DMCA hearings: 3D printing

Posted on May 28, 2015 by rtushnet
Copyright Office: Jacqueline Charlesworth
Michelle Choe
Regan Smith
Cy Donnelly
Steve Ruhe
John Riley
Stacy Cheney (NTIA)
 
Proposed Class 26: Software – 3D printers
This proposed class would allow circumvention of TPMs on
firmware or software in 3D printers to allow use of non-manufacturer-approved
feedstock in the printer.
 
Proponents: Sherwin Siy, Public Knowledge: be specific about
the copyrighted work at issue. The software embedded in the printer, not
anything produced by the printer, and not even necessarily the software
embedded on the chip.  Since 2003, when
2D printers came up, Lexmark has
moved that a bit more out of the arena of discussion.  Adverse effect: Stratasys is quite clear
about how they view their ability to lock TPMs to particular printers can
benefit them, and their incentives are clear.
 
Charlesworth: tell me more about the software as you
understand it at issue here.
 
A: we’re concerned about whether accessing the software in
the printer would constitute access under 1201. 
 
Charlesworth: reading through submissions, seemed that there
are two components: (1) the chip on the cartridge that (2) then locks into the
software on the machine. How does your exemption deal with both, or does it?
 
A: Ultimately what we want is to be able to use a chip that
was not created by the original mfgr or use feedstock not created by the
original mfgr. Both programs are involved, but the © work at issue would be the
one in the printer, as in the Lexmark
case. 
 
Charlesworth: what’s the nature of the circumvention?
 
A: number of ways. Could copy software on the chip.  That would interface w/the computer program
on the printer.  Q is whether access by
using the printer and creating potential RAM copies triggers 1201. Substitute
chip.  You could also reuse/modify an
existing chip.
 
Charlesworth: and in copying software is there circumvention
involved in the chip?
 
A: I don’t think there’s circumvention.  It’s likely to access a noncopyrighted
program. But to the extent that’s necessary … It would vary based on the nature
of the system. 
 
Charlesworth: what TPM is on a chip?
 
A: it protects the interface b/t the chip and the printer
itself.  In many cases there is no overt
TPM, it’s just a question of reading off the chip itself. It depends on other
variables.
 
C: there might be a © issue but not a TPM issue.
 
A: yes.
 
C: and the machine?
 
A: the circumvention would be circumventing the measures
that require a mfgr-created chip to operate. 
Authentication. The TPM controls the authentication. 
 
Q: are you doing anything to the software itself?
 
A: it depends on what the feedstock is. You might want to
change some of the variables in the program itself.  It would vary depending on the model of the
machine and other factors.
 
Michael Weinberg, former VP at Public Knowledge, now Shapeways,
here in personal capacity: Part of the issue is that once you get past an
abstract level: feedstock container and chip verifying that the container came
from mfgr—there are a number of technical ways to implement that verification.
You could make the chip very dumb, with most info/action on the software side.
You could structure the system w/ more info in the feedstock container chip so
the two pieces talk to each other more intensively. Depends on how you
implement it. The key thing is that at a high level of abstraction, there is at
a minimum software on the printer waiting to be used until it can verify that
it has approved input and that software is likely protected by © so the only
way you can access the interface is to convince it you have approved feedstock.
Implementation varies from machine to machine and mfgr to mfgr.
 
C: the TPM is the need for the chip to make the printer run?
Explain what the TPM is.
 
Siy: the system in its entirety that requires the presence
of the chip. Whether the code is on the chip or more likely on the printer,
that software code is the TPM, the part that requests authentication.
 
Weinberg: it’s easier to describe a dumb chip on a cartridge
and a smarter printer, but I want to be clear that we aren’t restricting our
request to that specific type of system.
 
C: what do you mean by a dumb chip?
 
Weinberg: may be as simple as serial number or RFID.  Information presenting to be read.
 
C: like a key.
 
Weinberg: like a swipe card to get into a building. It’s not
doing any processing, but w/out it the locks on the building won’t work. You
could have a smartphone that would communicate back and forth with the
building.  The level of technical
sophistication in keycard v. phone is different.
 
Q: is this intended primarily for consumer use or at the
manufacturer level?  Larger 3D printers?
 
Weinberg: Motivated by consumer use, but no reason to
exclude manufacturing/more sophisticated commercial players. Worth noting there
may be and likely are noncopyright related restrictions on what owners or
possessors are doing—contractual, warranty. The focus is the ©/DRM part.
 
Q: This is just about feedstock bypass, not software that
reads 3D modeling.
 
Weinberg: exactly correct. Nothing to do w/models going into
machine or coming out. Not even related to software running the machine except
for the feedstock part.
 
Q: does breaking TPM for feedstock affect 3D modeling
software?
 
A: the process that reads and verifies the input doesn’t
have to be linked to the process linked to slice the model.  One thing the machine will do is slice model
horizontally into thin layers and establish a traveling path through each layer
to create it. While the path is determined by the type of material, it’s not
determined by the origin. It could be implemented in a tied way on a machine.
 
Opponents: Ed Kerry (sp?), Stratasys Ltd. (or designated
alternate Stratasys witness): The output is very dependent on the material and
authenticity, though the input is not.
 
A: agree.
 
Siy: though that only means product quality, not © status.
 
C: might different TPMs protect the basic software v. the
modeling software? Or once you break it do you have access to everything?
 
Weinberg: there’s no technical reason. Mfgr can decide how to
implement it differently. You can choose one that simply governs feedstock
source.
 
C: what’s in the market?
 
Weinberg: I don’t know b/c no one is particularly interested
in making unauthorized copies of the software that runs the machine. The reason
people worry about these is that they want to use unapproved feedstock; not
discussion about accessing the software to copy it.
 
C: do you need to copy the software to modify the feedstock?
 
A: depends on the mfgr.
 
C: What is the legal basis for your exemption?
 
Weinberg: two core harms. 
Both flow from a cloud of ambiguity over whether this behavior even
triggers 1201.
 
C: what is the noninfringing use? [um, making stuff, which
doesn’t itself implicate ©?]
 
Siy: We want to figure out §106 uses—RAM copies made in the
utilization in the printer itself, or modifications necessary to use the
feedstock.  Both fall within §117.
 
C: if you alter the software you might be creating a
derivative work.
 
Siy: allowed by §117: adaptations
or copies created as essential step. They aren’t being made to distribute or
even leave the machine.
 
C: who owns the computer program in the machine?
 
Siy: the person who owns the machine.
 
C: what’s the evidence of that?
 
Siy: you could recognize that to the extent owned by the
hardware owner, §117 requires; MDY ruled that any contracts were covenants when
the Q is whether the use of the software is licensed or not.
 
C: what are the typical mfgr practices?
 
Siy: regardless of language of license, that will allow you
to use the printer.
 
C: but are they even claiming it’s under license?
 
Siy: it will vary from mfgr to mfgr.
 
Weinberg: especially in the consumer market, while I don’t
have a study of current licenses, there are probably 70 desktop 3D printer
companies of highly variable legal sophistication. It would be highly
surprising if you didn’t see almost every version of © license theory applied
to software in this space, including silence.
 
