Self-dilution

Apparently I'm not the only one who felt cheated by seeing Star Trek on an "Imax" screen that looked just like a decently sized multiplex screen to me. Turns out that now Imax screens can be small! Imax thinks no rebranding is necessary to distinguish sizes; I know that I now have a very different, and negative, impression of the brand as a whole. I'll be sticking with the Uptown where possible for my blockbusters, thanks, and as for paying extra for Imax: unlikely, unless I confirm screen size.

Think of it as dilution in action

Overheard in New York:
Burnout #1: Yo, is the Dove company that makes chocolate the same Dove company that makes like lotion?
Burnout #2: Man, what are you talking about?
Burnout #1: I'm just wondering. I was eating Dove chocolate the other day and it said it was "extra creamy." I'm just...ya know...what kind of cream you think they use?

At least he didn't violate the DMCA

Allen v. American Apparel involves a billboard, marked “American Apparel” and featuring a still of Woody Allen dressed as an Orthodox rabbi. Defendant’s summary judgment brief, via Marty Schwimmer, is a bold attempt to have Allen’s false endorsement suit dismissed on First Amendment grounds. Apparently, while watching Annie Hall, Dov Charney was struck by the similarities between his story and Allen’s. “In a moment of artistic inspiration, Mr. Charney … began the process of taking digital photographs of certain scenes from the movie. Using the controls on his television recording system, he searched for and paused the Annie Hall movie on precisely the scene that had inspired him—the scene in which the Alvy Singer character at that table tilts his glasses upward. He then manipulated the digital photographs using a computer program, adjusting the color, the clarity and other artistic aspects of the photographs, all in furtherance of his artistic vision.”

Bonus question: if California law applied, would the inverse of the White v. Samsung rule be that if nobody recognizes Allen, no violation of the right of publicity occurs?

Presumption of causation saves Lanham Act claim

Champion Laboratories, Inc. v. Parker-Hannifin Corp., 2009 WL 1269624 (E.D. Mich.)

The Lanham Act is broader than the common law of product disparagement in a variety of ways. This case illustrates one having to do with presumptions of causation.

Champion claimed that Parker-Hannifin’s Racor division disparaged its fuel filter to GM in an effort to get GM’s business, which Racor had previously lost to Champion because Champion made a similar, but cheaper, version of Racor’s Duramax filter. Duramax is a GM turbo diesel engine. Racor was GM’s Original Equipment Manufacturer (OEM), meaning that Racor made the original fuel filters inserted into the Duramax engine at the factory. Champion got a contract with GM to furnish replacement Duramax filters to GM service providers, which Champion initially fulfilled by purchasing Racor filters. This, unsurprisingly, wasn’t very profitable for Champion, and Champion began to design its own Duramax filter, which was later patented. After extensive testing, GM approved Champion’s filter, and Champion started to use its own filters for aftermarket parts. Racor is still the OEM supplier.

After Champion stopped buying Racor filters, Racor sought to regain the aftermarket filter business. It learned that the only way to reverse GM’s decision was to show that Champion’s filter didn’t meet GM’s requirements, presented a safety risk, or was defective. GM was extremely concerned about the filters because GM had previously paid out $100 million in warranty costs to replace fuel injectors in Duramax engines before starting to use Racor’s filter. Thus, Racor’s sales team asked its engineers to test the Champion filter, looking for deficiencies. The Champion filter performed at least as well as the Racor filter in the usual tests. Racor engineers began looking for a test to show Racor’s superiority in filtering out ultrafine particles (smaller than four microns), damage from which had been the source of many warranty claims for GM (such particles can pass through the filter and damage the fuel injectors). However, there was no standard testing method to measure these small particles. One Racor engineer expressed concern that he wouldn’t be able to defend such an unprecedented procedure.

Ultimately, Racor used gravimetric testing, measuring the weight of particles that passed through the filter. They got “some pretty wild results” on Wix filters suggesting Racor’s superiority, and the engineer recommended that Racor not share the data with GM until they could “get the whole picture.” The sales team, which was meeting with GM that day, did not heed this caution, and even labeled the test results as head-to-head Champion v. Racor in its presentation. The sales team also suggested that other parts of the filter were difficult to service, subject to leaks, and otherwise inferior. As it turned out, the tests run on Wix filters gave very different results from the tests run on Champion filters (even though they were from the same manufacturer). In fact, Champion and Racor filters performed about indistinguishably on the gravimetric tests. There were also no leaks during testing.

In the face of these further results, Racor persisted in its campaign against Champion, highlighting its long and fruitful relationship with GM and its successful development of a Duramax fuel filter that filtered out contaminates smaller than four microns. It also asserted that Champion was infringing on Racor’s patents and stated that it had sued Champion and other competitors for patent infringement, as well as questioning the quality of the Champion filter. Indeed, Racor stated that in previous tests “competitive product failed and leaked fuel, posing a significant safety hazard,” though it later “expanded” on this to say that neither filter leaked during impact testing.

GM forwarded the presentation to Champion, which responded with test results of its own—and with a lawsuit alleging false advertising under the Lanham Act, trade disparagement, business defamation, and interference with contractual relations.

Racor “clarif[ied]” some of its claims to GM, among other things explaining the Wix/Champion differences and requesting that GM disregard the gravimetric test. Nonetheless, GM awarded Racor the aftermarket business “due to unknown validation risks and the past issues we have had on this product [GM] determined that it is too much of a risk to continue with the Champ design.” Legal input about another lawsuit also factored into GM’s decision. Neither party deposed GM about causation. Champion lost 60-80% of its fuel filter business as a result.

Racor argued that Champion couldn’t show a causal link between the alleged falsehoods and GM’s decision. Champion argued that, because the comparative statements at issue were literally false, it was entitled to a presumption of causation and harm sufficient to survive summary judgment. The court agreed.

Racor then contended that its presentation to GM wasn’t “commercial advertising or promotion,” because it was not sufficiently disseminated to the purchasing public. The requisite level of dissemination varies by industry. The market for Duramax fuel filters, designed specifically for GM, is “relatively small.” GM is, in essence, the market. Thus, the presentation was enough to trigger the Lanham Act.

Next, Racor argued that its statements weren’t factual, only opinion. According to Racor, results allegedly from testing showing “significantly lower efficiency”; claims that the lip seal “almost always … [gets stuck],” “is difficult to remove,” and may “allow the [maintenance] tool to scratch and damage the sealing surface”; claims that the o-ring design created the possibility of leaks; and so on were all illustrating potential problems relating to structural deficiencies. As the court pointed out, Racor was confusing opinion with factual speculation. Racor asserted facts, supposedly based on tests. The presentation purported to offer data, not personal beliefs.

Finally, Racor argued that Champion couldn’t prove literal falsity. Racor’s own internal emails from its engineers sufficed to create a jury issue. Among other things, the engineers wrote about “far different results” in the Champion filter tests compared to Wix and noted that “[I]t was dangerous to give GM these first day test results without us having an idea of the limitations of our test method and understanding the implications ….”

On trade disparagement/injurious falsehood, Racor argued that there was insufficient evidence linking the disparaging statements to GM’s decision. This state-law tort does not have a presumption of injury arising from literal falsity, so Champion could only rely on the time that lapsed between the presentation and the decision; though the decision may have been made soon after the presentation, that was insufficient to show causation, and Racor prevailed on summary judgment. Similarly, Racor succeeded on the argument that the business defamation claim couldn’t survive because Champion couldn’t show that Racor’s statements prejudiced Champion in the conduct of its business or deterred others from dealing with it. And finally, Champion’s interference with contractual relations claim failed because there was no proof of an underlying breach of contract.

Google Books and visual culture

Or the absence thereof. Here's a lithograph from c. 1845, removed from Google Books because it's "copyrighted." Another reason to worry about the difference between Google access and traditional access.

MeTube

Fred von Lohmann of the EFF put me on YouTube, explaining why the DMCA serves as a biased digital literacy test and digital poll tax on fair use.

Copyright Office DMCA Hearings recordings

Just a note that Fred von Lohmann of the EFF has put up yesterday's panels, including my testimony and that of Francesca Coppa (Muhlenberg/OTW) and Tisha Turk (U Minnesota and part of OTW's vidding project). We're on May 7, Panel 1--our statements are part 2 and the Q&A is part 3. Many thanks to Fred for this public service!

Copyright Office DMCA Hearings: Noncommercial remix

I zipped and uploaded a set of Fred von L’s recordings, so as not to overload Fred’s personal page.

Rebecca Tushnet: I’m here to support the EFF’s proposed exemption for AV works on DVD where circumvention is undertaken for the purpose of extracting clips for inclusion in noninfringing noncommercial video.

The adverse effect on fair use the EFF’s proposed exemption addresses is on the whole system of fair use. The technologies at issue here are important because they are readily available to individuals and, to a layperson, especially to the artists who are inventing remix culture on the fly, they are not distinguishable from other readily available technologies; the current regime is a trap for the unwary.

