Art Neill New Media Rights
Elizabeth Rosenblatt Organization for Transformative Works
Jack Lerner, Brian Tamsut, and Jovan C. Ardy UCI Intellectual Property, Arts, and
Tisha Turk University of Minnesota, Morris
Ben Sheffner Motion Picture Association of America, Inc.
David J. Taylor DVD CCA and AACS LA
J. Matthew Williams Joint Creators II
Movavi, one of the programs that the opponents want people to use. She showed stuttering, jerkiness, pausing in
capture from Netlfix. Results in
nonstandard framesize, which causes technical problems with editing and
export. Capturing streaming is going to
be more prone to glitches due to additional layer of difficulty of
capture. Many computers don’t have optical
disc drives at this point so streaming might be the only option.
optimized. Streaming: you don’t know
what the internet connection was and whether that was the problem. Was the codec lossy or lossless? The lossy format will require a certain
amount of compression. You can’t just sit down, use a screencap program for the
first time, and get perfect results. The ones we have offered fairly compensate
for every program. Not familiar with
Movavi. Had to learn screen cap programs
every three years now. There are infinite
numbers. Also much easier to learn than Handbrake and video editing. As a
hobbyist, you can easily spend the time to learn how best to maximize the
attached to Jt. Filmmakers—many sound difficulties with syncing, computer
noise, stereo effects & other important parts of the sound that aren’t
captured by screencapture. Also, there
is no such thing as lossless screencapture for Blu-Ray. Maybe he’s referring to highest possible
fidelity, but we have found nothing on the market that doesn’t drop frames and
lead to stuttering and other problems.
programs; there are several. Does
screencap require circumvention: nobody knows. Which is one of the issues with
an exemption that deals with distinctions between types of programs. Netflix: this stream was from Netflix, but we
have numerous reports of people using screencap who end up with just a black
screen. There are certain sources from
which screencap is simply inadequate. As
to whether screencap from streaming is different: it’s necessary to use
streaming for some things for unique or timely sources. To say that one could have an internet lag
free screencap is true only for some materials. Resetting screen size was
suggested as an option: results in difficulty editing but also loss of material
on the sides of the screen—uses the aspect ratio of whatever computer you’re
working on. Professor Turk can speak to
this w/other clips. To the extent that
the stutter was supposedly a result of internet lag: that was created in an LA
home with high speed DSL; many people have worse. Even in a perfect internet connection there
is frame loss and blurring.
whether the existing exemption beneficiaries have to make a good faith effort
to use it to get the quality they need before moving ahead with circumvention.
What’s the point of that if it may or may not be legal? The proponents have
consistently questioned its legality, which is why it should be retained. [But
that doesn’t explain why there should be a requirement to go to screencap
first, especially given its questionable legality, or why the exemption should
be written to distinguish between the two.]
for Discovery. Transcoded AVI to
mp4. [The unanswered questions here were
how these clips in the opponents’ exhibits were created, and how long it took
to get those clips to the condition that they could be imported and looked
good. All the opponents’ exhibits start with the clips as if that were
simple, something that the opponents’ statement above indicates was probably
not the case.] Asked to determine if
these clips would be usable as a deliverable for pro use, and the answer was
no. But if a small clip was used in a larger project, providers would accept
the whole project. Using multiple
sources with multiple frame rates is common. You use the frame rate that the
majority of your clips use, and the hope is that the converted clips will look
ok. Apple is the pickiest of the
providers, and has accepted some mixed cadences, just won’t accept a lot. Inverse telecining: backwards conversion to
return it to its remaining frame rate. As long as it comes out converted, and
it’s a small portion of the project, it’s usable.
perk up.] It’s not frame for frame, but for a screencapture, it’s getting 9/10
of the frames, and there’s a lot of frames.
We submitted something different to her [the video maker] than to you
b/c there was a learning curve in using the software. It results in a huge file, but it is high
quality—someone who works for Discovery has said this could be included in a
final product for Apple. A small piece,
as w/exemptions, is perfectly fine. Every
work requires postproduction editing, and no one gets a perfect clip the first
meet distribution standards. We aren’t dealing w/close analysis. Any documentary film that uses an archived
clip has to deal with this processing problem regardless of how acquired.
and decoded. Something can be coded in lossless format but all it encodes is
what it’s fed—a stream that has
dropped frames or is pixelated.
contracts—practically, most of the folks getting a contract related to
nonfiction, documentary, short films—these are small projects with modest
budgets. If you’re told to return and recut the video and find the source
material, that takes time and money and eats into subsistence return. Upscaling isn’t sufficient; there’s Netflix
standards on upscaling that reject it. Far-fetched to say that distributors are
accepting this across the board. They will ask a filmmaker to go back.
rejected clip that was screencaptured.
framerate. Taylor asserted that PBS and
Netflix don’t matter, but they are very important for documentarians—the record
referring to iTunes doesn’t cover PBS and Netflix, the key channel for
documentarians, and our record shows that PBS and Netflix don’t like screencap.
