DMCA hearings: K-12 education

Copyright Office: Jacqueline Charlesworth
Michelle Choe
Regan Smith
Cy Donnelly
Steve Ruhe
John Riley
Stacy Cheney (NTIA)
 
Proposed Class 2: Audiovisual works – educational uses –
primary and secondary schools (K-12)
This proposed class would allow kindergarten through
twelfth-grade educators and students to circumvent access controls on lawfully
made and acquired motion pictures and other audiovisual works for educational
purposes. This exemption has been requested for audiovisual material made
available in all formats, including DVDs protected by CSS, Blu-ray discs
protected by AACS, and TPM-protected online distribution services.
 
Proponents: Renee Hobbs, Media Education Lab, University of
Rhode Island: trying to continue exemption and extend it to students for work
produced as part of curricular/learning experience. National/international
media studies educator.  Five points: (1)
Digital learning tools and media pedagogy are in rapid transition; shouldn’t
discourage innovation when most needed. (2) Student creative expression has
copyright and fair use protection: best way to learn to respect law is by
learning how to make something transformative. Media literacy helps our nation’s
children understand rights and responsibilities. 
 
Charlesworth: specific evidence?
 
A: In Pennsylvania, worked in charter school on media
literacy.  Fourth grade children:
interview mom & dad about favorite music video and talk about why they
liked it. They had a conversation about emotional attachment to music videos,
then the child had to interpret the music video and then make a video where
they rolled a piece of the music video along with their voiceover
interpretation.  This activity developed
writing and creativity but also a conversation—teacher asks how they’re
transforming the video.  Fourth grader
was able to say: when I add my voiceover I provide new meaning—emerging understanding
of fair use.  Clips were long enough for
a child to read three sentences out loud.
 
Current law limits innovative practices of teaching and
learning—rules about length will limit innovation.  Along the same lines: I ask educators to do
things I then expect them to do in their own classrooms, like analyzing a film
like Costner’s Black or White, using
the five critical questions of media literacy (Exh. 17). Author, purpose,
techniques to attract attention, what’s represented/omitted; how might different
people interpret it differently?  There
might be 29-30 children using a big chunk of the total film ultimately.
 
Charlesworth: does this go outside the exemption?
 
A: teachers found ambiguity discouraging. 
 
Charlesworth: if there were no ambiguity, and clips meant
clips as long as they were used for genuine criticism and commentary, why would
that be a problem?  Do you want the
students to be able to use lengthy excerpts?
 
A: might want to create a compilation of different
interpretations, as in teacher showing to the parents. 
 
Charlesworth: couldn’t the teacher present individual
videos? Not the parents being educated.
 
A: of course there are tons of workarounds, but the rules
contribute to confusion and discourage innovation.
 
Charlesworth: The reason the exemptions say “short” is that
it’s much more likely that a short use will be fair than a very lengthy taking.
That’s the concern.  Saying it just has
to be fair use doesn’t offer more guidance.
 
A: Hobbs has faith in understanding law as written. Context
and situation determine how fair use applies. Teachers are fully able to make
that determination.
 
Charlesworth: when do they need to use a larger work?
 
A: example.
 
Charlesworth: but that’s multiple clips.  Compilation isn’t necessarily educational.
 
A: key concept of media literacy is that different people
interpret same media differently. 
Putting together multiple interpretations isn’t just to show parents—it deepens
students’ understanding of multiple interpretations. Teacher might reasonably
be concerned about whether her educational use falls w/in narrowly written
exception.
 
Charlesworth: would she also worry about fair use?
 
A: No.
 
Charlesworth: but fair use also looks at amount. [but doesn’t
require “short”]
 
A: children’s active meaning-making results in transforming,
using just the amount needed. 
 
Charlesworth: if it were clear that you could take short
clips and put them into a compilation into a context to show to students, would
that solve your problem?
 
A: it would represent progress. But digital learning is
rapidly changing and narrowness discourages innovation.
 
Final point: Recent screencap experience, modeling
techniques for teachers. Social studies and English teachers are watching Wolf
Hall on PBS. We brainstormed an activity researching English history and
creating a video remix to make Cromwell look like villain or victim instead of
hero as depicted in film. Tried screencap streaming; couldn’t do it.
 
Q: what tech?
 
A: I tried Screencastomatic and Camtasia.  On a Mac. So now I bought the DVD version and
tried screencap.
 
