CopyrightX: UGC panel

Panel One: User-generated Content, Digital Labor, and Collaborative Authorship

Moderator: Bethany Rabe

Rebecca Tushnet: Fanworks, Fair Use, and Self-Actualization Through Transformative Expression

Title assigned a few months ago is a little misleading because I actually wanted to take the opportunity to talk about the Copyright Office’s recent report on moral rights, though I’m happy to talk about anything fanwork related during the panel discussion and Q&A.  I was one of the founders of the nonprofit Organization for Transformative Works.  OTW runs the Archive of Our Own, which hosts noncommercial transformative works by fans of existing works, of people, or really of anything about which one might create new art. From our recent fact sheet I can tell you that we have over 1.2 million registered users and 4.7 million fanworks, as well as tens of millions of visits per week. “Our open-source code was built from the ground up by fans for fans…. Our users are fans of every sort—teenagers and grandparents, first-time writers and professional authors—from all around the world, creating fanworks” for nearly 32,000 different fandoms.  From the beginning, it was a priority to be ad-free and noncommercial, not under the control of advertisers.  Instead, the priority was authorial control: AO3 was designed to give creators the ability to post and edit their works flexibly, to orphan their own works to preserve access to them without connecting them to the author, and to exclude search engines or non-Archive users from reading.

One of the most distinctive features of the Archive is the curated folksonomy used to tag individual works: “Users are able to tag in whatever format is most useful or natural to them, and our team of over 350 tag wranglers link these tags together into easily searchable concepts.”  If you misspell Harry Potter’s name—or put it in kanji—we’ve got you covered.  Creators can use tags to allow other users to find exactly what they want to see—or to exclude exactly what they don’t. “[U]sers can easily create specific searches, including all Sherlock Holmes works posted in 2018 that are exactly 221 words long and Lord of The Rings/Game of Thrones crossovers that don't include either Frodo Baggins or Arya Stark.” “Related concepts are also linked: Space Opera and Space Battles are both found under the metatag Outer Space, along with other related terms like Astronauts, Spaceships, and even Space Whales.”

Fanworks provide incredible benefits in literacy, sexuality education, language learning, community building, and other good things that come from making something you love and sharing it with other people who might just love it too.

On the content v. tech distinction that Maria Strong made: we consider ourselves content folks who use tech.  But importantly, we rely on fair use: our basic purpose is to host transformative noncommercial works. Gives us a particular perspective on various copyright controversies.  For example, recent Copyright Office report on moral rights, which you’ve just heard about.  The Office did a lot of good work pulling together the legal background both internationally and in the US, covering many issues that go beyond copyright into other regimes that affect authors.  A moral right of integrity that would protect authors against uses of their works they found offensive would be incompatible with US fair use and the First Amendment and the Office didn’t suggest any basic changes to that system, to the Office’s great credit.

It is definitely true that norms of fairness matter a lot in authorship, including attribution in many circumstances—but not necessarily in the rigid categories formal law might use.  For example, fans regularly describe authors of books, but generally identify performers of songs rather than songwriters. More generally, attribution practices in and out of fandom are highly context specific—what works for one group might not work for another.  Hollywood screenwriters have an arbitration system for assigning credit that is often needed because fights regularly break out.  Similarly, the Office pointed out that, “in legal writing, attribution norms for academic articles are quite rigid, whereas practicing lawyers routinely copy without attribution ‘the form and language of legal instruments.’” Attribution turns out to be the kind of inquiry that isn’t well suited to the American legal system, because modern copyright statutes and regulations tend to make big, specific lists of required information.  The Office wisely recognized that antiplagiarism norms work about as well as anything can work, and that the context of attribution would be essentially impossible to write into law.

Nonetheless, and without showing that there was a noticeable unmet need for new protections, the Copyright Office has just suggested that the federal Lanham Act can & should be used against unattributed copying of digital works, in defiance of the Supreme Court’s decision in Dastar and its own stance on digital first sale.  [I should note I think the Office is completely right in saying (1) §43(a)(1)(B) claims should survive Dastar where false attributions are material to consumers and (2) Dastar applies to in-copyright works as well.  It’s just disingenuous at best in endorsing a distinction between nondigital and digital copies that does not make sense of the Supreme Court’s interpretation of “origin,” especially in light of the Office’s (correct) position in discussions of first sale that a digital copy stored on a computer is a reproduction.  The “origin” of a digital copy is the host computer, and maybe stretching it could be the sending computer, but there is a physical instantiation and that instantiation is what the Lanham Act covers in “origin” under Dastar.  Specifically, the origin of the creative work contained in that copy is not the same thing as the origin of the physical copy, no matter whether the copy is on a general-purpose computer, a videotape, or a DVD, and thus failure to attribute the origin of the creative content is not actionable under §43(a)(1)(A) per Dastar.]

It also stated that Congress might want to consider amending the Lanham Act to create new causes of action to cover false representations regarding authorship of expressive works, even without a showing of harm to consumers. The Office suggested amending the Copyright Act to provide damages when a defendant knowingly removed or altered copyright management information (“CMI”) with the intent to conceal an author’s attribution information even if there was no intent to conceal infringement, and possibly even adding a federal right of publicity.  In addition, the Office suggested some changes to the more limited Visual Artists Rights Act. 

