DMCA hearings: MOOCs

Copyright Office: Jacqueline Charlesworth
Michelle Choe
Regan Smith
Cy Donnelly
Steve Ruhe
John Riley
Stacy Cheney (NTIA)
10:45am-12:15pm: Proposed Class 3: Audiovisual works – educational uses – massive open online courses (“MOOCs”)
This proposed class would allow students and faculty participating in Massive Open Online Courses (“MOOCs”) to circumvent access controls on lawfully made and acquired motion pictures and other audiovisual works for purposes of criticism and comment. 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: Brandon Butler, Glushko-Samuelson Intellectual Property Law Clinic, American University
Lawfulness of use shouldn’t depend on medium of storage. When Wind Done Gone is fair use, it’s fair use in hardback, audiobook, ebook. So too with teaching. If lectures in a physical classroom are fair, so are lectures in Coursera. But there are virtually no film studies courses offered on MOOC platforms, unlike regular course catalogs, because of no exemption.
Fair use can and does operate at scale. The Daily Show uses a wide variety of clips every night to poke fun of this town and media coverage of this town.  Clips are then made available online to be shared by millions.  VCRs and DVRs reach millions; search engines create search indexes—all of these uses are litigated fair, and just because they’re big doesn’t mean they can’t be fair.  If concerns raised about platform/scale and activities become unfair when big, that would be bad news for motion pictures. MOOCs may be used as marketing tools, opponents say, and if a MOOC too lucrative and fun to be fair use, then what do we say about South Park?  Highlight reels for Baltimore Ravens? If big, and fun, and sometimes making money can still be fair use, then MOOCs can be fair use.
Charlesworth: but profit is relevant.
A: yes.
Charlesworth: tell me about §110(2). Is that a basis for an exemption?
A: no.  It’s an interesting contrast between (1) and (2)—several pages of requirements for blanket protection w/out having to consider fair use.  MOOCs wouldn’t fall within that blanket.
Charlesworth: wouldn’t §110(2) provide a basis?
A: it’s possible. At least some courses might arguably not satisfy those requirements.
Charlesworth: aren’t there some that would?
A: I’d be happy to take advantage of it!  We just didn’t find that the bulk automatically would.
Charlesworth: let’s start with what the law does allow.  [Unlike fair use, which the law doesn’t allow?]  If students are officially enrolled, etc.
A: Professors, librarians, copyright counsel: 110(2) is generally considered difficult to comply with. Universities typically do not try to implement it as a means of being lawful; the boxes are perceived as too difficult to tick off. The specific tech requirements for using DRM on the clips, for example, are too difficult. My understanding is that it’s already a dead letter. So it wouldn’t be useful for MOOCs either.
Charlesworth: say we looked at 110(2) and said it was designed by Congress—should we ignore this entire part of the statute when talking about online education?
A: it’s a safe harbor. Describes very clearly what is always lawful use. That was seen to be useful at the time, but in the field, the safe harbor described is too small.  We know that it’s not designed to replace fair use.
Charlesworth: why is it too small? Unable to put TPMs?
A: that’s the most cumbersome.
Charlesworth: if that were not an issue, would this be more helpful?
A: probably.
Charlesworth: other concerns with 110(2)?
A: no.
Jonathan Band, Library Copyright Alliance: Librarians think this would be a helpful starting point, but it doesn’t go far enough. A lot of the terms are unclear.  Even though it’s very detailed, it’s still uncertain: how long can the material be available online?  But better than nothing.
Return to earlier topic, about short portions: Example of when you’d want to use more than a short portion. Imagine 2-hour class session, MOOC or physical.  You might see cumulatively ½ an hour, interrupted for discussion.  Each clip is a short portion, but it’s arguable taken together.  I would say as used in the classroom, clearly fair use, but that would be the kind of thing we want flexibility for.
Principal argument against extension was potential harm from abuse.  Overlooks the fact that any potential infringement would be much easier to ID and address. Software tools owners currently used to locate content on the web will quickly locate allegedly infringing content.  The notion of harm also ignores reality. We all know circumvention tools are widely available and widely used.  Thus abuse of an exemption in a MOOC could have no discernible impact on the level of infringing activity. In 9 years of higher ed exemption, not one reported instance of circumvention leading to infringement.
Q: but you want to go beyond traditional higher ed industry, and have no restrictions on scope or users or availability—what’s your definition of a MOOC in relation to traditional instruction?