C: have you seen any purported licenses?
 
W: not in context of these proceedings.
 
C: any you’re sure are sold without a claimed license?
 
W: there are printers that are open licensed.
 
Q: have you looked at the printers using TPMs for their
licenses?
 
A: no.
 
Kerry: VP for Stratasys. 
Deal w/ top 120 manufacturers in the world. Prototypes/mfgr of parts. Those
same customers buy low end Makerbots as well. 
New 3D companies this year: 150. We have revolutionary technologies,
including using inkjet heads. Our software calculates droplets and can use 3
different materials at a time. My customers also use our service business,
where we make parts for customers. We are helping them go to direct digital
manufacturing of tools and end use parts.
 
A large airplane manufacturer is putting 1000 plastic parts
on a plane; we spent years certifying this plastic for airplane parts. The
highly integrated machine that prints it as FAA certified part is very
important.
 
C: Are the airline companies making those parts?
 
A: they’re airline companies and downstream manufacturers.
 
C: why do they care?
 
A: customers don’t want anybody to be able to get into that
integrated system. They want a reliable part that is exactly what they declared
it to be. They don’t want people using cheaper feedstock. Traceable and
reliable to be kept for years. [And that is related to © how?] Important that
no derivative works are created and no feedstock introduced.
 
C: are there specific regs on making airplane parts?
 
A: The FAA. The FDA regulates medical devices. I’m not an
expert.  [Why is the © Office making
decisions about this?] We help our customers certify parts and materials to the
FAA and FDA.
 
C: these are manufacturing type customers, not Makerbot
customers.
 
A: correct.
 
Q: can you test the part itself to make sure it’s used the
right material?
 
A: The customer does test the part, though I don’t know if
they test the material. Test it as they’d test from any manufacturer.

C: do they test every part? [© Office lawyer as airplane mechanic.]
 
A: depends on what the part is. 
 
Q: Is the fear that someone not in the normal manufacturing
stream gets ahold of inferior materials and then tries to put that part into
the stream via passing off?
 
A: that’s my customers’ fear. They have multiple suppliers
who supply counterfeit parts, which would affect our brand and that of the
customers.  [Wouldn’t that already be
illegal and violate the suppliers’ contracts and probably trademarks?]
 
Our printers are fully integrated systems. They’re servers,
not printers. We’re talking about the operating system and derivative
works.  Have to meet tight
tolerances.  Controlling the slicing is
important. We track lot numbers, enabling verification of parts.  Inkjets sold 600 million printers last year;
we’ve only sold 120,000 systems and we’re the biggest—nascent industry.
 
C: answer Makerbot v. more sophisticated: how do you handle
the software?
 
A: by license. 
 
C: do you provide ongoing updates?
 
A: yes, we have an ongoing relationship. Thingiverse. We
accept files made by different design software.
 
Weinberg: But Thingiverse doesn’t update the software.
 
C: do you send out patches to the Makerbot?
 
A: don’t know, but on the other lines we do.
 
Weinberg: I own a no longer supported Makerbot.  There are machines that are no longer
upgraded.
 
C: how do you get upgrades if they were there?
 
Weinberg: SD cards were required. As machines get more
sophisticated they might be able to do direct downloads; it depends.
 
C: in many cases, you might be receiving upgrades for a
consumer device.
 
A: it’s possible.
 
Q: is that software encrypted?
 
Kerry: it’s compiled to run on the printer. The feedstock
chip is encrypted.
 
C: what is your warranty policy if someone modifies your
printer?
 
Kerry: it’s no longer warranted. 1 year warranty otherwise.
 
Q: are you claiming the feedstock chips are copyrightable?
 
Kerry: not today, but we anticipate it might be.
 
3D printing is more complicated than 2D printing.  IP is critical to the industry to justify
investments for future development. I’m not a lawyer or DMCA expert, but I
understand it was enacted to prevent circumvention of TPMs designed to prevent
copying of IP. Exemptions were to be exceptional—a fail safe where there are
substantial adverse effects on noninfringing uses.
 
Petitioners’ proposed exemption would deprive industry of
useful tool during critical period. They aren’t seeking lawful access, but misusing
the exemption process to encourage users to bypass controls where DMCA doesn’t
apply and encourage users to infringe. Showing is insufficient.
 
C: Cheaper feedstock is a benefit, no?
 
Siy: and different.
 
Kerry: today that chip is not copyright protected, though we
do plan to have one.
 
C: are you saying you don’t object to doing something w/ the
chip?
 
Kerry: we highly object to counterfeiting the chip and to
the exemption.  This industry is just
starting. They will not do medical devices, airplane parts, or car parts if
they can be hacked.
 
C: on the consumer end, if I buy a makerbot and want to use
different feedstock and break my warranty, so what?
 
Kerry: if the part comes out not right it affects our
brand.  Bigger concern on high end b/c
derivative works of our server system is a huge issue b/c of our competitors in
other companies. Opening that up for competition and un-integrating the system
will stunt the industry.
 
C: are you familiar with the Lexmark case saying that using a different cartridge didn’t violate
©?
 
Kerry: yes, but that wasn’t a server.  Printer toner is basically all the same. We
print 100s of different kinds of plastics in different ways. Not a fair
comparison.  People rely on the objects
we make.
 
C: respond to concern about the integrity of mfg chain?
 
Siy: in both consumer and commercial context, the person
making use of the exemption is the person using the printer. They’ll be fully
aware they’re the ones using 3d party feedstock.  That’s their responsibility. [And has nothing
to do with ©!]  As for the commercial
context, the FAA regulations will dictate what’s relevant. If you need a
certain plastic, then the certification will say so.
 
C: but the concern is that bad guys will sneak bad stuff
into the chain, b/c it will seem legitimate to use cheaper stuff.  
 
Siy: Q of integrity of product as functional object depends
on manufacturer and supplier. If they’re counterfeit, they’re counterfeit. The
TPMs don’t solve the problem of unreliable suppliers.
 
C: makes it more likely that suppliers would circumvent and
use inferior feedstock.
 
Siy: people would be violating their contracts.
 
Kerry: there are plenty of open printers w/ no encryption.
 
Siy: people who want to produce parts on the cheap can do
that already then.
 
C: do you have specific examples in the record of people who
want to circumvent commercial/mfg type printers as opposed to consumer
printers?
 
Siy: no.
 
Weinberg: there are companies actively developing
alternative feedstocks for industrial printers. They see themselves engaging in
an activity unrelated to © and don’t understand why they should come to this
proceeding.  One thing that can easily
get lost: you have the idea of the primary benefit being lower costs of
existing materials, but there also new materials for existing printers that are
already owned. They’re looking at specific printers b/c different printers
compete on different tech/functional capabilities—they aren’t a commodity.

C: why not just target it to open printers?
 
Weinberg: there are in desktop space, less so commercial. But
the reason is some printers are the only printers that can achieve particular
tech goals. If some are locked down you can’t necessarily achieve the same
goal.
 
C: example?
 
