1201 exemption hearing: filmmaking and ebooks

PROPOSED CLASS 1: Audiovisual Works—Criticism and
Comment—E-Books and Filmmaking
Michael C. Donaldson, FilmIndependent, International
Documentary Association, Kartemquin Educational Films, Inc., Independent
Filmmaker Project, University of Film and Video Association, The Alliance for
Media Arts+Culture (“Joint Filmmakers”): Discusses use of film as fair use in
other films, even nondocumentaries (like Jersey
Boys
).  Question: is that criticism
& commentary? [My answer would have been yes, and that the Jersey Boys court didn’t need to reach
that specifically because fair use is more capacious, but historical
verification and contextualization certainly counts as commentary for purposes
of fair use.]  Answer: Yes, the exception
is more limited than fair use but we will work with our clients to come within
its confines.  [CO questioner seems
focused on commentary; says Register said previously that developing a
character/situation isn’t inherently commentary and criticism.  Q: what is your best example of
fiction/multimedia ebook that’s used for comment and criticism?]
Heidi Tandy, Organization for Transformative Works:
Something we’d like to make. It’s possible to take content from DVD, Blu-Ray,
etc. and make a fanvid. The minute you want to make a linear, choose your own
adventure style in the format of a game, or ebook that includes different kinds
of content, such as video and stills.  Q:
would this be commercial or noncommercial? 
A: there isn’t a stable and perfect definition of what’s commercial.  If you have a Patreon, is that
commercial?  Hasbro’s guidelines don’t
consider that commercial, but others may disagree.  Trying to leave commerciality out of the
conversation.  Q: would be hard for CO to
say that commerciality isn’t part of fair use. 
A: But what’s your definition?  If
Google puts ads on the side of your work and you aren’t getting revenue, is
that commercial?  CO Q: Doesn’t want to
get away from fiction/nonfiction in this discussion.
Q: what is your best example?
A: things people want to create for mise-en-scene or to show
what happened in the past. Tech doesn’t make it easy but it is getting
there.  VR is also coming.
Q: we need to see concrete examples because we can’t
evaluate fair use in a vacuum.  People
who want to create for comment & criticism.
A: see prepared remarks/submission statement. Using the TV
show Supernatural, 14th season—the fictional world has a series of
novels.  My proposal was for a group of
fans w/in the world creating a YT series—using the show to illustrate things
that fans are creating. The only way right now is a video, not the ability to
scroll through to get the experience of being in the fandom—an ebook or PDF
would give a better ability to access, different visual and personalizable
experience.
Q: why is circumvention necessary?
A: to create the content necessary, I need some of the show
itself and some of the images in the DVDs of behind the scenes activity.
Q: why wouldn’t screencapture work?
A: the screencapture would be a static element.  Looks bad versus having the proper flow,
especially in VR.  Like in a wedding
slideshow, where an element is out of sync with the rest of the video—same with
newscasts. 
Q: why wouldn’t licensing work?
A: for larger scale shows, the owners don’t necessarily have
time or energy for someone to communicate with millions of fans. Sometimes
Hasbro gives a blanket license for certain things, but that’s not always the
case.  [In fact, it’s basically never the
case that they license use of the footage
rather than creative elements as such; I can’t think of an example other than
the limited BSG space-fight footage that BSG allowed specific uses of in a
contest.]  Some companies can’t do quick
turnaround—e.g., the Simpsons episode last week about the problem of Apu.  Even if I only had to wait a business day, I
wouldn’t be able to react within the news cycle.
J. Matthew Williams, Joint Creators II: Doesn’t believe he’s
heard about criticism and commentary. In his view, some of tthe examples seem
infringing (without knowing the context) and some not.  Clients are willing to do some licensing or
some no-action (which doesn’t mean that it’s not circumvention).  It’s difficult to do same-day licensing.  Doesn’t think that fan fiction as a class is
noninfringing.  Cases mentioned in
opposition—things like unauthorized prequels or sequels held to be
infringing.  No cases in record on
fanworks being noninfringing.  Not saying
that they are always infringing, there probably are some that aren’t. 
