DMCA: documentaries, fictional film and ebooks

Proposed Classes to be discussed:

7D.      Motion pictures that are lawfully made and acquired from DVDs protected by the Content Scrambling System and Blu-Ray discs protected by Advanced Access Content System, or, if the motion picture is not reasonably available on DVD or Blu-Ray or not reasonably available in sufficient audiovisual quality on DVD or Blu-Ray, then from digitally transmitted video protected by an authentication protocol or by encryption, when circumvention is accomplished solely in order to incorporate short portions of motion pictures into new works for the purpose of fair use, and when the person engaging in circumvention reasonably believes that circumvention is necessary to obtain the motion picture in the following instances: (1) documentary filmmaking; OR (2) fictional filmmaking.

7E.       Motion pictures that are lawfully made and acquired from DVDs protected by the Content Scrambling System or, if the motion picture is not reasonably available on or not reasonably available in sufficient audiovisual quality on DVD, then from digitally transmitted video protected by an authentication protocol or by encryption, when circumvention is accomplished solely in order to incorporate short portions of motion pictures into new works for the purpose of fair use, and when the person engaging in circumvention reasonably believes that circumvention is necessary to obtain the motion picture for multimedia e-book authorship.

Jim Morrissette, Technical Director, Kartemquin Educational Films.  Proponent for proposed Class 7 D.  Screen capture: stuttering, dropped frames that can never be replaced because they were never recorded. Not acceptable for public broadcast.  Audio sync: lags behind.  Vast majority use Macs; latest Macs don’t allow screen capture when playing DVD or iTunes media.  Not a workaround that we can work with. 

Smartphone capture.  Aliasing: when the dots on the screen don’t align with the dots of the recording device. Specifically forbidden by the latest public TV tech specifications: must be free of artifacts such as those associated with scanning. 

Hardware solutions are also impossible because the hardware won’t allow it. Component outputs are disappearing.  Without analog source from protected disk, the equipment is worthless.  Hardware scan conversion is also costly and complex, and doesn’t work with HDTV.  Kartemquin was able to use the current exemption to pull clips from DVD for A Good Man.  Public TV now wants only HD, and they have a severe limit on any SD clips up-rezed through analog etc.

Both alternatives proposed won’t work for broadcast specifications.  We’d be rejected.  Hardware upconversion and scan are both very costly, require an engineer to operate, degrade the image (creating image detail out of nothing with math tricks, not HD).

Gordon Quinn, Artistic Director, Kartemquin Educational Films. In support of proposed Class 7D for documentary filmmakers and the IDA.  We produce for PBS, cable outlets, theatrical release.  We are rightsholders and rights users.  We are unusual in that we do have a technical director with an engineering background; we are a resource for the larger community.  Morrissette gets calls all the time: part of our mission to help others engage in fair use.

We are seeking this renewal to preserve the fair use we reclaimed with the statement of best practices in fair use.  The Interruptors, just on Frontline, had plenty of fair use clips.  We just want it updated to deal with new technical standards from broadcasts and theatrical presenters.  Any solution that involves licensing, managing copies, streaming—that involves us having to go and ask permission from the people we may be critiquing, parodying, arguing about—any of that is unacceptable.  We are exercising a right: it is important not to require permission.

Two examples of close-to-original quality importance: A Good Man: Bill T. Jones is talking over a fair use clip, he’s dancing, bare to the waist.  He says: He became very aware that he was a black body viewed by white bodies. You can see the muscles rippling, the sweat on his skin: every detail of this body.  I need that quality to get the message across.  Another project about a major film critic: who constantly argues that people should see films in theaters. When we make our film, we need to be able to show the sensual and subtle qualities of an image he’s talking about.  It has to be a high quality.  Benefits everyone who watches movies for this critic to take them inside his work and help them read what’s happening.  And we have to meet the technical standards of PBS and theatrical presentations.

There are other films coming out only on Blu-Ray or encrypted streaming. Important to get that.

3 years: no abuse.  No case in which documentarians have decrypted to engage in fair use and that’s ended in abuse. We care about piracy too. 

In a democracy, we need to be able to comment and contextualize all the culture. There should be nothing off limits, within the confines of fair use.  We live in a digital age; the quality of the image is more and more important.  We have to be able to come close to that quality in order to critique it.

Peter Brantley, Director, Bookserver Project-Internet Archive.  In support of proposed Class 7E.  Expertise in books and new media; works on standards for ebooks, which have been recently updated to support greater interactivity.  Rapid advances in ebook authoring tools have made it possible to create multimedia books with relatively little technical expertise.  Alternatives require financial resources they mostly don’t have time, or result in deteriorated video quality that consumers find inadequate.  Alternatives don’t work, especially for mobile display devices—they need very HQ content.

Ebooks started out as translations of analog/print to digital. Authors are now being able to explore new affordances, aided by increasing integration of ebook standards into web standards.  Epub3 is now being coordinated with html5 to support HQ audio, video, and other features.  Redium: render epub files directly in browser without any other software necessary.  New tools are emerging, enabling drag and drop authoring of multimedia content.

Licenses: doesn’t work; fees and terms are structured for commercial use, not individual authors/users seeking educational/informational uses.

Video quality expectations are changing.  Devices are improving; video standards are changing.  Browsers have coalesced around a common standard.  H.264 supports HQ video, and next version will support even greater HD.  Beyond DVD.

Bobette Buster, Film Professor at USC, screenwriter, and producer.  In support of proposed Class 7E.  Edison thought films were like lightbulbs; DW Griffith understood that storytelling was the key.  I teach how you take an idea and do what visionary filmmakers have learned to do.  You create a big idea by combining two colliding ideas.  Showed clips from The Godfather and Toy Story 2.  Emotional power created by juxtaposition.  Power of rhyme—Schindler’s List.  Cinema is about the orchestration of emotions: delight at industrial productivity to horror at industrial genocide.

I seek to make an ebook of my course because it’s all about technical wonder.  Rebuffed by studios at every turn. Don’t return emails or phone calls. Once they do, they quote high price, or say I have to reach every descendant of everyone in the scene and the composer of the music.  Even got a C&D. 

She wants to make an ebook that would allow her to communicate her life’s work.  She’s tried to do this with 200 people/year by teaching a course. Would like to be able to share it with thousands via ebooks.

Alex Cohen: documentary filmmakers/fictional filmmakers/ebook authors: First, there should be no question that these are fair uses. Everyone agrees, for good reason. These groups are supervised by conservative gatekeepers, the insurance companies that monitor for fair use.  Filmmakers have statements of best practices and are rightsholders in their own right.

For the ebook exemption, only asking for DVD and digitally transmitted video. Capability of ebooks is at or above Blu-Ray but we’re asking for the bare minimum to ensure effective fair use. 

Fair use discussed and shown by Buster requires the ability to make nuanced and detailed analysis—when you need to see the dust on the floor in Toy Story 2, that’s not possible without an exemption.  No alternative is sufficient—expensive, complicated, and don’t satisfy technical standards set by distributors/broadcasters.  A lot of discussion about hardware scan conversion: Morrissette is at the top of his field, over 40 years of experience; there is almost no one else in the US who would know how to do what he does.  Filmmakers call him.  That’s the reality for the majority of filmmakers: they don’t have access to the knowledge or financial wherewithal to use the alternatives. 

If no exemption, only a handful of filmmakers would be able to attempt fair use, and frequently they’d fail broadcast standards.  Same with ebook authors.