Q: could you stream it?
 
A: it was streaming and I couldn’t capture it from the feed.
 
Charlesworth: was that specific to PBS or the technology you
used?
 
A: I don’t know.
 
Charlesworth: there was some specific issue with the PBS
feed?
 
A: seems so.
 
Charlesworth: if the problem was specific to PBS, why not
stream it from some other source?
 
A: it’s only available from PBS.  I can share it with teachers and demonstrate
it if I can circumvent. But it’s not responsible to model instructional
practices that can be used by some learners like college students and not by
others like K-12. I want to model lawful practices, which is why we need a
broad exemption.
 
Charlesworth: There is an exemption for noncommercial
videos.  Would your students qualify?
 
A: I took solace in that. 
For many instructional practices with students actively involved in
taking bits of material and learning to develop an argument, compare and
contrast, and research it’s not clear the artifacts resulting would be “videos.”
Don’t want to use legal bypasses to represent them as something they’re not.
 
Charlesworth: but they’re noncommercial,
commentary/criticism, short clips, why not qualifying?
 
A: they might. But “video” wouldn’t be understood by an
ordinary school IT person or teacher as covering this work product.
 
Charlesworth: you need to explain things to fourth graders
why this is illegal [I note that I have never been able to do this w/r/t 1201!]
You have to explain what it takes to make their projects compliant. Many such
products will be compliant with the noncommercial exception, arguably.
 
A: and many not.
 
Charlesworth: what?
 
A: HS schoolers in Rhode Island must do an independent
learning project. A student might want to make a critical analysis of a popular
music band. Cultural significance of the Grateful Dead—there’s quite a market.  Might want to put into commercial
marketplace. Would be a fair use.
 
[note a student’s project might not be remix if it is an analysis of a single clip]
 
Charlesworth: documentary; plus marketing is not part of
educational mission.
 
A: 110(2) by the way: very difficult for us in digital
education space: mediated instruction activities that use work as integral part
of class experience under control of instructor analogous to type of
performance that would take place live—really problematic b/c the key learning
activities are not the type that
would happen live.  That’s the whole
point of the innovation occuring now. 
 
Charlesworth: no room for teacher?
 
A: no, but many happen as students learn for themselves. I
don’t show them how to make videos—they learn to do it on their own. Direct
instruction approach where teacher is treated as transmitter isn’t the kind of
pedagogy we use now when every kid has her own laptop.
 
Charlesworth: there’s no guidance at all from the
teacher?  The teacher is giving some
instruction on what’s expected.  There
may be homework.
 
A: media is building blocks in content creation, which is a
pedagogy for students to demonstrate their learning.
 
Charlesworth: sure, they’ve been encouraged to write for a
long time.
 
A: and 110(2)’s definition doesn’t reflect that.
 
Charlesworth: screencap, if we renew the existing exemption,
do you still want a screencapture exemption to deal with tech that may involve
circumvention. 
 
A: screencap is vital for media literacy education and we
couldn’t do it w/out screencap.
 
Q: do teachers/administrators currently understand the DMCA
exemption?
 
A: we work very hard on that, and every year I talk to
300-400 tech directors.  I think we’ve
made progress in helping people understand their rights.
 
Q: Are you suggesting that students on their home computer
or laptop purchase or download these tools to break encryption for preparation
for homework or is that done in the classroom/computer lab where there is
supervision to help them understand the parameters in the law?
 
A: all of those practices are normative. It probably wouldn’t
be appropriate to limit to any one of those pedagogies—respect choices made by
the educators about which practice is most appropriate for the particular
learner in question.
 
Q: In the papers, there’s an example of a teacher who wanted
to use Blu-Ray; do you have another example of where Blu-Ray was required?
 
A: No.
 
Jonathan Band, Library Copyright Alliance: Opponents don’t
oppose renewal. Question is extension to students. Main argument is
floodgates.  In the context of MOOCs,
ignores reality. Circumvention tools are widely available and widely used.  Classroom = no increase in infringement.  Sounds like argument that sex ed leads to
more teen pregnancy.
 
Exclusion is anomalous. College students can circumvent for
art history, but HS student can’t do so for an AP class. Media-saturated
culture; don’t restrict engagement from speculative fear.
 
Charlesworth: if you have a teacher saying it’s ok to use
circumvention tools, that doesn’t influence students on legitimacy?
 