Aside from the suggestions about VARA, the rest of the Office’s ideas are a classic case of proposing to use a missile against a gnat—likely to the detriment of small and noncommercial creators, who are the ones who can neither afford to bring claims nor fight claims brought against them.  And the specific suggestions lack exactly the kind of context sensitivity the Office acknowledged was needed—for example, the proposed CMI provision on its face makes it illegal for an app to remove identifying information of people submitting anonymous videos of police brutality—and if you think that enterprising prosecutors wouldn’t use this law against the ACLU, you haven’t been paying attention.  [The CO says that the intent requirement would mean that automated removal wouldn’t be actionable unless it was designed to remove authorship information … but anonymous reporting apps are designed to do that. And for what it’s worth, the complaints the CO reported receiving about removing authorship information were mostly about automated processes—the proposed remedy doesn’t even match the thing that’s being complained about.]

It’s also worth pointing out the solution that the Copyright Office didn’t suggest for congressional intervention: although its discussion of authors’ rights mentioned attribution and integrity rights secured by labor law and collective bargaining, both in the US and elsewhere, the Office didn’t suggest that strengthening authors’ positions could be achieved by strengthening the position of workers, even though the most vulnerable authors are labor and not management.   The problems the Office identified in securing attribution for certain groups, like freelancers, are labor problems—authors after all make copyrighted works, and we should not allow the concept of the “work” to disappear as if authors were mystical beings with no connection to other forms of labor, other forms of production, that do things in the world.  Our desire to highlight the process of creation was in fact one of the reasons that we called our nonprofit the Organization for Transformative Works: whether made for profit or not, creative works are the product of labor.  Remembering the inherent dignity of that labor, and its value whether or not there is a market for the resulting creativity, is a goal that the OTW shares with the Copyright Office.

Stacey Lantagne: Internet Memes, Fanworks, and Copyright’s Authorship Challenges

Memes regularly involve © works; one opinion expressed: the public “owns” the meme because the public authors the meme even if not the underlying photo.  Fox defended an infringement case juxtaposing 9/11 and WWII images—court didn’t like the fair use defense b/c didn’t see the transformativity, but it turns out that the range of “memes” is very broad.  Knowyourmeme has no definition.  When Trump (or a Trump fan) adds CNN’s logo to a clip of wrestling so that it looks like Trump is beating up “CNN,” that’s what’s adding the meaning especially after it’s been shared by Trump himself. Similarly, Pepe the Frog became a white nationalist symbol and created contests over ownership w/initial artist and those who altered it. Gab now uses a frog logo and claims that frogs have been symbols of free speech for a long time (narrator: they have not), and it’s a reference but not all that similar to Pepe.  Then the distracted boyfriend meme, which comes from a stock photo with a © owner, who is fine with most uses but not w/objectionable ones (which may be censorial).  As the distracted boyfriend meme develops, responses to it/reworkings of it are based on transforming the meme rather than on the photo alone, which has become subsumed into the meme and the idea of the meme. 

The internet thus exposes that the mastermind narrative of single creation is wrong. We knew that but dealt with it mostly by contract, and then we have this control test for noncontractual situations but it still wrongly assumes that there is a “boss” in control of everything. When you don’t have contracts, when you don’t have lawyers, we don’t know what we’re doing in terms of ownership. Garcia v. Google: opinions don’t make sense internally and are conflicting all over the place.

Capitalism makes everything worse/more exploitatitve: Swedish company used distracted boyfriend meme for job searching and ad regulator called it sexist and said it couldn’t be used in ads. There is a pending case against a MAGA poster by Pepe’s original creator Matt Fury; there’s a fair use argument but also the defendant argues that Fury abandoned the © (which is not a thing).  There’s a lot of unsettled territory here.

Hilary Richardson: Google Open Source and Collaborative Authorship

Writing a casebook on open source legal issues: opensource.google.com/docs/casebook: you can send us edits or additions in a GitHub pull request.  Current joint authorship standards give equal rights to all authors.  Some projects list all “authors” giving them shared control. Some may have 100% consensus, but for a growing project that can be unsustainable, and some institutions may not want the potential liability/disputes that comes from open source authors’ potential for contestation.  Current doctrine (Al-Muhammad etc.) looks for a mastermind—important contributions can still avoid being authorial. Court was concerned about discouraging future editing/feedback if joint authorship was a possible consequence. Creative control/direction mattered, versus value of contributions and impact on final version. Spike Lee had the control (although it was a work for hire) and the court found that determinative.  Other jurisdictions also use editorial control over final piece as part of the test, but with more focus on intent to be co-author.  Control can be evidence of intent, but intent could also be evidenced by, e.g., registering the © in a person’s name.

Clarity can come from legal agreements: two popular mechanisms, developers’ certificate of origin (Linux) which doesn’t say anything about retaining © but does grant an explicit license.  Is everyone a joint author?  Contributor license agreement: says that © stays with contributor but they grant a license.  That makes it clear that people aren’t considered joint authors.  More light-weight approaches: root license of a project is used to cover contributions. Can be used to imply effects on individual contributions; sometimes licenses say “if you contribute, you do it on these terms.”  The Stuff case about contributing special effects to a larger film: helps explain the effects of an implied license to use a contribution.

Katrina Geddes: Should User-Generated Content Be Compensated?