Two small points about things said at prior hearings: Morrissette briefly mentioned upconversion for CNN. CNN broadcasts its own stuff and doesn’t have to meet the standards that a third party like Kartemquin has to in order to get shown.  The sources that allow upconversion are also disappearing.

Sending out a clip for upconversion: we want to clarify that the tech standards for film festivals are very different for distribution/broadcast—the latter are extremely stringent and don’t generally allow upconversion.

Finally: when people do talk to Morrissette, they end up giving up on the use because they don’t have his resources and the alternatives can’t meet their needs.

Brendan Charney: Screen capture is a broad term that covers many methods that operate within a black box that users don’t understand and that can be automatically updated.  If the Office said screen capture was an alternative, filmmakers wouldn’t know whether any given product would violate the DMCA; many would fear crushing liability/sanctions—not worth making fair use in a particular instance.  That’s exactly the harm this rulemaking is designed to prevent.

Licensing: forecloses critical uses.  Nearly every license has a nondisparagement clause that prevents film criticism and other things allowed by fair use. Even for noncritical uses, one license isn’t enough. Other rightsholders can still bring DMCA claims. Most licenses contain standard clauses—the license isn’t complete; may require licensee to receive permissions from all others who might claim rights in the footage.  Congress created rulemaking in order to prevent licensing from supplanting fair use.

Exemption won’t lead to harm.  Nobody has alleged any piracy flowing from previous exemptions, or even confusion. The exemptions cover a clearly defined group of responsible creators who themselves rely on copyright.

Dean Marks, on behalf of AACS LA.  Opponent of proposed Classes 7D, E, G and 8.

We haven’t seen AACS protected works identified that are unavailable for noninfringing uses.  Very small set of directors’ cuts are only available on Blu-Ray.  Ebook creators didn’t specify Blu-Ray and we are just confirming they aren’t seeking an exemption.

Alternatives for documentarians: use the work on DVD.  They say SD doesn’t work in broadcasting standard, but the PBS website says PBS will accept SD video and upconvert it.  It may well be that clips they seek to use aren’t available in HD—the Zapruder footage, for example.  Public TV stations aren’t going to ban documentaries that include the Zapruder footage.  For filmmakers who have the wherewithal to obtain D&O insurance, we believe upconversion is not beyond their reach.

For filmmakers: unlike the panel this morning, they typically have access to very high quality cameras because they use them to shoot their films.  Displayed a clip from a Panasonic $28,000 camera, available on eBay for half that.  Video capture is acceptable for educators, but we wouldn’t expect them to have high end cameras, as people making HD films do.  Camcording is a perfectly reasonable alternative.

Clip licensing.  We believe that the studios have really made incredible progress in making clip licensing easier. Universal has an online site.  WB regularly responds to clip requests within 48 hours. We appreciate that critical/disparaging uses often are barred by license provisions, so it isn’t the answer for every use, but we believe it shouldn’t be dismissed out of hand as not viable.

For documentary filmmakers: National Film Archives in College Park—filmmakers can go in and access the archives and create a good copy by using AV cables, permitted by the Archives.

Tamsin Rawady, A Practical Guide to Fair Use, available at proponents’ website: said she ended up mastering from a variety of materials, including VHS and low-quality downloads—typical to access many materials of various qualities to put together a final product.  In a few cases, she decided to pay for licenses to clips that were fair use simply to get the HQ master.  Studios work with filmmakers to deliver most useful format.

Don’t confuse fair use and access controls.  A no objection letter may say you may need rights from musicians/performers; we’re not objecting to your use. Talent rights have nothing to do with access control measures.  If you’re confident your use is fair, you don’t need to seek consent from the underlying talent.  So a no objection letter saying that there might be talent rights shouldn’t be any problem for you. 

Blu-Ray is new and deserves special protection.  Growing but DVDs are still king.  Augurs for caution in granting exemptions.

Bruce Turnbull, Counsel for DVD CCA.  Opponent of proposed Classes 7A-G and 8.

DVD-CCA doesn’t object to renewal of documentary exception, but does object to fictional and ebook exemptions.  Likelihood that a use is fair in the broad categories described: more likely in documentary. To have broad exemption for all fictional films would invite the possibility that the uses wouldn’t be fair.  We don’t believe it’s been demonstrated that a sufficiently high number would be fair use.  The same is true with ebooks.  The experience is much less because this is new.  We don’t believe the numbers of uses put forward in the broad category would necessarily lead to a high percentage of those uses being fair.  (Comment: This isn’t the standard adopted by the Copyright Office, which is a substantial number of fair uses.)  We also think filmmakers can hire videographers with expensive cameras so you don’t even need to own a $20,000 camera.  Similarly, video capture software can work for some purposes.

Steve Metalitz, MSK, representing Joint Creators and Copyright Owners.  Opponent of Classes 7A-G and 8.  Important to distinguish among types of uses now covered by a single exception, which represent distinct cases.  Are the uses that are intended to be made in fact noninfringing?  And if that burden is met, are there alternatives available to people who wish to make those uses that don’t involve circumvention?  Both are at issue here, but the mix is different.

Charney said this was fair use because there are gatekeepers.  This overstates the case, but people with E&O insurance are more likely to be fair use than the category proposed of someone making a documentary film or a fictional film who reasonably believes circumvention necessary. Nothing in the proposal requires safeguards like gatekeepers or E&O insurance.  If that’s the basis on which this assertion is made, should appear in the exemption.  There are others besides Morrissette who won’t be intimidated by difficulty in tech, though I would be (comment: and as a lawyer and not an engineer, he might possibly not be qualified to make that determination?  Hollywood has a bad habit of assuming that the tech can do whatever the lawyers would like it to do, see SOPA/PIPA.).

PBS as gatekeeper requiring high quality: encourages Office to challenge that. If it were the case that anything not native HD is banned, we’d lose a great deal of history.

Legislative history says intermediaries are outside the scope of the rulemaking, so you shouldn’t consider that anyway.  (Sure, you can’t change 1201 itself, so an exemption can’t exempt anything other than circumvention itself.  But it’s ridiculous to say you can somehow evaluate the impact of the law on fair use without taking the overall context of uses into account, including broadcast standards.  A fair use no one can make helps no one.)   

Ebooks: record is less well developed both in terms of whether there’s an equivalent to the gatekeeping that increases the chances that the use will be fair.   This covers everybody, not just the uses we were shown today which he has no problem with.  One thing we know has changed is that the alternatives have become more robust: licensing (partial answer), screen capture and editing technologies.  That has to be taken into account v. 3 years ago.  But if you have an exemption must define it so that it won’t include infringing uses.

Carson: what is Joint Creators’ position v. DVD-CCA on the existing exemption?

Metalitz: we don’t think the existing exemption should continue.  Should include gatekeeping safeguards if the proponents sitting at this table abide by them.

Carson: is your position that they haven’t met their burden or that there’s no need?

Metalitz: they haven’t met their burden of showing a need.

Carson: with respect to exemptions now in place, please react to building in additional gatekeepers.

Donaldson: you asked that last time about insurance, and that won’t work—comes way too late in the process.  Wouldn’t work, isn’t needed.  The exemption has helped literally hundreds of filmmakers make films that are more impactful, give better messages, without any adverse impact.

Carson: E&O comes last after the film is made—is that true?