Q: you’re not necessarily disagreeing about license
availability.
A: no record showing unwillingness to license to
individuals. Fox testified it would issue licenses to individuals, but the cost
is a different question. Doesn’t know price and it would differ for different
uses. Might issue no cost licenses, as they do with education.  No record that someone came to his clients
and was denied.
Brianna Schofield, Authors Alliance: Jonathan Grey, Show
Sold Separately—critiques interaction of audience w/works based on prerelease
exposures to the work.  Available online
and uses video clips embedded in ebook. 
This goes beyond film analysis, which is one aspect of the
exemption.  Video Dubliners: a guide to
Joyce’s Dublin, uses film clips for context for understanding the book.
Q: were the clips licensed?
A: no first hand knowledge.
Blake Reid, Angel Antkers, and Susan Miller,
Samuelson-Glushko Technology Law and Policy Clinic
Jack Lerner (with students Brian Tamsut, Cristen Fletcher,
Jovan C. Ardy, Lauren Wertheimer, and Shaia Araghi), UCI Intellectual Property,
Arts, and Technology Clinic: The CO has already made presumptive determinations
to renew the existing exemption. Some of this discussion feels like an attempt
to relitigate the accepted record, in particular the notion of seeking out
licenses as a viable noncircumventing alternative. In both the video and ebooks
exemptions, the only requirement is that the person engaging in the
circumvention reasonably believes there’s not a noncircumventing alternative.
The idea that we need a lengthy record of folks seeking a license for every
clip goes beyond the existing rules and the record that led to them.
Tandy’s proposed project would clearly be w/in noncommercial
video. Where it would make more creative sense to distribute as an ebook, that
should be possible.  That’s why we want a
unitary exemption for this type of use.
Q: if the Register recommends an expansion for noncommercial
use, including fiction, would that be reasonable.
Reid: CO has already recommended multimedia ebook w/o such
limits.
Q: but if we added noncommercial fictional ebooks?
Reid: that’s better than nothing, but the Q the Office
should grapple with is how that impacts the fair use analysis. There are legit
fair uses out there—Jack Lerner can address that in more depth.
Lerner: criticism and commentary can’t be done as a living,
or as an incentive, under a noncommercial model. That’s not a good idea and the
vast majority of [litigated] fair use is commercial, not just in being on YT
but in being sold on the market.  What
you’d be doing is taking the incentive away from a large group of creators.
Williams: mischaracterizing our position.  Don’t require everyone to seek a license. But
don’t use the idea that my clients are unwilling to license without evidence.
[The evidence is among other things in the nondisparagement clauses that are in
every license we’ve seen, where such a license can even be acquired, and those
are in the record; the sites that the Opponents suggest people use are also
nightmares to navigate to even tell whether a licenses are available—take a
look at how often their poster site, Universal’s, throws up “unknown” results.  If one wanted to make an argument about
George Clooney, for example, Universal will determine whether a film in which
Clooney appeared is “available for licensing,” Jt. Creators Opp’n at 13, on a
blanket basis; if the film is not available for licensing, the critic is
apparently out of luck.  (Actually, given
the operation of Universal’s internal search engine, searching for George
Clooney will also return results for Rosemary Clooney, Curious George, and
George Burns, so the would-be licensor needs some time on her hands.  One will also encounter numerous works in the
database marked “unknown,” e.g.,
https://ift.tt/2qu5Wo6%5D  We also don’t think that fair use is
impossible in a fictional motion picture. 
The MPAA often asserts fair use. 
We just haven’t seen the standard met for large amounts of fair use
being suppressed.  Having a low budget
doesn’t make your use fair; if there’s a potential market and the © owner is
likely to exploit it, then there’s harm regardless of whether an individual
user says they can’t afford it.
Susan Miller: The SPN example: it’s a critique of the
characters often involving society as a whole—commenting on specific characters
& elements—that counts too.  Fan
fiction often critiques and comments on society as a whole—that should count
too.
