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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