DMCA hearings: multimedia ebooks

Copyright Office: Jacqueline Charlesworth
Michelle Choe
Regan Smith
Cy Donnelly
Steve Ruhe
John Riley
Stacy Cheney (NTIA)
 
Proposed Class 5: Audiovisual works – derivative uses –
multimedia e-books This proposed class would allow circumvention of access controls
on lawfully made and acquired motion pictures used in connection with
multimedia e-book authorship. 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: Bobette Buster, Busterfilms: presentation of
Exh. 22.  Do/Story: how to tell a
compelling story, best-selling book. Wants enhanced ebook: lectures are 6 hours
long—deconstruct a particular film, 16 clips for the first ebook of a total of
13 minutes.  Found an agency to embed
this.  Different concerns: size (2 gigs
now); iBooks Author dominates the market with self-creating books.  EULA requires quality control. They aren’t
accepting SD, because why would they? Apple is in the business of creating
extraordinary wonder, as the products get better each year. They want best
possible environment.
 
Charlesworth: Apple doesn’t accept anything but HD?  Have you seen this policy in writing? Have
they said that to you?
 
A: No. I’d have to commission $1000s of work to submit
it.  They say you have to read what they
say.  What they say is they’ll decide
once we see your fully embedded document. 
 
Previously showed Schindler’s List, Godfather, Toy Story 2;
now showing Shawshank Redemption w/a maggot being pulled out of breakfast, then
fed to bird (universal symbol of freedom). Visual metaphor of abstract idea.
You can’t see him letting the bird go in SD; you shouldn’t have to be knocked
out of the emotional moment by asking “what is he doing in that black chunk of
the screen?” It eventually becomes clear but too late for the immersion.
 
Charlesworth: can you show me in Blu-Ray?
 
A: no, I have a Mac. 
The King’s Speech: a guy put against stripped wallpaper to show his
humiliation and embarrassment: he’s been stripped raw.  Climax of film: he has to give a live
speech.  You should experience the 3D
a-ha experience of the gold line going straight through his skull—I have to do
a lot of description to show what you should see.  Incredible sense of expansion.    The king is framed in gold in various
settings, a metaphor for his majesty. 
Final shot: framed in gold and white, which is crystal clear in HD, but
in SD it’s all fuzzed out.  He’s
offcenter because he’s been set aside by the king.
 
I was doing a major documentary about innovations in
storytelling in sound design, quantum leap w/George Lucas, who says “art is
technology.”  He had to invent the tech
for Star Wars. All art is moved by pushing the limits/boundaries of tech in
order to move the culture forward. 
Created the industry we exist in now. 
Major studios ask me to present my insights on storytelling; backwatered
by SD b/c entire industry is now set up on technological wonder. We’re the
8-track of the industry.  This is how I
inspire the creators of the content that drives Hollywood. Strange that I’m
made archival, and it won’t sell b/c people have tech in their hands that makes
it look decrepit.
 
Up-rezzing: a specious argument. People can see it on their
retina displays. It’s just filler. Your audience wants to see what they saw in
the theater or broadcast, which will no longer accept SD. I would like the
right to use the best available tech.
 
Q: you mentioned 13 minutes of clips in total? Would these
clips be in the ebook?
 
A: 16 clips, total 12:53 in ebook.  Yes, and the ones you saw 3 years ago.
 
Q: does Kindle have guidelines on image quality as well?
 
A: kindle is more unstable platform—not easy, downloadable,
gig size issues. Teams I’ve talked to say only iBook author is stable. Not
possible to make it available now.  There
are possible apps, web streaming—but it’s hard to do with the current issues.
 
Q: are you aware of others rejected by Apple?
 
A: digital collective in Berkeley—when they saw the level of
embedding, they weren’t willing to use their platform.  They suggested iBook Author.
 
Charlesworth: the platform couldn’t support SD?
 
A: the number of clips is a problem—the fear is it takes too
long to download.
 
Charlesworth: wouldn’t HD be bigger?
 
