Tuesday, April 24, 2018

1201 hearings, LA, streamlined video exemption

Art Neill New Media Rights
Elizabeth Rosenblatt Organization for Transformative Works
Jack Lerner, Brian Tamsut, and Jovan C. Ardy UCI Intellectual Property, Arts, and
 Technology Clinic
Tisha Turk University of Minnesota, Morris
Ben Sheffner Motion Picture Association of America, Inc.
 David J. Taylor DVD CCA and AACS LA
J. Matthew Williams Joint Creators II

Tisha Turk presented on problems with screen capture using Movavi, one of the programs that the opponents want people to use.  She showed stuttering, jerkiness, pausing in capture from Netlfix.  Results in nonstandard framesize, which causes technical problems with editing and export.  Capturing streaming is going to be more prone to glitches due to additional layer of difficulty of capture.  Many computers don’t have optical disc drives at this point so streaming might be the only option. 

Opponents: Screencap programs have settings that can be optimized.  Streaming: you don’t know what the internet connection was and whether that was the problem.  Was the codec lossy or lossless?  The lossy format will require a certain amount of compression. You can’t just sit down, use a screencap program for the first time, and get perfect results. The ones we have offered fairly compensate for every program.  Not familiar with Movavi.  Had to learn screen cap programs every three years now.  There are infinite numbers. Also much easier to learn than Handbrake and video editing. As a hobbyist, you can easily spend the time to learn how best to maximize the results. 

Jack Lerner: Two points: Morrissette noted in his statement, attached to Jt. Filmmakers—many sound difficulties with syncing, computer noise, stereo effects & other important parts of the sound that aren’t captured by screencapture.  Also, there is no such thing as lossless screencapture for Blu-Ray.  Maybe he’s referring to highest possible fidelity, but we have found nothing on the market that doesn’t drop frames and lead to stuttering and other problems.   

Betsy Rosenblatt: Movavi is among the popular screencap programs; there are several.  Does screencap require circumvention: nobody knows. Which is one of the issues with an exemption that deals with distinctions between types of programs.  Netflix: this stream was from Netflix, but we have numerous reports of people using screencap who end up with just a black screen.  There are certain sources from which screencap is simply inadequate.  As to whether screencap from streaming is different: it’s necessary to use streaming for some things for unique or timely sources.  To say that one could have an internet lag free screencap is true only for some materials. Resetting screen size was suggested as an option: results in difficulty editing but also loss of material on the sides of the screen—uses the aspect ratio of whatever computer you’re working on.  Professor Turk can speak to this w/other clips.  To the extent that the stutter was supposedly a result of internet lag: that was created in an LA home with high speed DSL; many people have worse.  Even in a perfect internet connection there is frame loss and blurring.

Opponents: the relevance of screencap at this point goes to whether the existing exemption beneficiaries have to make a good faith effort to use it to get the quality they need before moving ahead with circumvention. What’s the point of that if it may or may not be legal? The proponents have consistently questioned its legality, which is why it should be retained. [But that doesn’t explain why there should be a requirement to go to screencap first, especially given its questionable legality, or why the exemption should be written to distinguish between the two.]

CO: The proponents say it’s confusing.

Opponent exhibit: from a woman responsible for VOD output for Discovery.  Transcoded AVI to mp4.  [The unanswered questions here were how these clips in the opponents’ exhibits were created, and how long it took to get those clips to the condition that they could be imported and looked good.  All the opponents’ exhibits start with the clips as if that were simple, something that the opponents’ statement above indicates was probably not the case.]  Asked to determine if these clips would be usable as a deliverable for pro use, and the answer was no. But if a small clip was used in a larger project, providers would accept the whole project.  Using multiple sources with multiple frame rates is common. You use the frame rate that the majority of your clips use, and the hope is that the converted clips will look ok.  Apple is the pickiest of the providers, and has accepted some mixed cadences, just won’t accept a lot.  Inverse telecining: backwards conversion to return it to its remaining frame rate. As long as it comes out converted, and it’s a small portion of the project, it’s usable.

Opponent: screencap in lossless ODS format. Does drop frames.

CO: how is it lossless then?