UGC: just about everything you find on the internet.  Childish Gambino’s This is America was a canrivalesque commentary on police brutality, fetishization of black performers, modern-day minstrelsy. People responded w/, e.g., This is Nigeria: commentary on police brutality, corruption, poverty, Boko Haram, and other Nigerian issues. Similar music and choreography but different lyrics (both set in warehouse).  Why do we value things like fan fiction?  People get to see themselves where they don’t get to see themselves in mainstream works: LGBTQ people, people of color. Challenge racial and social assumptions of mainstream works; challenge the monopoly on cultural production of large producers. Can also maintain the cultural relevance of works, such as maintaining interest in the Star Trek universe.  Satisfies demands for variation and personalization, rather than works manufactured for a huge audience. Democratizes creativity—authorship is diverse and diffuse.  Meme authorship can often be indeterminate. 

Content ID: used algorithmically mostly for commercial content.  400 hours to YouTube uploaded per minute. Fanmade videos for Harlem Shake were matched to the song, allowing the song © owner to generate millions of revenue with no allocation between the music and the video created by fan labor. Under 1% of Content ID matches are disputed.  Fair use can’t reliably be done by algorithms; Content ID is black box governance, unaccountable—even when the uses removed or monetized may be perfectly lawful.  Expands scope of © by making it difficult for users to rely on exceptions like fair use.

Locke and labor theory: just reward of labor should extend to fan creations that are monetized.  Eric Posner etc. have argued that not just UGC but our labor online, clicking and producing valuable data, should be understood as compensable.

Canadian UGC provision: protects UGC made by an individual, though there’s usually more than one author.  Also protects UGC only when © subsists, which bakes in originality.  Requires noncommerciality—no pro-rated advertising revenue.  Also bars anything with a vague, broad “adverse effect, financial or otherwise” on the © owner—that could include offending the original © owner.

Should users be compensated?  The labor of users should be recognized and respected, and possibly compensated. But commercialization is part of the fair use inquiry; it may weigh against fair use.  Commercialization may result in reduction in expressive diversity: anticipation of paid markets may affect content and willingness to participate/be spontaneous in creativity.  Distinguishing when compensation would be paid would require resources, negotiation in allocation between different owners. Right now it’s 100% to the original claimant, but other points on the spectrum are possible. Don’t just assume that everything with a match should be 100% monetized by the © owner.  We could ask users to categorize their works to claim a share; this would allow more information and an algorithm could at least look for percentages/set things up for human review.

Q: fair use is important; from litigator’s perspective, one downside is expense to determine.  Oh, the Places You’ll Boldly Go! was found to be fair use on summary judgment, but not at the MTD stage which was 1½ year earlier.  Is there a way to get to fair use faster?  Market harm may require discovery—that’s the most expensive part of most lawsuits.

RT: sadly, not a lot.  There are uses that are fair as a matter of law, including parodies.  Big data, purpose-transformation uses are for better or worse somewhat easier to identify as fair use as a matter of law.  Sometimes you are going to have to evaluate the transformativeness of an individual work.  [We can have rules that help, like the Second Circuit’s rule that you can’t avoid a fair use finding by offering  a license for something that is in fact transformative—that helps draw the sting of some market evidence.] Small claims: 40% of Americans can’t come up with $400 for an emergency.  A “small claims” court that allows $30,000 in statutory damages is not a small claims court. It’s just another way to harass individuals.  [I forgot to add: best practices in fair use for different fields—also very helpful.]

Lantagne: education, nonprofits like OTW/EFF.

Geddes: Canadian UGC exemption needs some time to develop.  Education is also important.  People want rules like “30 seconds is ok.”

Richardson: people do want rules: are 3 lines of code ok?  Depends on what the 3 lines are!

Kimberly Isbell: proposed 1202A.  The reason we made it a new provision is b/c it’s narrower and specifically exempts criminal enforcement.  The only person who could bring a claim would be the uploader. The ACLU has terms of use: if you provide content it will be anonymous.

RT: Disagree.  The statutory language is “any person injured by a violation,” and the police will say they’re injured by the inability to investigate the circumstances under which the video was taken further.  The injured person doesn’t have to be the author (or heirs) under this proposal.  There is a long tradition of (mis)using civil awards to silence speakers, e.g. NYT v. Sullivan.  The proposal does not exempt information submitted by someone who wants to be anonymous or who doesn’t know or care about stripping of metadata [nor does it limit enforcement to the author, which would also be a potential fix, though I still don’t see the evidence that an additional cause of action is needed].

Q: software should just be patentable, not copyrightable.

Richardson: the law says copyrightable and she’s ok with that.

Q: memes & defamatory content. There are a lot of really awful Helen Keller memes out there.  What should happen when there’s a historical figure & derogatory content.

Lantagne: a lot of times people bring © claims that should be more personal tort based.  She hasn’t come across non-© meme cases, but she wasn’t specifically looking for them.  Unless publicity rights outlast death, there are few remedies for the dead.

Richardson: revenge porn is an example of where © was deployed even though it wasn’t intended for those situations; you shouldn’t need to register an explicit photo to deal with the problem of revenge porn, and new laws and platform policies are recognizing that.

1201 hearings, LA, streamlined video exemption

IN SUPPORT
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
 IN OPPOSITION
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?]