Weinberg: Stratasys says there are things only they can do.
 
C: others?
 
Weinberg: the people who’ve developed open bio-3 printing
started w/ a Stratasys machine b/c that was the machine w/ the technical
ability they required for initial stages of their process.
 
Kerry: we regularly offer licenses for research/development
for this exact reason. There are a lot of developing materials, and we’re the
#1 material developer. It’s our greatest area of investment.
 
Weinberg: some of the techniques are patented, and by
definition they’re only found in one printer. 20 years of patents tied to
specific manufacturer.
 
Q: how useful 1201(f) could be?
 
Siy: That was pre Lexmark—we don’t know about the printer
engine.  About reverse engineering, not
about interoperability. Copying chip directly makes 1201(f) uncertain
alternative. As for reverse engineering the software itself: the Q is what the allegedly
infringing use. If the act is reverse engineering, 1201(f) works, but the use
itself doesn’t get certainty from (f). 
It does not obviate the need for an exemption across the uses necessary
depending on the circumvention at issue.
 
Q: specifics?
 
Siy: no b/c of wide number of ways in which TPMs can be
implemented. Kerry just said they wanted to include more
sophisticated/copyrightable software on chips. Where the circumvention is
necessary might change.
 
§117 is one of the ways in which the use by a consumer of a
3D printer of third party is feedstock is noninfringing. There are other
reasons for noninfringing uses—use with permission. Even the most restrictive
license will provide for the use of software. The only way in which use of a
third party feedstock could infringe would be if you believed that a functional
condition of the grant was not using third party feedstock.
 
C: but you might be altering the software.
 
Siy: but you have the right to use.  [I don’t know why alterations in parameters
would create a derivative work—if it’s swapping one set of physical facts about
a material for another, that’s not enough creativity to create a separate work.]
Also fair use.
 
Q: how much change in the software would be necessary?
 
Kerry: we test and tune the machine for new feedstock, and
sometimes up to a year before the machine produces a high number of reliable
parts. Motion control, heating, distribution, and layering b/c customers demand
precision parts.
 
Q: but how much of the code is changed?
 
A: don’t know.
 
Q: any other distinguishing characteristics b/t high end and
low end consumers? We say prosumer, tends to be professional. Home market is
lower end. Pro engineer will use one on his desk.

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DMCA hearings: 3D printing

Posted on May 28, 2015 by rtushnet
Copyright Office: Jacqueline Charlesworth
Michelle Choe
Regan Smith
Cy Donnelly
Steve Ruhe
John Riley
Stacy Cheney (NTIA)
 
Proposed Class 26: Software – 3D printers
This proposed class would allow circumvention of TPMs on firmware or software in 3D printers to allow use of non-manufacturer-approved feedstock in the printer.
 
Proponents: Sherwin Siy, Public Knowledge: be specific about the copyrighted work at issue. The software embedded in the printer, not anything produced by the printer, and not even necessarily the software embedded on the chip.  Since 2003, when 2D printers came up, Lexmark has moved that a bit more out of the arena of discussion.  Adverse effect: Stratasys is quite clear about how they view their ability to lock TPMs to particular printers can benefit them, and their incentives are clear.
 
Charlesworth: tell me more about the software as you understand it at issue here.
 
A: we’re concerned about whether accessing the software in the printer would constitute access under 1201. 
 
Charlesworth: reading through submissions, seemed that there are two components: (1) the chip on the cartridge that (2) then locks into the software on the machine. How does your exemption deal with both, or does it?
 
A: Ultimately what we want is to be able to use a chip that was not created by the original mfgr or use feedstock not created by the original mfgr. Both programs are involved, but the © work at issue would be the one in the printer, as in the Lexmarkcase. 
 
Charlesworth: what’s the nature of the circumvention?
 
A: number of ways. Could copy software on the chip.  That would interface w/the computer program on the printer.  Q is whether access by using the printer and creating potential RAM copies triggers 1201. Substitute chip.  You could also reuse/modify an existing chip.
 
Charlesworth: and in copying software is there circumvention involved in the chip?
 
A: I don’t think there’s circumvention.  It’s likely to access a noncopyrighted program. But to the extent that’s necessary … It would vary based on the nature of the system. 
 
Charlesworth: what TPM is on a chip?
 
A: it protects the interface b/t the chip and the printer itself.  In many cases there is no overt TPM, it’s just a question of reading off the chip itself. It depends on other variables.
 
C: there might be a © issue but not a TPM issue.
 
A: yes.
 
C: and the machine?
 
A: the circumvention would be circumventing the measures that require a mfgr-created chip to operate.  Authentication. The TPM controls the authentication. 
 
Q: are you doing anything to the software itself?
 
A: it depends on what the feedstock is. You might want to change some of the variables in the program itself.  It would vary depending on the model of the machine and other factors.
 
Michael Weinberg, former VP at Public Knowledge, now Shapeways, here in personal capacity: Part of the issue is that once you get past an abstract level: feedstock container and chip verifying that the container came from mfgr—there are a number of technical ways to implement that verification. You could make the chip very dumb, with most info/action on the software side. You could structure the system w/ more info in the feedstock container chip so the two pieces talk to each other more intensively. Depends on how you implement it. The key thing is that at a high level of abstraction, there is at a minimum software on the printer waiting to be used until it can verify that it has approved input and that software is likely protected by © so the only way you can access the interface is to convince it you have approved feedstock. Implementation varies from machine to machine and mfgr to mfgr.
 
C: the TPM is the need for the chip to make the printer run? Explain what the TPM is.
 
Siy: the system in its entirety that requires the presence of the chip. Whether the code is on the chip or more likely on the printer, that software code is the TPM, the part that requests authentication.
 
Weinberg: it’s easier to describe a dumb chip on a cartridge and a smarter printer, but I want to be clear that we aren’t restricting our request to that specific type of system.
 
C: what do you mean by a dumb chip?
 
Weinberg: may be as simple as serial number or RFID.  Information presenting to be read.
 
C: like a key.
 
Weinberg: like a swipe card to get into a building. It’s not doing any processing, but w/out it the locks on the building won’t work. You could have a smartphone that would communicate back and forth with the building.  The level of technical sophistication in keycard v. phone is different.
 
Q: is this intended primarily for consumer use or at the manufacturer level?  Larger 3D printers?
 
Weinberg: Motivated by consumer use, but no reason to exclude manufacturing/more sophisticated commercial players. Worth noting there may be and likely are noncopyright related restrictions on what owners or possessors are doing—contractual, warranty. The focus is the ©/DRM part.
 
Q: This is just about feedstock bypass, not software that reads 3D modeling.
 
Weinberg: exactly correct. Nothing to do w/models going into machine or coming out. Not even related to software running the machine except for the feedstock part.
 
Q: does breaking TPM for feedstock affect 3D modeling software?
 
A: the process that reads and verifies the input doesn’t have to be linked to the process linked to slice the model.  One thing the machine will do is slice model horizontally into thin layers and establish a traveling path through each layer to create it. While the path is determined by the type of material, it’s not determined by the origin. It could be implemented in a tied way on a machine.
 