Our submission addresses ODS. It’s true that they accept 70s footage, but
that’s because they understand there’s nothing else available. If you try to
submit a modern screencap clip, that will be rejected. Opponents have not submitted evidence of
broadcast standards. Also worth noting that the clip narrator isn’t here to be
asked questions. [CO says that not all
the people mentioned in submissions here.]
for everything is fundamentally inconsistent with the argument that DRM is
necessary to prevent piracy. We’re asking people who make art and commentary to
sacrifice their vision; turning CO into art critics.
true, but the impact of exemptions is very much at issue here, and the fact
that it’s not preventing “piracy” is important.]
noninfringing. Compare that w/the quality of screencap, what we saw was that
the quality is pretty good, and that’s true w/experts too. Take that into
account when weighing blurry issue of noninfringing status against ease of
rejected to use the exemption?
rejection by the broadcaster. Requires sampling products on the market. If
you’ve been rejected in the past or you compare their standards to what you can
get, you don’t have to try again.
circumvent from now on?
it was eligible under existing exemption.
haven’t yet been rejected? Good faith
makes sense where situations may vary, but ODS is ODS; it won’t work
differently from user to user.]
count. My discussion w/expert: she
offered that in her experience, the most difficult company was iTunes. Agrees w/Williamsn [opponent] about
significance of screencap. It’s an alternative for those looking to expand the
exemption. It continues to improve. [Then there’s no point in requiring people
to use one rather than the other. It
just makes the exemption more confusing without having any more DRM-protecting
or copyright-protecting benefit.]
multiple sources have difficulty w/different frame sizes, frame rates. If you
want to focus in on something, you can’t
do that dependably using something that will result in blurriness or loss of
material. We aren’t looking for proof
that every use is fair, but for the significant possibility that fair use is
addresses more what happens after you make a thing than before. 1845 people responded to our survey Q about
what the DMCA was: 1400 hadn’t heard of it or didn’t know. Of the 440 who said
they did know, only 67 mentioned anticircumvention, and 6 mentioned
exemptions. 1/3 mentioned complicated,
confusing, convoluted. The people who
knew about it said “I have little understanding do to the confusing and vague
language.” “scared the pants off of
everyone in my middle school.” That’s the sort of user we’re dealing with. That
may not address directly your Q but it speaks to our argument that people
aren’t likely to seek out something that won’t work as well when there’s an
option that works, from the consumer standpoint, and they won’t have to go
through these multiple steps. They don’t understand why one means of achieving
a fair use would be illegal and another wouldn’t be.
fair to say there’s not as many of them.
A lot of the trouble comes when someone who isn’t chilled b/c they don’t
know then has to interact w/ an institution like a school, traditional publisher,
library, who won’t facilitate/adopt their work, or when responding to a
takedown, or trying to get insured. That’s where the chill happens, not in the
initial creativity but in the use of what you’ve made. Turns the law into a
trap for unwary, makes fair uses more vulnerable to takedowns. When you
encounter a gatekeeper, like iTunes, it can turn out what you’ve done is
illegal even though it would have been legal if you used a different program.
use screencap or not?
They don’t know what noncommercial means: if it’s on YouTube.
content is delivered in the sense that noncommerciality and whether someone is
personally making money off their creation is just more complicated. We are very much about noncommercial
creation, but we’ve had people come to us increasingly confused about what
should they be?
the expense of following the law. Even
the proposed exemption is college-level understanding. It’s difficult to craft
a legal rule that’s simpler. Michael
Donaldson has tried to simplify fair use: would your use be clear to the
average viewer. If you apply that to most of the examples in the record, the
fair use doesn’t come through b/c the point isn’t perceivable to the average
viewer. That’s why you’ve drawn the lines where you have for filmmaking and
ebook authorship. Axanar: use of Star Trek in a “fan” film—no payment there,
and the court still said it wasn’t a fair use. The point of the work couldn’t
readily be perceived. [Not really a
short exerpt there.] There wasn’t enough
evidence to do “primarily noncommercial” before [that’s a mischaracterization
of the record; in that instance the CO indicated that “noncommercial” in its
definition encompassed the videos we were talking about, such as videos that
were made on commission] the Dr. Seuss
v. ComixMix: transformative purpose, the fourth factor still failed fair use as
a matter of law b/c of potential harm to the market for derivative works even
if they didn’t license mashups [again, that’s a misdescription of the case; the
motion to dismiss on fair use as a matter of law failed, not the fair use
defense]. The law doesn’t mandate the simplest exemption. [Nor does it bar it.]