A: iBook Author now allows 2 gigs. We’d have to see how it
would be used up. I’d like to do a series and continue expanding this.
 
Charlesworth: tradeoff between level of definition and
amount of content you can include in the ebook? Could you have more SD clips
than HD clips if you’re limited by the amount? [She says Apple wouldn’t accept
SD, so no.]
 
A: I would like to present the intended quality the audience
expects, b/c I talk about all the elements, color, art direction,
cinematography, costumes, etc.—they all have to be as filmmaker intended and
studio released. I always suggest they see the full film.
 
Charlesworth: so you’d rather have fewer HD than more SD.
 
A: yes. There is a black and white ebook of students
enacting film scenes from Blade Runner—that was the only way to describe how
the cinematography works.  Totally
inadequate experience.  There’s a lot of
experimentation with best way to embed clips/engage audience. Engagement
problem b/c audience expects high quality.
 
Q: are there examples of Apple accepting HD clips?
 
A: for iBooks Author, no, but in Al Gore’s app Our Choice, there are excellent clips
created using a proprietary technology. You could do it with an app, but I
haven’t seen anything that successfully takes clips from movies.
 
Q: so it may be impossible?
 
A: I can do it in iBooks Author platform [distribution seems
to be the question]. Daunting to do it, and not up to my standards.
 
Charlesworth: will Apple distribute it? What if they don’t
allow it?
 
A: EULA says I might be able to use another platform to
distribute the book created on the platform, but their legalese suggests they
can come after you.
 
Charlesworth: have you reached out to Apple? You’re high
profile.
 
A: They are very formal. 
Any contact: they say “read our specifications and we will decide.”
Asked iPad designer: it’s a closed door policy, not open to individual
questions. They decide.
 
Q: have you approached publishers?
 
A: I looked at other platforms, which were promising but had
issues of fair use. Possibility of Vimeo Plus, private channel, but I
deconstruct major films frame by frame.
 
Charlesworth: why would the fair use issues differ platform
to platform?
 
A: They have nowhere near the marketability of iTunes, but
how do I let the audience know about it? 
I am building my profile, but the expense of doing it on my own in a
different market universe is too much.
 
Lerner: exemption only permits short portions. So if she had
to scrap the ebook idea and go to documentary on Vimeo, she wouldn’t be able to
do as extensive a presentation as she’d like.
 
Charlesworth: that leads to whether the longer portions are
fair use, which may less likely be fair use.
 
Lerner: Amount is a factor but she could discuss a huge
portion of a film if she’s analyzing it clip by clip and presenting commentary
on each clip—easily transformative. Given the extensive analysis that she does
frame by frame even a large portion would be a slam dunk fair use.
 
Charlesworth: she’d still be using short clips, but a lot of
them.
 
A: I can take a film like The Godfather and talk about it in
sequence for 6 hours (a 2 hour film). 
That’s why he’s saying it’s a slam dunk fair use. Maybe I would create a
lecture that is sequences in order to comply.
 
Charlesworth: are you saying you’d put 6 hours of the
Godfather on an ebook?
 
A: no, that’s not supported now. We’re talking about the
Vimeo alternative. 500 people get my lectures each year, and I’m trying to
democratize access.
 
Charlesworth: in an ebook, would you be using individual
clips that you wouldn’t consider short?
 
A: I would use them as determined by the four fair use
factors and the documentarians’ standards. 
I may take 3 or 4 moments from a movie, 8 seconds up to 1:30
(minutes:seconds) and framing them together relating to an important teachable
moment.  What I do when I’m teaching live
is showing the setup and payoff.  Longest
clip is 2:30.
 
Q: For your book, it sounds like using a publisher to get on
iBooks is something you’re no longer pursuing?
 
A: publishers are not interested b/c it’s financially
daunting to create the ebook w/no assurance that Apple would allow it. 
 
Q: so those concerns are based on fair use, not DMCA?
 