1201 exemption hearing: filmmaking and ebooks

PROPOSED CLASS 1: Audiovisual Works—Criticism and Comment—E-Books and Filmmaking

Michael C. Donaldson, FilmIndependent, International Documentary Association, Kartemquin Educational Films, Inc., Independent Filmmaker Project, University of Film and Video Association, The Alliance for Media Arts+Culture (“Joint Filmmakers”): Discusses use of film as fair use in other films, even nondocumentaries (like Jersey Boys).  Question: is that criticism & commentary? [My answer would have been yes, and that the Jersey Boys court didn’t need to reach that specifically because fair use is more capacious, but historical verification and contextualization certainly counts as commentary for purposes of fair use.]  Answer: Yes, the exception is more limited than fair use but we will work with our clients to come within its confines.  [CO questioner seems focused on commentary; says Register said previously that developing a character/situation isn’t inherently commentary and criticism.  Q: what is your best example of fiction/multimedia ebook that’s used for comment and criticism?]

Heidi Tandy, Organization for Transformative Works: Something we’d like to make. It’s possible to take content from DVD, Blu-Ray, etc. and make a fanvid. The minute you want to make a linear, choose your own adventure style in the format of a game, or ebook that includes different kinds of content, such as video and stills.  Q: would this be commercial or noncommercial?  A: there isn’t a stable and perfect definition of what’s commercial.  If you have a Patreon, is that commercial?  Hasbro’s guidelines don’t consider that commercial, but others may disagree.  Trying to leave commerciality out of the conversation.  Q: would be hard for CO to say that commerciality isn’t part of fair use.  A: But what’s your definition?  If Google puts ads on the side of your work and you aren’t getting revenue, is that commercial?  CO Q: Doesn’t want to get away from fiction/nonfiction in this discussion.

Q: what is your best example?

A: things people want to create for mise-en-scene or to show what happened in the past. Tech doesn’t make it easy but it is getting there.  VR is also coming.

Q: we need to see concrete examples because we can’t evaluate fair use in a vacuum.  People who want to create for comment & criticism.

A: see prepared remarks/submission statement. Using the TV show Supernatural, 14^th season—the fictional world has a series of novels.  My proposal was for a group of fans w/in the world creating a YT series—using the show to illustrate things that fans are creating. The only way right now is a video, not the ability to scroll through to get the experience of being in the fandom—an ebook or PDF would give a better ability to access, different visual and personalizable experience.

Q: why is circumvention necessary?

A: to create the content necessary, I need some of the show itself and some of the images in the DVDs of behind the scenes activity.

Q: why wouldn’t screencapture work?

A: the screencapture would be a static element.  Looks bad versus having the proper flow, especially in VR.  Like in a wedding slideshow, where an element is out of sync with the rest of the video—same with newscasts. 

Q: why wouldn’t licensing work?

A: for larger scale shows, the owners don’t necessarily have time or energy for someone to communicate with millions of fans. Sometimes Hasbro gives a blanket license for certain things, but that’s not always the case.  [In fact, it’s basically never the case that they license use of the footage rather than creative elements as such; I can’t think of an example other than the limited BSG space-fight footage that BSG allowed specific uses of in a contest.]  Some companies can’t do quick turnaround—e.g., the Simpsons episode last week about the problem of Apu.  Even if I only had to wait a business day, I wouldn’t be able to react within the news cycle.

J. Matthew Williams, Joint Creators II: Doesn’t believe he’s heard about criticism and commentary. In his view, some of tthe examples seem infringing (without knowing the context) and some not.  Clients are willing to do some licensing or some no-action (which doesn’t mean that it’s not circumvention).  It’s difficult to do same-day licensing.  Doesn’t think that fan fiction as a class is noninfringing.  Cases mentioned in opposition—things like unauthorized prequels or sequels held to be infringing.  No cases in record on fanworks being noninfringing.  Not saying that they are always infringing, there probably are some that aren’t. 

Q: you’re not necessarily disagreeing about license availability.

A: no record showing unwillingness to license to individuals. Fox testified it would issue licenses to individuals, but the cost is a different question. Doesn’t know price and it would differ for different uses. Might issue no cost licenses, as they do with education.  No record that someone came to his clients and was denied.

Brianna Schofield, Authors Alliance: Jonathan Grey, Show Sold Separately—critiques interaction of audience w/works based on prerelease exposures to the work.  Available online and uses video clips embedded in ebook.  This goes beyond film analysis, which is one aspect of the exemption.  Video Dubliners: a guide to Joyce’s Dublin, uses film clips for context for understanding the book.

Q: were the clips licensed?

A: no first hand knowledge.

Blake Reid, Angel Antkers, and Susan Miller, Samuelson-Glushko Technology Law and Policy Clinic

Jack Lerner (with students Brian Tamsut, Cristen Fletcher, Jovan C. Ardy, Lauren Wertheimer, and Shaia Araghi), UCI Intellectual Property, Arts, and Technology Clinic: The CO has already made presumptive determinations to renew the existing exemption. Some of this discussion feels like an attempt to relitigate the accepted record, in particular the notion of seeking out licenses as a viable noncircumventing alternative. In both the video and ebooks exemptions, the only requirement is that the person engaging in the circumvention reasonably believes there’s not a noncircumventing alternative. The idea that we need a lengthy record of folks seeking a license for every clip goes beyond the existing rules and the record that led to them.

Tandy’s proposed project would clearly be w/in noncommercial video. Where it would make more creative sense to distribute as an ebook, that should be possible.  That’s why we want a unitary exemption for this type of use.

Q: if the Register recommends an expansion for noncommercial use, including fiction, would that be reasonable.