Q: that’s the issue—does it need to critique & comment
on the work itself? That affects the first and maybe the fourth factor.  [BTW, Bruce Keller & I wrote a whole
article on this back in the day—there’s really never been evidence that ©
owners are more ready to license satirical uses than parodic ones; even the
tuggable “blanket” licenses with nondisparagement clauses let them reject uses
where they don’t like the context. Thus there’s no effect on the fourth
factor.] We’re looking for examples of criticism of the © work.  [But why? That formulation raises the problem
of why the CO has decided to exclude an entire kind of fair use.]
Tandy: goes into history of fanworks. How people started
writing (e.g., Frances Hodgson Burnett of Secret Garden/Little Princess fame
started with Sherlock Holmes). Inherently a commentary: if something wasn’t
missing from the original, you wouldn’t have written your version.
Q: that seems to encompass a lot of derivative works too.
Tandy: can see situations where, e.g., cosplay, might not be
making a commentary. Say you want to do a steampunk Justice League—the
costumes, content and structure would be different. But that’s not what we’re
talking about here. Focusing on an ebook/choose your own adventure, it’s
inherently a commentary where people are being given choices about how to read
the story.
Patricia Aufderheide, American University: You can
distinguish documentary and fiction, but that’s one of many ways to slice a
unitary form; virtually everything is shared between the forms—structure,
reenactments, audio/video and other aesthetics. Many kinds of fiction don’t
make criticism and then some do; then there are hybrids in which documentary
characters are real-life people who dream of being gangsters in a gangster
movie and stage a gangster movie.  It is
very hard to say “here’s an example” when people know they can’t add this stuff
without enormous complications. As someone who’s worked w/documentarians for 40
years, the complaints never stop about never hearing back from requests to
studios/potentially licensors. Beyonce’s Lemonade
is an example of a work that refers critically to many real
incidents/situations. It’s not hard to see parody/satire in SNL
skits—incorporating and referring to and creating commentary on real
copyrighted things.  There’s no reason we
shouldn’t be encouraging this.  Good Night and Good Luck and other
dramas—we should be able to show what they were describing when they quote the
description of TV as a “vast wasteland.”
Q: Not trying to make aesthetic judgments, but whether it’s
likely to be noninfringing use.  The last
rulemaking: there was enough of a record to say that it was likely to be
noninfringing for documentaries, and we’re now being asked to extend that to
all films.  Biopic as a line? Everyone
thought that was unsatisfactory before. 
How would that work for you?  Is
there a way to exclude types of films that are less likely to be fair use,
instead?
A: I don’t understand your task. You’re being pretty clear:
commentary and criticism of the thing itself. Wouldn’t it be up to the person
to be sure they’re coloring within the lines, and if not they pay the
penalty?  Letting people have the option
of using that across the form, where you’ve already said that an exception for
one part of the form (whose boundaries are themselves fuzzy) is
acceptable.  There are situations where a
documentary could infringe, which is why we do review and licensing where
appropriate.  There’s a whole explanation of which clips they
licensed for Refrigerator Mother and
which they didn’t and why.
Q: To opponents: wouldn’t a limitation to comment and
criticism then be sufficient?
Williams: Harder to see fair use in fiction. Showing what it
was like to be present in a moment in history is not commenting on that
footage.  [Why not?  The effect that it had on the people
experiencing it as reality is an important part of criticism and commentary.]    Fan fiction choose your own adventure ebook
example—that doesn’t involve criticism or commentary, even if involves
additional expression; Axanar and Salinger cases haven’t found such uses to be
fair.  Nor would noncommercial be ok.
Just the fact that something isn’t for sale doesn’t make it noncommercial,
because paying the customary price is part of the analysis so all kinds of
noncommercial uses would still cause harm. 
The examples I did see were very small. 
Showing Kennedy assassination reaction may be important to the story,
but that’s not criticism and commentary; they have been able to license some
clips, and if you have 60 clips of Cesar Chavez and pick the most engaging, the
fact that you don’t want to pay to license it doesn’t make it fair use.