A: everybody would require me to prove fair use and I’d need
E&O, but the issue then is the expense of creating the iBook and the
possibility of it being rejected because of inferior tech.
 
Q: sound quality of high def?
 
A: SD is inferior to what the audience is used to now.  Films have been mixed with 5.1 or better. HD
promises the right mix. SD is generically mixed with some levels too high and
too low. Of course I talk about sound design, and interview the major sound
designers, who all lament the insufficiencies of older tech; they’ve remastered
older films to give them the best sound design possible. The Godfather was a
groundbreaker—and I often end up saying “what you should hear is children laughing in the background—a critical
emotional device/signals impending murder.”
 
Q: you can hear laughing in HD not SD?
 
A: yes.
 
Charlesworth: have you submitted that?
 
A: no, but I have it on my laptop. I don’t have before and
after.
 
Blake Reid, Michael Wolfe, and Molly Priya McClurg,
Samuelson-Glushko Technology Law & Policy Clinic at Colorado Law
(representing Authors Alliance)
 
Wolfe: Authors Alliance—primarily academics, including Nobel
Laureate and US Poet Laureate.  Most of
our work is info/resources for authors—often means helping them take advantage
of new opportunities from tech. Multimedia ebooks provide significant opportunity
to advance knowledge.  Example: copyright
education—copyright in characters, idea/expression. 
 
Charlesworth: James Bond?
 
A: yes, which would involve looking at film clips.  Need for specific examples.  Not a unique case—academics reference things
to the best of their ability. Text is easy.
 
Charlesworth: project would be to analyze character as he
appears in film?
 
A: would also incorporate Fleming’s novels, but yes.
 
Charlesworth: ultimate goal would be ebook?
 
A: yes. Academic endeavor is necessarily cumulative, deals
w/what’s come before. Might be historical significance of film, or
representation of history in a film, or a scholar in any field engaging
w/documentary of relevance. Accuracy and integrity are of the utmost importance
to the academic process. Citations can sometimes suffice, but not always.  Often the most damaging/helpful to present
the actual excerpt.  It’s the same for
film as for text. When you write an ebook, part of the reason it’s so important
to enable fair use is that it can continue to teach—quality has to be future-proofed
and can’t be what’s mediocre today.  It
would be as if in archival sound recording you’d have to do it by humming.
 
Charlesworth: digital preservation—platforms may disappear,
but that’s beyond our scope.
 
A: a few salient features of contemporary publishing—things
are different now than 10 years ago. Self-publishing is larger now than it has
ever been by orders of magnitude. Increasingly disintermediated and independent
publishing economy. When it comes to putting together works of this sort, that
rely on third-party copyrighted content, the idea of being able to engage in a
licensing discussion as an individual, it doesn’t work.  Overwhelming/threatens projects right from
the outset.
 
Q: how many of those self-published works were ebooks/regular
texts?
 
A: I wish I had the figures; the overwhelming majority that
are at least ebook though they may also be print on demand. The multimedia book
may be the canonical edition or only available digitally—they’re the ones
Authors Alliance members want to be preserved.
 
Q: how much has the exemption been used already? Has there
been some success in using it?
 
A: this rulemaking cycle: we want the exemption opened up to
authors who fall outside the relatively narrow band of film criticism/film
scholars.
 
Charlesworth: how?
 
A: fair use that relies on third-party copyrighted
multimedia content. 

Charlesworth: any author who wants to use a motion picture regardless of
purpose? It’s not limited to any particular author: “film analysis” is the
current limit.
 
Jack Lerner and Aaron Benmark, UCI Intellectual Property,
Arts, and Technology Clinic (representing Authors Alliance and Bobette Buster)
Lerner: Film analysis limitation has, we think, definitely
affected how many people can use this. Our understanding is that a number of
film scholars have been working on ebooks, and we have material on the record
on this. Not very useful now because they feel they need HD and can’t get it
under current limit.  There are many types
of non-analysis. Samuelson is using film clips to explore copyright law. If you
consider that film analysis, that’s fine. 
 