Reid: CO has already recommended multimedia ebook w/o such limits.

Q: but if we added noncommercial fictional ebooks?

Reid: that’s better than nothing, but the Q the Office should grapple with is how that impacts the fair use analysis. There are legit fair uses out there—Jack Lerner can address that in more depth.

Lerner: criticism and commentary can’t be done as a living, or as an incentive, under a noncommercial model. That’s not a good idea and the vast majority of [litigated] fair use is commercial, not just in being on YT but in being sold on the market.  What you’d be doing is taking the incentive away from a large group of creators.

Williams: mischaracterizing our position.  Don’t require everyone to seek a license. But don’t use the idea that my clients are unwilling to license without evidence. [The evidence is among other things in the nondisparagement clauses that are in every license we’ve seen, where such a license can even be acquired, and those are in the record; the sites that the Opponents suggest people use are also nightmares to navigate to even tell whether a licenses are available—take a look at how often their poster site, Universal’s, throws up “unknown” results.  If one wanted to make an argument about George Clooney, for example, Universal will determine whether a film in which Clooney appeared is “available for licensing,” Jt. Creators Opp’n at 13, on a blanket basis; if the film is not available for licensing, the critic is apparently out of luck.  (Actually, given the operation of Universal’s internal search engine, searching for George Clooney will also return results for Rosemary Clooney, Curious George, and George Burns, so the would-be licensor needs some time on her hands.  One will also encounter numerous works in the database marked “unknown,” e.g., https://www.universalclips.com/catalog-items/13872.)]  We also don’t think that fair use is impossible in a fictional motion picture.  The MPAA often asserts fair use.  We just haven’t seen the standard met for large amounts of fair use being suppressed.  Having a low budget doesn’t make your use fair; if there’s a potential market and the © owner is likely to exploit it, then there’s harm regardless of whether an individual user says they can’t afford it.

Susan Miller: The SPN example: it’s a critique of the characters often involving society as a whole—commenting on specific characters & elements—that counts too.  Fan fiction often critiques and comments on society as a whole—that should count too.

Q: that’s the issue—does it need to critique & comment on the work itself? That affects the first and maybe the fourth factor.  [BTW, Bruce Keller & I wrote a whole article on this back in the day—there’s really never been evidence that © owners are more ready to license satirical uses than parodic ones; even the tuggable “blanket” licenses with nondisparagement clauses let them reject uses where they don’t like the context. Thus there’s no effect on the fourth factor.] We’re looking for examples of criticism of the © work.  [But why? That formulation raises the problem of why the CO has decided to exclude an entire kind of fair use.]

Tandy: goes into history of fanworks. How people started writing (e.g., Frances Hodgson Burnett of Secret Garden/Little Princess fame started with Sherlock Holmes). Inherently a commentary: if something wasn’t missing from the original, you wouldn’t have written your version.

Q: that seems to encompass a lot of derivative works too.

Tandy: can see situations where, e.g., cosplay, might not be making a commentary. Say you want to do a steampunk Justice League—the costumes, content and structure would be different. But that’s not what we’re talking about here. Focusing on an ebook/choose your own adventure, it’s inherently a commentary where people are being given choices about how to read the story.

Patricia Aufderheide, American University: You can distinguish documentary and fiction, but that’s one of many ways to slice a unitary form; virtually everything is shared between the forms—structure, reenactments, audio/video and other aesthetics. Many kinds of fiction don’t make criticism and then some do; then there are hybrids in which documentary characters are real-life people who dream of being gangsters in a gangster movie and stage a gangster movie.  It is very hard to say “here’s an example” when people know they can’t add this stuff without enormous complications. As someone who’s worked w/documentarians for 40 years, the complaints never stop about never hearing back from requests to studios/potentially licensors. Beyonce’s Lemonade is an example of a work that refers critically to many real incidents/situations. It’s not hard to see parody/satire in SNL skits—incorporating and referring to and creating commentary on real copyrighted things.  There’s no reason we shouldn’t be encouraging this.  Good Night and Good Luck and other dramas—we should be able to show what they were describing when they quote the description of TV as a “vast wasteland.”

Q: Not trying to make aesthetic judgments, but whether it’s likely to be noninfringing use.  The last rulemaking: there was enough of a record to say that it was likely to be noninfringing for documentaries, and we’re now being asked to extend that to all films.  Biopic as a line? Everyone thought that was unsatisfactory before.  How would that work for you?  Is there a way to exclude types of films that are less likely to be fair use, instead?

A: I don’t understand your task. You’re being pretty clear: commentary and criticism of the thing itself. Wouldn’t it be up to the person to be sure they’re coloring within the lines, and if not they pay the penalty?  Letting people have the option of using that across the form, where you’ve already said that an exception for one part of the form (whose boundaries are themselves fuzzy) is acceptable.  There are situations where a documentary could infringe, which is why we do review and licensing where appropriate.  There’s a whole explanation of which clips they licensed for Refrigerator Mother and which they didn’t and why.

Q: To opponents: wouldn’t a limitation to comment and criticism then be sufficient?