Metalitz: true, but realistically there is a risk of a lawsuit that you want to avoid.  Unlikely that suits would be brought before the film comes out, because the potential plaintiff wouldn’t be aware until then.  At that time, there either is or isn’t insurance. If the producer hasn’t gotten insurance, that should be taken into account.  This isn’t a copyright infringement lawsuit so it doesn’t have the same remedies (hunh?  As I recall injunctions are available, which is the death knell).  So these aren’t likely to arise unless a film is distributed.

Carson: yet in trying to craft an exemption, you’re suggesting we come up with a conditional exemption.  The exemption is from liability for the act of circumvention, which of course comes before E&O review, and you don’t know the result.

Metalitz: but you have to know what use you’re going to make: solely for short portions.

Carson: but you’re trying to put in a requirement of future review, and that’s rather odd.  Good faith intention to go to E&O?  (What if, for example, the E&O review says “take out one clip” and you’re fine?  Is that clip now violating the exemption?)  Fair use is a question of law, but what should the factual prerequisite be?  A postrequisite strikes him as difficult.

Metalitz: reasonable judgment; exemptions can have factual components.  Wouldn’t be clear at the time whether you’re entitled to the exemption, but if you’re in the business of making documentary films, you’re probably going to seek insurance.

Marks: E&O insurance doesn’t just review the final film; it’s an ongoing process.  In Tamsin Rawady’s article about fair use advice, she talks about how you need to consult with the lawyers as you’re in the process of making a film not when it’s finished.  Gatekeeping functions don’t all happen ex post facto.

Donaldson: Last Sundance festival, we had 19 films; 2 C&Ds prior to the first screening at Sundance.  The Queen of Versailles: subject of film ended up not liking the description of him, and sued before it showed publicly based on publicity. Sequencing of when you find out you have a problem is different.  We had insurance for that, but for the other one he didn’t have insurance—a black & white film that won’t have much monetization. 

We were involved early in Rawady’s film, which was pre DMCA.  Before exemption we told people they couldn’t rip.  If you look at that article, it’s about the downside of fair use; producer goes on to describe those things as what she had to do because she couldn’t rip the DVD.  Classic case of why the exemption is needed.  Did end up running into resistance with some techie who didn’t want to accept it because the degraded clips were too numerous.

Carson: typically, when you make a documentary destined for an E&O carrier, is there intermediate legal review?

Donaldson: ideally, we like to get in early at the concept stage and educate the filmmaker for his or her particular film.  December: when Sundance announces, we get a flood of people who didn’t have an attorney and have just been told that they need review.  Filmmakers made movies out of credit cards & family and friends and didn’t have a spare nickel for insurance.  So some films—This Film is Not Yet Rated and the Rawady film—have a lot of advance review, but that doesn’t usually happen.  Today, with this work being better known, not quite 50/50; 60% of films come in late in the game.

Jack Lerner: Our point was that we couldn’t make fair use because we couldn’t get HQ.  If you require E&O at the outset, you end up pricing out filmmakers who can’t afford that at an early stage or who make fair use calls of their own that aren’t a problem.  We have resources in the community—the statement of best practices.

Quinn: Speaking for the entire class: E&O can be good. But for 20 years we lost the right to use fair use b/c of the aggressive tactics of content owners, writing C&Ds and threatening to sue; never suing.  But the gatekeepers wouldn’t have it. We spent years talking to people—teachers, broadcasters, insurers, lawyers—to reeducate them about the law.  Finally we got some traction with PBS; we didn’t have E&O insurance with PBS.  We’ve had no cases of abuse in the last 3 years. If you’re concerned with filmmakers out there not making fair use, then go after them for that.  The problem with the DMCA is that the mere act of acquiring something for legal use has been made illegal, so you never get to test the question of fair use without the exemption.  We can have E&O and still be sued; we understand that.  But if we can’t get that into the courts, we’re screwed.  There are many kinds of documentaries, all kinds of new markets. 

When do lawyers get involved?  Donaldson is right, but let’s be clear: different filmmakers work with lawyers at different points.  This Film Is Not Yet Rated—yes, before we even start.  But many films, including A Good Man and The Interruptors, involve classic fair use.  I’m experienced; I get my letter near the end of the process, when I’m in fine cut, because I’m confident that I’m making a fair use.  Other filmmakers may need earlier.  We do both kinds of things.  We don’t need more stringent gatekeepers.  We need the exemption so that when there are test cases we are discussing the proper issues.

Metalitz: no cases of filmmakers accused of violating 1201.

Quinn: Yep.

Carson: resist having an E&O/lawyer review requirement, even though it’s wise.

Quinn: exactly.

Carson: we have heard a lot about how E&O/lawyers are important to control use.  Should we ignore that?

Quinn: we’re talking about a process.  If I’m a filmmaker and the piece I need is on a Blu-Ray to make my point, that’s my need.  We’re talking about a right.  I can’t tell you every filmmaker’s needs.  I can tell you that we’ve tried to be very responsible with this exemption.  We are saying don’t confuse locking something up with fair use.  We need the exemption to be able to use fair use.  We bring up E&O because we understand most high-visibility documentaries, that’s the reality, but there are important films playing a role in the range of information in our democratic society that are fair uses without E&O/lawyers.

Cohen: we think E&O is just one factor; statement of best practices; being rightsholders in their own regard; it’s not all or nothing.

Charney: we’re not saying that talent/contractual rights are the issue.  Anyone with a right protected by the Copyright Act can sue for a violation of 1201—that makes it very hard to avoid via licensing.  People whose recordings are used could sue.  If a filmmaker signs a license, often obligates them to seek such other licenses.

A page before the language quoted from the legislative history, a very telling section: the harm is flowing from the implementation of the tech protection measure. To measure harm, we have to look at the facts confronted by fair users. Congress: committee is concerned that market realities may someday result in less rather than more access to works.  They created rulemaking as a failsafe to prevent that sort of harm.

Marks: that standard about less access: we haven’t seen one shred of evidence that TPMs have led to less access to copyrighted materials.  In fact there’s been a growth released into the market because of TPMs that give copyright owners the security to release content.

Lerner: please read our submissions, which discuss many such situations.

Ruwe: looking for a better idea of what an ebook is.  What is an ebook?  Anything multimedia?

Brantley: epub specification is informally referred to as “website in box”—a set of constraints on html display that limits what an author can do.  Epub3 can be embedded in browser.  Defined set of allowable behaviors.

Buster: What I’d like to do is show salient points.  Lerner/IDA have done excellent job of educating the documentary community with specific guidelines.  I would use the discipline of that in selecting clips. 

Charney: p.3 of our initial comments: we have a discussion of this.  Digital files capable of displaying written words on an electronic reader, generally without internet access.  So we want to put them into a device that can display offline, which is distinct from an online website even though it might be compatible.  Difference is that underlying tech may have come from web, but ebook is a discrete format.

Brantley: packaged as a zip file. Uses html rendering tech, but is a packaged, portable digital file that has to be downloaded and can be consumed offline.

Ruwe: sounds extremely broad. Any narrowing principles?

Brantley: epub3 specification is very specific and detailed about permitted type of behavior.

Charney: we’d be amenable to narrowing definition to specific existing formats.

Ruwe: anything about gatekeepers?

Lerner: nonfiction ebook authors would use a lot of the same mechanisms to make sure they’re making fair use.  E&O is available; statement of best practices applies very well in ebook context as well.

Donaldson: is the class intended to be nonfiction?

Lerner: no, just an example.

Ruwe: more specifics about requirements for distribution outlets for documentarians?