A: in our submission we provided a definition. Almost any definition would be ok, given the widespread availability of DVD circumvention already.  Open enrollment, closed enrollment, nonprofit, for-profit, makes no difference. Starting w/ a narrower definition might be a way to gain comfort. 
Q: what’s your positive definition of MOOC?
Butler: in the comments we relied on the words: massive, open, online, and it is a course.  In the meantime we found an OED definition: a course of study made available over the internet without charge to a large number of people.
Charlesworth: would exclude for-profits?
Butler: well, Gmail is provided free. 
Charlesworth: how do the for-profits make money in this space?
Band: they don’t really know that yet. It’s Silicon Valley.
Decherney: there are a number of ways Coursera and Udacity try—people pay for certificates of completion.
Charlesworth: so they do charge.
Decherney: you can take it for free and complete it for free, but to get a certificate of completion you can pay.  Or companies may pay for their employees to take it.  There are other models.
Band: so far none of them are making money.
Q: what would stop me from putting up a full episode of South Park on YouTube with a minute of commentary and saying that it was a course?
Butler: you’d have to argue straightfaced that’s a course, and I don’t think you can.  We can augment the definition.  Courses could be offered by or in partnership with an institution; with an institution w/ an educational mission.
Q: would that include Khan Academy?
A: yes, it’s an institution.
Charlesworth: Khan Academy for-profit?
Decherney: nonprofit funded by foundations.
Band: Putting aside the Content ID issue with South Park, if it’s infringing, it’s infringing.  This is in addition to the basic way we deal with problems of this sort, which is copyright law.  (Lots of South Park clips are already there.)
A: but we need “likely noninfringing,” and without restrictions it’s less likely to be noninfringing. [Unless the definition includes “noninfringing,” which is a restriction, and makes it more than likely that everything under the exemption will be noninfringing.]
Band: same parameters as for other exemptions.
Decherney: clarification—Coursera and Udacity offer platforms for others to offer MOOCs. Universities may use them to offer MOOCs. Just b/c the platform is for-profit doesn’t mean the institution offering the course is for-profit.
Charlesworth: does U Penn do this? Do you have to register in any way? Do you qualify for 110(2)?
Decherney: yes.  As far as I know, none of the videos we provide have DRM, so they wouldn’t qualify. I’m planning a course in October.  Under the UPenn version of this, student must pay to get a certificate of completion in some cases.  My course will be through EdX, which will have certificate of completion for free.  Content will be similar to course on history of Hollywood—clips with criticism and commentary. Canned lecture online rather than interacting with students. Excerpts: average lecture time is 4:30—with a quiz or activity; videos are very short and thus clips are short.
Charlesworth: what will you do if exemption isn’t granted?
Decherney: I’ve put off offering the course for several years.  I don’t know if I’d offer the course; unlikely without an exemption.  How many lectures = course?  8 weeks, 30-40 hours of lectures, of which some portion would be clips. We always provide high def.
Charlesworth: under 110(2), sounds like your issue is the TPMs? Any other concerns about that definition?
Butler: I’ve been poring over it, and there’s no smoking gun, but people are concerned—Khan Academy, National Geographic Society, World Bank, UNICEF won’t qualify. 
Band: consistent availability of material over time—can it be available the whole semester?  Just the week?  Confusion over what the limits mean.
Opponents: Bruce Turnbull, AACS LA and DVDCCA: unbounded—anyone can declare they’re a student or are teaching a MOOC.  [The horror! Someone might make clips available on the internet, with commentary!]  Band says you can always go to court, but part of the purpose of the DMCA was to avoid going to court via TPMs so you didn’t have to go after individual users of material.  Tech reasonably deployed to protect the work by itself. [Though that ship has sailed, as Band pointed out.] This proceeding is a fail-safe, if a TPM goes too far. Undermines purpose of DMCA.
110(2): if these courses fit w/in that, why aren’t they using 110(2)? [B/c the DMCA makes it separately illegal?]  More broadly, this was Congress expressing how they expected the online educational environment to work. Congress thought there ought to be TPMs. If it’s inconvenient, that’s too bad/that’s what the law is.  [Or you could rely on fair use.]
Charlesworth: How difficult would it be to apply TPMs to clips? [Depends on what you mean by TPMs.]