Charlesworth: examining films to comment or criticize them
might be helpful?
 
Lerner: sure, if you wanted to say that, though we think
fair use would be more appropriate. 
There are museums creating catalogs w/multimedia content. People are
analyzing things like gaming—Steve Anderson, USC. There are a number of uses
out there that aren’t clearly film analysis.
 
Charlesworth: tell me more about gaming in an ebook.
 
Lerner: you might have a scholar discussing what kinds of
messages games are sending.  How they
portray women. Montage of game clips to facilitate that discussion.
 
Charlesworth: are there specific examples of scholars who’ve
sought to do this?
 
Lerner: Steve Anderson’s extensive scholarship on
multimedia/gaming. Happy to follow up with that.
 
Charlesworth: with the film analysis, sounds like the
concern is that people fear it’s limited to Buster’s type of work as opposed to
Samuelson’s example where you want to examine cultural references or social
construction. You’re using the film as a focal point of discussion.
 
Lerner: yes. And if it said analysis that involved films as
focus, that would be clearer. Again, this goes to whether exemption should say
fair use in creation of multimedia, then we don’t have to worry about
interpreting what that means and we can rely on 30 years

Charlesworth: oh, and fair use is so clear. [/sarcasm]  We are tasked with creating targeted and
narrower exemptions [narrower than what?]. Saying something is fair
use doesn’t give a lot of guidance. We try to build in guideposts so people
understand what’s intended. [clearly all those caveats that we’ve been fighting
about for two weeks are working very well as guideposts] [/RT’s sarcasm] That’s
not to say you can never use a long chunk [which is exactly why the guidance if
any should be in the comments, not in the rule that governs criminal
liability], but we’re looking for adverse effects.
 
Lerner: At this point, for nonfiction authors, fair use is
not that difficult at all. Refuge from the Storm article by Michael Donaldson.
That’s why you have insurers who routinely and often blithely issue policies
that cover this.  This type of
scholarship is an easy case.
 
Q: nonfiction?
 
A: in the context of authorship, it’s fairly clear
generally; much clearer with nonfiction but also clear w/fiction. Zero problems
with saying multimedia authorship/fair use. 
No effect, as none of these exemptions have had.
 
Q: if it hasn’t been used, then there won’t be much
abuse.  [And if we ban cars very few
people will die in car accidents, and if we ban all copying then there will be
very little copyright infringement—oh wait, that last one isn’t true; we
tried!]  Incremental expansion? Maybe
nonfiction is more likely to be a fair use so we should try that instead of all
authors. Are there fiction authors in the record?
 
A: no.  But many
exemptions have been used extensively, including the documentarians’, and that
hasn’t led to even an allegation of abuse/harm. 
Quite a bit of evidence that people would do this if not barred.  Burden now shifts to opponent to provide
evidence of harm.  We don’t have to take
an incremental approach if there’s no evidence or allegation of harm.
 
Wolfe: (1) current state of using this exemption.  Clarification would be great, but in broader
sense there’s significant use of multimedia writing, largely in the more
informal sphere of blogging. Academic blogs now incredibly important [aw,
shucks] but that doesn’t have the sense of completeness or legacy-building as
writing a book does.  A tool that people
use on blogs, they’d use in books, if they have the opportunity to do so. §512
enables current embedded uses in blogging. 
Bringing that possibility to books would be a tremendous service to the
people already doing this.
 
(2) We talked about availability of multimedia ebook
services. 3 years is an eternity for these technologies. Kindle 2007, iPad
2010. The major players are working on further developing tech, but there are
also a shocking number of startups and small businesses interested in making
multimedia ebooks available to more authors.
 
Reid: We’re not being speculative about likelihood of tech
improvements. Apple’s App store has had a similar 2 gig size requirement, just
recently doubled to 4 gig.  Moore’s law
is at play here—some of the constraints are device size, broadband speed, and
we’re seeing monumental increases in those. Order of magnitude of increase in
flash memory on iPad from first version to now. 
Mother just jumped from 10 megabit broadband to 1 gig municipal fiber.
Those are factors driving current limits, which are likely to go away for
enough people to make this economically viable.
 