Morrissette: latest PBS tech specifications: one is in the PowerPoint, which talks about artifacts.  In the case of archival content where no better copies are available, image still has to be free of artifacts.  PBS recognizes existence of older source, but they’re saying that you can’t just throw everything in YouTube quality and upconvert it again.

Quinn: Working with PBS, the reality is that if you have the Zapruder film they’re practical, but they’re looking more and more for the overall look and feel to meet their standards. If you have an image from a contemporary film, and that’s low quality, that’s not going to be acceptable to them. 

Morrissette: it was because of the current exemption that we were able to get the quality necessary to pass PBS muster a year ago.  Without the exemption, we couldn’t have done it. Speaking to the high quality camera: yes, it looks better than the cellphone. Without the original to compare it, though, my evaluation was that there was excessive overexposure.

Ruwe: for ebooks: Why wouldn’t alternatives have worked for juxtapositions?  For some I get it: if you need to talk about the dust, okay, but what about the rest?

Buster: I’m talking about the highest level of filmmaking: you need to see his choices. Godfather is lit like a neo-Realist film; you have to show costumes, music, sound design.  I teach from the perspective of how tech affects storytelling across elements and how the director employs a central idea.  I’d be laughed out of the room for using a degraded copy to show what cinema does best.

Carson: In teaching, yes, but that’s not germane to ebooks.

Buster: why would anyone want to get a low quality book? 

Carson: if that’s their only alternative.

Buster: The alternative is piracy; using high quality drives people to see the real film.

Charney: degraded images don’t work better in ebooks than in the classroom.  Alternatives are cumbersome beyond belief.  Have to hire a specialist, raise the money to find the camera.  Feels like I’d have to get a new career, and I already have one as an educator.  USC: we are constantly upgrading equipment.  We don’t have the old equipment (with the analog outputs, I take it).

Ruwe: non-objection letter—how relevant?

Marks: studio issues no objection letter; it’s correct that if an actor or musician who also had a right in the film decided that they felt there was circumvention, they’d have standing to sue if they chose. Hard to imagine that would really happen if the underlying copyright owner issued a non objection letter.  (Then why would the letter contain these reservations and tell the recipient to get the permissions?)

Lerner: Standard nondisparagement clauses; standard clauses obligate the filmmaker to get permissions from these other people—the nonobjection letter says that they don’t object if we get other permissions.

Marks: WB’s no objection letter doesn’t contain nondisparagement provisions.

Lerner: that’s true, WB doesn’t.

Marks: not inconsequential because WB has a big film library.

Carson: Best practices in documentary filmmaking: does a filmmaker who follows those behave acceptably?

Metalitz: we have some problem with them.  Not sure that everything in the statement has been done at the time the circumvention occurs, so subject to the same objection.  Documentary filmmaking isn’t defined.  We heard this morning that student video production might qualify as a documentary—would be helpful to sharpen and narrow it.

Carson: what if we required compliance with best practices?

Donaldson: good idea.

Charney: it’s not a silver bullet; best practices were meant to classify four categories that are as close to certain as you can get, not meant to define the outer boundaries of fair use.

Quinn: there are reasons why implementation could have unintended consequences.  We do use that document in schools, with young documentarians.  Not everything is ok, and we have some guidelines of when you’re within fair use.  Not a catastrophe, but needs to be thought through very carefully. 

DMCA hearing, part 1

Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, Section 1201 Hearing

Proposed Classes to be discussed:

7F. Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of educational uses by college and university professors and by college and university film and media studies students.

7G. Audiovisual works (optical discs, streaming media, and downloads) that are  lawfully made and acquired when circumvention is accomplished by college and university students or faculty (including teaching and research assistants) solely in order to incorporate short portions of video into new works for the purpose of criticism or comment.

8.   Lawfully accessed audiovisual works used for educational purposes by kindergarten through twelfth grade educators.

Peter Decherney, Associate Professor of Cinema Studies, University of Pennsylvania.  Proponent for proposed Class 7G.

2010 exemption has had a direct and palpable positive impact across disciplines: from film studies to biology, can use clips to educate.  Some limitations still pose real harms.  Update exemption by including students as well as faculty and including HD images that have become commercial/educational standard.  All faculty and students need high quality images to get a high quality education.  The exemption hasn’t led to abuses but has improved the quality of teaching. Proposed expansions allow existing exemption to match the pace of innovation/technology.  Media are now totally integrated into the curriculum—routine elements of academic communication. Reduce in class lecture time and allow greater participation: in class presentations for peers and collaborative projects. Students in all disciplines need ability to use HQ images for own work.  In every discipline, students learn multimedia editing (the way they learn word processing).

Penn professor of urban studies Lamas: teaches students to communicate in many genres, which trains students to bring advocacy to different audiences.  Now creating video essays.  What quality of images should they use?  Like asking what vocabulary they should be allowed to use—weak verbs/passive voice?  No, effective vocabulary.  And effective vocabulary changes over time.

DVDs not enough.  Educators & students analyze protected media as part of their day to day activities. It’s necessary to have HQ images because depth of analysis rises with quality.  NYT: difference between Blu-Ray and DVD is very obvious.  Citizen Kane example: Increased depth of field, chiaroscuro—much closer to the image as the director/cinematographer intended and closer to the original spectator’s experience.  People have written about how the background in Citizen Kane reflects on the foreground and has political commentary; Blu-Ray allows you to see that.

Second, viewers, especially students, have become accustomed to HQ: pay attention, understand more when they see the HQ they expect. Even DVDs that looked HQ 3 years ago now look muddy/pixellated—watching DVD of Avatar is like watching through dirty glasses. Affect is integral to teaching in many fields; analyzing media requires attention to emotional responses, as does marketing.  History of science: uses film clips to illustrate accounts of synthetic humans.  Requires close analysis. 

Final and related reason HD is necessary: they’ve become the consumer standard. Don’t teach with microfilm when the original manuscript is available: experience the impact of the original.  Students need access to media to analyze and make sense of their world.

Alternatives: unfortunately none meet our needs.  Online clip libraries: don’t offer a fraction of titles currently used in classrooms.  Cellphone capture: introduces distortion; screen capture limits pixels; some don’t work with Powerpoint making them useless; framerate is very low, 15 fps, less than half of Blu-Ray.

Understands desire to protect interests, but these don’t harm copyright owners and represent established fair uses.  Real harm to higher education; exemptions can allow media to be used in appropriate ways by faculty and students; please respond to evolution in education by updating.

Jonathan Band, Counsel to the Library Copyright Alliance. Proponent of proposed Class 7F.

Asking for existing exemption to be renewed.  A couple of points: film clips are widely used through higher education.  Pervasive in the way students and faculty view the world; hard to teach without including this content, which is flattering.  Commenters didn’t seem to object to renewal of the exemption but claim there’s some kind of misuse, b/c lower quality alternatives are available.  A couple of points: screen capture tech—but they won’t identify which tech they consider to be non circumvention.  In LA, this issue came up and rightsholders wouldn’t identify which tech they consider kosher.  Even if there were such tech, there could be some other rightsholder out there who claims it is circumvention.  Saying there’s tech out there doesn’t translate into an effective alternative on the ground, where we need certainty as we work with large numbers of faculty and students.

Quality is always needed.  If the rightsholders think quality is important in the product—they made it HQ for a reason—baffling why that quality would be less important in the classroom than when you’re watching it in your basement at home.  Authenticity is important; expectations are important—lower quality can be distracting.  Special effects that looked real in our childhood now look absurd.