The joint commenters concede that there is a substantial amount of noncommercial fair use by ordinary citizens, which is by definition noninfringing. The statute requires us to show an adverse effect on noninfringing uses; once that effect is shown, an exemption is on the table. The alternative is to say that some noninfringing uses, especially fair uses, just don’t count. It’s worse than that: there’s a Catch-22—the oppontents say that we need a judicial determination of fair use before an exemption is justified, but we can’t get a judicial determination if noncommercial fair users will inevitably lose under 1201.

The proposed exemption is limited to a class of works where there is a demonstrated problem: works on DVD, not Blu-Ray or other media. It’s limited to a class of users with particular difficulties: noncommercial clipmakers who are in the worst position to know the distinctions between technologies the opponents of the exemption think they should be making.

The idea that DVD clipping is simply a matter of convenience compared to other methods is deeply flawed as applied to noncommercial remix. Yesterday’s distinction between inconvenient and abnormal is useful here: it’s abnormal to distinguish between methods of getting a digital file and so it’s no wonder fair users don’t know that they’ve walked into a trap. As we’ve heard from the joint commenters, some of the best copyright lawyers in the business cannot tell whether SnagIt counts as circumvention—nor apparently can the Copyright Office—and most artists aren’t lawyers.

An institution with substantial and varied technological resources may be able to figure out workarounds, but individual citizens participating in political, cultural, and artistic exchanges don’t have AV departments. What we have here is essentially a digital literacy test and a digital poll tax imposed on fair use. The literacy test, as you may recall, required prospective voters to interpret an often arcane provision of the law. Here, the test proposed is that they understand that a digital file created in one way is illegal, while a similar, albeit degraded, digital file created another way is fine.

Then there’s the poll tax: you have to purchase the proper equipment to create the second digital file. It’s expensive and nonstandard for an individual artist—we were offered the prospect of using a $900 camera, plus a several-hundred-dollar tripod, plus a large flat-screen TV in a large, completely darkened room. The noncommercial artists we represent are often pink-collar workers; $900 is regularly more than a month’s rent for them; it would be a crippling requirement. And they don’t ever get paid for the works they create. This is not an investment for them. This is their free speech; this is how they react to popular culture—addressing it, critiquing it, changing it.

And the poll tax is inherent in the responses from the opponents of an exemption: their argument that camcorders somehow preserve the technology inherently presumes that the camcorder solution is one that won’t be used by fair users and therefore fair uses will be suppressed. To the contrary, the possibility of camcording proves that the proposed exemption will not cause any harm to the opponents. They say camcording is easy and is good enough to watch. In that case, that’s the mode pirates will use. They cannot maintain that camcording is a substitute for fair use clipping and also that the exemption will degrade protection for CSS compared to camcording.

We got rid of the literacy test and the poll tax because they deterred people from participating –people whose voices weren’t heard otherwise. We did this even though some brave people defied the laws and persevered. Some even managed to register and vote. The problem was all the people who didn’t have the time or the energy or the resources to persevere, and all those who looked at the costs and didn’t even bother to try. That’s the problem here.

Any distinctions between output files should make sense from the perspective of an ordinary user. Fair use is a reasonably intuitive concept, as is the distinction between transformation and pure copying. Indeed, the Center for Social Media has also developed best practices for fair use online video, along with best practices for filmmakers. It is nonsensical, even contemptible, that one way of making a fair use remix is illegitimate and another is legitimate. The last thing that copyright law needs is another rule that doesn’t match up with individuals’ understandings of reasonable copyright rights. It will deter risk-averse remixers from making fair uses and even the ones that continue may find themselves unable to assert fair use defenses for fear of DMCA liability regardless, as Fred von Lohmann of the EFF testified and as we’ve seen at OTW in our conversations with remixers who have received takedown notices, wanted to make fair use claims, but decided that they couldn’t because they were unsure about the method they used to capture the clips.

This has a substantial deterrent effect on the development of fair use jurisprudence.

The exemption process inherently contemplates that the DMCA may interfere with fair use, or any other noninfringing use, so much that an exemption should be granted. Especially when the opponents concede that the technology is widely available and widely used, such that deterrence arguments are simply implausible, it is arbitrary and even cruel to tell the noncommercial fair users who do want to fight for their uses that it is too late for them—they should have gone to law school before they started remixing.

The opponents of exemptions have mentioned enforcement concerns: However, the proposed exemption only applies if there’s an underlying fair use—copyright owners are free to challenge anything that they don’t agree is a fair use, and indeed we welcome the opportunity to develop fair use jurisprudence in the context of noncommercial transformative uses.

No noncommercial creator would say “I know this isn’t fair use, but the prospect of statutory damages isn’t enough of a deterrent; only the additional prospect of DMCA liability is enough to prevent me from infringing.” Thus, any extra deterrence achieved by the absence of an exemption is only achieved by deterring fair uses. The public shouldn’t have to subsidize copyright owners’ enforcement decisions by being forced to forego fair uses.

The enforcement concern is mistaken in other ways as well. As we’ve said, and as the joint commenters readily concede, that these technologies are already widely available on the internet. But that’s not as important as the bigger point: these technologies are not great ways to infringe; they’re great ways to get clips.

Downloading a 700 mb movie at 2 megabytes per second, a fairly standard broadband speed, takes roughly 45 minutes—less time than it takes to rip specially chosen clips, or even to rip a high-quality version of a whole movie if you were inclined to do so.

And this ties back into the point about making the law comprehensible to ordinary people—it is laughable to ordinary artists that downloading an entire movie or TV show is less problematic from a circumvention perspective than buying DVDs—providing the copyright owner with remuneration—and then making short clips.

Screen capture software has also been offered as a solution. We want very badly a real answer from the joint commenters about this; we note that if using a camcorder on the screen is not circumvention, it is hard to see why using the screen as a camcorder would be, as Rob Kasunic pointed out.

However, screen capture does not produce clips of sufficient quality to make the artistic point that our artists want to make. Other experts will testify about the importance of high quality to remix artists, though I will say that we would not tell other artists that they could only use crayons and not pencils, or paraphrases and not quotes.

One random example of how quality is important to show you things that aren’t easy to see in the original: a video called “How Much Is That Geisha in the Window?”—a critique of a science fiction series, Firefly, by Joss Whedon. Firefly is supposedly set in a future where Chinese and American influences are about equal. Low-quality doesn’t let you see what you need to see, which is the details of the Asian setting, the constant references to Asian cultures, and the fact that nonetheless there aren’t any Asian characters except in deep background—the critique is meaningless if you can’t tell why the artist is complaining because one pixelated person looks pretty much like another.

All the suggested alternatives end up limiting the source materials that people will draw from in various ways. There’s a wide range of people creating out there and a wide range of creative practices. Some potential fair users will be discouraged because they misunderstand the distinctions between technologies. And well they might. Without an exemption, the rules trying to distinguish technologies will be arbitrary because they don’t relate to the nature of the artistic activity—the output.

A separate point about screen capture software: it does not work on many systems and with many DVDs—I know this from personal experience as well as from conversations with others, including Roger Skalbeck, who testified yesterday—it appears that content owners are using mechanisms to prevent screen capture software from working.

Vista already includes a variety of new technical protections measure for video content (Protected Media Path). It was put in there at the insistence of the MPAA companies, as a condition of making digital formats like Bluray available. One of the stated design goals of PMP was to block "screen capture" tools like Snag It and SnapZ. PMP is already deployed in every Vista PC that has shipped, and every one that will be shipped in the next three years.

Just as neither institutions nor individuals should be expected to hang on to their VCRs forever in order to take advantage of obsolete technologies, neither should they be expected to hang on to old operating systems so that they don’t fall prey to new mechanisms of defeating fair use.

Indeed, the movie studios and their partners have a very strong incentive to begin implementing additional measures to block "screen capture," as those tools will otherwise make all next-gen video formats vulnerable. A DVD exemption is actually a much more targeted way of addressing the current problem.

Finally: some of the discussion until now has suggested that fair use is only for the elite, the educated. That’s not the right way to think about it. Fair use is for citizens. This exemption is the only way they will be able to do it and defend their fair uses.

Francesca Coppa: Historically remix comes out of minority culture: racial minorities, women, gay/lesbian/bisexual/transgender/queer cultures. The remix we work for comes almost entirely from minorities. Vidding—a female-dominant form of remix, recontextualizing and critiquing popular culture. It’s a visual essay responding to pop culture using its own language. Art and cultural commentary that doesn’t happen inside the academy or high art circles. Recently being brought into museums and other high art; New York magazine singled one out as best of the year. These practices are analogous to collage art, MoMA appropriation art.

One of the reasons I’m not showing vids: they are often made to show at live gatherings in bigger screens, made in very high resolution as a form of art. Vidder might offer a HQ download, 90 or 100 megs. Some vidders might put a streaming version online, but others won’t because of the quality degradation; streaming often serves as a preview.

What vids do: “How Much Is That Geisha in the Window”—vids often emphasized the thing that was not foregrounded in the frame. A vid may draw your attention to something that is not obvious. A high quality file is important because you’re trying to emphasize patterns not apparent in the original. In “Geisha,” that means paying attention to how human beings are treated as exotica. “Women’s Work” is about Supernatural, which features no sign of the stars, and instead focuses on the women who are there to be cannon fodder/motivation. By editing these one-time-only characters into the foreground, you learn more about the ways in which women are used as props. “Wouldn’t it be Nice” surveys the buddy cop genre to make an argument about gay marriage, recontextualizing them. “Martina” shows a character who’d previously experienced a sexual assault tracking down a serial rapist, artistically trying to articulate the show’s insensitivity to how that character would have reacted.