all. The goal for a remix artist is to
get good quality video into the computer. Didn’t understand why anyone would be
asked to use something that doesn’t work as well. Can’t you just know from past experience or
other people’s experience that this typically doesn’t work, and that another
thing works well, and participate in a community that gives advice about what works
well? Can’t we just say, if it’s fair
use, get the video in a way that works for you and go? I would never say don’t use screenap. I wouldn’t do it. There might be cases where
someone wants or needs it, but I’m interested in the end result. Is the quality good enough that someone won’t
just hit the back button? Evidence is
that if something looks amateurish people don’t watch it.
might be perfectly adequate?
settings. I come back to: don’t disallow
it, but don’t impose it on people whose workflow or access to technology works
better w/a different format.
regulatory language. Improvement over actual statutory exemptions. Not very
difficult to understand, once you start looking at it. If it’s so confusing, could provide them some
examples of what activities would look like.
You could provide them examples from this rulemaking.
analysis happens on each individual clip. That’s how a real fair use analysis
happens, regardless of whether it’s a documentary or YT video or some other
format. Trying to avoid haplessly
violating law when making video on day to day basis. There’s lots of possible kinds of confusion.
Looking back, we can see the evolution of filmmakers who do a variety of
different formats—not just fictional, but documentary, and other types. People
could turn around the next day and use a clip in a way that’s fair use and be
excluded as they weren’t the day before. We’re trying to deal with gaps—examples
of what’s ok won’t help if you’ve added all these additional layers of
requirements. Many times these requirements
have never been developed/delineated in case law.
that decrease the scope of exemptions haven’t been delineated in case law,
because the requirements haven’t been requirements for making fair use.]
use clips which apply to the proposal for expansion, as well as a number of
examples for expansion, and the statute doesn’t require the limits that are on
the current exemptions. House Commerce
Committee said that motion pictures could be an appropriate category for
exemptions, and the report goes on to say that it wouldn’t be appropriate to go too narrow in the sense of Westerns,
short portions/commentary, then you’d have an appropriately narrow class under
the plain meaning of the statute and what Congress said in the legislative
short portions for criticism/commentary. Not controversial that many fanworks
are criticism/commentary; the Register is on record as saying so. Juxtapose in order to say something new.
We’re not talking about a sequel but about a critique. Harry Potter; GWTW.
isn’t controversial given the record and the case law.
as definitively not fair use] Give us specific guidance—where do we draw the
line? [Short portions, criticism or
commentary] How do we protect only the fair uses.
no effect on derivative market. And why should we drop noncommerciality? SCt
has said that the effect on the market is key. We also have to look at
commercial effects. How can we provide enough guidance?
still a remedy for copyright infringement—you provide enough guidance that way. [Why does the CO need to provide any guidance
in the exemption on what is noninfringing
other than the statute does?]
guidance so they don’t cross that line? [I thought this was a proceeding about
anticircumvention, not designed to expand or contract fair use?]
perfectly but that’s ok b/c there’s a remedy for infringement. This is a phantom threat—if someone is going
to infringe, and they’ve ripped to commit infringement they’re claiming
criticism and commentary, you have statutory damages for that.
works. Then the CO decided it would specify certain categories of users, it
could get there. [Fortunately we’ve
learned since then a bit more about what works and what doesn’t.] When you
disregard current boundaries that effort falls apart. Fair use isn’t an
appropriate category. TVEyes: transformativeness doesn’t moot the fourth
factor. [Though the short portions
thing, as with every other case they’ve mentioned, distinguishes that inasmuch
as TVEyes offered people everything.]
Often hard to perceive the parody/transformation in fanworks; use full
songs [of what relevance is that to the clips?]. What’s the potential harm to copyrighted
works? The fact that there are licensing options for fictional filmmakers and
ebook authors! [That always have
anti-disparagement clauses.] Wouldn’t say
it’s never fair use to make criticism and comment generally, that’s a harder
sell than criticism and comment of the work directly. Many of these examples
don’t comment on the work itself.
exemptions? If there are examples of things that should be included but
aren’t. [Prosecution/defense uses are a
big deal here.]