David Taylor: no real concrete examples, particularly in the ebook situation.
Sounds more like interactive games. 
That’s not an ebook, he thinks. Archival clips aren’t distributed on
protected DVDs.  [I think that’s
factually wrong in many cases, given the usual archival sources.  I don’t think he has a record on that, though
I may have missed something in the opponents’ submissions.]
Michael Donaldson: A few examples: In Search of Fellini,
about a woman obsessed with Fellini; clips shown to comment on the power of
Fellini’s films—w/o seeing the film you can’t see how impactful they are, and
recreating them doesn’t work.  Scripted
film about Christine, a Florida news anchor who shot herself on the news. The
commentary is: this is what the TV audience saw, not a redo.  [You can’t meaningfully comment on what they
saw by telling the story that surrounded it without access to what they saw;
your audience has no reason to believe your commentary unless they can compare
the recorded footage to what you’re saying about that footage.]
Low budgets: that isn’t why they don’t license.  Insurance companies put real skin in the game
even for these low budget films; they insure when they believe it’s fair use.
We’ve had pushback from insurers more on risk than on actual fair use,
especially for clips surrounding Trump where he’s perceived as litigious.
Lerner: criticism and commentary: you aren’t required to say
“here is my criticism and commentary.” 
Showing a reaction of a person to a contemporary event is
commentary.  Also, there hasn’t been a
previous limitation to “criticism and commentary about the work” and we shouldn’t put it in. Fair use cases include
the Wind Done Gone.  Also, the noncommercial remix exemption
includes fictional use; it is clearly a set of fair use works.
Also, 8 years after documentary exemption exists, lifting
the “documentary” limit clearly creates no real risk of infringement/piracy.
Q: would the licensing market be affected?
A: no, we’re talking about the market for fair use.  The © owner has no right to a license to a
fair use. What we have now is filmmakers who aren’t doing fair use that they
want to do, or they get licenses because they can’t access the material.
There’s no dispute that there is a large amount of fair use in the
nondocumentary context, but it may be licensed when it doesn’t need to be.
Q: any examples where 1201 caused licensing despite 107?
A: Nearly 70 different films where people wanted to make
fair use but didn’t.  Can supplement the
record further.  Also remember that
Register already said that needn’t opine on the fairness of any given use, but
rather that there is a class of works likely to be fair use.  There’s no real dispute that broad, robust,
burgeoning fair use exists in the nondocumentary context—the question is
whether it will be chilled/allowed to go forward.
Reid: this RM takes place every three years. 1201 makes the
creation of these films, where licensing and screencapture aren’t reasonable
alternatives, illegal, with the prospect of statutory damages and criminal
charges.  It’s understandable that people
aren’t coming out of the woodwork with scripts.
Q: we need to look at whether the market has changed; need
to tie it to what people would actually do. Difficult to say w/o looking at
tangible examples.  It’s been feasible
for prior class 1 categories.  [Welllll,
our examples had all been created under legal threat, until we got our first
exemption.  That seems undesirable.]
Reid: Then we do have specific examples, and then we’re
being asked to divide them by genre, prove they’re noninfringing, prove what
subgenre (e.g. biopic) they fall into. Sketching out real plans for 3 years in
advance is not what the statute requires.
Q: Why in ebook sense didn’t you go for the broader category
of mixed video or fan fiction/cosplay? 
Is it because the clips they’re using they’re lengthier and not very
edited?  The Digital Dubliner seemed like
a sophisticated blog.  Why do you really
need high quality?
Tandy: high quality is important across all media.  One reason we haven’t talked about fan
fiction/fanart is that doesn’t involve circumventing AV locks. This is the
other kind of fanworks. Fan films go back to the 1960s.  Now we have quality that no one could achieve
before, and if you want to participate in the conversation you need to match
the visual sophistication of the other participants.
Q: expanding what we thought an ebook was?
Tandy: yes, though it doesn’t necessarily include text in
the way we think about copying and pasting it—can be jpgs and video clips mixed
together, with the words embedded in the jpg to create a specific visual expression.