Finally, logical problem: if screen capture is so good, there’s no point in having CSS/encryption.

Martine Courant Rife, Professor of English, Lansing Community College.  In support of proposed Classes 7B, C, and G.

Exemptions are being implemented successfully.  Almost half of all undergrads attend community college; expansion of exemption was helpful because community colleges have many fewer resources than typical research university. Being able to use legally obtained works was very helpful, as well as being able to use it for non-media studies exemptions.  At her college, she and a colleague have put together a workshop to teach how to implement the exemption ethically and thoughtfully.  Well attended—30-40 faculty/administrators at each workshop.  Her colleague uses the exemption on a day to day basis.

Creative writing instructor uses clips of Wizard of Oz to show how to construct narrative tension and strategies used to build stories.  Econ professor uses clips from famous/popular movies to illustrate economic concepts. Astronomy prof uses clips to show principles of astronomy for discussion.  First year writing: an important category; we have organizations that put forth best practices.  National Council of Teachers in English etc.  Protocols for curriculum: all organizations tell us we should be teaching digital/info literacy, which goes to the heart of the exemption.  One first-year learning outcome: students should be able to use electronic environments for editing, sharing, drafting texts.  When something is legal, we can teach about it.  When it isn’t legal, then it’s hard to address it in the classroom.  What’s happening on YouTube: these videos are being created, but until we can address it in the classroom we can’t teach about how to properly do something they’re already doing.

David Carson, Copyright Office: you said that standard was about text.  How does that translate to the use of motion pictures?

Rife: When I say text, we don’t just refer to typed text.  A text can be a montage.  Student created a parody of popular movies with racial stereotypes.  Many teachers are having students create texts that can be video.  We think students should know how to create numerous types of texts—that’s what they’re asked to do in their jobs, create video as well as written.  Increasing number of teachers are trying to teach this and create professional development materials.

Carson: have you used the exemption?

Rife: Yes.  I show speeches to show the art of persuasion, my field of study.

Renee Hobbs, Professor and Founding Director of the Harrington School of Communication and Media, University of Rhode Island.  Proponent for proposed Class 8.

Current law limits educational uses.  HQ images are ubiquitous to young people; poor quality clips lose their impact when learners are distracted by the bad image and sound quality.  Perceptions of quality also change over time/generations.  Bad clips are painful/distracting to watch.  HQ clips are important to fine/performing arts, science, film studies; not just for detailed analysis but for their larger communicative value as conveyers of ideas and information.  DVDs are often the only forms available; digitization is required for effective classroom use.

Alternatives: use of media compilation websites isn’t viable because internet access in many school communities is unreliable, restricted, and filtered.  Does 15-20 events in public school districts across the country each year; 50% block YouTube.  Even if a school district permits that, limited resources are available, and what is there has been edited in ways that may or may not be suitable for specific educational needs. Ads before and during clips are problematic; they change even if the teacher has previewed the clip before viewing. 

Smartphone/screencapture not viable.  Workshop in Lawrenceville NJ: talking about challenges he faced with screencapture.  Reported that running Netflix blocked Camtasia (popular screencap software).  Another teacher: looking at how representation of sports reflects and shapes our views.  Wants to analyze Madden games but needs examples.  Seeks to have students make connections between classroom and culture.

Teachers are frustrated in efforts to watch media without clips—having to fast forward, waiting to switch DVDs, watching ads all have huge educational problems, especially when we are using the classic teaching method of compare and contrast, which by definition requires more than one clip.  One teacher has students compare and contrast Super Mario Bros. from yesteryear and from today—tremendous opportunity for students to see how much has changed.  But that activity is unlawful.  1201 rulemaking was implemented to ensure that the public could continue to engage in noninfringing uses.  Use of media to promote critical thinking contributes to the development of an informed citizenry. Current college graduation rates: 25% of those in high school.  So we need to do this education in high school.

Current alternatives for media instructors are bad—circumvent, use terrible alternatives, or don’t use media.  Media increase perceived relevance of content and enhance recall; exemptions would thus benefit learning.

Spiro Bolos, Social studies teacher, New Trier HS; Affiliated Faculty, Media Education Lab, Temple University.  In support of proposed Class 8.  Public school in affluent district.  Evidence from actual classrooms with real students: testimony intended to show the effect of limiting access to HQ media on actual students.  Normative practice for teachers: many teachers use VHS tapes still. They don’t do it for quality; the only reason is because we teach in 40 minute blocks and VHS can be precisely cued; at least it’s not wasting class time despite loss in quality. New teachers struggle with tech in the classroom and are assessed poorly if they can’t make their transitions as smooth/efficient as possible.  Assumptions: only used Windows because that’s the norm for teachers; used a free program, Jing, to capture media instead of Camtasia.  His district is willing to supply Camtasia ($99/$199/$299) but most educators don’t have access to such resources.  Difficulties: (1) must reserve a quiet room, which is hard to find in a school; his own desk wouldn’t work.  (2) Capture in real time—he’s considered tech savvy in his building, but most people struggle/give up easily. Had to struggle through multiple attempts to get results.  (3) Wait.  Each attempt proceeds in real time.  Jing is a web program that has to be uploaded in order to be useful anywhere else. More waiting.  Sometimes hours for upload.  Also an issue in amount: Jing is capped at 5 minutes.  He wanted to use a clip from Elizabeth, but the clip was 5:30, so no dice. 

Reading The Great Gatsby in comparison to Citizen Kane. Two groups of students, one using a scren grab.  Screen cap group: really hard to understand what was going on; choppiness/lack of AV sync made it really difficult to match up audio and video—student said she couldn’t process both what she was seeing and what she was hearing.  DVD group: has an older quality; dialogue is still clear.

In a political environment where public education is under attack, why is it that some students at college level, a minority in this country, get access to HQ media, whereas at the public education level they get access only to poorer quality media.

Dean Marks, Warner Bros., on behalf of AACS LA.  Opponent of proposed Classes 7D, E, G and 8.  Licensing administrator for AACS, which has 8 founder companies: protection of HD video content and particularly Blu-Ray.  Licenses tech on cost recovery basis.  Can revoke keys for noncompliance, preventing them from playing newly released content.  It’s robust and serves as the foundation for content owners to release premium content to consumers in HD.  It has resisted easy hacks and continues to do so.  AACS managed copy: allows consumers as well as educators through an online server to make an authorized copy of a protected disk to a hard drive: a bound copy.  Will also allow copying to recordable media such as DVDs and SD cards, expected to launch by the end of the year.

Proposed exemptions should be denied; proponents haven’t identified specific works that are unavailable for noninfringing uses.  Blu-Ray hasn’t previously been subject to an exemption, and there’s been no showing of adverse effects on fair use.  Student viewing DVD clip of Citizen Kane said: didn’t see how it could possibly be higher quality.  So saying DVD quality is insufficient is belied by the evidence.

Exemption is a question of balancing adverse effects on fair use v. protecting the integrity of technical measures to encourage content owners to release HQ content.

Some notion that 2010 exemption took away benefits from 2006 exemption because it was limited to DVDs.  But 2006 exemption referred to works in a film/media studies dep’t library; Blu-Ray wasn’t released until then and so wasn’t a subject of the exemptions.  (So materials added to the library after 2006 weren’t covered? That seems clearly wrong.)