A: exactly because of educational context, teacher can
explain limits. Student in better position to understand fair use. Student as
creator now has interest in thinking about under what conditions it’s ok to use
someone else’s work.  Supervised project
= teachable moment. Much better than actual situation—kids doing everything on
their own. That’s why knowing that it’s happening anyway is important: better
that we provide context and structure for kids to understand appropriate
parameters.
 
Charlesworth: what evidence that teachers are giving
guidelines to students?
 
A: right now they’re not because they aren’t allowed.
 
Q: are teachers ever catching students circumventing?
 
Hobbs: yes, that happens quite frequently. Teachers try to
help students use lawfully.

Band: Noncommercial exemption: if the Copyright Office is willing to say that
applies to our situation, awesome.  We
know from previous panels that MPAA and RIAA don’t like that.  Unless we have clear guidance that the
noncommercial exemption applies to students, it would be risky for schools to
encourage students to engage in those assignments.
 
Charlesworth: what’s your interpretation of today’s noncommercial
exemption?
 
A: taken literally, it’s certainly fitting.  Given the specificity of the K-12 exemption
and the restrictions on that, though, I could see an argument being made in the
educational context that it wouldn’t apply. Before educational institutions
encourage educators to make lesson plans w/this kind of project, need more
certainty.
 
Opponents: Bruce Turnbull, AACS LA: Wolf Hall, what’s
unfortunate is that you didn’t try to make copy direct from broadcast, b/c it
should be freely copyable at any quality, using an existing DVR [and moving it
to your computer for editing how?].
 
Charlesworth: is there something about PBS in particular?
 
A: don’t know.  We are
talking apples and oranges.  Instruction
conducted online = 110(2) relevant, not so much here. Anyhow, they aren’t
really asking for circumvention of Blu-Ray—extending existing exemption to
students.  That has to do w/DVD, but not
Blu-Ray. Only one example w/Blu-Ray, where teacher was able to use DVD. 
 
They’re not entitled to whatever quality or format they want
under Corley.  If they can get it another way, it’s sufficient.
 
David Jonathan Taylor, DVDCCA: Exhibit will show subtitles,
which proponents say that they need for educational purposes. We’ve edited the
Matrix clip to show how a student could use this for a project. Used WMCapture.
Then he believes Matrix clip was processed/edited in either MovieMaker or First
Cut. [First Cut?]
 
Chicago clip (wow, that’s low quality) with subtitles.  Video capture was able to record whatever was
in the field, including the subtitles. 
Next: submitted this originally, a scene from Matrix.  Next: Reorganized the scenes—we started off
w/the wife and she has changed position now. 
[NB: They did not reorganize the scene,
though they did move a few shots.] A student could be expected to do this with
video capture.
 
Q: EZVid is the free software listed. Do you have any
experience with it?
 
A: no. We’re not endorsing any specific technology, just
identifying that software is offered.
 
Q: so we don’t know what quality level it would offer.
 
A: true, but you usually get a free trial for 15 or 30 days.
I’ve used that.
 
[PS MakeMKV is free, not paid.]
 
J. Matthew Williams, Entertainment Software Association,
Motion Picture Association of America, Recording Industry Association of
America (Joint Creators and Copyright Owners): We love K-12 educators and
appreciate their work and don’t oppose renewal of existing exemption, only
expansion to allow circumvention by 50 million students, some as young as 5
years old. We want short portions and close analysis/criticism/commentary, and
no Blu-Ray. Keep exemption closer to what is more likely to be fair use. 
 
Proponents argue that copyright law doesn’t warrant creation
of separate rules for different types of digital media, but history of these
proceedings show that format types have been repeatedly used to tailor
exemptions without going too far to upset the balance Congress intended to
strike.
 
For the record: Blu-Ray is a critically important platform
for my clients and there are plenty of alternatives to circumventing; content
is not exclusive to Blu-Ray. As Register concluded in 2012, there’s an
insignificant amount of Blu-Ray only content. 
Using HD digital copies acquired online is fine, or downloaded/streamed
video queued up in advance. [Boy, they’ve really thrown the streaming business
models under the bus here. Good news for streaming that the bus is actually a
wisp that does no damage!] They point to one website, copyrightconfusion wiki
where teachers go for fair use. That site seemed valuable, but a few things
said were far too categorical under the law. 
There’s a statement saying teachers can make copies of TV shows and keep
them for educational use—there might be some situations where that’s fair use
but it might not be.  Fair use to sell
curriculum w/copyrighted materials embedded—some might be, but many not.
 