Q: if someone steps over the line, why can’t the Joint
Creators just sue? Why do we need more limitations?
Williams: Lerner says no infringement has resulted from
exemptions and thus no expansion will infringe. 
Our position is that there’s a lot of infringement; a lot of these
videos are infringing; we’ve identified examples we think are infringing. We’ve
chosen not to continue to oppose those exemptions b/c we’re not going to fight
City Hall, but that’s not a concession of no harm.  [No harm from
the exemption
?  They’ve never shown
any evidence of that, which I think was the point of the question.  As we’ve repeatedly noted—and I’m very happy
to hear the CO focus on this—1201 itself has virtually no effect on initial
creative behavior; most of this is about what will happen when you have to
interact with an institution like a school or a traditional publisher who has
less incentive to facilitate any given individual creative work, or when you
have to talk to a lawyer, whether it’s responding to a takedown or trying to
get insured.]  1201 created a new right
over and above 106. Saying that litigation should sort it out isn’t very
comforting because litigation is expensive.
Q: but if there’s a quantum of likely noninfringing films
with short portions etc., why isn’t that reasonable to go to 106?
Williams: it wouldn’t be one or two.  Seen very few noninfringing fictional
examples, and even in the nonfictional space. Digital Dubliners could have some
good fair use arguments, but he doesn’t know how the clips were selected. Would
be seen as CO endorsing a broad swath of content and endorsing misuse. The
Office has already said that it thinks a lot in the record is infringing, and
yet proponents keep saying the Office has already decided it’s infringing. 
Q: if we still had the comment & criticism, short
portion, etc. and added noncommercial, that’s not sufficient?
A: Noncommercial in & of itself is only a factor.  It has layers.  [I initially mistyped this as “it has
lawyers.”]  Do you pay the customary
licensing fee? If not, that’s commercial use. 
Does the CO intend to rely on case law meaning or lay meaning?  Either way, it’s just one factor, as is short
portion, and comment & criticism; but none of those add to slam dunk. Even Campbell remanded for analysis of fourth
factor in that specific instance.
Q: talk about licensing.
A: links in our comments to websites that provide easy
access to contact points for licensing. CNN: you can go on & say I’m
looking for a clip from X period of Y person. 
You can say “I want to use this in fiction” or education or documentary
and they give you different pricing and it pops up almost immediately.
Q: proponents’ reponse to licensing arguments?
Donaldson: It is easier to find out whether they claim to
own it, but not whether they will actually license it. Now it’s almost
impossible to get to a human, for example to negotiate the posted price for a
small film/niche film. 
Wertheimer: a lot of licensing agreements have
nondisparagement clauses—can’t make critical use of the clip. Even with a
license, that’s not fair use.
Q: Opponents, what have you to say about that?
Williams: you didn’t accept that before.  Not all © owners include nondisparagement
clauses—Warner Bros. didn’t have such clauses. 
[How nice of them.] A lot of them do. But there’s no examples of actual
criticism of the studio or any of the actors or really in this record of the
films themselves. Those wouldn’t prevent licensing of the works.  [You can’t speak for the licensors and what
they think of a use, can you, though?] These are more about disparagement of
the talent and he hasn’t heard anything about that.  [I’d love to see that contractual argument
tried by the licensee if the licensor declined to approve a use on grounds that
the licensor thought it was disparaging of something other than the actors.  Not that they’d explain their reasoning!  But of course we never get there anyway because
the license deters people from trying.]
Q: the Steve Jobs example, where the family didn’t like the
use—they rejected that.
A: Universal relied on fair use.
Q: that’s an example of license refusal, though.
A: sure, not going to claim that some © owners don’t like
criticism. 
Q: how is licensing a feasible alternative then?
A: it isn’t always. 
The examples of that in this record and all prior records are very few
and far between.  [And the justification
for denying the exemption is….] Has heard that it’s unacceptable to condition
exemption on those who’ve asked and been denied.  Proponents don’t want to go ask.