Some alternatives to circumvention appear unsatisfactory, but we think they are.  DVDs.  Video capture, video streaming for film studies.  Professional camera can record Blu-Ray displays to HD.  Smartphones can record.  So can managed copying.  Media studies students still have access to work on DVDs, pursuant to prior exemption, which is more than adequate.  One teacher says Applian Replay is really good: easy to use, high quality playback, no problems with syncing.

We examined the product and concluded that it doesn’t violate the DMCA.  We have ID’d Mac compatible capture software that works just as well.  Clip websites like Anyclip have a lot of clips that can be assembled.  Digital copying: 350 titles from WB and Fox alone released with a full digital copy of the product that can be put on a hard drive.  DVD is still king; more than 2x DVD households as Blu-Ray, and 75% of product. DVD is not going away.  Corner cases don’t justify an exemption since alternative formats are available.  Director’s cut/bonus materials are available in a number of noncircumvention ways.

Smartphones and tablets are going to be more ubiquitous than Blu-Ray players, and they all have video recording capability, making it more likely that clips can be easily made and assembled for educational uses.

Bruce Turnbull, Counsel, DVD CCA.  Opponent of proposed Classes 7A-G and 8.  CSS was vital to reassuring content owners to release high quality DVDs.  Led to fast growing demand.  Standards for the proceeding: In order to prevail, proponents have the burden of proof and must demonstrate distinct, verifiable and measurable impacts on purported fair uses.  Must be verifiable problems.  Exemption based on likely future adverse impacts should be made only in extraordinary circumstances.  Proponents must show problems justify exemption in light of all relevant facts, including availability of works using protected format. Anecdotal problems insufficient.  Convenience is insufficient.  Must be sufficient harm to warrant exemption from default rule of upholding ban on circumvention.

Doesn’t object to renewal of exemption for college/univ. profs nor for film studies students, nor for people in libraries/tech dep’ts assisting users otherwise exempt.  Did request clarifications as in written comments. Do object to extension to college/univ. students and K-12 teachers.  Fundamentally, the alternatives available for those users and uses are fully sufficient to meet the needs identified.  Tech day demonstration: Replay worked easily.  Smartphone recording plus video editing software is easy to use and the quality is acceptable: visual details were clear and audio was synced.  Mitch Singer’s demonstration showed how bookmarking can be done with online streaming.  As to cost, the video capture software costs less than $40; smartphones are available to many millions, and video software is less than $50.  DVD-CCA concurs with AACS LA on screen capture’s legality.

Steve Metalitz (with Matt Williams), MSK, representing Joint Creators and Copyright Owners.  Opponent of Classes 7A-G and 8.  Existing exemptions ought to be unpacked and present different issues.  The issue here is less whether the use is noninfringing and more whether there are alternatives that don’t require circumvention.  Burden on proponents is de novo.  We don’t object to a simple renewal of existing exemption as to post-secondary education.
Strong concerns about expansion to cover all access control formats for motion pictures, all students, all educational levels.  Concerned in particular with 8: all educational uses is more expansive.  Video games as AV works: doesn’t understand why circumvention is needed to make the uses Rife talked about.

What has changed over the last 3 years?  A lot of examples where perhaps HD would be better but you see almost no evidence of necessity. The Office has long maintained that this proceeding is not about enabling access to works in a favored/preferred format, but rather whether there’s a substantial burden on a noninfringing use.  Comparing Zoolander with Chaucer used to be fine on DVD; why is Blu-Ray now required? 

Library Copyright Alliance: there’s always going to be a subjective feeling that circumvention is needed; objectively they claim it’s always needed, and so perception of need a meaningless limitation.  Understands why educators want the option, but they haven’t presented compelling arguments to meet their burden.  Potentially millions of people circumventing access controls is worrying.  All students: no compelling case made that this is necessary.  Teachers have privileges that students don’t have.  Battle of the social studies teachers: does the New Trier reaction meet the burden?

Improvements in camcording, video editing, screen capture: this is different from 3 years ago. What’s available commercially in terms of clip sites; MovieClips has available clips allowing PowerPoint embeds. Doesn’t cover all titles, but growing. Ultraviolet presentation from May 11: a real game changer; enables a lot of real time access, or downloaded in many cases, in HD format.  1000s of titles available today.  Disc to digital process started at Wal-mart; soon available in the home.  Over time, probably fast, this will narrow the gap between number of titles available on DVD and through Ultraviolet for classroom uses.  That’s the real change in terms of alternatives, making the exemption less needed and the expansion of the exemption unneeded.

Carson: With Ultraviolet, does that include the ability to take clips from the copy?

A: Ability to cue up and start in one place.  Functionally yes, but not actually.

Carson: responses to what was said by opponents?

Hobbs: Clip websites are not good enough. Turns out that careful selection and curation of AV is part of the responsibility of the teacher in using AV materials.  If you and I were to watch a movie and decide on excerpts, we’d pick different in and out points. Choice of what clip to use is a pedagogical decision: based on students, learning objective, context.  Clip websites are inherently inadequate to educator’s important choices.  Sometimes that choice might be okay, but many other times it will be inappropriate—too long, too short, cut off.

Marks: true that sites don’t allow users to select a clip of their choosing: preformatted clips. But the clip services are just one means of satisfying the pedagogical needs.  Video capture, smartphone, or queing up the DVD or Blu-Ray to the point you want.

Decherney: Bigger issue is the tiny percentage of material available. Survey of 100 courses use video clips, almost none available, only 1/3 made by large studios that are likely to participate in these in the future.

Smartphone: pretty bad.  Choppy, jumpy, framing was off; subtitles; color bleed; image was muted; pixellation.

Managed copying: we’ve heard about it for a long time.  There’s no agreed on format, let alone agreed tech.  It’s vaporware for now.

Screen capture: Interested to hear Marks say it wasn’t circumvention.  If it can be blocked by copy protection, as Renee Hobbs showed occurs with Netflix, then why wouldn’t it be circumvention?

Rife: Smartphone—if we imagine the exemption expanded to include all students, depending on teacher, presence of phones can cause problems, so some schools don’t allow them in class.  Also not all students have smartphones.  Also, smartphones make it more likely to have uncontrolled dissemination over the web. Confined digital space like classroom computer offers a lot more control.

Hobbs: John Dewey said, if you want to learn something, the best way is to construct an example. When students make video with critical commentary, that’s when they learn best. That’s not a new instructional strategy but an established part of teaching and learning.

Bolos: Progressive teaching: evaluation, synthesis, analysis.  Bloom’s taxonomy has been revised by many to include creation. Because creation enables better decoding/critical reading.  Smart phones are very expensive—appear cheap/ubiquitous, but not every kid has access. And it’s still a realtime capture. Takes time.

Queuing up a DVD before class: perhaps you’ve never taught where you don’t have your own room and time is of the essence.

Band: when you teach, you should teach a thing, not the shadow of the thing. There is a value to authenticity. Study in the original language if you can.  If you can study the real work as distributed, that’s better than studying the camcorded version.

Metalitz: the Office has been down this road before.  HD works are available on DVD.  Fair use doesn’t mean you’re entitled to access the best version.

Marks: capturing video/audio after decryption, and thus not circumvention. Can’t say why it didn’t work on Netflix, but did work off of optical disk and streaming services.

Turnbull: May 11 demo: the audio was in sync.  Presence of phones in classrooms: That’s a choice that’s been made by the institution, but it doesn’t negate the fact that the use of a smartphone would be an alternative (comment: that you can’t use).  Also you could do it outside of the classroom.  Doesn’t see how smartphone video is more likely to be disseminated than one on a computer.  (Apparently never heard of sexting.  More seriously: practices within communities are structured though not determined by technology; the smartphone feels more casual and we are used to widely sharing smartphone clips.)