confused about whether they fit into the type of creator category that
distinguishes between existing exemptions. We aren’t here to litigate remix
video but to talk about where other things might fit in, like multimedia
ebooks, and uses that attorneys might make in litigation [yes!]. Documentary about a guy who’s exonerated by
footage showing that they were at a baseball game. Makeup tutorials juxtaposing a face to a clip
from a movie. YT reviews of movies. Where do things fit in? Makeup tutorial is criticism/commentary,
short portion etc. Audio only uses of AV works—podcasters who want to rip to
get high quality audio b/c listeners expect that.
questions: Quora: is it illegal to use audio trailer in my podcast? Answers are all over the map. Audacity forums
where people say, I need to rip to get high quality audio, b/c Audacity won’t
let me use it w/o high quality. I have
examples of these questions—could also make a follow up submission.
that don’t usurp the market.
that. Is there a way to identify problematic use, gray area use? [Shouldn’t the gray areas be left for
litigation, so as not to expand or contract
the scope of fair use?]
to the other evidence in the record about the tiny size and contractual
restrictions of the licensing market, which by the way is not a “clip”
licensing market but a general licensing market, versus the size and variety of
the clip uses out there?]
lot of derivative uses are educational. Doesn’t feel comfortable speaking to
opponents’ proposed language.
clarifying the language. There isn’t
any. What is the harm that’s on the record after so many proceedings?
wasn’t viable. Speak to why it has changed. And to which uses there is a viable
market, e.g. comment and criticism.
different divisions (movie, TV, news).
Clip licensing is sometimes centralized and sometimes not. Different philosophies and business
practices, can only speak in aggregate. Overall, every studio licenses clips.
They have websites with info about this. In most cases it can be done online
through forms, email, phone. There was
an old FAQ that said only a fax, but looking more comprehensively there’s
actually phone or email.
refused individual licenses, but vast majority was B2B, because they have the wherewithal
to engage in the project. Nonetheless,
they do receive individual requests.
Significant portion: individual can’t afford price of license. That
doesn’t mean there’s no viable market. Bel
Air houses: most people can’t afford homes there, but there’s a viable real estate
market. [If only copyrights were
intangible and nonexhaustible, unlike real estate.]
criteria for licensing. None of them absolutely barred licensing in those
areas. [Google Books case on factor 4 is
v. good on this—has to be significant as an impact.]
licenses. There’s some experimentation. The licensing websites invite inquiries
from “all” uses—there’s no prohibition. Relatively unusual for there to be
individual licenses, but not unusual for there to be remix videos posted to
YT. The content ID system identifies
them and monetizes them. Those aren’t licensed but are [he didn’t finish the
sentence because he can’t without doing something that his clients really won’t
want him to do]. [Does Content ID
distinguish circumvention from noncircumvention? How did the uploaders get the
footage? Does that mean the
circumvention used to create the footage was not unauthorized under Sheffner’s
you still make money?
circumvention. That doesn’t provide the footage
which is the precondition to make the video, as a real license might.] Tolerated even if infringing b/c enforcement
cost too high. New business model where
the work is identified and a license is granted to YT to allow that use even if
it otherwise might have been infringing.
[Which suggests that circumvention has no adverse impact at all.] Several thousand clip licenses per year, but
not much ability to give a breakdown fiction/nonfiction/education. Can’t indicate monetary value, but licenses
exist in each category.
licensing record examples from proponents. These have been discussed in previous
cycles; there’s no change in the record.
if the use is prohibited under contract. [and on fair use!]
are vestiges, having substantial impact on ability to make fair uses. [because fair
users don’t license their clips ….]
the market for © works?
likely to have on that market?] It’s significant
though not dominant—people have jobs doing licensing. Fair use looks at the aggregate effect on the
market of this kind of activity. [Fair
use activity.] It absolutely would. Clip licensing revenue would dry up if all
clip uses were allowed.
comment and criticism. Proponents say
that if a use is fair there’s no right to payment.
uses are fair, would allowing the exception cause substantial harm to the
market. [Really? That’s not how I’ve
understood the statute—it’s the legitimate market for copyrighted works, not
the market for extortion based on technology. The statute wasn’t supposed to
eliminate fair use or enable it to be switched to fared use.] Look at the aggregate effect on new business
traditional way [where you don’t need DRM].
Do you have an idea which makes more?
Or a percentage? [Considered that
way, since YT is a billion-dollar market, I’m thinking that individual clip
licensing is probably smaller.]
it is and the less willing studios will be to use new business models. [v. screencap?]
Broader and less focused they are, the more it becomes nonspecialized and word
gets out. [His assertion is not really evidence
of that; indeed, the record evidence is all to the contrary. I wonder what the APA standard on this
is?] Exemption shouldn’t swallow the
rule. Difficult to quantify.
seen any direct evidence why an educator, artist, or filmmaker’s use of a short
clip will create piracy. If you focus on
the harm, the Joint Creators make money off of even infringing uses through YT;
no one here is talking about infringing uses.