Opponents: Ed Kerry (sp?), Stratasys Ltd. (or designated alternate Stratasys witness): The output is very dependent on the material and authenticity, though the input is not.
 
A: agree.
 
Siy: though that only means product quality, not © status.
 
C: might different TPMs protect the basic software v. the modeling software? Or once you break it do you have access to everything?
 
Weinberg: there’s no technical reason. Mfgr can decide how to implement it differently. You can choose one that simply governs feedstock source.
 
C: what’s in the market?
 
Weinberg: I don’t know b/c no one is particularly interested in making unauthorized copies of the software that runs the machine. The reason people worry about these is that they want to use unapproved feedstock; not discussion about accessing the software to copy it.
 
C: do you need to copy the software to modify the feedstock?
 
A: depends on the mfgr.
 
C: What is the legal basis for your exemption?
 
Weinberg: two core harms.  Both flow from a cloud of ambiguity over whether this behavior even triggers 1201.
 
C: what is the noninfringing use? [um, making stuff, which doesn’t itself implicate ©?]
 
Siy: We want to figure out §106 uses—RAM copies made in the utilization in the printer itself, or modifications necessary to use the feedstock.  Both fall within §117.
 
C: if you alter the software you might be creating a derivative work.
 
Siy: allowed by §117: adaptationsor copies created as essential step. They aren’t being made to distribute or even leave the machine.
 
C: who owns the computer program in the machine?
 
Siy: the person who owns the machine.
 
C: what’s the evidence of that?
 
Siy: you could recognize that to the extent owned by the hardware owner, §117 requires; MDY ruled that any contracts were covenants when the Q is whether the use of the software is licensed or not.
 
C: what are the typical mfgr practices?
 
Siy: regardless of language of license, that will allow you to use the printer.
 
C: but are they even claiming it’s under license?
 
Siy: it will vary from mfgr to mfgr.
 
Weinberg: especially in the consumer market, while I don’t have a study of current licenses, there are probably 70 desktop 3D printer companies of highly variable legal sophistication. It would be highly surprising if you didn’t see almost every version of © license theory applied to software in this space, including silence.
 
C: have you seen any purported licenses?
 
W: not in context of these proceedings.
 
C: any you’re sure are sold without a claimed license?
 
W: there are printers that are open licensed.
 
Q: have you looked at the printers using TPMs for their licenses?
 
A: no.
 
Kerry: VP for Stratasys.  Deal w/ top 120 manufacturers in the world. Prototypes/mfgr of parts. Those same customers buy low end Makerbots as well.  New 3D companies this year: 150. We have revolutionary technologies, including using inkjet heads. Our software calculates droplets and can use 3 different materials at a time. My customers also use our service business, where we make parts for customers. We are helping them go to direct digital manufacturing of tools and end use parts.
 
A large airplane manufacturer is putting 1000 plastic parts on a plane; we spent years certifying this plastic for airplane parts. The highly integrated machine that prints it as FAA certified part is very important.
 
C: Are the airline companies making those parts?
 
A: they’re airline companies and downstream manufacturers.
 
C: why do they care?
 
A: customers don’t want anybody to be able to get into that integrated system. They want a reliable part that is exactly what they declared it to be. They don’t want people using cheaper feedstock. Traceable and reliable to be kept for years. [And that is related to © how?] Important that no derivative works are created and no feedstock introduced.
 
C: are there specific regs on making airplane parts?
 
A: The FAA. The FDA regulates medical devices. I’m not an expert.  [Why is the © Office making decisions about this?] We help our customers certify parts and materials to the FAA and FDA.
 
C: these are manufacturing type customers, not Makerbot customers.
 
A: correct.
 
Q: can you test the part itself to make sure it’s used the right material?
 
A: The customer does test the part, though I don’t know if they test the material. Test it as they’d test from any manufacturer.
C: do they test every part? [© Office lawyer as airplane mechanic.]
 
A: depends on what the part is. 
 
Q: Is the fear that someone not in the normal manufacturing stream gets ahold of inferior materials and then tries to put that part into the stream via passing off?
 
A: that’s my customers’ fear. They have multiple suppliers who supply counterfeit parts, which would affect our brand and that of the customers.  [Wouldn’t that already be illegal and violate the suppliers’ contracts and probably trademarks?]
 
Our printers are fully integrated systems. They’re servers, not printers. We’re talking about the operating system and derivative works.  Have to meet tight tolerances.  Controlling the slicing is important. We track lot numbers, enabling verification of parts.  Inkjets sold 600 million printers last year; we’ve only sold 120,000 systems and we’re the biggest—nascent industry.
 
C: answer Makerbot v. more sophisticated: how do you handle the software?
 
A: by license. 
 
C: do you provide ongoing updates?
 
A: yes, we have an ongoing relationship. Thingiverse. We accept files made by different design software.
 
Weinberg: But Thingiverse doesn’t update the software.
 
C: do you send out patches to the Makerbot?
 
A: don’t know, but on the other lines we do.
 
Weinberg: I own a no longer supported Makerbot.  There are machines that are no longer upgraded.
 
C: how do you get upgrades if they were there?
 
Weinberg: SD cards were required. As machines get more sophisticated they might be able to do direct downloads; it depends.
 
C: in many cases, you might be receiving upgrades for a consumer device.
 
A: it’s possible.
 
Q: is that software encrypted?
 
Kerry: it’s compiled to run on the printer. The feedstock chip is encrypted.
 
C: what is your warranty policy if someone modifies your printer?
 
Kerry: it’s no longer warranted. 1 year warranty otherwise.
 
Q: are you claiming the feedstock chips are copyrightable?
 
Kerry: not today, but we anticipate it might be.
 
3D printing is more complicated than 2D printing.  IP is critical to the industry to justify investments for future development. I’m not a lawyer or DMCA expert, but I understand it was enacted to prevent circumvention of TPMs designed to prevent copying of IP. Exemptions were to be exceptional—a fail safe where there are substantial adverse effects on noninfringing uses.
 
Petitioners’ proposed exemption would deprive industry of useful tool during critical period. They aren’t seeking lawful access, but misusing the exemption process to encourage users to bypass controls where DMCA doesn’t apply and encourage users to infringe. Showing is insufficient.
 
C: Cheaper feedstock is a benefit, no?
 
Siy: and different.
 
Kerry: today that chip is not copyright protected, though we do plan to have one.
 
C: are you saying you don’t object to doing something w/ the chip?
 
Kerry: we highly object to counterfeiting the chip and to the exemption.  This industry is just starting. They will not do medical devices, airplane parts, or car parts if they can be hacked.
 
C: on the consumer end, if I buy a makerbot and want to use different feedstock and break my warranty, so what?
 
Kerry: if the part comes out not right it affects our brand.  Bigger concern on high end b/c derivative works of our server system is a huge issue b/c of our competitors in other companies. Opening that up for competition and un-integrating the system will stunt the industry.
 
C: are you familiar with the Lexmark case saying that using a different cartridge didn’t violate ©?
 