Dealing with Apple: some authors can talk to Apple, but many
more can’t. Not available to self-publishers w/out an agent.  Even for Buster, that’s very difficult. It’s
not fair to expect as a condition of the exemption to have to go through that
level of negotiation.
 
Lerner: We are aware that iBooks has HD titles. 
 
Reid: Example: Beginner Blues Guitar Solos with Audio &
Video, over 53 minutes of HD instruction. Where people film themselves in HD,
they can use the platform.
 
Buster: Yes, there are cookbooks in HD. Just not in my
field.
 
Lerner: AAUP is one of the proponents of this exemption,
47,000 university professors interested in doing this kind of thing.  This is a very large group of folks.
 
Charlesworth: record is murky whether or not Apple would
allow fair use.
 
McClurg: Who else is in this field; state of industry/tech;
need for high quality.  Our authors are
content creators and rightsholders themselves, who respect copyright. We’re the
good guys/content creators.  Authors have
a long track record of doing this responsibly.
 
Tech/rapid changes in market: new devices with new
capabilities just in this year. 
 
Charlesworth: do other platforms accept HD?
 
A: not sure what they accept, but transitions in market
envision HD content, especially when you look at the devices people are using.
There’s a clear trajectory towards increasing pixels, HD visibility.  That’s going to become the minimum.  What readers expect. I wouldn’t want my own
work to be represented in anything less than full quality.
 
Charlesworth: do you have a description of the James Bond
stuff?
 
A: well, that’s the problem—description and actually seeing
that, down to the scuffs on his watch.
 
Charlesworth: can you see that detail in SD?
 
A: Don’t know for sure, but you can see the problems in
Buster’s presentation.
 
Blu-Ray keys were decrypted many years ago. These authors
have a clear fear of the law and aren’t engaging in piracy.
 
Issues of scope—it’s our contention that drafting could
further chill the marketplace by cutting out paradigmatic fair use. The DMCA
seeks to protect underlying works but shouldn’t chill fair uses at the fringes.
 
Benmark: Screencapture! 
Authors can’t figure out whether screencap is circumvention. Many
authors work on Mac and screencap won’t work at all. Quality is a problem: not
HD. Without HD, doesn’t get past gatekeepers in the market.  The Matrix was presented in 766×344 pixels,
wrong aspect ratio even for SD. Simply doesn’t cut it. Authors don’t have tech
expertise to use the software without creating the problems screencap is
renowned for, such as dropped frames, interlacing, and doubled images. These
require an engineer to deal with and most authors lack access to tech
expertise.
 
Charlesworth: are there earlier Apple OS that allow
screencapture?  Why does Apple not allow
screencapture? Are there workarounds?
 
A: My understanding, and Jim Morrisette would be better able
to explain, but Apple has proprietary software that prevents bypass of TPMs.
 
Charlesworth: we’re told some software doesn’t involve
circumvention. [It depends on how you define circumvention!  Apple blocks screencap because it takes
pictures w/in the computer, even though it’s post “decryption” of the disc, b/c
that’s what rightsholders want it to do everywhere that isn’t in this
proceeding.]
 
A: the only program that represents its compliance w/DMCA is
WMCapture which is a Windows only program.
 
Finally, quality matters, whether that’s fair or not.  Dropped frames, artifacts, interlacing,
doubled images—your commentary and criticism will look amateur. 
 