Vidders are cultural critics and fine artists. They don’t simply watch, but make things with footage. They strategize to draw your attention to things you weren’t supposed to see. You need to see the chair in 12 Monkeys to see the copyright infringement issue. With vidders, it’s often facial expressions or characters that you need to see clearly.

Where’s the harm? Vidders communicate through a series of online tools. Increasingly, often due to algorithms, material is subject to random takedowns. YouTube did a big purge in January. Many of them provide dispute mechanisms. If you make a fair use, you should be able to dispute. We’re finding because of lack of clarity, some people refuse to dispute. In one particular instance, Coppa encouraged a woman to dispute, and the woman’s daughter had made the vid so she didn’t want to bring her daughter’s process into question.

Coppa has started to write about vidding because these people already represent marginalized positions. They already don’t see themselves in popular culture, that’s why they’re vidding. Female vidders have historically been reluctant to step up and claim cultural legitimacy. Vidders may already be nervous about asserting their perspective. Coppa can’t even clearly tell them what method to use. She can identify a transformative work, but not a process. It’s also hindering mainstream recognition.

It would be a shame if vidders and other cultural critics were forced to work in degraded images. If pop culture has luscious imagery, and you have to speak in ugly form, your work is already marginal and gets worse off by having to look incompetent.

Tisha Turk, U Minn: her academic expertise is novels that rewrite other novels, and that’s a short step to videos that remix other videos. She’s also a remix artist, a vidder.

Remix video doesn’t harm copyright owners. Vidders are terrific consumers. Her DVD collection is pretty impressive, especially for an English professor. Often she buys those DVDs because she saw a remix video from someone in her community. She has circumvention tech and she knows how to use it and yet she buys DVDs; that’s what she does with source she enjoyed. She’ll buy it multiple times. Her videos encourage other people to watch and enjoy the source, saying it’s worth your time.

Turk says: Vidders are cultural critics, but also artists. If I want to write an essay about a visual narrative, I write an essay. Other times, I want to work in the same medium as the visual text, and needs to juxtapose images to embed a critical commentary, in the same way that you have political literature and not just op-eds. We see it in film, visual arts.

Quality is important. Not all digital copies are created equal. As a consumer, I don’t always need highest quality for its own sake. I watch TV shows on Netflix’s Watch Instantly. That’s fine for certain kinds of cultural consumption, if not ideal. When I’m watching for the story, trying to decide whether to buy the DVD, I might use “good enough” source. I listen to mp3s for convenience. When working as a creator, not a consumer, quality is important. I need tools that work.

Much of the time I’m transforming the clip. That means transforming the appearance of the video. I’m not the most tech-savvy, but these are things that I routinely do with clips: change the speed—very common, to match music or to emphasize a particular object. SnagIt clip: suddenly it goes jerky. You can’t slow down or speed up footage that looks like that; you can’t work with it even if you could watch it for the plot. Might want to alter the color to create a different mood. Those clips from yesterday have been desaturated. We know that color affects mood. Garbage source prevents you from doing that, or from matching colors for two different clips. Might need to adjust contrast or light levels. What is that beige blur in the corner? It might be a face. Might want to crop clips, and if you work with low-resolution source and have to crop 1/3 to see more closely the fact that two characters are holding hands, or that something is off to the side, she’s already losing resolution even if she’s working with high quality. If she’s not starting with high quality, she may lose the image entirely. It’s not just a matter of wishing it were prettier.

I don’t want to rip DVDs because it’s convenient. Nothing about what I do is convenient. It’s boring, annoying work that I need to do to make the art I want to make and avoid ending up with a muddy mess that does not show what I want other people to see. One of the first rules of video editing: Garbage in, garbage out. People won’t watch the video, or they won’t be able to see my points. Result: criminalizing the creative process.

Camcording has adverse effects in that I can’t do it. It’s counterintuitive, impractical, expensive—two months of my mortgage for the camera alone, and I’m at the high end of creators. That process limits my ability to comment on the cultural texts to which I want to respond. I am convinced that my videos are fair use, but we can’t test that in the courts without an exemption.

Martine Courant Rife: References yesterday’s testimony. She’s concerned about allowing students to produce texts and still work with outside nonprofit community groups. She wants them to be able to use the skills learned in class outside of class. It’s common for writing students to work with nonprofits; she gives an example from Lansing. She wants an exemption to cover uses where students work outside the classroom. She’s concerned about claims for vicarious and contributory liability. If you give an exemption to one type of person, and not another who is working closely with that type of person, there are risks of claims for vicarious/contributory liability.

1201(c)(1): Should be no affect on fair use. Also asks to revisit the difference between copying controls and access controls. Rhetoric: Plato gave us concepts of rhetoric. Visual media in high quality has more credibility, more ethos. While we appreciate the availability of digital media, the movie industry shouldn’t be able to produce culture that can’t be talked back to in the same basic format.

Bruce Turnbull: Reminding you of what I’ve said before. Main comment: we’re in the wrong room; should be at Congress. This is an attack on 1201. Many of the uses enabled are not fair use. Developing the jurisprudence of fair use is not making fair use. Congress rejected this.

Were you to consider this, it becomes a quagmire of figuring out what’s permitted and what’s not.

Steve Metalitz: Discussed in Palo Alto. The threshold question is whether the activity generally noninfringing—that’s the standard. Vids as fair use are an insufficient basis to justify an exemption that would cover these uses. It doesn’t fit the standard.

Trap for the unwary: It’s clear that no one has ever sprung it. Takedown notices under §512 allow counternotification. There’s been §512 jurisprudence. To think that people are refraining from putback when they might get sued under 1201 when there are zero instances of suit for 1201—it’s nonsensical to think there’s deterrence of putback.

Carson: Rife’s point—you’re really here trying to protect the integrity of CSS as a copy control, not as an access control. People who circumvent are doing so to make copies. Is that fair?

Turnbull: All the given examples do involve making copies. CSS is also an access control.

Carson: Why shouldn’t we take into account that the ultimate concern is the use of CSS as a copy control, and there’s no prohibition on circumventing a copy control?

Turnbull: The job Congress asked you to do is determine whether the inability to circumvent other access controls is impeding the ability to make noninfringing uses. Anything you say here wouldn’t be relevant in a case brought under 1201(b).

Kasunic: In the context of capture: where I put a DVD into my computer drive, obtained lawful access to a lawful copy of a DVD, and then was trying to make a copy from the accessible portion, how is 1201(a)(1) implicated? It’s true that as a general principle CSS is a form of encryption that can protect access, but in the context of how it’s being done, and the uses being made, how is that not a copy control?

Metalitz: I am not going to answer you on screen capture software.

Kasunic: Put aside screen capture. If I have lawful access and I make a copy, is there an access control issue?

Metalitz: That’s the same question. Legislative history says the role of access ends when you have lawful access, but that wasn’t included in the final legislation. There may be terms/conditions on that access, and circumventing access may allow you to do things violating those terms.

Kasunic: There are no terms on a DVD.

Turnbull: The terms and conditions of being able to provide access to the method of decrypting is that there must be mechanisms used in the pathway the content takes to take it to the point of access that avoid copying.

Kasunic: That’s only relevant to the licensees (the DVD player makers), not the end users.

Turnbull: May be avoiding/bypassing under the statute.

Kasunic: Isn’t it fair to say that at least in context of understanding the impact of the circumvention law, Congress did create a rulemaking proceeding? The reason we’re here is to figure out how these tech changes/developments, for example in terms of vidding and new documentary uses, are affecting noninfringing uses?

Turnbull: Unless you’re going to fundamentally rewrite the standard, you can’t do this. A large proportion of what goes on will not be fair use.

Kasunic: If a class of works has to be a subcategory of copyrightable authorship without reference to use/users, we have a very blunt instrument and any use would be on the table. If we found such a class, we’d issue an exemption and allow anyone to circumvent.

Turnbull: The method of defining classes of work has worked in a number of instances. The question of whether you could grant an exemption for the class of works that is motion pictures protected by CSS is different: you undermine the technology as a whole.

Kasunic: If we take the proposed exemption for documentary filmmakers, we aren’t saying what is a fair use; we allow the filmmakers to at least get to that question.

Turnbull: The film professor exemption is where we’ve said, in context, that has the kind of narrow, specific categories needed. Documentary works: there are necessary refinements, but it’s a specific category. The concern about a broader exemption is that it is undefined/difficult to define, where even the proponents admit that some of what will be done under the guise of that exemption is not fair use.

Kasunic: If we grant an exemption, and given that tools/devices exist out there, which we know they do, use of those tools is not a violation of 1201(a)(2), right?

Metalitz: True.

Turnbull: You can take into account in determining whether to issue a 1201(a)(1) exemption whether it would encourage the development of new tools.