Kerry: yes, but that wasn’t a server.  Printer toner is basically all the same. We print 100s of different kinds of plastics in different ways. Not a fair comparison.  People rely on the objects we make.
 
C: respond to concern about the integrity of mfg chain?
 
Siy: in both consumer and commercial context, the person making use of the exemption is the person using the printer. They’ll be fully aware they’re the ones using 3d party feedstock.  That’s their responsibility. [And has nothing to do with ©!]  As for the commercial context, the FAA regulations will dictate what’s relevant. If you need a certain plastic, then the certification will say so.
 
C: but the concern is that bad guys will sneak bad stuff into the chain, b/c it will seem legitimate to use cheaper stuff.  
 
Siy: Q of integrity of product as functional object depends on manufacturer and supplier. If they’re counterfeit, they’re counterfeit. The TPMs don’t solve the problem of unreliable suppliers.
 
C: makes it more likely that suppliers would circumvent and use inferior feedstock.
 
Siy: people would be violating their contracts.
 
Kerry: there are plenty of open printers w/ no encryption.
 
Siy: people who want to produce parts on the cheap can do that already then.
 
C: do you have specific examples in the record of people who want to circumvent commercial/mfg type printers as opposed to consumer printers?
 
Siy: no.
 
Weinberg: there are companies actively developing alternative feedstocks for industrial printers. They see themselves engaging in an activity unrelated to © and don’t understand why they should come to this proceeding.  One thing that can easily get lost: you have the idea of the primary benefit being lower costs of existing materials, but there also new materials for existing printers that are already owned. They’re looking at specific printers b/c different printers compete on different tech/functional capabilities—they aren’t a commodity.
C: why not just target it to open printers?
 
Weinberg: there are in desktop space, less so commercial. But the reason is some printers are the only printers that can achieve particular tech goals. If some are locked down you can’t necessarily achieve the same goal.
 
C: example?
 
Weinberg: Stratasys says there are things only they can do.
 
C: others?
 
Weinberg: the people who’ve developed open bio-3 printing started w/ a Stratasys machine b/c that was the machine w/ the technical ability they required for initial stages of their process.
 
Kerry: we regularly offer licenses for research/development for this exact reason. There are a lot of developing materials, and we’re the #1 material developer. It’s our greatest area of investment.
 
Weinberg: some of the techniques are patented, and by definition they’re only found in one printer. 20 years of patents tied to specific manufacturer.
 
Q: how useful 1201(f) could be?
 
Siy: That was pre Lexmark—we don’t know about the printer engine.  About reverse engineering, not about interoperability. Copying chip directly makes 1201(f) uncertain alternative. As for reverse engineering the software itself: the Q is what the allegedly infringing use. If the act is reverse engineering, 1201(f) works, but the use itself doesn’t get certainty from (f).  It does not obviate the need for an exemption across the uses necessary depending on the circumvention at issue.
 
Q: specifics?
 
Siy: no b/c of wide number of ways in which TPMs can be implemented. Kerry just said they wanted to include more sophisticated/copyrightable software on chips. Where the circumvention is necessary might change.
 
§117 is one of the ways in which the use by a consumer of a 3D printer of third party is feedstock is noninfringing. There are other reasons for noninfringing uses—use with permission. Even the most restrictive license will provide for the use of software. The only way in which use of a third party feedstock could infringe would be if you believed that a functional condition of the grant was not using third party feedstock.
 
C: but you might be altering the software.
 
Siy: but you have the right to use.  [I don’t know why alterations in parameters would create a derivative work—if it’s swapping one set of physical facts about a material for another, that’s not enough creativity to create a separate work.] Also fair use.
 
Q: how much change in the software would be necessary?
 
Kerry: we test and tune the machine for new feedstock, and sometimes up to a year before the machine produces a high number of reliable parts. Motion control, heating, distribution, and layering b/c customers demand precision parts.
 
Q: but how much of the code is changed?
 
A: don’t know.
 
Q: any other distinguishing characteristics b/t high end and low end consumers? We say prosumer, tends to be professional. Home market is lower end. Pro engineer will use one on his desk.
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DMCA hearings: multimedia ebooks

Posted on May 28, 2015 by rtushnet
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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DMCA hearings: multimedia ebooks

Posted on May 28, 2015 by rtushnet
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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New book chapter on young women and transformative works

Posted on May 28, 2015 by rtushnet
Busy week, part N: I have a new chapter, Transformative Works: Young Women’s Voices
on Fandom and Fair Use, with Betsy Rosenblatt in a book edited by Jane
Bailey and Valerie Steeves from U Ottawa Press, eGirls, eCitizens, available as a full
book online here.

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New book chapter on young women and transformative works

Posted on May 28, 2015 by rtushnet
Busy week, part N: I have a new chapter, Transformative Works: Young Women’s Voices on Fandom and Fair Use, with Betsy Rosenblatt in a book edited by Jane Bailey and Valerie Steeves from U Ottawa Press, eGirls, eCitizens, available as a full book online here.
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Posted in dmca, fan fiction, fanworks, http://schemas.google.com/blogger/2008/kind#post, my writings | Leave a comment

DMCA hearings: library etc education

Posted on May 27, 2015 by rtushnet
Copyright Office: Jacqueline Charlesworth
Michelle Choe
Regan Smith
Cy Donnelly
Steve Ruhe
John Riley
Stacy Cheney (NTIA)
 
Proposed Class 4: Audiovisual works – educational uses –
educational programs operated by museums, libraries, or nonprofits
This proposed class would allow educators and learners in
libraries, museums and nonprofit organizations to circumvent access controls on
lawfully made and acquired motion pictures and other audiovisual works for
educational purposes. 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: Renee Hobbs, Media Education Lab, University of
Rhode Island: Work in non-school settings. (1) No reason to distinguish those
who learn in non-school settings like nonprofits. (2) Perpetuates inequality,
since libraries etc. serve underresourced communities, where this form of
learning is important. (3) Not useful to create separate rules for different
formats.  Recognizing educators’ and
students’ ability to make appropriate choices is reasonable. (4) If limiting
language is required, “digital and media literacy instructional practices in
informal learning contexts” would be reasonable though it’s not required.
 
Q: examples of inability to circumvent outside digital and
media literacy education?
 
Hobbs: most of my examples include digital and media
literacy education.   Incredible work in library community:
Macarthur Foundation invested over $130 in informal learning sector digital
initiatives.  Informal learning research
and pedagogy has advanced by leaps and bounds. Chicago’s Umedia at public
library: teen library services—1000s of teens and young adults have been making
media in a wide variety of forms, but they can’t make use of circumvention for
their creative work, unlike UPenn students.
 
Q: would exemption require physical presence at library
etc.?
 
A: That’s a great question—just as there is so much
innovation in tech delivery of digital media, there’s a huge amount of
innovation in digital learning space about blending face to face and online
learning. Even in libraries, it’s common to have a course on “how to make a
blog,” where learners work in the library and then back at home. I don’t think
the distinction should be a limiting factor, because today those practices are
seamless.
 