Opponent: they call it that. [!! My advertising prof senses perk up.] It’s not frame for frame, but for a screencapture, it’s getting 9/10 of the frames, and there’s a lot of frames.  We submitted something different to her [the video maker] than to you b/c there was a learning curve in using the software.  It results in a huge file, but it is high quality—someone who works for Discovery has said this could be included in a final product for Apple.  A small piece, as w/exemptions, is perfectly fine.  Every work requires postproduction editing, and no one gets a perfect clip the first time.

CO: we did find in 2015 that screencap wasn’t enough.  That’s the baseline we’re working from.

Opponent: we’ve shown that screencap has improved enough to meet distribution standards. We aren’t dealing w/close analysis.  Any documentary film that uses an archived clip has to deal with this processing problem regardless of how acquired.

Turk: Codec is just the format in which something is encoded and decoded. Something can be coded in lossless format but all it encodes is what it’s fed—a stream that has dropped frames or is pixelated.

Neill: working with people on distribution contracts—practically, most of the folks getting a contract related to nonfiction, documentary, short films—these are small projects with modest budgets. If you’re told to return and recut the video and find the source material, that takes time and money and eats into subsistence return.  Upscaling isn’t sufficient; there’s Netflix standards on upscaling that reject it. Far-fetched to say that distributors are accepting this across the board. They will ask a filmmaker to go back.

CO: specific films?

Neill: reply comments have cites to client w/broadcaster who rejected clip that was screencaptured.

Lerner: Also, documentary evidence about problems other than framerate.  Taylor asserted that PBS and Netflix don’t matter, but they are very important for documentarians—the record referring to iTunes doesn’t cover PBS and Netflix, the key channel for documentarians, and our record shows that PBS and Netflix don’t like screencap. Our submission addresses ODS. It’s true that they accept 70s footage, but that’s because they understand there’s nothing else available. If you try to submit a modern screencap clip, that will be rejected.  Opponents have not submitted evidence of broadcast standards. Also worth noting that the clip narrator isn’t here to be asked questions.  [CO says that not all the people mentioned in submissions here.]

Rosenblatt: inconsistency in the arguments.  The argument that screencap is good enough for everything is fundamentally inconsistent with the argument that DRM is necessary to prevent piracy. We’re asking people who make art and commentary to sacrifice their vision; turning CO into art critics.

CO: not here to discuss whether DRM is valuable. [That’s true, but the impact of exemptions is very much at issue here, and the fact that it’s not preventing “piracy” is important.]

Opponent: we didn’t oppose renewal.  Expansion is on the table.  They’ve had a hard time establishing uses are noninfringing. Compare that w/the quality of screencap, what we saw was that the quality is pretty good, and that’s true w/experts too. Take that into account when weighing blurry issue of noninfringing status against ease of screencap.

CO: do you envision that the filmmaker has to actually get rejected to use the exemption?

Opponent: it’s good faith/common sense; doesn’t require rejection by the broadcaster. Requires sampling products on the market. If you’ve been rejected in the past or you compare their standards to what you can get, you don’t have to try again.

CO: so now the filmmaker rejected by the broadcaster can circumvent from now on?

Opponent: that would be a common sense approach. Not sure if it was eligible under existing exemption.

[So why do you have to go through this rigamarole if you haven’t yet been rejected?  Good faith makes sense where situations may vary, but ODS is ODS; it won’t work differently from user to user.]

Opponent [Taylor]: didn’t mean to say PBS and Netflix didn’t count.  My discussion w/expert: she offered that in her experience, the most difficult company was iTunes.  Agrees w/Williamsn [opponent] about significance of screencap. It’s an alternative for those looking to expand the exemption. It continues to improve. [Then there’s no point in requiring people to use one rather than the other.  It just makes the exemption more confusing without having any more DRM-protecting or copyright-protecting benefit.]

CO: Question re previous exhibit from DC?

Rosenblatt: It depends entirely on what you’re doing.  People who want to make seamless stories from multiple sources have difficulty w/different frame sizes, frame rates. If you want to focus in  on something, you can’t do that dependably using something that will result in blurriness or loss of material.  We aren’t looking for proof that every use is fair, but for the significant possibility that fair use is deterred.

