DMCA hearings: library etc education

Copyright Office: Jacqueline Charlesworth
Michelle Choe
Regan Smith
Cy Donnelly
Steve Ruhe
John Riley
Stacy Cheney (NTIA)
Proposed Class 4: Audiovisual works – educational uses – educational programs operated by museums, libraries, or nonprofits
This proposed class would allow educators and learners in libraries, museums and nonprofit organizations 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: Work in non-school settings. (1) No reason to distinguish those who learn in non-school settings like nonprofits. (2) Perpetuates inequality, since libraries etc. serve underresourced communities, where this form of learning is important. (3) Not useful to create separate rules for different formats.  Recognizing educators’ and students’ ability to make appropriate choices is reasonable. (4) If limiting language is required, “digital and media literacy instructional practices in informal learning contexts” would be reasonable though it’s not required.
Q: examples of inability to circumvent outside digital and media literacy education?
Hobbs: most of my examples include digital and media literacy education.   Incredible work in library community: Macarthur Foundation invested over $130 in informal learning sector digital initiatives.  Informal learning research and pedagogy has advanced by leaps and bounds. Chicago’s Umedia at public library: teen library services—1000s of teens and young adults have been making media in a wide variety of forms, but they can’t make use of circumvention for their creative work, unlike UPenn students.
Q: would exemption require physical presence at library etc.?
A: That’s a great question—just as there is so much innovation in tech delivery of digital media, there’s a huge amount of innovation in digital learning space about blending face to face and online learning. Even in libraries, it’s common to have a course on “how to make a blog,” where learners work in the library and then back at home. I don’t think the distinction should be a limiting factor, because today those practices are seamless.
Direct harm: Jeanine Cook, Yes Philly, nonprofit helping African-American youth get GEDs; students have negative experiences w/schools so exploring media is really valuable in non-school environment. But she can’t use decryption even though learners in other programs have the right to make such creative work.  Accident of birth keeps them distinct from Penn students not far away.
Charlesworth: what about noncommercial video exception? Would that apply here?
A: Opponents say when we look historically the exemptions for K-12 were distinct and separate.  Many of the creative expressions and work products aren’t like remix video artists. They aren’t designed for that purpose.  They’re part of strengthening the media understanding muscle, like an exercise, not designed for an authentic audience with a real world wide distribution. Way to help students learn.  Possible it might apply, but not willing to rely on it.
Q: There are a number of adult education programs, some affiliated w/school districts and some not. Is adult education included, GED programs?
A: yes. 
Q: examples of where this might be used?
A: Yes Philly, which I just described, fits that definition.  250 teens and young adults who dropped out and are returning for their GED. Not affiliated with school district; nonprofit.  Jeanine Cook wanted students to use clips from Selma, other film, and was unable to do so because of current limitations.
Charlesworth: how are they accredited to grant GEDs?
A: State of Pa. offered them accreditation, but not familiar w/the legal mechanism.
Charlesworth: some official sanction.
A: yep.
Q: how would you define educators and learners?  Libraries, nonprofits, etc. have different missions.
A: Teachers and learners can be blurred in library programming services. Providence Community Library: media literacy might involve a college student at University of Rhode Island enrolled in one of my grad classes. Learners might be other K-12 teachers; mothers and patrons of library; teens; younger people.  Library programs and services aim to reach the broadest spectrum of Americans.  Teachers are drawn from wide swath of public and learners are drawn from the community served.
Q: envisioning a course taught at one of these institutions?
A: yes.  Course isn’t correct—usual term is “program” for libraries and museums. May be single session or a series of experiences over a longer period.
Q: do you have a way to differentiate a “Best of the Oscars” presentation at the Smithsonian.
A: I don’t think we need to confuse exhibition with fair use for learning purposes.
Q: so we could exclude exhibitions to general public.
A: yes.
Jonathan Band, Library Copyright Alliance: Before I talk specifically about libraries and museums, I want to talk about broader issues.  Ultraviolet etc.: I haven’t studied the licensed terms, but wouldn’t be surprised if license prohibited public performance. Would using it in a classroom setting be ok? Sure they don’t want to induce breach of contract.  110(1) wouldn’t take care of the license problem, unless you want to say that 110(1) preempts the license, which would be dandy with us.
Charlesworth: in some settings, 110(1) enables one to show a copyrighted work.
Band: yeah, takes care of © but not the license, though he agrees it preempts the contract terms! Also in terms of Corley: other cases that go the other way. Bill Graham Archives, Spurlock, Swatch: court specifically addressed issue of format.  Swatch: was transcript enough or did they need the audio, and the court found that audio was additionally insightful beyond the transcript and that was fair use.