Direct harm: Jeanine Cook, Yes Philly, nonprofit helping
African-American youth get GEDs; students have negative experiences w/schools
so exploring media is really valuable in non-school environment. But she can’t
use decryption even though learners in other programs have the right to make
such creative work.  Accident of birth
keeps them distinct from Penn students not far away.

Charlesworth: what about noncommercial video exception? Would that apply here?
 
A: Opponents say when we look historically the exemptions
for K-12 were distinct and separate. 
Many of the creative expressions and work products aren’t like remix
video artists. They aren’t designed for that purpose.  They’re part of strengthening the media
understanding muscle, like an exercise, not designed for an authentic audience
with a real world wide distribution. Way to help students learn.  Possible it might apply, but not willing to
rely on it.
 
Q: There are a number of adult education programs, some
affiliated w/school districts and some not. Is adult education included, GED
programs?
 
A: yes. 
 
Q: examples of where this might be used?
 
A: Yes Philly, which I just described, fits that
definition.  250 teens and young adults
who dropped out and are returning for their GED. Not affiliated with school
district; nonprofit.  Jeanine Cook wanted
students to use clips from Selma,
other film, and was unable to do so because of current limitations.
 
Charlesworth: how are they accredited to grant GEDs?
 
A: State of Pa. offered them accreditation, but not familiar
w/the legal mechanism.
 
Charlesworth: some official sanction.
 
A: yep.
 
Q: how would you define educators and learners?  Libraries, nonprofits, etc. have different
missions.
 
A: Teachers and learners can be blurred in library
programming services. Providence Community Library: media literacy might
involve a college student at University of Rhode Island enrolled in one of my
grad classes. Learners might be other K-12 teachers; mothers and patrons of
library; teens; younger people.  Library
programs and services aim to reach the broadest spectrum of Americans.  Teachers are drawn from wide swath of public
and learners are drawn from the community served.
 
Q: envisioning a course taught at one of these institutions?
 
A: yes.  Course isn’t
correct—usual term is “program” for libraries and museums. May be single
session or a series of experiences over a longer period.
 
Q: do you have a way to differentiate a “Best of the Oscars”
presentation at the Smithsonian.
 
A: I don’t think we need to confuse exhibition with fair use
for learning purposes.
 
Q: so we could exclude exhibitions to general public.
 
A: yes.
 
Jonathan Band, Library Copyright Alliance: Before I talk
specifically about libraries and museums, I want to talk about broader
issues.  Ultraviolet etc.: I haven’t
studied the licensed terms, but wouldn’t be surprised if license prohibited
public performance. Would using it in a classroom setting be ok? Sure they don’t
want to induce breach of contract. 
110(1) wouldn’t take care of the license problem, unless you want to say
that 110(1) preempts the license, which would be dandy with us.

Charlesworth: in some settings, 110(1) enables one to show a copyrighted work.
 
Band: yeah, takes care of © but not the license, though he
agrees it preempts the contract terms! Also in terms of Corley: other cases
that go the other way. Bill Graham Archives, Spurlock, Swatch: court
specifically addressed issue of format. 
Swatch: was transcript enough or did they need the audio, and the court
found that audio was additionally insightful beyond the transcript and that was
fair use.
 
Moving on to libraries and museums: sponsor lectures and
classes on a wide variety of topics. Following examples from 6 months of NYPL:
choreographer used clips of ballets that inspired him; Satrapi used clips from Persepolis; George Clinton used clips of
performances that inspired him; William Gibson; magician David Blaine; actor
RuPaul; art dealer used clips from documentary about him; Suzanne Farrell used
clips about her dances. Not limited to NYPL: Skokie library had lecture from
critic about “films that changed my life.” Important part of informal
education; doesn’t threaten rightsholder interests.
 
If the noncommercial exemption covers this, great.  That would be a helpful clarification.  Circumvention tools are widely available and
widely used for infringing and noninfringing purposes. Educators want to do the
right thing. They could ignore the DMCA with impunity, but instead they are
going through this complex process. Rightsowners know there’s no impact on the
level of infringement.  Understand the
frustration about infringement, but don’t take it out on educators just b/c
DMCA allows them to do so.
 
Opponents: Bruce Turnbull, AACS LA and DVDCCA: (1) AACS
particularly, note that there’s no need for Blu-Ray quality; nothing in the
record but vague anecdotal statements amounting to substantial adverse effects.
(2) Fair use doesn’t require the user to have any quality level they wish.
 
Charlesworth: And the cited cases?
 
A: I’m not prepared to respond to those on the spot.  Reply comments stated that DVDs dominate the
marketplace. Maybe that will change in a few years but that’s what we’ve got
now. As to Blu-Ray there’s no record for an exemption. More broadly, the categories
suggested here are very vague and broad—all kinds of nonprofits, museums,
libraries, not limited to institutions specific to education or activities
specific to education. No assurance that participants will be engaged in
educational activities at all. 
Nonprofits in particular: one could create a museum if they want.  A museum of my own DVD works, inviting
everyone to come in from 4-5.  [Why would
ability to circumvent matter there? 
Couldn’t I just set up a DVD player right now?] It’s possible to create
a small nonprofit for all kinds of purposes. [Why would you do that—to make
another copy of South Park from a
copy you already own?]
 
Q: if we narrowed to educational activities, would you still
oppose?
 
A: that would be better, but we’d oppose it with Blu-Ray. If
more in character of existing educational exemptions (short clips, close
analysis), merely having an educational focus or mission begins to drift away [implicitly,
because people are super super untrustworthy, except I guess for the ones who
run Ultraviolet].  But degree-granting
institutions like GED granting institutions would get closer.
 
Alternatives: as was demonstrated previously, screen capture
software does in fact allow you to make use of video, so you’re not deprived of
ability to take video clips and manipulate them. You can completely reorder a
scene from a movie if you want to, include subtitles.
 
Charlesworth: are you saying you wouldn’t oppose a
screencapture safety net for this class?
 
A: if there were a sufficiently narrowly crafted targeted
exemption that derived from the comments presented, then yes.  Finally, w/r/t online: Congress has indicated
its desire as to how online education should be conveyed in terms of the standards,
whether the TEACH Act literally applies or not—both DMCA and TEACH Act mention
technical measures, so any online use would need to adhere to those
requirements.
 
J. Matthew Williams, Entertainment Software Association,
Motion Picture Association of America, Recording Industry Association of
America (Joint Creators and Copyright Owners)
 
My clients support educators and education. We’re seeking
balance, not unnecessary burdens. This proposal sweeps in so many institutions,
organizations, people, that it’s essentially a disallowed user-based
exemption.  The Office has taken steps
toward referencing a user base, but this would be “all noncommercial uses of
motion pictures” and we think that would be both dangerous and inconsistent
with the statutory scheme.
 
Charlesworth: does noncommercial exemption apply to these?
 
A: No, b/c there’s an educational exemption and a remix
exemption that has evolved over time. That said, b/c this one is so broad, it
probably would include some remix content. 
If people working at a nonprofit are creating a remix.
 
Charlesworth: what about the GED example?
 