CO: are people confused about screencapture as an alternative?

Rosenblatt: Turk can address—but this is a law that addresses more what happens after you make a thing than before.  1845 people responded to our survey Q about what the DMCA was: 1400 hadn’t heard of it or didn’t know. Of the 440 who said they did know, only 67 mentioned anticircumvention, and 6 mentioned exemptions.  1/3 mentioned complicated, confusing, convoluted.  The people who knew about it said “I have little understanding do to the confusing and vague language.”  “scared the pants off of everyone in my middle school.” That’s the sort of user we’re dealing with. That may not address directly your Q but it speaks to our argument that people aren’t likely to seek out something that won’t work as well when there’s an option that works, from the consumer standpoint, and they won’t have to go through these multiple steps. They don’t understand why one means of achieving a fair use would be illegal and another wouldn’t be.

CO: Seems in tension w/saying there’s a chill on uses.

Rosenblatt: there is a chill when people know, though it’s fair to say there’s not as many of them.  A lot of the trouble comes when someone who isn’t chilled b/c they don’t know then has to interact w/ an institution like a school, traditional publisher, library, who won’t facilitate/adopt their work, or when responding to a takedown, or trying to get insured. That’s where the chill happens, not in the initial creativity but in the use of what you’ve made. Turns the law into a trap for unwary, makes fair uses more vulnerable to takedowns. When you encounter a gatekeeper, like iTunes, it can turn out what you’ve done is illegal even though it would have been legal if you used a different program.

CO: is it really just because people don’t know if they can use screencap or not?

Rosenblatt: a few levels of confusion. Screencap is one. They don’t know what noncommercial means: if it’s on YouTube.

CO: we’ve always contemplated YouTube in the exemption.  How is that confusing?  You asked for noncommercial.

Rosenblatt: Times have changed a bit regarding the way content is delivered in the sense that noncommerciality and whether someone is personally making money off their creation is just more complicated.  We are very much about noncommercial creation, but we’ve had people come to us increasingly confused about what noncommercial means.

CO: filmmaking and ebook aren’t limited by commerciality; should they be?

Rosenblatt: we don’t propose a change to that.

Opponents: we support simplification, but you can’t do it at the expense of following the law.  Even the proposed exemption is college-level understanding. It’s difficult to craft a legal rule that’s simpler.  Michael Donaldson has tried to simplify fair use: would your use be clear to the average viewer. If you apply that to most of the examples in the record, the fair use doesn’t come through b/c the point isn’t perceivable to the average viewer. That’s why you’ve drawn the lines where you have for filmmaking and ebook authorship. Axanar: use of Star Trek in a “fan” film—no payment there, and the court still said it wasn’t a fair use. The point of the work couldn’t readily be perceived.  [Not really a short exerpt there.]  There wasn’t enough evidence to do “primarily noncommercial” before [that’s a mischaracterization of the record; in that instance the CO indicated that “noncommercial” in its definition encompassed the videos we were talking about, such as videos that were made on commission]  the Dr. Seuss v. ComixMix: transformative purpose, the fourth factor still failed fair use as a matter of law b/c of potential harm to the market for derivative works even if they didn’t license mashups [again, that’s a misdescription of the case; the motion to dismiss on fair use as a matter of law failed, not the fair use defense]. The law doesn’t mandate the simplest exemption.  [Nor does it bar it.]

Turk: The remix community uses what works.  I was mystified that screencap came up at all.  The goal for a remix artist is to get good quality video into the computer. Didn’t understand why anyone would be asked to use something that doesn’t work as well.  Can’t you just know from past experience or other people’s experience that this typically doesn’t work, and that another thing works well, and participate in a community that gives advice about what works well?  Can’t we just say, if it’s fair use, get the video in a way that works for you and go?  I would never say don’t use screenap.  I wouldn’t do it. There might be cases where someone wants or needs it, but I’m interested in the end result.  Is the quality good enough that someone won’t just hit the back button?  Evidence is that if something looks amateurish people don’t watch it. 

CO: Remix and education: K-12 remix activities—screencap might be perfectly adequate?

Turk: It might be. Haven’t taught remix in those settings.  I come back to: don’t disallow it, but don’t impose it on people whose workflow or access to technology works better w/a different format.