Moving on to libraries and museums: sponsor lectures and classes on a wide variety of topics. Following examples from 6 months of NYPL: choreographer used clips of ballets that inspired him; Satrapi used clips from Persepolis; George Clinton used clips of performances that inspired him; William Gibson; magician David Blaine; actor RuPaul; art dealer used clips from documentary about him; Suzanne Farrell used clips about her dances. Not limited to NYPL: Skokie library had lecture from critic about “films that changed my life.” Important part of informal education; doesn’t threaten rightsholder interests.
If the noncommercial exemption covers this, great.  That would be a helpful clarification.  Circumvention tools are widely available and widely used for infringing and noninfringing purposes. Educators want to do the right thing. They could ignore the DMCA with impunity, but instead they are going through this complex process. Rightsowners know there’s no impact on the level of infringement.  Understand the frustration about infringement, but don’t take it out on educators just b/c DMCA allows them to do so.
Opponents: Bruce Turnbull, AACS LA and DVDCCA: (1) AACS particularly, note that there’s no need for Blu-Ray quality; nothing in the record but vague anecdotal statements amounting to substantial adverse effects. (2) Fair use doesn’t require the user to have any quality level they wish.
Charlesworth: And the cited cases?
A: I’m not prepared to respond to those on the spot.  Reply comments stated that DVDs dominate the marketplace. Maybe that will change in a few years but that’s what we’ve got now. As to Blu-Ray there’s no record for an exemption. More broadly, the categories suggested here are very vague and broad—all kinds of nonprofits, museums, libraries, not limited to institutions specific to education or activities specific to education. No assurance that participants will be engaged in educational activities at all.  Nonprofits in particular: one could create a museum if they want.  A museum of my own DVD works, inviting everyone to come in from 4-5.  [Why would ability to circumvent matter there?  Couldn’t I just set up a DVD player right now?] It’s possible to create a small nonprofit for all kinds of purposes. [Why would you do that—to make another copy of South Park from a copy you already own?]
Q: if we narrowed to educational activities, would you still oppose?
A: that would be better, but we’d oppose it with Blu-Ray. If more in character of existing educational exemptions (short clips, close analysis), merely having an educational focus or mission begins to drift away [implicitly, because people are super super untrustworthy, except I guess for the ones who run Ultraviolet].  But degree-granting institutions like GED granting institutions would get closer.
Alternatives: as was demonstrated previously, screen capture software does in fact allow you to make use of video, so you’re not deprived of ability to take video clips and manipulate them. You can completely reorder a scene from a movie if you want to, include subtitles.
Charlesworth: are you saying you wouldn’t oppose a screencapture safety net for this class?
A: if there were a sufficiently narrowly crafted targeted exemption that derived from the comments presented, then yes.  Finally, w/r/t online: Congress has indicated its desire as to how online education should be conveyed in terms of the standards, whether the TEACH Act literally applies or not—both DMCA and TEACH Act mention technical measures, so any online use would need to adhere to those requirements.
J. Matthew Williams, Entertainment Software Association, Motion Picture Association of America, Recording Industry Association of America (Joint Creators and Copyright Owners)
My clients support educators and education. We’re seeking balance, not unnecessary burdens. This proposal sweeps in so many institutions, organizations, people, that it’s essentially a disallowed user-based exemption.  The Office has taken steps toward referencing a user base, but this would be “all noncommercial uses of motion pictures” and we think that would be both dangerous and inconsistent with the statutory scheme.
Charlesworth: does noncommercial exemption apply to these?
A: No, b/c there’s an educational exemption and a remix exemption that has evolved over time. That said, b/c this one is so broad, it probably would include some remix content.  If people working at a nonprofit are creating a remix.
Charlesworth: what about the GED example?
A: aligned with Turnbull. Not talked to clients about it, but targeted limited exemption might be OK.  Reiterate: concern if it extended to students beyond those covered by existing exemption.
Swatch v. Bloomberg: not sure how that applies, b/c that was a recording of an entire earnings call posted onto news site and the claim was they didn’t need to post the entire call. [No, the claim was that they didn’t need to post the audio with its full detail of voice etc. instead of a less detailed transcript.] And the court said it wasn’t transformative. [No, the court specifically amended its opinion to make clear that the use was transformative.]