Q: You’ve said there’s no market for multimedia ebooks. If
that’s true, how could there be an adverse effect on the clip licensing market?
David J.Taylor, DVD CCA: if you believe there is a market or
that one will develop, our argument is that it’s ours and should be licensed
just like documentaries are licensed.
Q: is it the studios’ view that this is a traditional,
reasonable, or likely to be developed market?
Williams: it’s potential/likely to be developed.  Simon Swart from Fox last cycle testified
they’d be willing to license multimedia ebooks, and Ben Sheffner from MPAA will
testify in LA on issues related to licensing as well as the importance of
access controls.
Josh Welsh, FilmIndependent:
Documentary/nondocumentary—there is a growing trend to blurring the lines.
These aren’t just one off but a growing hybrid genre.  A new award: the Heterodox award at a major
event to deal w/unclassifiable films. 
The Looming Towers—a mix of traditional documentary and scripted
fiction, where the elements play off each other.  Errol Morris’s Wormwood: scripted actors
intercut with documentary.
Q: are they comment & criticism?
Welsh: I’m showing why granting or denying an exemption
based on a genre is a bad idea given how porous the genre boundaries are. This
is an exciting growth area for film. Doesn’t make sense to limit by genre.
Aufderheide: has developed a category of thinking: imagination
foregone (see report
based on fair use-free Australia). What do you not do if you think something’s
prohibited?  Instance after instance of
people excluding entire categories of behavior, which is why she is concerned
about looking for current practices—a lot of people are not imagining
thinks.  Topical dramas like Roseanne,
Black-ish etc. can easily incorporated criticism and commentary.
Taylor: they just haven’t shown the need for a larger
exemption. The problem with going back to 106 is that the RM is tasked with
creating an exemption based on the evidence produced. [This seems like a carefully
misleading claim about the definition of “evidence.”  Evidence can include (as it does here) expert
testimony about the practices of the relevant creative communities, and about
the affordances of technology when it is or isn’t encumbered by 1201 without an
exemption.]
Bruce Turnbull, AACSLA: In the past, the focus was on the
much more elaborate nature of the ebook. None of what was promised 3 years ago
has actually appeared.  Also, the
platforms are limited. 
Q: trends about fictional works—proponents say the trend is
increasing. Is that enough for evidence?
A: you need the evidence for that. For the ebook, we have a
number of things 3 years ago that didn’t happen.  Discussion of platforms’ restraints—those
have inhibitions [I think this means they can’t use the tech?].  If the idea was noncommercial video/people
don’t view what they did as a “video,” it may be that is the place to look at whether something could be included to
facilitate some of the fan fiction kinds of things.
Williams: Donaldson identified a trend of people wanting fair
use in fictional films in his own practice. But his starting premise was that
people weren’t using clips in fictional films before that, and that’s not true,
e.g., Oliver Stone films.  Major studios
were probably licensing clips.
Tandy: defers to tech expert on the tech, but the widget
doesn’t let you get the effects.
Q: it doesn’t stutter, drop frames. What would you have seen
that you didn’t?
Tandy: I don’t know what was lost or how these clips were
created.
Q: does the eye lose anything?
Tandy: linking the content together [seamlessly?] you need
more capacity—you have to be able to obtain additional software, which people
may not be able to do.  Couldn’t do it in
Windows Movie Maker though maybe it’s possible in pro software. 
[The real ridiculousness of this is opponents’ contradictory
insistence that (1) the quality of (noncircumvention) screen capture is amazing
but (2) 1201 is super, super necessary to prevent piracy so exemptions should
be guarded like state secrets.  Both of
these things can’t be true, and they aren’t. 
The key reason people need to be able to use whatever makes sense to
them to make their fair use clips is that almost no one knows that this is
currently legally important. The main reason 1201 is a barrier is because when
you encounter a gatekeeper it can turn out what you’ve done is illegal even when it would have been perfectly
legal had you used a different program. Also, since we usually don’t know
whether any given program is
circumvention, the uncertainty created serves no valid purpose in limiting the
exemption to the class of noninfringing uses.