A: I don’t think it’s difficult, though I couldn’t personally do it. Ability to make use of encryption—you can encrypt your email w/standard setting; you can encrypt content on your computer w/ a standard setting—not rocket science. [Um, no, it’s computer science, and encrypting content on your computer is different from sending it.]  If you are sending to computer linked to TV, you can trigger HDCP over HDMI to the TV—triggered by the output itself.  [So much for extending courses to people who can’t afford a lot of equipment].
Q: does TPM need to be on each clip, or would passwording the course be enough?
A: TPM must be on the transmission.  Transmission must be encrypted to reasonably prevent retention of work by recipient and further dissemination of the work.  It is a TPM that as it’s transmitted works in the same way that AACS works [so we need a license?] [not clear that a password wouldn’t do that if the result is a stream]. Doesn’t know if individual clip would have to be isolated, but at least the clip would have to be protected.
Q: concerns over scope of definition: if MOOCs were tailored under TEACH Act, would you still oppose?
A: if they qualify under the TEACH Act they don’t need an exemption.
Charlesworth: to get the clip.
A: if they were protected, we’d still be concerned about the use of circumvention tools because we’d be promoting the use of these tools for getting the clip in the first place.
Charlesworth: that’s just Blu-Ray; you didn’t object to continuation of the others.
A: DVDCCA didn’t object; AACS hasn’t commented. If limited to TEACH Act qualified, it would be consistent with DVDCCA’s other positions to say that DVD exemption would be consistent w/what’s already been done.
Whether you say 110(2) applies specifically, the point is that the kinds of exemptions requested make it incumbent on requesters to say “this is how we can analogize to the requirements Congress placed on how Congress envisioned online education to work w/r/t online education.” They haven’t done so.
W/r/t DVD, hack is ubiquitous. But overall protection system has been maintained—last year judge granted injunction.  [So an exemption could hardly change that.] Unbounded exemption would undermine the DVD CSS licensing system/trust in that system. If you walk into a legitimate retail store and buy a DVD player, it does conform to the requirements of the license. That system has been maintained notwithstanding the broad hack.
J. Matthew Williams, Entertainment Software Association, Motion Picture Association of America, Recording Industry Association of America (Joint Creators and Copyright Owners): Movie studios do rely on fair use all the time, and we don’t oppose fair use. We just oppose this exemption, especially its scope and breadth. Comes close to a disallowed use-based exemption for all educational uses online, which isn’t comforting.
Charlesworth: idea of taking face to face exemption and extending it to 110(2)—is that too far?
A: would like to speak to clients, but keeping all requirements in place and adding something from the TEACH Act would be preferable to what’s proposed.
Q: they say there are 10,000 MOOCs and only 4 film studies courses—inhibiting effect?
A: not sure that’s true. MOOCs might inherently limit use of clips. Massive and open has wrong implications. If you’re trying to get this done in 5 minutes, you might not want a lot of clips, which might be one reason it’s not happening.
Q: is Decherney’s course objectionable?
A: it sounds like it’s being done through a third party actor, and my personal preference would be to make each university build its own platform to get an exemption as the TEACH Act requires. [Hunh? Even 110(2) doesn’t go that far—do they have to invent their own encryption too? Run their own cables?]  He took an existing film course and found it effective. In week 5, the professor just sits in front of a webcam, as you’d see on YouTube, and lectures. So no one expects perfection, so request for high quality images is less compelling.  [No quality for you, proles!]
Harm: virtually impossible to collect evidence of harm, to know that a copy of a movie on a P2P network because a student was introduced to circumvention tech in a classroom. The burden is on them on these issues b/c that evidence is difficult/impossible to collect. [They spend a lot of money studying the causes of piracy; they embed codes in screeners; they could get this data if it were there, but they don’t even list it as a risk factor in SEC filings.]
Charlesworth: does Penn have contracts w/EdX and Coursera?
Decherney: yes, Penn does, and invests in Coursera.
Charlesworth: explain the economics.
A: Income-sharing; university owns all the IP in the course. We record the content, available on their platform, and discussion/exams take place in Coursera. 
Charlesworth: do you know whether they can apply encryption?
A: I have no idea.
Charlesworth: Why would they have a relationship with EdX and Coursera, competitors?
A: Increasingly use multiple platforms b/c some are better for different kinds of courses. Like publishing w/ many publishers. We use iTunes U; we use YouTube; we want to disseminate our research.