Kasunic: Requirements for broadcast gatekeepers. How do you fix those problems with lower quality input?

Quinn: Generally the things sent back to us are not about image quality, it’s technical issues. Time, effort and money can usually fix that. When the quality is degraded, it impedes your cultural commentary.

Morrissette: There’s usually a way to fix it: we get lots of pixelation, bad-looking video, but at least it’s a legal size. Occasionally they will ask why the clips are so bad. People see it. There are ways to fix it without the DVD, but the DVD quality would avoid the issue from the beginning. Comes up far more often with stuff on the internet, processed and quality-lost; copies of copies; wrong frame size; all sorts of problems. Analog transfer is our current stopgap.

Kasunic: Is that also true of FCC compliance?

Morrissette: Yes.

Kasunic: For 11A, can you say more if we were to apply a necessity standard?

Me: This is necessary in two senses: first, people do not distinguish when they’re making the art in the first place. Second, they can’t afford to make the camcorder copies. This is not an attack on 1201. 1201 requires you to examine adverse effects on noninfringing uses. As the statute requires, we are showing an adverse effect on what are concededly fair uses, specific to CSS and specific to noncommercial users who do not have the knowledge or the ability to use other workarounds. Not only that, the exemption is written to protect only fair uses. If it’s not a fair use, then there can be a 1201 violation; we aren’t asking for a standard of arguable fair use. The slippery slope here is that an Article III judge will decide—we end up not even at sea level.

Coppa: This is done with home equipment. You can’t store full uncompressed movies, which are huge. You can store some clips. A laptop with an external drive is not set up to store full uncompressed movies.

Ben Golant: What role does free speech play?

Me: A big one. We’re losing uncounseled fair uses, by citizens who don’t have institutions backing them up.

Golant: Can we consider one of these classes and grant that exemption, and use that as a reason to deny another class because that would defeat the purpose of CSS, cumulatively?

Metalitz: True. Have to ask in each case. Some of these vids are infringing. You’d have to find that they aren’t. If you find a diminution in fair use, you have to find that it’s caused by the prohibition on circumvention. Can’t base it on speculation. There is no evidence that there are cases of people being sued under 1201 for a putback.

Chris Weston: Yesterday we talked a lot about narrowing an exemption in terms of educational use. Is there any way to narrow your proposal.

Me: We shouldn’t pick winners; that’s the core of copyright. The copyright owners can show no harm from the proposed exemption. They concede this technology is readily available and widely used. This is about what happens when a fair use has been made and gets challenged.

What will people think in the presence of this exemption that they wouldn’t have thought before?

Metalitz: Proponents argue that 1201 is unclear, but fair use is crystal clear. That doesn’t accord with his experience. The law on 1201 is clear, and not random. If you don’t know the law, the results do appear random. There’s more that could be done to improve understandings. We know there are some ways to make these uses that don’t involve 1201 liability. And fair use doesn’t entitle you to make the best quality way. Fair use jurisprudence is going along fine.

Morrissette: Are people aware that using the decryption software is illegal?

Me: No, they find out too late. This software is readily available on a simple Google search. They think they’re making art, they think they’re making fair use, and then they find out too late that they were essentially in tax law and needed counsel before they started. Anyone who works with big companies knows that even they only consult with counsel half the time; the other half, they just assume that they can do what they want to do, and only come to you later, when they’ve already done it. And these are individuals without counsel.

Coppa: They think that if you own the DVD, you can vid with it and that’s better than downloading from an ethical perspective. They think they’re being good citizens.

Turnbull: The purpose of 1201 was to enable the technology to allow the content to flow. Exemptions will undermine the technology; if we develop fair use jurisprudence then we lose the technology.

Kasunic: is there mention of CSS in the legislative history?

Turnbull: No.

Copyright Office DMCA Hearings: Filmmakers

Today’s notes are not as reliable a summary as yesterday’s, because of my active participation. (And of course the usual caveats apply to the extent that you want to use my reports as summaries; I strive for accuracy, but I am not a transcriptionist.) I believe the Copyright Office intends eventually to release a transcript on its website, where all the proposed exemptions and comments are also available. Fred von Lohmann of the EFF also recorded portions of the Palo Alto hearings along with yesterday’s hearings, including video of the MPAA camcording demo. You can also watch the MPAA demo on Vimeo.

Begin with 11B: motion pictures and AV works in DVD that are not generally available without CSS when a documentary filmmaker is enrolled in a film production course at a postsecondary institution or is a member of a documentary filmmaker organization, when making a specific documentary for which substantial production has occurred, and when the material is in the public domain or its use would be fair use.

Gordon Quinn, Kartemquin Films: Makes nationally broadcast documentaries, including Hoop Dreams and The New Americans (immigration); Terra Incognita (stem cell research) just won a Peabody. Important participants in culture and democracy: contextualize real stories. Most documentary filmmakers belong to at least one documentary organization.

The prohibition is burdensome, intimidating, and impeding fair use and use of public domain materials. The exemption is for filmmakers who are relatively educated about what fair use is and isn’t. This is the bare minimum: only for CSS. This is just the fair use we’ve relied on for decades. The alternatives don’t provide the proper quality, as Jim Morrissette (technical director) will testify. Most documentarians don’t have technical directors with engineering backgrounds. Many things he shows/can do are unavailble to even very good documentarians. It causes Kartemquin a great deal of grief, but others suffer even more.

Fair use is critical to documentarians, which is undisputed. Filmmaking has a long history, and is more predictable than other types of fair use.

DVD is the default distribution format for now. We anticipate it being so for the next 2-3 years. How we use fair use: Refrigerator Mothers (the story of the mothers of autistic children from the 50s & 60s, told by experts that they caused their children’s autism). We show the hold of Freudian psychology on 50s and 60s pop culture, putting a lot of weight on mothers for failing in lots of ways—show excerpts from feature films, off DVDs, magazine articles, etc. It’s critical to the film, but very short, because we don’t take more than we need.

Alternatives are not adequate to achieve the quality necessary for broadcast/theatrical distribution. Also they’re expensive and difficult.

Opponents have suggested solutions that further burden fair use. Licensing as an alternative undermines the purpose of fair use. Center for Social Media study on Untold Stories showed that licensing didn’t work: high and increasing fees; broadcasters demand broader and broader distribution rights from documentarians, but copyright owners are unwilling to license that broadly. Still an unresolved issue.

But fair use is not licensing. The New Americans includes an interview with a Nigerian immigrant who says Coming to America is a favorite movie in Africa, because it shows how little Americans know about Africa. They tried to license a clip, even though it was clearly a fair use, and failed no matter how persistent they were. The film was weaker because of it. Standard studio licensing provisions prohibit criticism of the studio, the industry, the executives, the character, or the film: he showed a standard licensing provision. Along with restrictions on criticism, the license is void if the MPAA rating is more restrictive than “R.” The heart of fair use is that we have to be able to criticize, comment on, and put things in context.

We do license things all the time: we don’t say everything is fair use. We expect to license when that’s appropriate. But we expect not to have to when fair use legitimately applies: ownership can’t prohibit free expression.

Good faith effort to obtain unencrypted copy from copyright holders: has the same problems as licensing. These are the same people who’ve given us so much trouble over the years in licensing. We need the right to participate in the culture of the community, critique things in society; we shouldn’t have to ask permission. Can lead us on wild goose chases—we sometimes go to the artist in cases of fair use, but we shouldn’t be required to do so. This can also create requirements to pay lab fees. You may have the DVD and yet when you go to the copyright owner, all of a sudden the owner tells you it needs to be redigitized at a very high price.

In our work, there are a lot of clips from a lot of things—a montage. Creating a new thing to show the culture of a period, or how people have been treated in certain kinds of media. If each one has to go through a lab process, that adds up.

Suggestion to add “solely” to the class—“solely” for use in a specific documentary film. We don’t object to that change for clarity. We don’t see harm to copyright holders, which is important because we are also copyright holders. We distribute and sell DVDs, some of which have CSS. Our proposed exemption is narrow and could not be used for infringement by consumers watching something they didn’t buy. It would only apply to the established documentary community; the likelihood of misuse by a documentarian is low; the community is professional, thoughtful, and responsible about fair use. (Comment: You must be this tall to make a fair use!) Because of best practices, we can now get E&O insurance for our films when we make fair uses, which used to be impossible.

Copyright owners retain their rights and remedies.

Today, almost all public domain material is bundled with newer, copyrighted material on DVDs, such as extra features or a new soundtrack. Thus, we need to be able to access the public domain material on those DVDs.

We’re not asking for anything broad, vague, or unfocused. We just want fair use itself. As much as we need and no more. Not trying to open up the barn door to random pirates, and we’re a very defined class of people who have spent a lot of time and effort getting educated on fair use.

Jim Morrissette, Kartemquin Films: Technical director; worked there for 30 years. Almost all productions come to him to be fixed. How he deals with analog alternatives to CSS, and resulting problems that affect the ability to get the shows on public TV. It’s been suggested that we could use VHS. We have used VHS, but it’s universally accepted that image quality even on a brand new tape is vastly inferior to begin with. The problem doesn’t stop there. Availability: VHS is no longer being made. Older tapes: for our stem cell movie, we wanted a clip from Sleeper. We first couldn’t find a VHS copy in the Chicago area; finally interns found a library copy. To get it into the program, a zillion steps were necessary to get it broadcast quality.