Rife: very frightened about this solution: people are arrested for using smartphones in movie theaters.  I don’t want to encourage my students to do this—if you teach your students to use the smartphone to record video, they’ll do it in the theater.

Band: MPAA showing people how to engage in camcording: we’re encouraging people to camcord in one situation, not the other, but this is a message that won’t work.  A bunch of educators want to do the right thing, and in response to these dedicated teachers trying to put together HQ stuff, telling them to hold up their smartphones is not a simple, easy solution.

Marks: taking advantage of an exemption is only limited to fair uses, so if a student puts up the entire movie on the internet, that’s also illegal. Don’t confuse the issue by exemptions give you a blank check. But that’s precisely our concern: exemptions are perceived as blank checks to circumvent for any purpose and for the entirety of the work.  (Well, that may describe screen capture, but an exemption limited to transformative/primarily noncommercial fair uses actually contains within itself an explanation of what it’s for.)

Assembling clips for educational use requires time whether you’re going to record off the screen in real time or access the unencrypted file and select clips. 

Steve Ruwe, Copyright Office: Cuing up multiple scenes—can you do that through access services?  Minute 2 and minute 15 and minute 30.

Metalitz: you can cue up multiple titles, but doesn’t know about multiple points.  Not sure that Ultraviolet would allow that. Digital copy is here now and will be more prevalent; would be possible to have digital copy on laptop and one accessible through a service, which would be one way to do it.

Marks: doesn’t know, but can try to find out.

Turnbull: managed copy, when it comes—you could devise a program to do that but it’s not here yet.

Ruwe: ability to manipulate.  How does ability to manipulate video depend on quality?  Can’t you just put the pieces together?

Decherney: one major way video is used is by students who edit, add voiceover; when they look at the images, they are analyzing them closely, often side by side, and if you talk about it they realize that they couldn’t focus on it/look at the details. Forced to talk about it at a certain level of abstraction.  Students doing a voiceover over a series of clips on the way commodities circulate and are presented in popular media—blood diamonds, the movie Blood Diamonds, ads.  Close analysis requires quality.

Ruwe: how is the quality of those clips relevant?

Decherney: Go back to Citizen Kane, with a lot of depth of field, one of the things the film is famous for. Bright v. dark in same frame.  Blu-Ray provides a sense of distance you don’t get in the DVD.  Deeper blacks would be useful if you were studying the cinematography, or the sociological perspective when we talk about background commenting on foreground. Blu-Ray actually has a background; DVD has less so.

Ruwe: are there more examples?

Decherney: affective response: look at audiences watching the commercial.  Crisp and sparkling diamond = one response; muddy and unclear = another.  Might also look at it more aesthetically; can we see the diamond clearly on the finger.

Ruwe: what about the student who couldn’t imagine better than the DVD?

Decherney: it’s like a cost of living increase: Avatar is a film sent in 100 different versions so it would look right in every screening context.  Look perfect in Blu-Ray—every single bit of space on disc was for the film, so it didn’t have any extras—that’s the way it’s meant to be shown and studied.

Rob Kasunic: Was able to see depth of field, but what about the blacker blacks, which might distort some parts of the Blu-Ray?  There are a lot of different variables.

Decherney: Exactly right!  They look different, both distorted for different purposes. People study for different types of purposes.  You might want to show both to show how images works.  YouTube video will look different than HD video. 

Kasunic: which is closer to what people saw in the theater?

Decherney: both things are important. We want something close to the original as possible; Blu-Ray is closest to the theoretical number of pixels on a film.  But also, times change; video provides a different experience; important to show different kinds of media.  Affective response: when people saw Citizen Kane originally, they had a powerful realistic experience, but now it looks muddier.

Ruwe: Educational standards for quality?

Rife: advocating for curriculum standards.  Standards relate to the rhetorical impact of any text. A one-page text with 2 paragraphs v. text broken down into 5 paragraphs.  A one-sentence paragraph can bring emphasis.  The same content; but the presentation can change the rhetorical purpose. The quality of the video has to be geared to the purpose and goal of your writing as customized for the impact on the audience. 

Ruwe: so when is high quality necessary?

Rife: when an individual is creating a text, rubrics for evaluation.  If there’s pixellation, students can be marked down for poor image quality.  Clarity of your images is a component of quality. 

Ruwe: Hobbs—what was the act of circumvention required to access video games.

Hobbs: doesn’t necessarily require circumvention yet, but teachers are using a broad array of cultural products that are now normative in youth culture.  Our job as educators is to make a connection between the content and the skills we’re trying to teach and the world our students enter.  We use a wide array of materials.

Ruwe: Libby Drake’s HS course on film techniques—quality seems relevant, but you’re asking K-12.

Hobbs: Project Hobbs did for 7^th graders; discussing difference between film and TV, which they don’t necessarily experience.  Can talk about business models, production techniques.  Uses an excerpt from The Princess Diaries and Hannah Montana Movie: you can see the distinction between film style and TV style.  Quality mattered: visuals that allowed us to see the difference.

Ruwe: Camtasia v. Jing: did you have quality problems? 

Bolos: you don’t have a time limit with Camtasia. 

Ruwe: there has to be some threshold with a longer clip—would it be burdensome to queue up just one clip?

Bolos: typically you’re doing more than one; in that particular class with Citizen Kane, we did about 10 clips.  Oftentimes we show different versions of different films: Romeo & Juliet Zeffireli v. Baz Lurhman.

Ruwe: does quality matter there?  Why not use screen capture for that sort of comparison?

Bolos: decoding something, you want the best possible quality, as opposed to struggling with what’s going on—struggling with video and audio.

Kasunic: but that was just one form of screen capture (note that you can’t predict what results you’re going to get with any given DVD)—there’s the premium version, and then a medium version of Camtasia, and then the $40 version.  Have you done experiments with the medium priced version?

Bolos: limited version, but the quality does improve with Camtasia. 

Kasunic: what about the intermediate versions, like Applian.  Seemed fairly good.

Bolos: does not have experience—used Camtasia mostly for screencasting and not capturing video.

Ruwe: did people really have trouble with audio in screen capture?

Bolos: Yes: screen capture captures through the microphone of the computer; poorer quality than straight trip.  Screen capture had to be in silent room.  Kids in other class didn’t have difficulty decoding the audio.

Ruwe: was the DVD cued up?

Bolos: yes.

Carson: how did the audio work?  With this software, the only way you get the audio is through the microphone?

A: yes.

Turnbull: that’s the default for Applian.  There are settings that can be changed in Replay.  (That is a misleadingly incomplete description. You generally can’t set it to capture the audio internally when you are doing other things, like playing DVDs, which I assume is a programming decision to avoid DMCA troubles.)

Hobbs: if you sneeze during the recording it’s on there. It’s designed for capturing demonstrations on the screen.

Bolos: when you capture system audio, you capture beeps and blips from your computer too.

Metalitz: we say if it captures unencrypted signal, then it’s not a violation. As described by the technical study that the other guys did, that seems to describe this particular program they were using. If unencrypted and not protected by some other type of access control, such as the stream from the point at which it was being copied.  In theory an unencrypted stream could be subject to password protection.  (Netflix streaming has a password, by the way.)

Ruwe: if Camtasia worked on Windows but not Mac, why wouldn’t that be ok.