Butler: Almost 3000 people have registered on Coursera since the panel started—it’s a big phenomenon. It means that if there are adverse effects—that having an ecosystem of learning w/no film courses is a bad thing—they are big adverse effects.  Joint Creators have said it’s really easy and cheap to find the movies you want to watch if you’re a consumer. People will do that, instead of trying to watch 5 minutes of Decherney and trying to put a movie back together.
Q: Harm revolved around limit on film courses—are there other limitations/negative effects?
Butler: sure: the analogy to standard courses is apt. Someone who wants to teach the WWII will have the same problem. Anyone who wants to teach w/media. For methodological reasons, the easiest way to show that was to count film course.
Q: do you have other examples? Other professors who want to offer that?
Butler: I’ve had a number of conversations w/universities that say they have a hands off policy for moving images for MOOCs across the board, as a result of conversations w/GCs and IT folks.  They just tell people that it’s off limits for everyone.
Q: can you distinguish between the MOOC and the regular online course by the university—are there different rules for clips?
Butler: My experience is that MOOCs are considered to be different, even though maybe some do qualify.
Turnbull: If you have IT guys involved, they can certainly use screencap software and use a high quality pro camera to record off the screen as alternatives. One of the reasons some other exemptions are workable is that there is an institution that you can approach if there is a problem. The arrangement here might let UPenn say it’s Coursera’s problem and Coursera might say it’s UPenn’s problem.  [Seriously?  Because universities routinely say it’s Apple’s problem when someone misuses an Apple computer on campus?] 
Band: Penn is responsible; the contracts certainly give Penn responsibility for content. And Penn is the one that would be violating the exemption if it’s the one that’s doing the circuvmention. Please also note that we don’t know whether screencap involves circumvention. It’s nice to say so, but an exemption would be appropriate for all.
We’re all worried about the cost of education. MOOCs are one way to lower the cost of education.  We don’t know what they will ultimately look like, but this is the future, and we want good courses—the notion of teaching the history of Hollywood with stills is absurd.  Culture pervaded by media means that online courses need high quality video.
Butler: reply comment: German professor wants a German MOOC using films as a great part of the curriculum.
Charlesworth: how does the University of Penn distinguish between MOOC and online course offering in treatment of motion pictures?
A: we do offer some courses as online courses or MOOCs—for courses, you have to apply, and pay, and there’s a small group with more interactivity w/faculty and students.  MOOCs have helped us clarify what we offer in smaller online courses and live classes. You get Penn course credit for online course.  I’ve taught similar classes and used clips in those classes. 
Charlesworth: how do you achieve a level of comfort with that?  Did you circumvent to include clips?
A: not prerecorded.  I used clips I use in face to face class.  Right now MOOCs are novel.
Charlesworth: were they just filming you playing a clip? Would they see a full screen of you playing the clip?
A: synchronous live setting.  Adobe platform that allows me to show clips and everyone can view it or I can talk over it. Would be possible to have prerecorded videos there. 
Charlesworth: did you consider that 110(2) covered?
A: our GC said it was fair use.  It’s a course being offered by the university, seems covered by the existing exemption. We don’t encrypt the output, but I don’t know what the platform does.
Turnbull: Adobe has widely used DRM which could easily have been applied.  There are platforms available to do the encryption.
Q: would there be any need for students to circumvent under this exemption?
Decherney: it would be great if it were included to allow student presentations, so they can do the same work they can do in other face to face classes and online courses, which is the rule for every other kind of student work output like writing.  Multimedia presentations are a major part of student work today, replacing essays.
All our MOOCs need registration/password.
Q: is there a way to control for reception/quality of the MOOC?  Depends on whether I’m watching on broadband.
Decherney: true, also true of online courses. We only put out HD quality video b/c we think it’s important. Students in China were having trouble, so we partnered with a mirroring site to give them HQ access.
Q: but if student doesn’t have broadband, it will be degraded regardless.
Decherney: true.
Q: Acclimation to HD world, one click away from distraction—YT will be lower than SD, right? 
Decherney: yeah, so it’s better for me if I’m in HD.
Q: anything in record about need to extend to video games?
Decherney: it’s not something we suggested.
Williams: on including students: we are quite concerned about the huge number of people who could potentially qualify and could lead to confusion and unfortunate consequences. No examples in the record.
Butler: 2015, 21 million college and university students, eligible for existing exemption—which is more than current MOOC enrollment. Lots of people already eligible and no catastrophe.
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