Opponents: Bruce Turnbull, AACS LA: (1) as was evident, the
gatekeeping function that we heard about had to do with bandwidth and
gigabytes, not HD quality.  Evidence is
murky. [Which is why there are HD books in the iBooks store now …] Not a
justification for affecting Blu-Ray business. 
Blu-Ray keys revealed: Blu-Ray and AACS have different structure than
CSS/DVD. There are millions of keys for each individual device. Those keys can
be revoked when they have been revealed to be used in an unauthorized product
and we do revocations every month. We’ve been able to limit circumvention tools
to a very limited number.  We’re engaged
in a tech battle with some producers who’ve hidden their keys.  When we figure it out, we will revoke their
keys. But it’s a very limited number, all commercial products, there is one
that is free. Most are for pay.  Top ten
listed are for pay.  [I don’t get why
this matters.]
 
The discussion on the need for Blu-Ray content is murky.
They quote various articles saying Blu-Ray will take over, but those same
articles say that Blu-Ray didn’t hit as well and is struggling to survive under
VOD and downloads.
 
Charlesworth: need to see fine detail: can you comment on
that?
 
A: It’s difficult, b/c understand Buster’s expertise. But I
saw a bird, and a gold line and a gold frame. 
Not sure Blu-Ray was necessary. 
The record is not clear. [No, the image is not clear. There’s a
difference.] We’ll show demos where you can see the kinds of features said to
be important.
 
Harm to AACS has been recently found from distribution of
circumvention tools—Judge Broderick found irreparable harm, and these are the
tools that would be used if exemption granted. Same situation would occur as a
result of the grant of an exemption.
 
David Jonathan Taylor, DVDCAA: Exhibits 23, 24. “Bond, James
Bond”: compilation of video capture that we made from various James Bond
titles.  Used in preferred software
system, Adobe Indesign.  Made on an older
Apple system, back when Camtasia worked (on DVD).  A supercut of Bond introducing himself.  You could use that to discuss copyrightability
of Bond.  Next demo: use of Adobe to
insert these images.
 
Q: is your testimony these are DVD quality?
 
A: no, but they show the details that proponents wanted to
see.  [Here, the “details” were Bond’s
speech.]
 
Q: you’d have to sharpen the image and do more processing to
make it look better. We have some images that have been processed in that way
for later this afternoon.
 
A: what about frame size?
 
A: my understanding is that Apple’s DVI pixels aren’t the
same. It wouldn’t show you the pixels. 
It wouldn’t be the same.
 
Q: is it also a different aspect ratio?
 
A: I don’t think it changes between codecs.  You can set the aspect ratio. You can set the
pixel ratio. You can set the frame rate. 
We didn’t know what the proponents wanted each clip to be, so we’ve
tried to go back and give you examples of what they say they want.
 
Q: So you could get a SD framerate, but it won’t be the same
frames b/c they may be dropped or duplicate?
 
A: yes, that’s accurate.
 
Q: can you speak to limitations on Apple?
 
A: I just learned about this yesterday so I can’t explain
it. In the OS, if you upgrade to the latest, it will prevent most screencap
software from working as it has in the past. That is not a limitation in
itself, because I worked on a PC. We exchanged content so others working on
Macs could work on it. You can just borrow the PC of the person next to you.
 
J. Matthew Williams, Entertainment Software Association,
Motion Picture Association of America, Recording Industry Association of
America (Joint Creators and Copyright Owners): Clients don’t oppose renewal of
existing exemption for nonfiction ebooks for film analysis. We are exposed to
expanding the class—short portions, fictional authorship, criticism and
comment/film analysis, Blu-Ray, all AV works such as video games.  Short portion keeps this closer to what’s
likely to be fair use. Critical to these types of exemptions. We haven’t seen
examples of fictional authorship or when it would be necessary. Not saying it
would never be fair use but there’s no evidence in the record that should be
granted. Keep this proceeding focused on the record and specific adverse
impacts.  Fiction = less likely to be
fair use. Might be used just to gain audience’s attention, which should be
licensed. Nonfiction can be a difficult line to draw but we can use definitions
to find something that works.  [Ah, those
extremely clear “guideposts” as contrasted to fair use.]
 