Play the tape; run through a time corrector to remove Macrovision analog copy control; turned digital. Because of the time corrector, video levels were off, leading to image degradation; must adjust video levels. Recorded output to digital VCR, leading to analog to digital image degradation. Required adjustment of black level. And required cropping head switch, black lines at the bottom of every VHS tape, which consumers don’t see but broadcasters do. Frame size must be adjusted, and then the file must be rendered, causing more degradation.

There are hidden signals: switch, blanking, color—broadcasters (and the FCC!) insist that they must all be within a very narrow spec. If any clips are not within spec, they must be fixed, and fixing them is not easy.

Camcorder alternative: Used to record live TV before videotape was invented, called Kinescope then. The necessary steps raise even more issues in the transfer, setup, and postproduction. Loss of image resolution, warping and other perspective problems, visible scan lines. Setup requires precise camera alignment, audio line-in, color balance, dark room/hooding the camera. If you aim a little too wide, you’ll get the set; if you aim too narrow, you crop and degrade the picture.

More serious technical issues in yesterday’s demo. All HD cameras are widescreen, 16:9 unlike the 4:3 standard def. A SD camcorder could only shoot a square screen, meaning the result is black bars on top and bottom, which degrades the image even further. The source was dark, fast-moving, quick-cutting: an excerpt from Harry Potter. It was impossible to tell whether the image was jerky, flickering, whether the colors were true. If you’d chosen a presidential speech where you could see a human face and judge color, it would be easier to evaluate. We also didn’t get camcorder compared to DVD; instead they compared to a downloaded, compressed, QuickTime file, which of course didn’t look better. That wouldn’t pass public TV standards.

Once the camcorder recording exists, you’re not done. If it’s HD, and you’re making SD, you have to downconvert.

Another alternative: use a black box to record a computer screen. Scan conversion boxes, often used for people making training films. Computers don’t play video the same way TV plays video; they play progressive. Broadcasters want interlaced, which is what comes out of the DVD. The change from interlaced to progressive back to interlaced cuts image resolution in half. There’s also a sync problem with the audio—the delay from conversion can be ½ a second. You have to resync. Scan converters cost $1800 and up.

Third method: use software to record the screen. He’s tested some, including SnagIt, JingPro, and others. They may be acceptable for low-resolution web clips, but unacceptable for our use. They can’t capture the full frame rate of DVD: 30 fps. Even on a quad-core Intel Mac, they’re lucky to get 15 fps. Result: jerky motion. Also very difficult to define precise part of the picture to record. If you get it wrong, your file has to be blown up or cropped or otherwise manipulated to get proper frame size. There are only 3 frame sizes allowed for broadcast; you can’t be wrong, and resizing degrades image quality.

What do we do now: Analog hole. It’s similar to the VHS process. DVDs have Macrovision, so analog output is not directly recordable but must be run through expensive time base corrector to strip that off. Record on digital VCR. Problem: you’re starting with an analog signal out of the DVD player. If you compare analog to digital, it’s night and day: composite signal is blurry, colors are washed out. There’s also an issue with black levels, which affects not only the look but also whether public TV will accept it. Analog black level is higher than digital. You thus have to modify the black level coming out of the DVD player, carefully so you don’t degrade image quality more than necessary. Digital tape must be transferred to computer file. Rendering again creates image degradation.

Even with all his expertise, we still have to send our programs out to a high-tech gatekeeper, one of the approved public TV quality control intermediaries. These issues are grounds for rejection from broadcast. We have to fix them, which is an additional burden in time and money. It’s a key point that it’s not just that we need “good enough.” If we were showing a clip in a classroom, some of these other methods might be good enough, even though they’re a heck of a lot of trouble in time and effort. But if we want national TV broadcast or cable dissemination (many cable channels are equally picky) we need better. Analog conversions stand out as visually and aesthetically awful, and often have to be replaced.

A lot of filmmakers can’t afford this and just give up. If we get this exemption, we can extract the right frame rate, aspect ratio, black level, etc. and just use them. When we make fair use, we only need short clips. We never convert more than we need. It’s not like we have a decrypted copy of a movie sitting on a hard drive for an intern to take home. It’s a lot of work.

Bruce Turnbull, DVD-CCA: Keep yesterday’s comments in mind, especially with regard to the standard for a class of works. Primary concern: viability of DVD-CCA’s technology. CSS enabled the development of DVD market and is critical to its commercial viability. DMCA was enacted with CSS as an example of technical protections available at the time.

These uses are commercial in nature, not educational. The educational exemption was deemed necessary for pedagogical purposes, but here we don’t have that same quality.

Almost all DVDs today do not enable Macrovision, so in the future one of those steps won’t be necessary for most movies.

We understand the limitations of MPAA’s presentation on camcording. The point being made was that the camcorder option has become a viable one in light of the development of technology both as to the nature of the screens being filmed and the type of cameras being used. Professional filmmakers shouldn’t have great difficulty in terms of sizing the image. We compared the result to what the film studies professors said they wanted to use in their class. (Actually that’s not true: Decherney doesn’t use the compressed QuickTime version to teach—he sent it in for display on the Copyright Office website.)

Also documentarians don’t have the same time constraints as educators. The film studies profs have 50-minute class times and make revisions to lectures the night before. Filmmaking is lengthy, and the filmmakers can use the alternatives. (Of course filmmakers have other constraints, as detailed above.) In each rulemaking, DVD-CCA has said it welcomes people to come talk to us about specific needs; no one has ever done so. The market should work this out by negotiation with DVD-CCA. (What does DVD-CCA propose to do? Can it authorize circumvention of particular works? Will it hand over clear copies?)

Steve Metalitz, joint commenters: The proponents have made a good effort to bring the proposal within the existing framework, in contrast to 11A. Still problems: Noninfringing use; alternatives; narrowing.

The Office needs to decide whether the prohibition substantially impedes a use that is in fact noninfringing—a consistent standard. Are clips in documentaries clearly noninfringing? Sometimes yes, sometimes no: Elvis Presley case—documentary was found not to be fair use. Not suggesting that Kartemquin is an infringer, but the office isn’t in a position to recommend an exemption unless it’s in a position to determine that the use is noninfringing. This is inherently more difficult when the basis for the claim is fair use, inherently a case by case determination. The proposal uses proxies: membership in organization or enrollment in film course. That is supposed to up the chances that the result is fair. But why does that make you more likely to make a fair use? In many of Decherney’s film programs, students apparently never touch a camera; we don’t know what they’re taught about fair use. (He’s conflating film production with film studies. It’s like conflating potterymaking with art history.)

Alternatives: One is licensing or nonobjection; the second is scan conversion/camcording; the third is use of other digital formats. It’s important to clear up that fair use is not the same as noninfringing use. Fair use doesn’t require permission, but a permitted use is noninfringing. If people who wish to circumvent can get permission, the test of the statute is satisfied because they can make noninfringing use. You can make fair use without obtaining clips. Corley again: fair use isn’t a guarantee of access to preferred techniques/format. You don’t need permission to make fair use, but you also don’t need to circumvent.

Time Warner: 368 instances in which they permitted/didn’t object (to what? They didn’t give clear copies). If lab fees are the cost of a higher quality clip, that’s not an impediment flowing from the prohibition on circumvention. Lab fees are sometimes charged by studios.

Scan conversion: We’ll look at Morrissette’s information and have tech experts react to that.

Final point on alternatives: the submissions overlook an increasing number of digital formats that aren’t protected by access controls used to distribute at least some of the material. Hulu and network sites: much of the video provided there is in the clear. Increasingly other digital formats will be accessible without circumvention.

Narrowing: We don’t think it’s appropriate to refer to public domain material, because no exemption is needed. We don’t think it’s right to refer to fair use. If that becomes an element of these exemptions, then we’re down the road to saying a noninfringing result is ok. That’s not what Congress authorized. Any exemption should have a necessity requirement: documentation of a good-faith effort to obtain the material without circumvention. Should clearly say that the exemption is limited to DVDs protected by CSS. And should be clear who can exercise the exemption. Defining exemptions by use and user is distressing.

David Carson: Who can exercise? What do you mean?

Metalitz: Exemption is drafted in passive voice. Is the documentarian the person who can circumvent? Or can his agent?

Carson: Reactions to proposed conditions—public domain, §1201 doesn’t cover PD material?

Quinn: You have a DVD. It has PD and non-PD material, and the whole thing is encrypted. That’s more and more common. Also: the idea that there are new digital sources—these things on the internet are not broadcast standard. They are incredibly problematic.

We educate on the Presley case all the time, expanding understanding of fair use. We are concerned with linedrawing, and the best practices for documentary fair use are about that.

Rob Kasunic: Give us some idea of what kind of PD material you need to get from a protected DVD. News reels? Why not go back to source?

Quinn: for certain old feature films, might not be available in any other format. We often will go back to source if we can. Historical documentaries have a big issue here. Other filmmakers use stuff from early days of film, old news footage: some is available and some isn’t. It’s often bundled.