Williams: Harder to see fair use in fiction. Showing what it was like to be present in a moment in history is not commenting on that footage.  [Why not?  The effect that it had on the people experiencing it as reality is an important part of criticism and commentary.]    Fan fiction choose your own adventure ebook example—that doesn’t involve criticism or commentary, even if involves additional expression; Axanar and Salinger cases haven’t found such uses to be fair.  Nor would noncommercial be ok. Just the fact that something isn’t for sale doesn’t make it noncommercial, because paying the customary price is part of the analysis so all kinds of noncommercial uses would still cause harm.  The examples I did see were very small.  Showing Kennedy assassination reaction may be important to the story, but that’s not criticism and commentary; they have been able to license some clips, and if you have 60 clips of Cesar Chavez and pick the most engaging, the fact that you don’t want to pay to license it doesn’t make it fair use.

David Taylor: no real concrete examples, particularly in the ebook situation. Sounds more like interactive games.  That’s not an ebook, he thinks. Archival clips aren’t distributed on protected DVDs.  [I think that’s factually wrong in many cases, given the usual archival sources.  I don’t think he has a record on that, though I may have missed something in the opponents’ submissions.]

Michael Donaldson: A few examples: In Search of Fellini, about a woman obsessed with Fellini; clips shown to comment on the power of Fellini’s films—w/o seeing the film you can’t see how impactful they are, and recreating them doesn’t work.  Scripted film about Christine, a Florida news anchor who shot herself on the news. The commentary is: this is what the TV audience saw, not a redo.  [You can’t meaningfully comment on what they saw by telling the story that surrounded it without access to what they saw; your audience has no reason to believe your commentary unless they can compare the recorded footage to what you’re saying about that footage.]

Low budgets: that isn’t why they don’t license.  Insurance companies put real skin in the game even for these low budget films; they insure when they believe it’s fair use. We’ve had pushback from insurers more on risk than on actual fair use, especially for clips surrounding Trump where he’s perceived as litigious.

Lerner: criticism and commentary: you aren’t required to say “here is my criticism and commentary.”  Showing a reaction of a person to a contemporary event is commentary.  Also, there hasn’t been a previous limitation to “criticism and commentary about the work” and we shouldn’t put it in. Fair use cases include the Wind Done Gone.  Also, the noncommercial remix exemption includes fictional use; it is clearly a set of fair use works.

Also, 8 years after documentary exemption exists, lifting the “documentary” limit clearly creates no real risk of infringement/piracy.

Q: would the licensing market be affected?

A: no, we’re talking about the market for fair use.  The © owner has no right to a license to a fair use. What we have now is filmmakers who aren’t doing fair use that they want to do, or they get licenses because they can’t access the material. There’s no dispute that there is a large amount of fair use in the nondocumentary context, but it may be licensed when it doesn’t need to be.

Q: any examples where 1201 caused licensing despite 107?

A: Nearly 70 different films where people wanted to make fair use but didn’t.  Can supplement the record further.  Also remember that Register already said that needn’t opine on the fairness of any given use, but rather that there is a class of works likely to be fair use.  There’s no real dispute that broad, robust, burgeoning fair use exists in the nondocumentary context—the question is whether it will be chilled/allowed to go forward.

Reid: this RM takes place every three years. 1201 makes the creation of these films, where licensing and screencapture aren’t reasonable alternatives, illegal, with the prospect of statutory damages and criminal charges.  It’s understandable that people aren’t coming out of the woodwork with scripts.

Q: we need to look at whether the market has changed; need to tie it to what people would actually do. Difficult to say w/o looking at tangible examples.  It’s been feasible for prior class 1 categories.  [Welllll, our examples had all been created under legal threat, until we got our first exemption.  That seems undesirable.]

Reid: Then we do have specific examples, and then we’re being asked to divide them by genre, prove they’re noninfringing, prove what subgenre (e.g. biopic) they fall into. Sketching out real plans for 3 years in advance is not what the statute requires.

Q: Why in ebook sense didn’t you go for the broader category of mixed video or fan fiction/cosplay?  Is it because the clips they’re using they’re lengthier and not very edited?  The Digital Dubliner seemed like a sophisticated blog.  Why do you really need high quality?

Tandy: high quality is important across all media.  One reason we haven’t talked about fan fiction/fanart is that doesn’t involve circumventing AV locks. This is the other kind of fanworks. Fan films go back to the 1960s.  Now we have quality that no one could achieve before, and if you want to participate in the conversation you need to match the visual sophistication of the other participants.

Q: expanding what we thought an ebook was?

Tandy: yes, though it doesn’t necessarily include text in the way we think about copying and pasting it—can be jpgs and video clips mixed together, with the words embedded in the jpg to create a specific visual expression.

Q: if someone steps over the line, why can’t the Joint Creators just sue? Why do we need more limitations?

Williams: Lerner says no infringement has resulted from exemptions and thus no expansion will infringe.  Our position is that there’s a lot of infringement; a lot of these videos are infringing; we’ve identified examples we think are infringing. We’ve chosen not to continue to oppose those exemptions b/c we’re not going to fight City Hall, but that’s not a concession of no harm.  [No harm from the exemption?  They’ve never shown any evidence of that, which I think was the point of the question.  As we’ve repeatedly noted—and I’m very happy to hear the CO focus on this—1201 itself has virtually no effect on initial creative behavior; most of this is about what will happen when you have to interact with an institution like a school or a traditional publisher who has less incentive to facilitate any given individual creative work, or when you have to talk to a lawyer, whether it’s responding to a takedown or trying to get insured.]  1201 created a new right over and above 106. Saying that litigation should sort it out isn’t very comforting because litigation is expensive.