Caselaw is almost exclusively about nonfiction. Rosemont v.
Random House: Howard Hughes bio.  Wright
v. Warner Books, also a biography. Norse v. Henry Holt likewise.  Bill Graham Archives was a nonfiction
book.  Penelope v. Brown, writing
instruction not fictional use. The only case they may use involves the play Jersey Boys, involving use of a video
clip. There’s nothing in the record that justifies expanding this to
Blu-Ray.  We show that almost all of the
items they claim are only available in Blu-Ray are actually available in other
formats. The exemption doesn’t prevent them from using HD quality, but it does
prevent them from using Blu-Ray discs, but there are numerous online outlets
for HD downloads. The availability of those makes Blu-Ray expansion even more
inappropriate.
 
Video games: no specific examples, only hypotheticals. [B/c
it’s easy to show adverse effects when you’d have to admit to breaking the law….]
Also the record doesn’t show how the circumvention is accomplished.

There’s no submission of the iTunes ToS, but gatekeeper issues aren’t our
problem.  Legislative history: manager’s
report says that adverse impacts that flow from other sources than TPMs
including mkt trends, other tech developments or changes in the role of
libraries, distributors, or other intermediaries, aren’t supposed to
count.  So are mere inconveniences.  It was clear that when the proponent can use
one device to achieve a goal and not another it’s grounds to deny an exemption.
 
On Pam Samuelson: I believe all the Bond films that come in
the collectors’ edition can be purchased in HD or HDX through Vudu.  Don’t need Blu-Ray.
 
Q: Do you object on film analysis?
 
A: every example in their comments is about film analysis,
except this one, but I think it arguably is film analysis b/c she’s going
through the actual films to critique the character through time.  Arguably film analysis; don’t know what you
intended that to to mean, but relatively comfortable w/that.
 
Q: it’s not critiquing the film, but teaching about
copyright law/illustrating a principle.
 
A: Sometimes you can do two things at once. She would be
commenting on the films and also on how the films would be treated under © law.
That’s different from saying “I want to show this to teach you something about
history,” which isn’t about how a film treats history specifically but is about
educating you. [How can those be distinguished? Pam’s comment on the films is “this
shows you how copyright works.”] Not enough examples in the record beyond film
analysis. Plus you don’t need details of Bond’s character to discuss his
copyrightability, and you can see them on HDX anyway.
 
Q: if Apple had a policy saying we wouldn’t accept SD, and
that was industry practice, are you saying we can’t take that into account?
 
A: legislative history suggests that by itself isn’t enough.
The access controls aren’t leading to the adverse impact, but a business
practice that is separate. [The access controls are a but for cause.]
 
Q: it’s a combination of the two causing the problem. Business
practice + TPM. If there wasn’t a TPM, the business practice wouldn’t hurt you,
no?
 
A: that’s fair.
 
Charlesworth: HD downloads—proponents’ reaction?
 
Lerner: it’s new to these hearings, and we’re glad to hear
they’re available on Vudu; a little surprised that they’re throwing Vudu to the
circumvention wolves but that’s their business. [Insert gif of Kermit sipping
tea]
 
Q: would that require circumvention?
 
A: If you pay for the copy, you can download it to your
device with TPMs that would need to be circumvented to make clips, allowed
under existing exemption. Not thrilled with that, but given that it already is
and we’re not opposing its renewal it’s a viable alternative.
 
Q: is there a difference b/t Blu Ray and HD?
 
Williams: my understanding is that HDX is marketed as 1080p,
very close to Blu-Ray. HD copies are generally not that high, but still crystal
clear when I watched them.  There might
be a difference in availability but I don’t know about it.
 
Turnbull: 1080p is full HD, and that’s what’s on Blu-Ray
itself.  Any given implementation might
be better or worse, and some Blu-Rays are better than others, but baseline
quality is 1080p.
 
Williams: information about Vudu is in the record.
 
Lerner: Delighted to look and see if they work for James
Bond. I do know offerings are much more limited relative to Blu-Ray so it’s not
a full solution. It’s also technically much more difficult to obtain streams,
as Mr. Morrissette testified.  That would
make it more difficult for our clients to use the exemption, which is another
reason we think Blu-Ray is useful. 
Turnbull says that bandwidth is the main barrier, but that’s not true.
Bandwidth is an issue, and that speaks to whether “short portions” is even
needed, but the key issue is that Apple’s quality control is very strict.
 