Taylor: We endorse joint creators’ proposal for simplifying regulatory language. Improvement over actual statutory exemptions. Not very difficult to understand, once you start looking at it.  If it’s so confusing, could provide them some examples of what activities would look like.  You could provide them examples from this rulemaking.

Neill: We’re dealing w/ a subset of noninfringing uses. The analysis happens on each individual clip. That’s how a real fair use analysis happens, regardless of whether it’s a documentary or YT video or some other format.  Trying to avoid haplessly violating law when making video on day to day basis.  There’s lots of possible kinds of confusion. Looking back, we can see the evolution of filmmakers who do a variety of different formats—not just fictional, but documentary, and other types. People could turn around the next day and use a clip in a way that’s fair use and be excluded as they weren’t the day before. We’re trying to deal with gaps—examples of what’s ok won’t help if you’ve added all these additional layers of requirements.  Many times these requirements have never been developed/delineated in case law.

CO: we’re not looking to break new ground in case law.  [I think he was saying that the requirements that decrease the scope of exemptions haven’t been delineated in case law, because the requirements haven’t been requirements for making fair use.]

Lerner: 8 renewed exemptions have said that people need to use clips which apply to the proposal for expansion, as well as a number of examples for expansion, and the statute doesn’t require the limits that are on the current exemptions.  House Commerce Committee said that motion pictures could be an appropriate category for exemptions, and the report goes on to say that it wouldn’t be appropriate to go too narrow in the sense of Westerns, comedies, etc.

CO: how is all AV works limited?

Lerner: short portions.

CO: doesn’t go to class of works.

Lerner: motion pictures restricted in other ways, such as short portions/commentary, then you’d have an appropriately narrow class under the plain meaning of the statute and what Congress said in the legislative history.

We aren’t asking you to break new ground for these uses: short portions for criticism/commentary. Not controversial that many fanworks are criticism/commentary; the Register is on record as saying so.  Juxtapose in order to say something new. We’re not talking about a sequel but about a critique. Harry Potter; GWTW.

CO: Harry Potter wasn’t saying fan fiction was always fair use.

Lerner: Sure, but many are, and that’s the proposition that isn’t controversial given the record and the case law. 

CO: [adopts wrong characterization of Dr. Seuss v. Comicmix as definitively not fair use] Give us specific guidance—where do we draw the line?  [Short portions, criticism or commentary] How do we protect only the fair uses.

Lerner: criticism or commentary/new meaning and expression.

CO: Dr. Seuss says it’s not just transformativeness but also no effect on derivative market. And why should we drop noncommerciality? SCt has said that the effect on the market is key. We also have to look at commercial effects. How can we provide enough guidance? 

Lerner: first of all, if someone crosses the line, there’s still a remedy for copyright infringement—you provide enough guidance that way.  [Why does the CO need to provide any guidance in the exemption on what is noninfringing other than the statute does?]

CO: we don’t want infringing uses, so how do we provide guidance so they don’t cross that line? [I thought this was a proceeding about anticircumvention, not designed to expand or contract fair use?]

Lerner: short portions makes a real dent. It won’t match perfectly but that’s ok b/c there’s a remedy for infringement.  This is a phantom threat—if someone is going to infringe, and they’ve ripped to commit infringement they’re claiming criticism and commentary, you have statutory damages for that.

Williams: CO began by denying exemptions for fair use for AV works. Then the CO decided it would specify certain categories of users, it could get there.  [Fortunately we’ve learned since then a bit more about what works and what doesn’t.] When you disregard current boundaries that effort falls apart. Fair use isn’t an appropriate category. TVEyes: transformativeness doesn’t moot the fourth factor.  [Though the short portions thing, as with every other case they’ve mentioned, distinguishes that inasmuch as TVEyes offered people everything.]  Often hard to perceive the parody/transformation in fanworks; use full songs [of what relevance is that to the clips?].  What’s the potential harm to copyrighted works? The fact that there are licensing options for fictional filmmakers and ebook authors!  [That always have anti-disparagement clauses.]  Wouldn’t say it’s never fair use to make criticism and comment generally, that’s a harder sell than criticism and comment of the work directly. Many of these examples don’t comment on the work itself.