Q: but if there’s a quantum of likely noninfringing films with short portions etc., why isn’t that reasonable to go to 106?

Williams: it wouldn’t be one or two.  Seen very few noninfringing fictional examples, and even in the nonfictional space. Digital Dubliners could have some good fair use arguments, but he doesn’t know how the clips were selected. Would be seen as CO endorsing a broad swath of content and endorsing misuse. The Office has already said that it thinks a lot in the record is infringing, and yet proponents keep saying the Office has already decided it’s infringing. 

Q: if we still had the comment & criticism, short portion, etc. and added noncommercial, that’s not sufficient?

A: Noncommercial in & of itself is only a factor.  It has layers.  [I initially mistyped this as “it has lawyers.”]  Do you pay the customary licensing fee? If not, that’s commercial use.  Does the CO intend to rely on case law meaning or lay meaning?  Either way, it’s just one factor, as is short portion, and comment & criticism; but none of those add to slam dunk. Even Campbell remanded for analysis of fourth factor in that specific instance.

Q: talk about licensing.

A: links in our comments to websites that provide easy access to contact points for licensing. CNN: you can go on & say I’m looking for a clip from X period of Y person.  You can say “I want to use this in fiction” or education or documentary and they give you different pricing and it pops up almost immediately.

Q: proponents’ reponse to licensing arguments?

Donaldson: It is easier to find out whether they claim to own it, but not whether they will actually license it. Now it’s almost impossible to get to a human, for example to negotiate the posted price for a small film/niche film. 

Wertheimer: a lot of licensing agreements have nondisparagement clauses—can’t make critical use of the clip. Even with a license, that’s not fair use.

Q: Opponents, what have you to say about that?

Williams: you didn’t accept that before.  Not all © owners include nondisparagement clauses—Warner Bros. didn’t have such clauses.  [How nice of them.] A lot of them do. But there’s no examples of actual criticism of the studio or any of the actors or really in this record of the films themselves. Those wouldn’t prevent licensing of the works.  [You can’t speak for the licensors and what they think of a use, can you, though?] These are more about disparagement of the talent and he hasn’t heard anything about that.  [I’d love to see that contractual argument tried by the licensee if the licensor declined to approve a use on grounds that the licensor thought it was disparaging of something other than the actors.  Not that they’d explain their reasoning!  But of course we never get there anyway because the license deters people from trying.]

Q: the Steve Jobs example, where the family didn’t like the use—they rejected that.

A: Universal relied on fair use.

Q: that’s an example of license refusal, though.

A: sure, not going to claim that some © owners don’t like criticism. 

Q: how is licensing a feasible alternative then?

A: it isn’t always.  The examples of that in this record and all prior records are very few and far between.  [And the justification for denying the exemption is….] Has heard that it’s unacceptable to condition exemption on those who’ve asked and been denied.  Proponents don’t want to go ask.

Q: You’ve said there’s no market for multimedia ebooks. If that’s true, how could there be an adverse effect on the clip licensing market?

David J.Taylor, DVD CCA: if you believe there is a market or that one will develop, our argument is that it’s ours and should be licensed just like documentaries are licensed.

Q: is it the studios’ view that this is a traditional, reasonable, or likely to be developed market?

Williams: it’s potential/likely to be developed.  Simon Swart from Fox last cycle testified they’d be willing to license multimedia ebooks, and Ben Sheffner from MPAA will testify in LA on issues related to licensing as well as the importance of access controls.

Josh Welsh, FilmIndependent: Documentary/nondocumentary—there is a growing trend to blurring the lines. These aren’t just one off but a growing hybrid genre.  A new award: the Heterodox award at a major event to deal w/unclassifiable films.  The Looming Towers—a mix of traditional documentary and scripted fiction, where the elements play off each other.  Errol Morris’s Wormwood: scripted actors intercut with documentary.

Q: are they comment & criticism?

Welsh: I’m showing why granting or denying an exemption based on a genre is a bad idea given how porous the genre boundaries are. This is an exciting growth area for film. Doesn’t make sense to limit by genre.

Aufderheide: has developed a category of thinking: imagination foregone (see report based on fair use-free Australia). What do you not do if you think something’s prohibited?  Instance after instance of people excluding entire categories of behavior, which is why she is concerned about looking for current practices—a lot of people are not imagining thinks.  Topical dramas like Roseanne, Black-ish etc. can easily incorporated criticism and commentary.

Taylor: they just haven’t shown the need for a larger exemption. The problem with going back to 106 is that the RM is tasked with creating an exemption based on the evidence produced. [This seems like a carefully misleading claim about the definition of “evidence.”  Evidence can include (as it does here) expert testimony about the practices of the relevant creative communities, and about the affordances of technology when it is or isn’t encumbered by 1201 without an exemption.]

Bruce Turnbull, AACSLA: In the past, the focus was on the much more elaborate nature of the ebook. None of what was promised 3 years ago has actually appeared.  Also, the platforms are limited. 

Q: trends about fictional works—proponents say the trend is increasing. Is that enough for evidence?

A: you need the evidence for that. For the ebook, we have a number of things 3 years ago that didn’t happen.  Discussion of platforms’ restraints—those have inhibitions [I think this means they can’t use the tech?].  If the idea was noncommercial video/people don’t view what they did as a “video,” it may be that is the place to look at whether something could be included to facilitate some of the fan fiction kinds of things.