Metalitz: Bundling occurs, but that didn’t justify an exemption in 2006. Circumventing access control on public domain material is not a violation of the statute.

Quinn: But breaking the encryption on the bundle is what concerns us. Also, the alternatives look like crap. When you’re commenting on culture, particularly on feature films: feature films are very sensual, very visual. Sometimes it’s important to preserve that quality so people understand why the films created the emotions or attitudes they did. It doesn’t have to be what you see in the theater, but it has to approximate that.

Turnbull: 1201 doesn’t cover public domain works.

Carson: OK, so what about the bundle to which CSS has been applied?

Turnbull: Yes, the DMCA applies to the bundle. But if you had a straight PD work, no prohibition.

Carson: So, there’s a consensus on your side that circumventing a bundled work to access the PD material does not violate 1201?

Metalitz: It’s not within the scope of this proceeding.

Carson: Answer the question?

Turnbull: Turnbull was answering the question as applied to a non-bundle. Your question is more complicated. And of course the “tools” prohibition applies anyway.

Carson: We’re not dealing with tools; that’s not productive. We want evidence of the magnitude of the problem: how often are PD works bundled and you can’t access them otherwise? In prior proceedings, we had a paltry showing. Maybe the situation has changed.

Another question: Metalitz argued that any exemption shouldn’t refer to fair use. But putting it in the proposal on the face of it narrows the exemption, because there are other noninfringing uses. Are you saying don’t mention fair use in an exemption, so documentary filmmakers can simply circumvent?

Metalitz: If in fact the use is infringing, it may still be a violation. Our concern is that by defining an exemption in terms of a class used by certain people in a certain way if it’s fair use, we’re concerned about the short (or long) step between 11B and 11A. 11B has elements attempting to serve as a proxy to ensure the use is noninfringing, which is the standard you’re supposed to apply. One red line you can’t cross is to say “circumvention for the purpose of making a fair use.”

Kasunic: Yet this is an attempt to narrow a noninfringing use.

Metalitz: If a documentary filmmaker who met these qualifications was going to make a movie, but ends up being an archival copy in a library, then would it not apply? It’s true, the only noninfringing use they’ve talked about are fair. But their burden is to show that the uses enabled by the exemption will be fair/noninfringing.

Carson: What about requiring a good faith effort to obtain material without circumvention?

Quinn: That’s one of those vague things. Who would supervise a good faith requirement? We make a lot of good faith efforts to reach people for licensing, and that becomes very difficult. We went to a lot of effort to find a copy of Sleeper. We’re researchers, but documenting it for a litigation purpose, making us vulnerable to a lawsuit, would make it very intimidating. In many situations we go directly to an artist and tell them even when we think it’s fair use. What kind of vulnerability would that requirement open us up to? We live with the fear of going back to the situation 5 years ago, which is that fair use was off the table because of fear of liability. Contracts required everything to have been licensed, the only exceptions being under the table/“don’t ask don’t tell.” That happened because the people telling us now to make a good faith effort were so aggressive that we thought we’d lost the right to make fair use as they threatened broadcasters. We’ve pushed back as a field and the broadcasters have some backbone. The alternative is damaging to our democracy.

Carson: what about asking permission? If they say no or impose unreasonable restrictions, you can circumvent.

Quinn: Fair use isn’t about permission.

Carson: 1201 has no fair use provision.

Quinn: If you have asked permission and have been denied, you haven’t weakened your fair use claim at all. The thing he’d resist would be a permission requirement. As part of professional conduct, it’s not bad to let people know what you’re doing. (Permission to do what? To circumvent? Do you have to ask DVD-CCA and the copyright owner, or will just the copyright owner’s permission suffice? Or is this permission to use a crappy copy a substitute for circumvention to get a quality copy, which still has the same problems?) Fair use is not as fuzzy as it used to be, at least in our field.

Carson: Can you circumvent in such a way as to get only a short clip?

Morrissette: We do it every day with non copy-protected materials. There are several software programs that let you mark an in point and an out point; it makes a new file. There are programs that don’t require you to copy the whole disk. We never have a whole copy sitting around. We only take what we need.

Turnbull: His understanding of how these programs work is that they allow you to play back the movie, decrypt it, and store the entire thing, which you may then later mark to only use 30 seconds. You can’t on the fly decide only to decrypt 30 seconds at the 90-minute mark. (This is wrong, by the way.)

Quinn: The point Morrissette is making is that these programs could copy the whole film, but the original DVD is still encrypted. In our field, we don’t take the whole thing, we take the piece we need; otherwise it creates storage burdens and it’s just not necessary to take more than what we’re going to work with.

Carson: Assuming it’s possible to decrypt only what you need, would there be any problem with including a condition that you decrypt only so much as you need?

Quinn: No problem.

Turnbull: That’s the kind of restriction we’d like to see if you go down that road.

Kasunic: Are we talking about software that documentary filmmakers get? Or would it be possible for the DVD-CCA to provide a key to a limited portion of a DVD?

Turnbull: No, that’s not how it works.

Morrissette: It has to do with the user. If the organization only pulls out the clips we need, we will never have a copy of the whole thing.

Kasunic: What could you do for documentarians if they’d come and asked you?

Turnbull: He can’t say. But if someone had asked to license the technology such that it does X (what is X?), we would consider it, but he can’t say they’d agree or what conditions they’d put on it. We’d prefer that dialogue rather than a widely available exemption.

Kasunic: DVD-CCA couldn’t help with the underlying content, though, right?

Turnbull: Right. You could definitely get tripped up.

Quinn: That would be problematic. Ownership should not determine what you can use for fair use. If your concern is that we’re taking unencrypted pieces, then work with us and we’ll make sure we erase the pieces when we’re done. They always say “there must be a marketplace solution” but this is a fundamental free speech right. It gets complicated to go ask. They start asking you for publicity rights, etc. Fair use doesn’t require any of that. We have an interest in not creating a situation in which the exemption is misused to steal copyrighted material. And if we’re creating a problem, we’ll work with copyright owners.

Turnbull: §1201 has been upheld against First Amendment challenge.

Carson: Another condition—only available when the access control is CSS. Is that acceptable?

Morrissette: Yes.

Copyright Office DMCA Hearings: Q&A

Rob Kasunic, Copyright Office: Is there any way of distinguishing between the different types of uses we’ve seen? The film exemption was fairly narrowly tailored because of particular pedagogical needs of film professors to show aspect ratio, angles, etc. only available on DVDs. Not seeing the same level of necessity with all the examples here.

Decherney: He’s convinced of the need beyond media studies. Facial recognition, medical staff thinking about patients; sound; body language; substantial similarity in infringement/de minimis cases—clear that you need a high level of image. Is there a catchall other than disciplinary status? He can’t think of one. A necessity standard is too abstract. Who determines that?

Kasunic: But if necessity formed part of the basis of the last exemption, and now we discard it, aren’t we in a different environment? More towards a class/use exemption.

Band: Aspect ratio etc. were examples of the kind of sharpness of image, the quality you need for effective classroom use. There may be some cases where you’re talking about general plot it’s less important, but in many situations quality is important, or where the lack of quality distracts from the ability to understand what’s going on or to pay attention. People are used to high-quality images. Blurry images distract from the educational message. Largely because of how the MPAA et al. have changed our expectations, we need that quality across the board, or it just doesn’t work in the classroom.

Kasunic: But use of older films were being shown in some of these works. Why were they included?

Band: Those are legacy materials, and they were distracting—when you see an old B&W movie, you think “that’s kind of fuzzy.” (I agree, Kasunic is talking mostly about the Texas example, which was explicitly offered as an example of materials that no longer worked because students didn’t react well to them.)

Decherney: What about materials only available on DVD? Classroom time devoted to shifting disks—that was important in 2006. Quality was not the only issue in 2006.

Attaway: A camcorder version of Decherney’s example would have been fine, because he’s just lecturing about the use of digital v. live action.

Decherney: He might have agreed until he saw it in lower resolution, the form displayed here. Yoda’s ears are important to the scene he analyzed, and they weren’t very visible here.

Hobbs: The importance of context: it’s one thing to work in a place where you can turn off all the lights with one button. If you work in a public school where the blinds are broken, your experience is different. Image quality needs to be superior for it to even be visible when you’re working on bad equipment, as many teachers are.

Kasunic: Should we take conditions into account in a particular school? Hobbs testified that schools disallow access to YouTube, which would seem to be an important component of media studies.

Hobbs: Well, you need to look at clear images to be able to ask students—grade 4, 7, 10—what techniques are used to get your attention? Schools use filters for a variety of good reasons. YouTube is bad, especially if you have a bad monitor. Where a 32-inch monitor is the standard in the corner of the room, as in most schools, the only presentation method that works is DVD.

Kasunic: Additional content contained only on DVD—in terms of quality from alternative means, is that kind of quality something that would be acceptable?

Decherney: The MPAA has better interns than 3 years ago; this is a better camcorder clip. There were still issues. One, the camcorder used telephoto lens—noticeable distortion, always will be. Still muddy/blurry/bleedthrough, and a red cast. Showing dark scenes, a lot of detail was lost. Obviously, don’t always need absolute highest quality, but doesn’t know how to craft that into an exemption: a necessity standard is too abstract.