CO: is it appropriate/necessary to clarify existing exemptions? If there are examples of things that should be included but aren’t.  [Prosecution/defense uses are a big deal here.]

Rosenblatt: one of the chief confusions is that people are confused about whether they fit into the type of creator category that distinguishes between existing exemptions. We aren’t here to litigate remix video but to talk about where other things might fit in, like multimedia ebooks, and uses that attorneys might make in litigation [yes!].  Documentary about a guy who’s exonerated by footage showing that they were at a baseball game.  Makeup tutorials juxtaposing a face to a clip from a movie. YT reviews of movies. Where do things fit in?  Makeup tutorial is criticism/commentary, short portion etc. Audio only uses of AV works—podcasters who want to rip to get high quality audio b/c listeners expect that.

CO: wants examples of ebooks/podcasts.

Rosenblatt: can follow up w/submission.  Also there are lots of people who have questions: Quora: is it illegal to use audio trailer in my podcast?  Answers are all over the map. Audacity forums where people say, I need to rip to get high quality audio, b/c Audacity won’t let me use it w/o high quality.  I have examples of these questions—could also make a follow up submission.

You could also have like Canada’s UGC provision does, uses that don’t usurp the market.

CO: could we exclude users instead?  Uses that fall to the infringing side.

Rosenblatt: we’re not arguing to eliminate use, just user categorization questions.

CO: you’re not talking about filmmakers. Collapsing all of that. Is there a way to identify problematic use, gray area use?  [Shouldn’t the gray areas be left for litigation, so as not to expand or contract the scope of fair use?]

Rosenblatt: short clips.

CO: no one’s asked to remove that.  [Yes, that’s the point.]

Rosenblatt: that’s enough.

CO: the opponents say it isn’t.  [Why are we required to defer to them and not to the other evidence in the record about the tiny size and contractual restrictions of the licensing market, which by the way is not a “clip” licensing market but a general licensing market, versus the size and variety of the clip uses out there?]

Rosenblatt: educational/derivative uses are hard to separate—a lot of derivative uses are educational. Doesn’t feel comfortable speaking to opponents’ proposed language.

Neill: Williams skipped over the harm to © works from clarifying the language.  There isn’t any. What is the harm that’s on the record after so many proceedings?

Sheffner: Proponents say there’s no viable licensing market.  He says there is. 

CO: in 2015 rulemaking, the Register found that licensing wasn’t viable. Speak to why it has changed. And to which uses there is a viable market, e.g. comment and criticism.

Sheffner: MPAA represents 6 major movie studios, with different divisions (movie, TV, news).  Clip licensing is sometimes centralized and sometimes not.  Different philosophies and business practices, can only speak in aggregate. Overall, every studio licenses clips. They have websites with info about this. In most cases it can be done online through forms, email, phone.  There was an old FAQ that said only a fax, but looking more comprehensively there’s actually phone or email. 

CO: requests ignored, low dollar value/smaller uses?

Sheffner: asked all 6 studios to address.  B2B only licensing? None of the companies outright refused individual licenses, but vast majority was B2B, because they have the wherewithal to engage in the project.  Nonetheless, they do receive individual requests.  Significant portion: individual can’t afford price of license. That doesn’t mean there’s no viable market.  Bel Air houses: most people can’t afford homes there, but there’s a viable real estate market.  [If only copyrights were intangible and nonexhaustible, unlike real estate.]

CO: licensing to remix artists?  Multimedia ebooks.

Sheffner: there is licensing. Hard to generalize about criteria for licensing. None of them absolutely barred licensing in those areas.  [Google Books case on factor 4 is v. good on this—has to be significant as an impact.]

CO: is it frequent?

Sheffner: can’t say that in those specific categories.  Ebooks is a nascent market—there have been licenses. There’s some experimentation. The licensing websites invite inquiries from “all” uses—there’s no prohibition. Relatively unusual for there to be individual licenses, but not unusual for there to be remix videos posted to YT.  The content ID system identifies them and monetizes them. Those aren’t licensed but are [he didn’t finish the sentence because he can’t without doing something that his clients really won’t want him to do].  [Does Content ID distinguish circumvention from noncircumvention? How did the uploaders get the footage?  Does that mean the circumvention used to create the footage was not unauthorized under Sheffner’s interpretation?]