Hobbs: here was a teacher in his lunch hour, chatting with me about the problems he found. When he shared his story: he made a pretty good effort to try screen capture. It failed; he didn’t know exactly why.  Lacked the considerable expertise that someone else might have to spend the time to fix it. That’s a significant obstacle for busy, ordinary people.

Carson: one specific person had difficulties, and we don’t understand why they occurred; isn’t it dangerous to generalize from one?

Hobbs: at every event, teachers come up to me and tell me their problems.  I had 10 minutes and I gave you an example.

Carson: one interview about difficulty isn’t enough. Can we craft an exemption based on his experience?  If Netflix is an issue, not sure we have enough to go on. 

Marks: CSS as access control was irrelevant here.  It wasn’t the access control that prevented the teacher from getting the clip; he couldn’t find his DVD.  If Camtasia didn’t work, that’s a problem of recording but has nothing to do with access control.  (Hunh?  He tried to use Camtasia to do something the opponents said is easy to do, and it wasn’t easy.)

Kasunic: Netflix requires Microsoft Silverlight to access content.  How does this relate to what you’d circumvent if there was an excemption, since this isn’t CSS?  Streaming media exemptions raise these issues w/unnamed protection measures.

Decherney: there are at least 3 types of DRM that advertise the ability to block screen capture.  Now the exemption is limited to DVDs; we did previously had a general exemption that didn’t specify a specific technology.  Don’t see why we should prioritize one technology over another.

Kasunic: all we were talking about at the time were DVDs.  There wasn’t really an intent to deal with digital online content, which was nascent. 

Decherney: it said all AV works, and I thought it meant that.

Bolos: why not use a different platform?  My school does Mac and Windows; our feeder schools are Mac only. This sometimes happens at public schools; it’s not always a choice.

Ruwe: it is a balancing.  How burdensome is it to acquire a different operating system?

Bolos: the school may not support a different platform.

Kasunic: there do seem to be various forms of screen capture software that operate on various platforms.

Marks: we didn’t test Camtasia on streaming capture, just to see how it functioned in terms of capturing content after decryption.

Carson: assume that Applian works, but are you in a position to say that Camtasia works as well?

Marks: our technical firm said that it is as good.

Band: if the quality is the same, why are we here?  Obviously you aren’t able to see the same thing.  Significant qualitative difference.  Kids also are trained to see things differently: I grew up with black & white TV, but kids who grew up in a world of large screen TVs have great difficulty watching a black & white film.

Carson: kids seem happy to watch teeny little screens!

Hobbs: quality can be defined as a fixed dimension, but what Rife was trying to say is that quality is a subjective experience. Our experience as educators working with young people is that their expectations about image quality are based on the context, the situation, and the purpose. When I’m walking through a mall, I have one expectation about the film on my smartphone. Sitting in film studies class I have a different expectation. 

Decherney: teaching Charlie Chaplin before DVD: no one laughed when he showed his beat up VHS copy; showed DVD and the students laughed for the first time.  Today it’s the Blu-Ray that would make them laugh. Another example: screen capture all has insufficient framerate, creating jerkiness; there’s bleedthrough; sometimes they have an absolute number of pixels they’ll capture that doesn’t match Blu-Ray or other formats.  One professor who studied early Russian filmmaker—he tried to pace the editing in a way so you can perceive cuts—there’s one frame that is a single image.  Camtasia: 50% chance that this frame would have been dropped.

Metalitz: we aren’t saying the quality is the same, we’re saying it’s acceptable.  Quality is subjective: people will never say it’s okay to use screen capture.  Of course teachers want high quality, but this is a balancing process. Cost of permitting exemption is that we have 200 million people entitled to circumvent this protection. Have to ask yourself what’s the tradeoff versus necessity for robust access controls to allow dissemination.

Marks: assume the quality is the same. Band is asking why we bother: we bother because of what happened to the music industry, where CDs were in the clear and people easily made full copies. That led to a lot of unauthorized use and a perception this is ok to do. That’s why we apply access controls so it’s not easy and seamless to make copies.  Video capture is a deliberative act, not just drag and drop.  If we thought access controls provided no protection, we wouldn’t apply them.  We aren’t saying don’t use cultural products in the classroom.  It’s great to see the Mona Lisa, but not everyone gets to go to the Louvre, so you use satisfactory copies instead.  This notion of “if the highest quality is there we should have access to it” falls apart.

Decherney: bringing every student to the Mona Lisa, if possible, would be a good thing.  Conjectural: but we have 7 years of evidence from DVDs, and we haven’t seen any massive abuse or degradation of the DVD market due to the exemption.

Carson: is that right?

Turnbull: DVD sales have gone up ‘til 2005 and down since then.

Carson: can you trace that to the exemption?

Turnbull: not saying that it’s the exemption; can’t say it did or didn’t have an effect with certainty.  (With all the people who’ve been sued for sharing files, you can’t?)

Metalitz: we don’t object to the renewal of the existing exemption for a limited category of users and products.

Hobbs: there are 3 million teachers in American public schools, 40% with masters’ degrees. Ave. teacher is 54 and will be teaching for 15 more years.  Using technology supports innovation in education.  No reason to distinguish between K-12 and community college professors.

Kasunic: to what extent is there confusion about the existing exemption?

Rife: the focus on quality is premised on the idea that your purpose is to reproduce what someone else created; we’re looking at making something new that’s their own work. Why wouldn’t you want the components of your work to be high quality?  Why is it acceptable to tell a student that they can have a pixellated image of the Mona Lisa because what they’re saying isn’t that important?

Kasunic: is the exemption seen as authorizing circumvention in all cases?

Rife: when I do the workshop, they ask what students can do?  The current language has an ambiguity about noncommercial use/documentary—or are students not allowed to do it just because they’re students.  They’re already included indirectly.  There is no evidence of harm.  She sees barriers to keep us from doing it at all.  Imagine a room of 40 students watching a current movie and I tell them to take out their cellphones and take a clip for a montage.  That’s not a message you can communicate to students.

Ruwe: if you’d shown the class a screen capture version of Charlie Chaplin, would they have laughed? 

Decherney: I’ve never seen a screen capture ready to be run in my class.  It wouldn’t serve them well.  We have screen capture available, but it’s not up to par.

Rife: tried Camtasia to take clips.

Ruwe: but sometimes it has worked.

Band: they’re trying to teach, and spending a lot of time figuring out every possible software application is not a good use of your time when there’s a simple solution out there that won’t cause any harm.  Burdening non-technologist teachers to find multiple workarounds seems shortsighted.

Kasunic: what do you use?

Decherney: DVDshrink & Handbrake, both free. Handbrake: gets better all the time; can choose short portions.  Hasn’t used ACSoft for Blu-Ray, but well reviewed.

Ruwe: have you reevaluated screen capture since 2009?

Decherney: definitely improved, but hasn’t kept pace with technology.  Worked with students at AU, trying Camtasia and Snapz pro.  We tried different settings, top of the line equipment.

Bolos: ultimately it’s the time that you spend that’s lost.  Ripping a CD is instantaneous and is a deliberate action.  The time you spend as an educator with 25 students in a lab is significant.

Turnbull: we demonstrated a screen capture program used by a real teacher on May 11 in real time. (No, you didn’t. You demonstrated his results.)  He integrated them into his classroom presentation.  Can’t speak to why Camtasia didn’t work; our lab uses it regularly.

Marks: Media and film classes often show lots of clips; that’s a concern, but for many educational uses you’ll show one clip; the original is available for use.