Turnbull: Screencap quality is accepted by Apple for
publication.
Q: would this be enough for a film festival/distribution?
Jim Morrissette, Kartemquin Educational Films,Inc.: Nope.
More gatekeepers than ever before. The current exemption works really well for
documentarians. Blu-Ray has made the difference for even using fair use any
more. Abacus, about a small bank in NY; wanted a clip from It’s a Wonderful
Life.  Blu-Ray enabled that.
Turnbull: Screencap limit is good because it prevents widespread
removal of TPMs.  [I’d love to see the
record evidence on that.]
Q: do you violate 1201 by using screencap?
Nobody is willing to answer that, because we don’t know.
Williams: there appear to be screencap that captures after
lawful description.  But I won’t answer
your question. The current exemption addresses the concern that people might
not know, so accidental circumvention isn’t illegal.  Basically gives proponents comfort and
encourages people to use only the tech that they need for the quality they
need.  [And here is the complete gap in
the evidence.  What’s the encouragement
effect?  If you-the-creator even know
about the exemption, you still have to deal with the uncertainty created by the
question of whether a court (or a copyright owner, even, in its threats and
allegations) would disagree with your assessment of needing to make the jump
from one kind of software to another for quality reasons.  There’s a good reason that courts prefer to shy
away from making aesthetic judgments and defer to creators on that question,
including the aesthetic judgment of just how sharp an image “needs” to be.
Adding that into the exemption creates a non-fair use related standard whose
main function would be to trip people up, if & when they encountered it.]
Q: but is there any specific tech that people are worried
about?  Apple allows screencap. Does the
current exemption with two stages serve a real purpose?
Peter Midgley, Brigham Young University: Provides zero
comfort, only confusion. Suggests screen cap is by default unlawful.
Q: would expanding the exemption increase infringing
distribution of works? Should we require them to put DRM on fictional uses?
Lerner: problematic—how do you define that?  More fundamentally, you’d be really requiring
people to change their straightforward fair use to additional restrictions on
access. When I make fair use, that’s my speech.
Reid: We’d object to a distribution scheme b/c it transforms
an exemption that’s supposed to look at the moment of circumvention (unless post
circumvention behavior is probative of intent) into a regulatory regime for
downstream distribution. Far beyond what Congress intended to delegate to CO.
Raises 1A concerns too—conditioning distribution of speech on further tech
restrictions.
A: Congress has said for 110 that tech protections are
required. Evidenced a willingness to go that far.
Reid: no evidence in the record. If you’re thinking about
that, we need more opportunity.
Midgley: we need to think about this but really shouldn’t
put a mini 110 in this exemption.  [Yeah,
no kidding.  110 is for uses that might
be otherwise outside the scope of 107 or need extra certainty because of the
institutional features of face to face teaching. This exemption isn’t sought to
implement 110, in which case compliance with 110 would be reasonable as a
requirement.  Instead the exemption is
sought to implement 107, and you actually have a right to distribute a fair use
(indeed, it’s hard to think of a fair use case that didn’t involve both
reproduction and distribution).]
Donaldson: See the negative effects of the current regime
heartbreakingly w/editors and directors who move from doc to not and want to do
what they did last month and all of a sudden it’s a criminal act.  It’s one thing to have a marketing definition
of a documentary. But acts legal in May are now illegal in June when the person
switches to a different project and that’s bad.
Antkers: will respond to the demo in LA.  [My reaction, not being able to comment on
quality given the fact that I was watching a YT stream of a camera recording of
a screen, is that the demo missed the most important step, which was the
creation of the clip in the first place; I’d sure like to know how exactly that
clip was created before it was incorporated into an ebook.]
Lerner: Bobbette Buster, client of UCI. Can confirm she’s
still working on her book. Others have personal delays, but evidence doesn’t
need to include examples for every possible issue. Evidence can also include
evidence from experts about creative practices. That’s more than sufficient to
meet our burden especially given the utter absence of concern about piracy or
increased unauthorized sharing as a result of changing the exemption.

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