A: aligned with Turnbull. Not talked to clients about it, but
targeted limited exemption might be OK. 
Reiterate: concern if it extended to students beyond those covered by
existing exemption.
 
Swatch v. Bloomberg: not sure how that applies, b/c that was
a recording of an entire earnings call posted onto news site and the claim was
they didn’t need to post the entire call. [No, the claim was that they didn’t
need to post the audio with its full detail of voice etc. instead of a less
detailed transcript.] And the court said it wasn’t transformative. [No, the
court specifically amended its opinion to make clear that the use was
transformative.]
 
Anyway, NYPL uses were achievable without circumvention,
showing there’s no need.  On the harm
issue, when you’re using a circumvention device to rip a Blu-Ray or DVD you end
up with a complete, in the clear copy. That sets it apart from what most people
do with screencap. 1.5 million nonprofit organizations. It’s a threat to us for
in the clear copies to end up on machines even if it’s not the initial use they
make. [Note that the noncommercial exemption hasn’t done this.]
 
Q: screencap. Mac problems. Is there a license providers
have to get to disable screencap on new operating systems?
 
A: don’t know the answer. 
Interoperability issue.  We haven’t
done the testing.  We assume the testing
they’ve done is accurate.  If those
technologies don’t unlawfully decrypt but captures it after, there’s not a
circumvention.
 
Turnbull: I don’t know of any licenses that specifically
address screen cap software. W/r/t Mac, I’m completely unaware of licenses b/c
Mac doesn’t support Blu-Ray.  I’m certain
there’s no DVD license.  What is known as
DRM licensing business as robustness rules: you have to make your system so
that it can’t be easily attacked by someone seeking to circumvent. [And they
define screencap as circumvention for these purposes.] DVD wasn’t as protected;
AACS has a different set of robustness rules. 
One of the things covered by rules is a requirement that the licensee in
making the product protect the content from point of decryption until the point
of presentation on a screen. The AACS does not require the use of any
particular tech to do that. It is possible that in implementing this, some
systems developed tech that is not compatible with screencap software that
works on DVD.  Having said all that,
since Mac doesn’t support Blu-Ray, doesn’t know what Apple did.
 
Charlesworth: on screencap, what is your view?
 
Williams: seems viable to me. If current exemption covers
it, it’s lawful.  Proffered narrower
language on informal learning—very vague, I don’t know what that means, maybe
b/c I’m not in media literacy field. 
Anything should be much clearer. 
 
Terms of service: to the extent that any of these uses
violate the ToS, that’s the case with the existing exemptions for circumvention
of digital downloads and DVDs, which has never stopped people in the past, so
it’s not a real argument.  [I didn’t know
that my DVD came with an enforceable license; I thought there was a first
sale!]
 
Many of these uses could be licensed—LA testimony about Fox
licensing.
 
Hobbs: Libraries, museums, nonprofits that aren’t gov’t
sanctioned/accredited.  In my written
reply I describe Nuala Cabral, an educator who runs a small Philly nonprofit
called Fanmail: media literacy and social activism for African-American
community—people respond to misogynistic representations in contemporary media
culture. Wants to create analysis and commentary on Orange is the New Black on
Blu-Ray but she can’t access the clips. She’s not making a film, but a learning
experience for adult learners.  I don’t
think noncommercial would fit.
 
Charlesworth: it can be streamed from Netflix. Has she tried
screen capture?
 
A: I don’t know.  I
tried to make a screencapture of Netflix and I was unsuccessful three years
ago.  Screencapture doesn’t uniformly
work on all machines due to unknown tech gaps.
 
Charlesworth: but could you find a way to use screencapture
to get clips?
 
A: Potentially. Narrowly written exemption that doesn’t
include educators like Cabral would be insufficient. Underserve the people who
could most benefit from opportunities to respond to contemporary cultural
representations.
 
Band: Matt uses the word “balance,” but that’s our
word.  Swatch: P argued that transcript
would have been sufficient, and Bloomberg succeeded in arguing that the tone of
voice made a difference in analysis.  The
court specifically amended the opinion to say it was transformative.
 
W/r/t library example: the point is that those were
authorized uses, but b/c of the time that it takes, having to get authorization
on short notice means you can’t use what you want. You might be able to clear a
few, but a lot of times you can’t.  Use
of clips in presentations is on the rise b/c audiences expect that—a growing
problem, and clearing the rights will be a challenge.
 
Q: how many of those examples were educators who would have
done the same in a university setting?
 
Band: these are artists who were making presentations, but
if they spoke on campus they’d do the same thing.
 
Q: contours include lectures, which may not be covered right
now?
 
A: Yes, unless the noncommercial exemption covers it.
 
Turnbull: On Swatch case: that was part of what we’ve been
trying to show with our screencap demos. If there’s a need to see the wire
holding up the lion’s tail, screencap could get that. Need to manipulate clips,
we can do that.  The point we’re making
is not that nuance isn’t important but that there is an alternative that gets
at the stated need.
 
Q: Would you support clarifying the proposed exemption to
narrow it to institutions with educational missions?
 
Hobbs: I would support language if it included nonprofits w/
an educational mission.
 
Charlesworth: how do you define that?  That’s a broad term.
 
Hobbs: aiming to reduce HIV with healthcare services might
or might not have educational mission in addition to another mission. But that
only speaks to the importance of what’s becoming a normative practice. As we
try to reach audiences in an increasingly crowded media environment w/lots of
choices, we use digital media as part of our toolkit, and we wouldn’t want to
narrow it.  HIV education: use of
Hollywood clip could be really important to advance prevention goals.

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DMCA hearings: K-12 education

Posted on May 27, 2015 by rtushnet
Copyright Office: Jacqueline Charlesworth
Michelle Choe
Regan Smith
Cy Donnelly
Steve Ruhe
John Riley
Stacy Cheney (NTIA)
 
Proposed Class 2: Audiovisual works – educational uses –
primary and secondary schools (K-12)
This proposed class would allow kindergarten through
twelfth-grade educators and students to circumvent access controls on lawfully
made and acquired motion pictures and other audiovisual works for educational
purposes. 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: Renee Hobbs, Media Education Lab, University of
Rhode Island: trying to continue exemption and extend it to students for work
produced as part of curricular/learning experience. National/international
media studies educator.  Five points: (1)
Digital learning tools and media pedagogy are in rapid transition; shouldn’t
discourage innovation when most needed. (2) Student creative expression has
copyright and fair use protection: best way to learn to respect law is by
learning how to make something transformative. Media literacy helps our nation’s
children understand rights and responsibilities. 
 
Charlesworth: specific evidence?
 
A: In Pennsylvania, worked in charter school on media
literacy.  Fourth grade children:
interview mom & dad about favorite music video and talk about why they
liked it. They had a conversation about emotional attachment to music videos,
then the child had to interpret the music video and then make a video where
they rolled a piece of the music video along with their voiceover
interpretation.  This activity developed
writing and creativity but also a conversation—teacher asks how they’re
transforming the video.  Fourth grader
was able to say: when I add my voiceover I provide new meaning—emerging understanding
of fair use.  Clips were long enough for
a child to read three sentences out loud.
 