Williams: Donaldson identified a trend of people wanting fair use in fictional films in his own practice. But his starting premise was that people weren’t using clips in fictional films before that, and that’s not true, e.g., Oliver Stone films.  Major studios were probably licensing clips.

[video demo in which screencap was inserted into a widget which was able to create an ebook without circumventing a TPM (if that’s in fact what the screencap does—we don’t know)]

Tandy: defers to tech expert on the tech, but the widget doesn’t let you get the effects.

Q: it doesn’t stutter, drop frames. What would you have seen that you didn’t?

Tandy: I don’t know what was lost or how these clips were created.

Q: does the eye lose anything?

Tandy: linking the content together [seamlessly?] you need more capacity—you have to be able to obtain additional software, which people may not be able to do.  Couldn’t do it in Windows Movie Maker though maybe it’s possible in pro software. 

[The real ridiculousness of this is opponents’ contradictory insistence that (1) the quality of (noncircumvention) screen capture is amazing but (2) 1201 is super, super necessary to prevent piracy so exemptions should be guarded like state secrets.  Both of these things can’t be true, and they aren’t.  The key reason people need to be able to use whatever makes sense to them to make their fair use clips is that almost no one knows that this is currently legally important. The main reason 1201 is a barrier is because when you encounter a gatekeeper it can turn out what you’ve done is illegal even when it would have been perfectly legal had you used a different program. Also, since we usually don’t know whether any given program is circumvention, the uncertainty created serves no valid purpose in limiting the exemption to the class of noninfringing uses.

Turnbull: Screencap quality is accepted by Apple for publication.

Q: would this be enough for a film festival/distribution?

Jim Morrissette, Kartemquin Educational Films,Inc.: Nope. More gatekeepers than ever before. The current exemption works really well for documentarians. Blu-Ray has made the difference for even using fair use any more. Abacus, about a small bank in NY; wanted a clip from It’s a Wonderful Life.  Blu-Ray enabled that.

Turnbull: Screencap limit is good because it prevents widespread removal of TPMs.  [I’d love to see the record evidence on that.]

Q: do you violate 1201 by using screencap?

Nobody is willing to answer that, because we don’t know.

Williams: there appear to be screencap that captures after lawful description.  But I won’t answer your question. The current exemption addresses the concern that people might not know, so accidental circumvention isn’t illegal.  Basically gives proponents comfort and encourages people to use only the tech that they need for the quality they need.  [And here is the complete gap in the evidence.  What’s the encouragement effect?  If you-the-creator even know about the exemption, you still have to deal with the uncertainty created by the question of whether a court (or a copyright owner, even, in its threats and allegations) would disagree with your assessment of needing to make the jump from one kind of software to another for quality reasons.  There’s a good reason that courts prefer to shy away from making aesthetic judgments and defer to creators on that question, including the aesthetic judgment of just how sharp an image “needs” to be. Adding that into the exemption creates a non-fair use related standard whose main function would be to trip people up, if & when they encountered it.]

Q: but is there any specific tech that people are worried about?  Apple allows screencap. Does the current exemption with two stages serve a real purpose?

Peter Midgley, Brigham Young University: Provides zero comfort, only confusion. Suggests screen cap is by default unlawful.

Q: would expanding the exemption increase infringing distribution of works? Should we require them to put DRM on fictional uses?

Lerner: problematic—how do you define that?  More fundamentally, you’d be really requiring people to change their straightforward fair use to additional restrictions on access. When I make fair use, that’s my speech.

Reid: We’d object to a distribution scheme b/c it transforms an exemption that’s supposed to look at the moment of circumvention (unless post circumvention behavior is probative of intent) into a regulatory regime for downstream distribution. Far beyond what Congress intended to delegate to CO. Raises 1A concerns too—conditioning distribution of speech on further tech restrictions.

A: Congress has said for 110 that tech protections are required. Evidenced a willingness to go that far.

Reid: no evidence in the record. If you’re thinking about that, we need more opportunity.

Midgley: we need to think about this but really shouldn’t put a mini 110 in this exemption.  [Yeah, no kidding.  110 is for uses that might be otherwise outside the scope of 107 or need extra certainty because of the institutional features of face to face teaching. This exemption isn’t sought to implement 110, in which case compliance with 110 would be reasonable as a requirement.  Instead the exemption is sought to implement 107, and you actually have a right to distribute a fair use (indeed, it’s hard to think of a fair use case that didn’t involve both reproduction and distribution).]

Donaldson: See the negative effects of the current regime heartbreakingly w/editors and directors who move from doc to not and want to do what they did last month and all of a sudden it’s a criminal act.  It’s one thing to have a marketing definition of a documentary. But acts legal in May are now illegal in June when the person switches to a different project and that’s bad.

Antkers: will respond to the demo in LA.  [My reaction, not being able to comment on quality given the fact that I was watching a YT stream of a camera recording of a screen, is that the demo missed the most important step, which was the creation of the clip in the first place; I’d sure like to know how exactly that clip was created before it was incorporated into an ebook.]

Lerner: Bobbette Buster, client of UCI. Can confirm she’s still working on her book. Others have personal delays, but evidence doesn’t need to include examples for every possible issue. Evidence can also include evidence from experts about creative practices. That’s more than sufficient to meet our burden especially given the utter absence of concern about piracy or increased unauthorized sharing as a result of changing the exemption.