Kasunic: Is higher quality necessary? You didn’t focus on particular aspects.

Decherney: He was hoping to show that two kinds of images were used that were supposed to look similar, but didn’t—CGI v. man in silver suit. In high quality, you can tell the difference. (Kasunic says he could tell the difference here.)

Kasunic (at the copyright owners): In many cases, a camcorder may be sufficient quality for many uses; if there was a way to take away impediments by using a computer instead of a separate camcorder, would that be sufficient? He showed a clip taken with SnapZ or maybe SnagIt. If we allowed that, would that mostly suffice?

Decherney: this would be acceptable in a tiny percentage. It’s distorted not so much by the pixelation but by the frame rate—like a silent film played at the wrong speed. It’s also a potentially infringing technology.

Kasunic: Aren’t film profs more likely to have the kind of equipment the MPAA is talking about? Isn’t filming part of film studies?

Decherney: No. It depends on whether you offer production courses. Many people teach film studies, not film production.

Jackson: The separation of production and the content of film studies happens on many campuses. Production is often in arts & humanities—there’s a digital divide on campus between humanities and the “big money.” No UMd profs have their own equipment, though the language media lab tries to help people out. A central facility to do this capturing would be impossible—too many professors, too many possibilities.

Rife: As a teacher, she’s seen people get lower grades for pixelated images. A teacher should respond to quality. If high quality is a sign of hacking, that’s a problem.

Kasunic: That’s not our fault—if teachers are imposing undue restrictions on students given the law.

Rife: Writing teachers care about quality. Don’t go down a road saying that student work doesn’t need to be high-quality. That’s unjust.

Dave Carson, Copyright Office: Can you explain what you mean by “writing”?

Rife: Writing is broadly defined: National Council of Teachers of English definition—writing isn’t only alphabetic writing. Writing includes montage; it could have text or not.

Skalbeck: Tried SnagIt and tried with 3 different DVD playback technologies to duplicate this with Se7en. He got a blank screen with each. (Kasunic says this can be fixed with configuration.) But Vista is trying to lock down the delivery of information. He tried higher end capture software, Adobe Captivate—he was able to capture a low-res version. But it doesn’t allow simultaneous capture of sound. He tried and is not convinced that the software or the OS guarantees the ability to use SnagIt as a substitute for the next three years.

Kasunic: You don’t need to move to a new operating system if moving would prevent you from making a use you want to make. (And you should hang on to your VCR, apparently.) The software capture essentially does what a camcorder does. If this tech was doing effectively what the camcorder does, removing some of the obstacles, would that be okay?

Metalitz: We’ll look at the tech.

Kasunic: If there are capture technologies other than a video camera, that may alleviate the educational concerns.

Band: This is surreal. Either the quality is equivalent or it isn’t. If it isn’t, as we’ve seen, it’s not enough. If it is, the DMCA is irrelevant and has no speed-bump effect at all. Another question: If we’re concerned about normative behavior, and we don’t want to encourage circumvention—ignoring the fact that we live in this sea of circumvention, and people here are trying to do the right thing—so instead, we want to encourage camcording? Talk about normative behavior: the MPAA has been going around getting states to pass laws against camcording. Put the MPAA demo on YouTube! Why would you want to make this so difficult? Why go through all these convolutions, ignoring the extent of infringement that occurs regardless? Why encourage camcording or encourage instructors to break the law? To encourage normative behavior, tell them to circumvent for fair use.

Turnbull: You don’t want to have the circumvention tool become something that is available and out there in the legitimate marketplace. We’ve failed to prevent availability, but the tool shouldn’t be ubiquitous and accepted. The use of the camcorder for the limited purpose to make what is stipulated to be a fair use does not threaten the technology; it allows fair use but doesn’t threaten the technology.

Attaway: Convenience simply can’t be the standard. It’s not just educators and professors that have the ability under copyright to engage in fair use. Everybody can. If inconvenience is the standard, everybody should be able to circumvent because everyone is entitled to engage in fair uses. That would void the circumvention prohibition.

Band: It’s not just about inconvenience.

Attaway: Even if this utility did nothing more than what a camcorder does, under 1201 if it is marketed to avoid, bypass, remove, deactivate or impair a tech measure it’s still a circumvention device.

Carson: We’re trying to get that evaluation out of you folks.

Hobbs: Teachers want to make lawful noninfringing uses, and to help their students understand their rights and responsibilities under copyright law. They want to help students distinguish fair use from pirating. We’re on copyright owners’ side: we think that if we enable unlocking CSS for fair use purposes, it provides the perfect teachable moment to understand the difference. Teachers/students are ignorant, and fed propaganda misinforming them about copyright. Students don’t need to go through decryption to pirate—that’s readily available. What we have now is erosion of respect for law. We’re here because we’re deeply concerned that without enabling students to make legitimate noninfringing uses, erosion of respect will continue. Students and teachers want to respect copyright and understand the desire to limit copying, but we also respect our fair use rights. You say you don’t mind fair uses, but you think access to the tech will destroy your market. To the contrary: we can help all Americans understand the distinction between fair use and piracy.

Kasunic: Use in legal/medical education: to what extent is variation in quality important? In a couple of clips, they’re available on Benedict.com.

Skalbeck: he doesn’t know all the sources. He bought the DVDs. Quality is particularly important where the question is substantial similarity—what does the chair in 12 Monkeys look like? Also in Se7en where the lighting is dark. You could get across some of the points with lower quality.

Kasunic (to opponents): How is one to go about figuring out if content is available from other sources? For example, things go on and off hulu.com.

Metalitz: We suggested that limitation on any exemption because you’ve used the standard before in the ebook context. It’s true that there’s a reasonableness question. You’ve put reasonableness into the dongles exemption, for example. A lot of these examples are on DVD. A lot of TV is in the clear, so you wouldn’t need to circumvent to get them. Hulu and network websites are sources. People who are reasonably savvy would know where to look for an unencrypted digital version. You couldn’t be absolutist. But there should be a necessity standard; if an unencrypted version is available, no exemption for you.

Kasunic: To what extent are there works only available in Blu-Ray?

Attaway: We don’t know of any.

Decherney: The question was whether an exemption should be restricted to DVD: sometimes Blu-Ray is better. Sometimes people teaching media classes teach from videogames. We don’t want to discriminate. There’s a range of media, and a range of quality.

Metalitz: That points out the slippery slope when you start talking about quality. You can’t go into a theater and take a copy of the print. The question is not optimality, but enough to meet the legitimate pedagogical needs of teachers, and camcorders meet those needs.

Corsin: Last time around, we concluded that for certain uses, best quality or even really really good quality is what you need. Assume that we still hold to that conclusion. Now Blu-Ray is out there.

Decherney: The 2006 exemption wasn’t limited to DVDs. It covered AV works. As far as he knows, it hasn’t destroyed the market for Blu-Ray. Extending it would not do so either.

Carson: Do you know of any profs who’ve circumvented Blu-Ray?

Decherney: No. He’d like to but doesn’t know how.

Metalitz: We continue down the slippery slope. Videogames are new! (The exemption covered AV works, as was just pointed out.) Every single example was circumvention of CSS on DVD. The Office didn’t conform the exemption to the evidence, but the evidence now is limited to DVDs. The statute requires a finding that people are now impeded in their ability to make noninfringing uses, or that they’re likely to be impeded in the next 3 years. We are seeking a narrowing of the existing exemption in that regard.

Attaway: The competence of the person doing our demo improved markedly, but aside from that technology has improved markedly. We need to take another look at the exemption to determine if it’s still justified in light of today’s tech.

Kasunic (to WB): Issue about permission requests: it seemed like the letters submitted with WB’s testimony initially required conditions for WB’s permission, including conditioning WB’s lack of objection on obtaining permission from the persons appearing in the clip, which may possibly come from SAG. Later WB simply said it was only disclaiming its own rights. What’s going on with that? Isn’t it an additional hurdle on the permissions process?

Aistars: As we submitted our testimony, we provided you the only examples that had come in. The criteria in the first letter informed the requester of the criteria for the §110 exemption. The statement that WB doesn’t necessarily control all the rights is simply a statement of fact. Our current practice is now not to condition permission on obtaining other permissions, but merely to make clear that WB is only waiving WB’s rights.

Carson: So, a prof asks for permission to use a clip. How quickly can one anticipate a response.

Aistars: We rarely get those requests. Typically we send out a standard letter with the §110 requirements, and that WB waives whatever rights it has (which it doesn’t have any under §110, but whatever). Depends on whether the key person is in the office; most are issued the same day they come in or the next business day.

Carson: Let’s assume that if you were to write to a studio to ask permission, you’d get a response within 3-5 days.

Hobbs: Huge obstacle—in the course of a single day long staff development program, I might use 30 clips. 30 letters, 30 pieces of paperwork. For K-12 teachers, it’s worse. When they explore that option with students, just finding the right address and the right contact person is a challenge.

Decherney: Agrees—finding who to ask is a problem.

Carson: There are only 4-5 studios, though.