CO: is it fair to say that’s an alternative to licensing b/c you still make money?

Sheffner: it’s a nontraditional kind of license.

CO: is it really a license?

Sheffner: there’s a license agreement w/YT.  [That’s about the footage, not the circumvention.  That doesn’t provide the footage which is the precondition to make the video, as a real license might.]  Tolerated even if infringing b/c enforcement cost too high.  New business model where the work is identified and a license is granted to YT to allow that use even if it otherwise might have been infringing.  [Which suggests that circumvention has no adverse impact at all.]  Several thousand clip licenses per year, but not much ability to give a breakdown fiction/nonfiction/education.  Can’t indicate monetary value, but licenses exist in each category.

CO: nondisparagement clause?

Sheffner: can’t answer whether that would have prevented licensing record examples from proponents. These have been discussed in previous cycles; there’s no change in the record.

CO: we’re being asked to consider different types of uses.

Sheffner: this isn’t really an issue about 1201, but contractual issue.

CO: but it bears on whether this is an alternative to circumvention, if the use is prohibited under contract. [and on fair use!]

Sheffner: not much record evidence of these clauses, which are vestiges, having substantial impact on ability to make fair uses. [because fair users don’t license their clips ….]

CO: what effect is changing the exemption likely to have on the market for © works?

Sheffner: clip licensing is a real market.  [what effect is non-screencap circumvention likely to have on that market?]  It’s significant though not dominant—people have jobs doing licensing.  Fair use looks at the aggregate effect on the market of this kind of activity.  [Fair use activity.] It absolutely would. Clip licensing revenue would dry up if all clip uses were allowed.

CO: we’re talking about arguably fair use for purposes of comment and criticism.  Proponents say that if a use is fair there’s no right to payment. 

Sheffner: 1201 itself require that you look at, even if the uses are fair, would allowing the exception cause substantial harm to the market. [Really?  That’s not how I’ve understood the statute—it’s the legitimate market for copyrighted works, not the market for extortion based on technology. The statute wasn’t supposed to eliminate fair use or enable it to be switched to fared use.]  Look at the aggregate effect on new business models. 

CO: but also one of your new models is YT, which is not the traditional way [where you don’t need DRM].  Do you have an idea which makes more?  Or a percentage?  [Considered that way, since YT is a billion-dollar market, I’m thinking that individual clip licensing is probably smaller.]

Sheffner: The more people can break DRM, the less effective it is and the less willing studios will be to use new business models.  [v. screencap?]

Normalization of ripping is dangerous [v. screencap?]  Exemptions need to remain narrow and focused. Broader and less focused they are, the more it becomes nonspecialized and word gets out.  [His assertion is not really evidence of that; indeed, the record evidence is all to the contrary.  I wonder what the APA standard on this is?]  Exemption shouldn’t swallow the rule.  Difficult to quantify.

Neill: In past proceedings, piracy has come up. We haven’t seen any direct evidence why an educator, artist, or filmmaker’s use of a short clip will create piracy.  If you focus on the harm, the Joint Creators make money off of even infringing uses through YT; no one here is talking about infringing uses.  The question is: unidentified harm that is unsubstantiated from people making noninfringing uses. If any harm exists, it’s the inability to get a license from noninfringing uses –which is not a harm.

CO: we also have to consider the adverse effect on the market for derivative works/licensing.

Neill: I’ve worked with folks who have both licensed and unlicensed clips. When a use should be licensed, that happens. Those licensing markets are available to folks who want to make otherwise infringing uses; we shouldn’t be concerned about licensing otherwise noninfringing uses.  When we look at our streamlined proposal, there are specific limits.  As far as slippery slope, our language is linguistically almost identical to past exemptions but for the user language and the access control language—it’s been 9 years.  No evidence offered of some vast slippery slope.

