played back with the Mac OS DVD Player software can no longer be captured. Earlier versions of OS X are not affected.

 

There are two workarounds

Play back the DVD with a different program such as VLC media player and capture it.

Use DVD ripping software such as Handbrake (may require installation of VLC and supporting libraries) to convert the DVD video directly to a usable format such as mp4 or QuickTime movie.

 

Decherney: screencap is insufficient for almost every purpose.  I’d rather not talk about it. Changes appearance, pixels, adds interpolated frames, frame size, framerate. Imagine in any other field—if you want to teach Toni Morrison, you have to teach pages missing and pages added.  That’s ludicrious.

Charlesworth: we just saw a screencap that was arguably sufficient, depending on the use. We found before that many uses didn’t require that level of detail. To avoid any doubt, we allowed any exemption. You aren’t seeking that.  [NB: We didn’t seek that last time! You just gave it to us without a request for it!]

 

Band: it would be helpful, speaking as a lawyer, to have that renewed, even though the educators say it’s insufficient.

 

Butler: In the current screencap exemption, there’s a requirement that the public representation must be that it’s offered after content lawfully decrypted.  But we were now told that the eyeball test is the test. Are these companies making the necessary representations? We don’t think anyone is making those representations. If there is a future exemption, maybe that requirement should come out, since we don’t have any evidence that those requirements are met.

 

Camtasia tech support, January 2015: current OS Macs can’t capture DVDs. Recommends circumvention instead.  [Butler found the same link I did!]

 

Charlesworth: any comments on meeting the standard?

 

Williams: I have seen on some of the marketing materials a circumvention claim. Sometimes in FAQs.  [Is that in the record?  Should they submit those?] For the benefit of studios.

 

I have not used Camtasia personally, but people I’ve worked with have; would have to get back to you. What I see doesn’t suggest it is circumventing.  It’s been around for so long that if you circumvent and still don’t get perfect copies, you have a fundamental challenge.

 

Band: it’s on the latest version of Mac. It could be they got around the block on an earlier version.  That goes to the bigger problem, that depending on the software release it may or may not work.

 

Charlesworth: what version of Mac.

 

Butler: this has been true for a while.  10.7 = DRM blocks DVD and iTunes video capture. Camtasia tech says, sorry, you just can’t use it on Mac since then.

 

Williams: I can’t speak to the tech question, but the Office has said that the fact some formats don’t work is not sufficient for exemption.

 

Q: Ability to upconvert/use HDX: what does that mean as an alternative? Is that viable?

 

Decherney: Upconversion is about playing DVD quality on a larger TV. It doesn’t add quality. The resolution isn’t higher. The detail isn’t higher. It just repeats lines of resolution.  I don’t know much about HDX.

 

Williams: there’s upconversion, which improves quality, and what you could call upconversion with digital programs—take a SD DVD, pay $5, upgrade to HD copy, and under existing copy, those downloads are covered. HD and HDX version—marketing is typically that it’s 1080p quality.

 

Don’t know how many titles are available. Everything you can access in Ultraviolet, he thinks.

 

Decherney: upconversion is the same thing. You can’t give a SD version more information.

 

Taylor: no, they give you a native HD copy online.

 

Would be covered under digital distribution exemption.  You don’t even have to take the disc in to Wal-Mart.

Decherney: can you use short portions? Can you put them on slides? 

 

Charlesworth: it’s a digital download—you could do those things by swapping out your lower res version for a download.

 

Decherney: that’s editable?  [no]

 

Williams: these copies are relevant—they can often be used w/out circumvention to cue up in advance and play from the start point.  If you need clip compilation, you would have to engage in circumvention, but we’re not opposed to a renewal, only an expansion.  Transmitted/distributed question—streaming v. downloads might be uncertain [what?!] but these are clear downloads.