Anyway, NYPL uses were achievable without circumvention, showing there’s no need.  On the harm issue, when you’re using a circumvention device to rip a Blu-Ray or DVD you end up with a complete, in the clear copy. That sets it apart from what most people do with screencap. 1.5 million nonprofit organizations. It’s a threat to us for in the clear copies to end up on machines even if it’s not the initial use they make. [Note that the noncommercial exemption hasn’t done this.]
Q: screencap. Mac problems. Is there a license providers have to get to disable screencap on new operating systems?
A: don’t know the answer.  Interoperability issue.  We haven’t done the testing.  We assume the testing they’ve done is accurate.  If those technologies don’t unlawfully decrypt but captures it after, there’s not a circumvention.
Turnbull: I don’t know of any licenses that specifically address screen cap software. W/r/t Mac, I’m completely unaware of licenses b/c Mac doesn’t support Blu-Ray.  I’m certain there’s no DVD license.  What is known as DRM licensing business as robustness rules: you have to make your system so that it can’t be easily attacked by someone seeking to circumvent. [And they define screencap as circumvention for these purposes.] DVD wasn’t as protected; AACS has a different set of robustness rules.  One of the things covered by rules is a requirement that the licensee in making the product protect the content from point of decryption until the point of presentation on a screen. The AACS does not require the use of any particular tech to do that. It is possible that in implementing this, some systems developed tech that is not compatible with screencap software that works on DVD.  Having said all that, since Mac doesn’t support Blu-Ray, doesn’t know what Apple did.
Charlesworth: on screencap, what is your view?
Williams: seems viable to me. If current exemption covers it, it’s lawful.  Proffered narrower language on informal learning—very vague, I don’t know what that means, maybe b/c I’m not in media literacy field.  Anything should be much clearer. 
Terms of service: to the extent that any of these uses violate the ToS, that’s the case with the existing exemptions for circumvention of digital downloads and DVDs, which has never stopped people in the past, so it’s not a real argument.  [I didn’t know that my DVD came with an enforceable license; I thought there was a first sale!]
Many of these uses could be licensed—LA testimony about Fox licensing.
Hobbs: Libraries, museums, nonprofits that aren’t gov’t sanctioned/accredited.  In my written reply I describe Nuala Cabral, an educator who runs a small Philly nonprofit called Fanmail: media literacy and social activism for African-American community—people respond to misogynistic representations in contemporary media culture. Wants to create analysis and commentary on Orange is the New Black on Blu-Ray but she can’t access the clips. She’s not making a film, but a learning experience for adult learners.  I don’t think noncommercial would fit.
Charlesworth: it can be streamed from Netflix. Has she tried screen capture?
A: I don’t know.  I tried to make a screencapture of Netflix and I was unsuccessful three years ago.  Screencapture doesn’t uniformly work on all machines due to unknown tech gaps.
Charlesworth: but could you find a way to use screencapture to get clips?
A: Potentially. Narrowly written exemption that doesn’t include educators like Cabral would be insufficient. Underserve the people who could most benefit from opportunities to respond to contemporary cultural representations.
Band: Matt uses the word “balance,” but that’s our word.  Swatch: P argued that transcript would have been sufficient, and Bloomberg succeeded in arguing that the tone of voice made a difference in analysis.  The court specifically amended the opinion to say it was transformative.
W/r/t library example: the point is that those were authorized uses, but b/c of the time that it takes, having to get authorization on short notice means you can’t use what you want. You might be able to clear a few, but a lot of times you can’t.  Use of clips in presentations is on the rise b/c audiences expect that—a growing problem, and clearing the rights will be a challenge.
Q: how many of those examples were educators who would have done the same in a university setting?
Band: these are artists who were making presentations, but if they spoke on campus they’d do the same thing.
Q: contours include lectures, which may not be covered right now?
A: Yes, unless the noncommercial exemption covers it.
Turnbull: On Swatch case: that was part of what we’ve been trying to show with our screencap demos. If there’s a need to see the wire holding up the lion’s tail, screencap could get that. Need to manipulate clips, we can do that.  The point we’re making is not that nuance isn’t important but that there is an alternative that gets at the stated need.
Q: Would you support clarifying the proposed exemption to narrow it to institutions with educational missions?
Hobbs: I would support language if it included nonprofits w/ an educational mission.
Charlesworth: how do you define that?  That’s a broad term.
Hobbs: aiming to reduce HIV with healthcare services might or might not have educational mission in addition to another mission. But that only speaks to the importance of what’s becoming a normative practice. As we try to reach audiences in an increasingly crowded media environment w/lots of choices, we use digital media as part of our toolkit, and we wouldn’t want to narrow it.  HIV education: use of Hollywood clip could be really important to advance prevention goals.
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