Williams: no studio policy against individual uses.  Sites in the record don’t ask you to verify that you’re a registered corporation.  Dr. Seuss says that even if a plaintiff doesn’t have evidence it’s entered the mashup market, it’s potential if has licensed other uses [Again, misdescription: there, the plaintiff alleged that it collaborated with other rights owners, such as Jim Henson to do a Muppet-Seuss crossover; that doesn’t mean that “mashup” in general is a standard or likely to be developed derivative market, or more relevantly that criticism and commentary are legitimate markets].

CO: can individuals get clips that aren’t on the website?

Williams: yes, you can make contact with the studio. Whether each studio would agree to find the clip you want, he can’t say.  There are also ebook examples: enhanced Harry Potter series, enhanced GoT series. They don’t necessarily use clips from motion pictures, but you could easily imagine them doing clips from the motion pictures. Enhanced Roots with archival footage of author interviews. Making of Indiana Jones: full of stills, and those are always licensed [not true for academic work; see also the Grateful Dead/Dorling Kindersley case] and they have the right to choose who they want to partner with.

With Content ID, not speaking on behalf of studios, they are licenses to YT, not to the individual end users. Whether that’s monetized or not we can’t say across the board. They choose monetization, monitoring, and blocking, subject to user responses.  Agreements are highly confidential, but the fact that program has been made available to address © concerns about mass number of users; there are tons of other websites that don’t provide that kind of response system [and how many views has the Pope?].  Thousands per year of licenses v. thousands per week on YT: doesn’t mean there’s no harm or that the studios aren’t trying to enter the market.  Piracy: my clients don’t have a straight line of sight into who claims the exemptions, who might have gotten a license. Cesar Chavez film: some licensed, some not; no insight into whether there would have been a license w/o the exemption. Nondisparagement clauses: they were in the record last time.  All the things requested last time are requested again, so that hasn’t changed.  Filmmakers: there’s not any examples clearly prohibited by the nondisparagement clause [and if you were the person making that decision, and not making it in the context of this proceeding, that would be more relevant evidence, but you’ve specifically disclaimed the ability to speak for any given studio.]

Not saying that you have to look at factor four even if the use is fair, but if there are some things that are probably fair and others that probably aren’t, you have to see if the spillover from an exemption will cause harm to a market.

Lerner: Universal clips website requires users not to disparage, criticize, belittle, parody, or negatively comment on. This is the sword of Damocles that can be asserted at any time even after licensing.  Telling that Sheffner compared licensing to one of the most exclusive housing markets in the US.  There is a licensing market, but it’s not available to everyone.  Some of our clients use it but most can’t afford it.  A lot of what’s going on is fair use, and 1201 is holding us back.  How much money have studios lost due to existing exemptions? No record evidence. Only harm they’ve articulated is a threat of a marginal number of fair uses that turn out not to be fair. Sometimes rightsholders just say no: MPAA member itself had to make fair use of the Steve Jobs Apple TV ad.  Sometimes they don’t call back: personal experience w/ a number of clients.  Orphan works problem.  People can’t afford licenses.  Dr. Seuss notwithstanding, a sufficiently transformative use doesn’t require a license.  Campbell v. Acuff-Rose found fair use possible despite negotiations about license that broke ground.

MPAA’s proposed language doesn’t change anything.

Taylor: possibly give us an opportunity to review any language before publication: would help in efforts to resolve/simplify.  Current exemption has misidentified AACS as Advanced Access Control System, when it’s Advanced Access Content System.  If we’d been allowed to comment, we could have corrected it.

CO: if you were to make a vid equivalent in the ebook world, would you be editing the clip itself?  Tandy said that remix artists could want to make ebooks. Current video exemption involves a lot of clip editing—would that be true in an  ebook as well, or would it be unaltered clips + writing?

Turk: not sure.

Rosenblatt: the answer is yes, sometimes those ebooks would need or want to alter the images themselves or the sound.  Examples focus in on particular part, or split-screen where they are remixing the video as well as juxtaposing.

Lerner: the video exemptions are the only exemptions that mandate specific technologies. That’s one reason we’ve asked for a tech-neutral exemption: we benefit from seeing what has changed over time, as w/DVD, Blu-Ray, etc.  AACS2.0 is no different functionally from the other mechanisms.

Opponent: AACS2.0 is completely different. This proceeding has given new formats an opportunity to grow before an exemption is granted.  [v. screencap?]

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