The question is: unidentified harm that is unsubstantiated from people
making noninfringing uses. If any harm exists, it’s the inability to get a
license from noninfringing uses –which is not a harm.
market for derivative works/licensing.
unlicensed clips. When a use should be licensed, that happens. Those licensing
markets are available to folks who want to make otherwise infringing uses; we
shouldn’t be concerned about licensing otherwise noninfringing uses. When we look at our streamlined proposal,
there are specific limits. As far as slippery
slope, our language is linguistically almost identical to past exemptions but
for the user language and the access control language—it’s been 9 years. No evidence offered of some vast slippery
that you’re a registered corporation.
Dr. Seuss says that even if a plaintiff doesn’t have evidence it’s
entered the mashup market, it’s potential if has licensed other uses [Again,
misdescription: there, the plaintiff alleged that it collaborated with other rights owners, such as Jim Henson
to do a Muppet-Seuss crossover; that doesn’t mean that “mashup” in general is a
standard or likely to be developed derivative market, or more relevantly that criticism
and commentary are legitimate markets].
each studio would agree to find the clip you want, he can’t say. There are also ebook examples: enhanced Harry
Potter series, enhanced GoT series. They don’t necessarily use clips from
motion pictures, but you could easily imagine them doing clips from the motion
pictures. Enhanced Roots with
archival footage of author interviews. Making of Indiana Jones: full of stills,
and those are always licensed [not true for academic work; see also the Grateful
Dead/Dorling Kindersley case] and they have the right to choose who they want
to partner with.
licenses to YT, not to the individual end users. Whether that’s monetized or not
we can’t say across the board. They choose monetization, monitoring, and
blocking, subject to user responses.
Agreements are highly confidential, but the fact that program has been
made available to address © concerns about mass number of users; there are tons
of other websites that don’t provide that kind of response system [and how many
views has the Pope?]. Thousands per year
of licenses v. thousands per week on YT: doesn’t mean there’s no harm or that
the studios aren’t trying to enter the market.
Piracy: my clients don’t have a straight line of sight into who claims
the exemptions, who might have gotten a license. Cesar Chavez film: some
licensed, some not; no insight into whether there would have been a license w/o
the exemption. Nondisparagement clauses: they were in the record last
time. All the things requested last time
are requested again, so that hasn’t changed.
Filmmakers: there’s not any examples clearly prohibited by the nondisparagement
clause [and if you were the person making that decision, and not making it in
the context of this proceeding, that would be more relevant evidence, but you’ve
specifically disclaimed the ability to speak for any given studio.]
use is fair, but if there are some things that are probably fair and others
that probably aren’t, you have to see if the spillover from an exemption will
cause harm to a market.
disparage, criticize, belittle, parody, or negatively comment on. This is the
sword of Damocles that can be asserted at any time even after licensing. Telling that Sheffner compared licensing to
one of the most exclusive housing markets in the US. There is a licensing market, but it’s not
available to everyone. Some of our clients
use it but most can’t afford it. A lot
of what’s going on is fair use, and 1201 is holding us back. How much money have studios lost due to
existing exemptions? No record evidence. Only harm they’ve articulated is a
threat of a marginal number of fair uses that turn out not to be fair. Sometimes
rightsholders just say no: MPAA member itself had to make fair use of the Steve
Jobs Apple TV ad. Sometimes they don’t
call back: personal experience w/ a number of clients. Orphan works problem. People can’t afford licenses. Dr. Seuss notwithstanding, a sufficiently
transformative use doesn’t require a license.
Campbell v. Acuff-Rose found fair use possible despite negotiations about
license that broke ground.
before publication: would help in efforts to resolve/simplify. Current exemption has misidentified AACS as
Advanced Access Control System, when it’s Advanced Access Content System. If we’d been allowed to comment, we could
have corrected it.
would you be editing the clip itself?
Tandy said that remix artists could want to make ebooks. Current video
exemption involves a lot of clip editing—would that be true in an ebook as well, or would it be unaltered clips
need or want to alter the images themselves or the sound. Examples focus in on particular part, or
split-screen where they are remixing the video as well as juxtaposing.
mandate specific technologies. That’s one reason we’ve asked for a tech-neutral
exemption: we benefit from seeing what has changed over time, as w/DVD,
Blu-Ray, etc. AACS2.0 is no different functionally
from the other mechanisms.
has given new formats an opportunity to grow before an exemption is
granted. [v. screencap?]
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