Harm: potential overlap b/t noncommercial video exemption
and educational exemption was unintentional b/c educational is carefully
tailored and excludes K-12 students. Thinks the reason was that the Office was
concerned that allowing K-12 access could lead to untrackable infringement—we just
wouldn’t know that was the impetus for a student getting started w/that type of
tech.  [Wow, the sex ed analogy just gets
better the more I think about it.]
 
Charlesworth: if we readopted the noncommercial exemption
and it went to court, would the exemption apply to student uses?  Do you agree it’s ambiguous/overlapping? On
its face, that exemption doesn’t speak to students.  Should it be limited to exclude students?
 
A: I do agree that it’s ambiguous, and the record would show
that there was an intended distinction b/t educational uses and the remix
exemption b/c the record was built in two separate tracks and the track focused
on noncommercial videos was focused on remix [which often has a message, and
sometimes that message is educational! It is often commentary, and students
often make remix; this is ridiculous]. 
We did try to point this out last time [and we got a full noncommercial
exemption last time!]. Not sure the way to go about it is to exclude students
from noncommercial exemption; might be able to define that category more
clearly to delineate between the two.  It’s
got to be possible to have a definition [that doesn’t let educational remix
occur?].
 
We do not oppose the continuation in college and university,
but do oppose K-12.
 
Charlesworth: Why?
 
A: we are troubled by the idea of introducing very young
children to circumvention technologies that can be misused.
 
Charlesworth: what about Band’s suggestion they’re doing it
anyway; better to involve a teacher.
 
A: that’s a great idea; teachers can be helpful, but you don’t
need to put circumvention tech in their hands. [You don’t need to b/c it’s
already there! [Sex ed joke about their hands omitted]]
 
Charlesworth: what about screencapture? [Oh by the way if
screencap is fine for 5-year-olds then I’m not sure why we’re fighting over
circumvention.]
 
A: our position is the same. 
There are some that are not circumvention [whatever they are].  We haven’t done testing on specific tech. 
 
Q: do students appreciate the distinction between screencap
and circumvention?  That doesn’t seem
plausible.
 
A: I’m not sure. Hard to put myself in a 6 year old
mind.  I doubt they can make those
distinctions. But a lot of places online you go to get circumvention tech don’t
look like legitimate marketplaces for screencap tools.  [Really? 
I invite you to consider MakeMKV
versus Camtasia versus
Handbrake versus Screencastomatic.]
 
Charlesworth: Hobbs?
 
A: students can learn the difference between screencap and
circumvention.
 
Charlesworth: could a teacher help you understand which
tools you can use?
 
A: yes.
 
Q: AP students v. college students—could we draw the line at
high school or AP students?
 
Williams: better than expanding it all the way. There’s a
risk of introducing them to the tech.
 
Hobbs: if we are drawing lines, high school students are no
different from 22 million college students—but K-12 aren’t either!  We haven’t had any problems w/22 million
college students.
 
National History Day matters; more relevant for HS than
elementary schools.
 
Charlesworth: the college exemption is for close analysis.
 
Hobbs: Common Core mandates that all students learn to
critically analyze the form and content of media messages in a wide variety of
forms. It’s not an elective—it’s normal part of instruction in English Language
Arts and Social Studies.
 
Q: can students navigate the differences?
 
Hobbs: in some communities, National History Day media
production is a big tradition.  One
district she works w/takes it very seriously. The opportunity to use HQ content
for a documentary about, say, the history of Ray Kroc is a really meaningful
choice. For other experiences, screencap can be adequate.
 
Q: they want a better output, but are they analyzing the
actual clip.
 
Hobbs: building a documentary to make an argument about Kroc
in the context of his entrepreneurial vision.
 
Q: are they analyzing the lighting of the clip though?
 
Hobbs: those practices blur together in the process of
teaching and learning: content and form are always at issue.
 
Charlesworth: does it require any particular grade of
content?
 
A: No, it says students and teachers are in the best
position to decide.
 
Charlesworth: do they tell you to use DVD level content?
 
A: not to my knowledge. [From our submission: “The [NHD] rules
encourage the use of high quality materials; clarity of presentation, including
quality of visuals, is worth 20% of the evaluation.”]
 