Charlesworth: subpoena Apple? Alas we can’t. But we heard
earlier that they don’t have a written policy and no evidence they reject for
lack of HD.
 
Lerner: we have fear and we think it’s a reasonable
fear.  (1) Very likely cause Apple to
reject many or all of the ebooks people submit, (2) Buster pointed out that SD
would be backwatered—instantly archival, jarring and disruptive to readers and
viewers. Everything sold now is HD+. To go back to SD on a device like that isn’t
just an adverse effect but a substantial one.
 
Charlesworth: agree that a lot of archival footage will look
jarring, and isn’t that inevitable?
 
Lerner: old movies were screened in 35mm, they’re actually
much higher definition.  Yes, PBS footage
from the 70s will be fuzzier, and audiences understand that, opposed to films
that weren’t fuzzy. Audiences and gatekeepers expect better when better is
available.

Reid: preserve for the record our strenuous objection to reliance on the
manager’s report to determine meaning of words in the statute for which there’s
been no sufficient identification of an ambiguity. The report came out after
the House passed the DMCA, and I’ve never heard of relying on post-enactment
legislative history. To the extent the Office is importing doctrines such as
inconvenience from the report, we strenuously object to going beyond the statute,
which requires “adverse effects.” We’ve established that you may need to hire a
lawyer, engineer, buy new computer to use screencap. Whereever adverse effects
lines are drawn, it’s surely before that process.
 
Charlesworth: we’ve invoked it in many occasions to
understand it b/c the statute is facially difficult to interpret.
 
Lerner: The text doesn’t say what Williams says it
says.  VHS is no longer available. If VHS
had TPMs on it, we couldn’t come here and say we need circumvention b/c distributors
aren’t making VHS any more.  VHS went
away for a reason unrelated to the TPMs. Here there’s a direct relationship b/t
TPMs and inability to get into the market.
 
Williams: I think the report speaks for itself. You’ve
relied on it in the past. It can provide guidance.  It’s a clear statement about these types of
issues. 
 
Reid: none of the language appears in §1201, which clearly
manifests Congress’s intent to include what’s in the statute and not include
what’s not in the statute.
 
Charlesworth: we rely on it for guidance.
 
Wolfe: very briefly: film analysis—Williams suggested it
covers most of the universe of uses, but film can play into scholarship in
important ways/paradigmatic fair use that doesn’t seem like film analysis:
clear trend in scholarly communications to focus on reproducibility of
experimental results by providing tools, data, etc. Psych literature is replete
w/studies based on or requiring film clips in their production. For online
production, including the clip on YouTube might be acceptable, but in books showing
what you used in the experiment, not as analysis but as a fact in what you did,
is essential.
 
Q: Buying a new computer—wouldn’t you also need to switch to
PC for Blu-Ray?
 
Turnbull: there are no licensed players for Mac.
 
Q: have you explored using HDX for your project?
 
Buster: I was working w/in what I thought were the legal
requirements.  It would be a hardship to
work with a Windows computer and work back and forth. 
 
Q: you might be able to use HDX under the existing
exemption.
 
Buster: once you pull the video from any computer you can exchange
it.
 
Taylor: you could switch between environments.  Other people I was working with used Macs and
I used a PC and we could work.
 
Lerner: I just bought an external Blu-Ray player for my Mac
that plays Blu-Rays. I wasn’t aware there were no licensed players.
 
Turnbull: there are no licensed players.  [Wow, that enforcement effort is working
super super well!]
 
Q: can you access this content in HDX downloading?
 
Lerner: yes, but the catalog is very limited. There’s a very
strong likelihood that it won’t cover all the HD content people want.

Buster: would need to figure out how easy it was to cut the clips to be fair
use.

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