Decherney: That’s not true of film studies—major studios produce only a fraction of the films taught. Descendants of rights holders are at issue.

Band: Foreign films: add a layer of complexity. But remember the statute says: is there an effect on lawful use? If the status quo ante was free, unrestricted use under §110, then having to ask permission is an adverse effect under the statute.

Aistars: If you’re working in the US, someone has the US rights, and typically it’s a logo at the beginning of the film. Typically you don’t have to contact five layers.

Jackson: Has experience with performances on campus. We use traditional sources to find appropriate rights. But time after time, for international film festivals etc., we find holes where we can’t just find the rights—we use film industry sources and rights clearance organizations, and often there’s still nobody. We find a former rights holder and never get a response back, because we can’t find the right person. We always need 5-6 backups for our film festivals, and it happens more often for the important, unusual films we want to teach than for the ones available at Blockbuster.

Also, note that non-film studies people are not used to trying to negotiate film rights. Teaching is so serendipitous that in a week there will always be something that it would be useful to add. Those people aren’t set up to look for rights week after week just in case. He has a list of 100 classes teaching visual culture that want to use 10 clips a week, and they are none of them taught by film people. It’s impossible.

Turnbull: 3-5 day turnaround is something that is often possible long in advance of actual use. There may be a number of different solutions to the issue that need to be publicized.

Carson: So you’re suggesting that permission can sometimes be excused. How do we write that into an exemption?

Aistars: Not suggesting that’s a first step. There are uses such as the camcorder where you’re not circumventing; it’s a usable clip and can illustrate many points. It can be edited with other clips; no need to contact us.

Metalitz: Did provide a proposed revised exemption as a starting point.

Turnbull: Reasonableness is not an unusual standard.

Decherney: Reiterate the point about spontenaity and the ability to rework lectures the day of the class, which happens to teachers all the time. Students are also on the table. If we think about students, the impact of a permission system on them for doing coursework would be horrible. Also, don’t take the censorship question too lightly. The documentary filmmaker analogy is a good one: they’re often turned down in clip requests. Anyone who’s ever wanted to use a clip from The Simpsons gets a letter from Fox turning them down. Students asked ESPN for rights to use a clip and got a response that because the students couldn’t prove their argument that permission was denied.

Band: Reality. Big decentralized institutions with hundreds/thousands of faculty members. A lot of them are using this content, and more want to do so. They’re not all lawyers, and don’t understand the nuances of copyright, let alone of paracopyright. To have a workable, practical solution for these various people making spontaneous decisions, we shouldn’t have two sets of rules (one set for film studies, another for everyone else) and we shouldn’t have other layers of complexity/nuance: did you search enough websites? Is your use of sufficient quality to need circumvention? What’s realistically going to happen? Let’s come up with a rule everyone can follow, as opposed to a contorted rule that just pushes people to illegal content. Bottom line: teachers are using this material in their classes. Why not make it work, instead of making it difficult?

Aistars: Equally unreal to suggest that we should legitimize an illegal tool.

Band: We’re here to get an exemption. We want to do it legally. We don’t think camcording is good enough, but even if it were, why is that a desirable result?

Aistars: The Office doesn’t have power to grant an exemption to marketing those tools.

Band: And yes, this is a farce and a sham.

Attaway: Don’t rely on Band for reality. Look at the record. Censorship: there is no evidence of censorship in this context. The proponents have an ideological aversion to requesting permission. They think lit profs don’t need permission to use quotes in class, so they shouldn’t need to license. (Um, that actually is true.) But that isn’t the statute. A permitted use is a noninfringing use, and if available vitiates the need for the exemption. Three anecdotes of censorship, none involving classroom use. WB’s submissions show that they grant permission even to show works in an unflattering manner.

Metalitz: Doesn’t understand the inability to copy someone’s speech as censorship. That’s not how courts interpret the First Amendment.

Carson: Metalitz said all these uses were noninfringing. Does that include uses by students?

Metalitz: Not shown many uses by students, but yes, the general types of uses by students are noninfringing.

Carson: Assume we are where we were 3 years ago about Decherney’s exemption. Now we look at Decherney’s students, whose projects are on the same topics on which he’s lecturing. At least some of them have exactly the same needs, right?

Metalitz: Two main concerns. One, exponential expansion. 20x as many people have the ability to circumvent. This gets to Turnbull’s point about normalizing the behavior. Decherney is respected and admired, but he can’t control his students outside his class. If they use the exemption to copy an entire movie in the clear, then make clips, then they still have the clear copy on their computer. (And this differs from the camcorder … how?) It’s not the same as Decherney having it on his computer. It further undermines the prohibition.

Attaway: Why stop at students? Why not anybody?

Carson: We’re trying to find a particular need.

Attaway: Students is so far down the path that in 3 years you’ll have a hard time stopping there and not allowing any fair user in. And then you have a standard that circumvention is okay if you’re engaging in fair use, and that was clearly an issue in 1996. That’s not the law.

Ben Golant, Copyright Office: Then what about extending the exemption to high school media studies?

Attaway: Then you’ve made my point.

Decherney: In his experience, students are no more prone to unethical/illegal conduct than faculty. There are no known abuses of the exemption. Size: still very limited. Students in media studies are a small percentage. A 1201 exemption is not a license to violate copyright law. If a student is sharing a full copy of a Hollywood movie, the laws still apply.

Kasunic: Focus on the particular factors the Librarian needs to consider, including nonprofit archival preservation and educational uses, and the effect on teaching, scholarship and research. Keeping within the realm of students is at least a favored area.

Attaway: The question is still where you draw the line. High school students have a legitimate need to engage in commentary and fair use. And individuals do whether they’re in school or not. (Yes. Yes, they do.) Decherney’s response is: just rely on the copyright law, and that’s what he’d like the law to be. That’s not what Congress did. That’s the law, like it or not. (Though Congress also provided for exemptions on a proper showing of harm to legitimate uses; that’s the law, like it or not.)

Kasunic: Go to §110(1)—it allows performance/display by instructors or pupils. Many of these uses deal with in-class teacher or student use. Isn’t that a basis for extension?

Metalitz: They may be noninfringing uses. But what does it do to the integrity of the provision to go from a relatively small number of professors to thousands of students? Be careful about broadening the universe of people entitled to take advantage of this exemption.

Hobbs: We see the other paradox. Say you don’t broaden the exemption: Then we tell students—“do as I say, not as I do. You aren’t entitled to the privilege I have.” That perpetuates a “grab anything and go” mentality. We can’t help students distinguish between piracy and fair use without helping them put their hands on the distinction.

Metalitz: This isn’t the only instance in which students and teachers are treated differently.

Jackson: Our students know a lot about new tech, assisting professors.

Decherney: It’s possible to stay within the confines of §1201 and still open up a class that includes professors and students. A lot of fair use is being choked off by anticircumvention, but using a class of students is a way of only helping some of that and of limiting the use and the users.

Carson (to Metalitz): Joint commenters suggest a number of limitations, including a requirement that no digital copy without access controls is available. That assumes that all digital copies are created equal. YouTube copies are digital, but they aren’t very good on a big screen. Don’t we have to be more nuanced?

Metalitz: Sure, not all digital copies are created equal. It gets back to the question of whether we draw a line on quality. How many pedagogical purposes can be met without circumvention? It’s not wholly insufficient to show lower quality versions.

Carson: yet your proposal bars Decherney from circumventing, even if he needs to show details of Yoda’s ears, if the YouTube version is available.

Metalitz: He could use the camcorder version. But you could also refine our distinction.

Jackson: Not only are not all versions created equal, not all distributors/rightsholders are created equal. Educational distributors usually have clear rights and contact points, and some support this exemption.

Golant: What if any harm has come from the exemption in place?

Aistars: We have no way to tell whether people are using the exemption properly.

Metalitz: Opaque to us. No cases of abuse to bring forward.

Attaway: Our concern is erosion of the principle that circumventing a technological measure is against the law. Erosion is going to be slow, and we can probably never empirically prove harm, but we would be harmed as more people feel they have a right to circumvent and that it’s not against the law. Technological protections allow us to make our movies/TV available to millions of people who never had them before in the form/convenience they have. Maintaining DRM is essential to our business.

Chris Weston, Copyright Office: Clarifying question about permissions and the USC project. Are we envisioning a situation in which a person writes and asks for permission to circumvent? Or does a person ask for a high-quality clip?

Aistars: The film professor marks the clips and they’re automatically provided. There’s no interaction with the studio. With respect to current experience, it’s not something we often get, probably because people are getting access to clips in other ways and they don’t think they need to contact us. Usually the letters say “we think this is fair use; do you agree?” We don’t opine on fair use but say we have no objection. Once, we provided a clip to a professor.

Carson: If you had a dozen requests a week, you wouldn’t provide that level of service, right?

Aistars: Right. But usually the person contacting WB has the clip in some manner—we don’t inquire how.

Carson: Do your “no objection” letters cover circumvention?

Aistars: We’ve never been asked. Taking into account the camcording demonstration, there are ways to get usable clips. She’d anticipate the educator would make her own assessment of using the camcorder as fair use and WB would never hear from them.