Q: examples of times teachers stepped back from using a clip
and used screencap instead?
 
A: I could go into my Google form and retrieve examples of
educators in that situation.
 
Q: do you know Disc to digital and Ultraviolet?
 
A: No, neither do I know how to record broadcast video [and
make it editable].
 
Turnbull: there are DVD recorders sold on the market.  Blu-Ray recorders, though hard to get.  There are DVRs supplied by cable companies
and you could connect that through an output and presumably make it connect to
a computer.
 
Ultraviolet and Disney Movies Anywhere—more or less the
same. You get the right to stream that content to any one of a number of
registered devices.  Disney: kid titles,
works pretty much the same—right to stream/digital download.  The two systems operate through online
retailers. [Does your license let you use it in a classroom or is it restricted
to private performance? Never mind!] You could cue up clips in half a dozen
movies.  Avoids booting up player.
 
Charlesworth: if you can cue up clips and show them, is that
helpful alternative?
 
A: I’m here today to talk about a pedagogy of instruction
that puts students as authors of media message, not as receivers—critical thinkers
through hands on manipulation. 
 
Charlesworth: but you’ve asked for an exemption for
teachers.  What about for teachers. Are
you saying that teachers don’t need an exemption? For teachers: might that not
be helpful to be able to cue up clips as part of a lecture?
 
A: any fee-based service is going to be an obstacle; teachers
are pretty underpaid.
 
Turnbull: the service isn’t fee-based, though you have to
own the copy of the movie, and that would be the case regardless of the
movie.  W/the exception of taking your
disc and upgrading to digital, where there’s a $2/$5 fee.
 
A: for 40% of the teachers I work with, urban schools, that’s
attractive and intriguing, wouldn’t be readily available. 
 
Charlesworth: where is the original copy?
 
A: on their shelves at school. 
 
Charlesworth: urge you to investigate it as a way to convert
things from hard media into streaming media.
 
Band: Two problems at least. (1) Catalog is relatively
limited. (2) The streaming service assumes really really good broadband. Some
schools have it and some schools don’t; some rooms don’t. You can’t start
showing a clip and have it crap out—you lose the class. That’s why a
compilation is much more effective. Unless the technology gets a bunch better,
what you can’t do is manipulate it.  Two
or three works side by side.
 
A word on Corley,
15 years old.  A lot of this was dicta
(actually, all of it), and in 2015 if the Second Circuit were to revisit the
issue squarely presented—it wasn’t a fair use case—I have no doubt that the HathiTrust circuit would say there’s a
difference between digital and analog and that fair use allows you to make a
copy in the format appropriate for your use; you don’t have to be using
primitive tech that doesn’t effectively convey your message.
 
Charlesworth: any caselaw?
 
A: HathiTrust.  Also Georgia
State
: digital format was important; if not available. 
[Also, from our submission: Bill Graham, 448 F.3d at 613 (finding
fair use when copying was of the “size and quality” necessary to the
transformative purpose); Warren Pub. Co. v. Spurlock, 645 F. Supp. 2d 402, 420,
425 (E.D. Pa. 2009) (highquality copied images were fair use because they were
necessary for transformative purpose; “As to Plaintiffs’ argument that Spurlock
could have reduced the larger images or changed all of them to black-and-white,
such modifications would undermine the very heart of the publication, which is
to chronicle the achievements of a renowned artist. Vivid colors are an
important element in depicting monsters, particularly their faces. . . .
[M]aking these changes would directly thwart one of the key purposes of the
book—to showcase the detailed work of Basil Gogos.”); Swatch Grp. Mgmt. Servs.
Ltd. v. Bloomberg L.P., 756 F.3d 73, 85 (2d Cir. 2014) (finding fair use where
copying audio recording provided additional details on tone of voice and emphasis
compared to transcript); Sony Computer Entertainment America, Inc. v. Bleem,
LLC, 214 F.3d 1022, 1030 (9th Cir. 2000) (finding fair use where real images
were necessary for accurate comparisons).]
 
Williams: Georgia
State
there’s a remand.  Very
cautious language about taking fair use too fair.  Too much taking = run risk of eliminating
economic incentive for creation; don’t kill the proverbial goose that laid the
golden egg. Don’t allow too much educational use.
 
We’re not opposing renewal of existing exemption; K-12
educators can get all they need.

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