Current law limits innovative practices of teaching and
learning—rules about length will limit innovation.  Along the same lines: I ask educators to do
things I then expect them to do in their own classrooms, like analyzing a film
like Costner’s Black or White, using
the five critical questions of media literacy (Exh. 17). Author, purpose,
techniques to attract attention, what’s represented/omitted; how might different
people interpret it differently?  There
might be 29-30 children using a big chunk of the total film ultimately.
 
Charlesworth: does this go outside the exemption?
 
A: teachers found ambiguity discouraging. 
 
Charlesworth: if there were no ambiguity, and clips meant
clips as long as they were used for genuine criticism and commentary, why would
that be a problem?  Do you want the
students to be able to use lengthy excerpts?
 
A: might want to create a compilation of different
interpretations, as in teacher showing to the parents. 
 
Charlesworth: couldn’t the teacher present individual
videos? Not the parents being educated.
 
A: of course there are tons of workarounds, but the rules
contribute to confusion and discourage innovation.
 
Charlesworth: The reason the exemptions say “short” is that
it’s much more likely that a short use will be fair than a very lengthy taking.
That’s the concern.  Saying it just has
to be fair use doesn’t offer more guidance.
 
A: Hobbs has faith in understanding law as written. Context
and situation determine how fair use applies. Teachers are fully able to make
that determination.
 
Charlesworth: when do they need to use a larger work?
 
A: example.
 
Charlesworth: but that’s multiple clips.  Compilation isn’t necessarily educational.
 
A: key concept of media literacy is that different people
interpret same media differently. 
Putting together multiple interpretations isn’t just to show parents—it deepens
students’ understanding of multiple interpretations. Teacher might reasonably
be concerned about whether her educational use falls w/in narrowly written
exception.
 
Charlesworth: would she also worry about fair use?
 
A: No.
 
Charlesworth: but fair use also looks at amount. [but doesn’t
require “short”]
 
A: children’s active meaning-making results in transforming,
using just the amount needed. 
 
Charlesworth: if it were clear that you could take short
clips and put them into a compilation into a context to show to students, would
that solve your problem?
 
A: it would represent progress. But digital learning is
rapidly changing and narrowness discourages innovation.
 
Final point: Recent screencap experience, modeling
techniques for teachers. Social studies and English teachers are watching Wolf
Hall on PBS. We brainstormed an activity researching English history and
creating a video remix to make Cromwell look like villain or victim instead of
hero as depicted in film. Tried screencap streaming; couldn’t do it.
 
Q: what tech?
 
A: I tried Screencastomatic and Camtasia.  On a Mac. So now I bought the DVD version and
tried screencap.
 
Q: could you stream it?
 
A: it was streaming and I couldn’t capture it from the feed.
 
Charlesworth: was that specific to PBS or the technology you
used?
 
A: I don’t know.
 
Charlesworth: there was some specific issue with the PBS
feed?
 
A: seems so.
 
Charlesworth: if the problem was specific to PBS, why not
stream it from some other source?
 
A: it’s only available from PBS.  I can share it with teachers and demonstrate
it if I can circumvent. But it’s not responsible to model instructional
practices that can be used by some learners like college students and not by
others like K-12. I want to model lawful practices, which is why we need a
broad exemption.
 
Charlesworth: There is an exemption for noncommercial
videos.  Would your students qualify?
 
A: I took solace in that. 
For many instructional practices with students actively involved in
taking bits of material and learning to develop an argument, compare and
contrast, and research it’s not clear the artifacts resulting would be “videos.”
Don’t want to use legal bypasses to represent them as something they’re not.
 
Charlesworth: but they’re noncommercial,
commentary/criticism, short clips, why not qualifying?
 
A: they might. But “video” wouldn’t be understood by an
ordinary school IT person or teacher as covering this work product.
 
Charlesworth: you need to explain things to fourth graders
why this is illegal [I note that I have never been able to do this w/r/t 1201!]
You have to explain what it takes to make their projects compliant. Many such
products will be compliant with the noncommercial exception, arguably.
 
A: and many not.
 
Charlesworth: what?
 
A: HS schoolers in Rhode Island must do an independent
learning project. A student might want to make a critical analysis of a popular
music band. Cultural significance of the Grateful Dead—there’s quite a market.  Might want to put into commercial
marketplace. Would be a fair use.
 
[note a student’s project might not be remix if it is an analysis of a single clip]
 
Charlesworth: documentary; plus marketing is not part of
educational mission.
 
A: 110(2) by the way: very difficult for us in digital
education space: mediated instruction activities that use work as integral part
of class experience under control of instructor analogous to type of
performance that would take place live—really problematic b/c the key learning
activities are not the type that
would happen live.  That’s the whole
point of the innovation occuring now. 
 
Charlesworth: no room for teacher?
 
A: no, but many happen as students learn for themselves. I
don’t show them how to make videos—they learn to do it on their own. Direct
instruction approach where teacher is treated as transmitter isn’t the kind of
pedagogy we use now when every kid has her own laptop.
 
Charlesworth: there’s no guidance at all from the
teacher?  The teacher is giving some
instruction on what’s expected.  There
may be homework.
 
A: media is building blocks in content creation, which is a
pedagogy for students to demonstrate their learning.
 
Charlesworth: sure, they’ve been encouraged to write for a
long time.
 
A: and 110(2)’s definition doesn’t reflect that.
 
Charlesworth: screencap, if we renew the existing exemption,
do you still want a screencapture exemption to deal with tech that may involve
circumvention. 
 
A: screencap is vital for media literacy education and we
couldn’t do it w/out screencap.
 
Q: do teachers/administrators currently understand the DMCA
exemption?
 
A: we work very hard on that, and every year I talk to
300-400 tech directors.  I think we’ve
made progress in helping people understand their rights.
 
Q: Are you suggesting that students on their home computer
or laptop purchase or download these tools to break encryption for preparation
for homework or is that done in the classroom/computer lab where there is
supervision to help them understand the parameters in the law?
 
A: all of those practices are normative. It probably wouldn’t
be appropriate to limit to any one of those pedagogies—respect choices made by
the educators about which practice is most appropriate for the particular
learner in question.
 
Q: In the papers, there’s an example of a teacher who wanted
to use Blu-Ray; do you have another example of where Blu-Ray was required?
 
A: No.
 
Jonathan Band, Library Copyright Alliance: Opponents don’t
oppose renewal. Question is extension to students. Main argument is
floodgates.  In the context of MOOCs,
ignores reality. Circumvention tools are widely available and widely used.  Classroom = no increase in infringement.  Sounds like argument that sex ed leads to
more teen pregnancy.
 
Exclusion is anomalous. College students can circumvent for
art history, but HS student can’t do so for an AP class. Media-saturated
culture; don’t restrict engagement from speculative fear.
 
Charlesworth: if you have a teacher saying it’s ok to use
circumvention tools, that doesn’t influence students on legitimacy?
 
A: exactly because of educational context, teacher can
explain limits. Student in better position to understand fair use. Student as
creator now has interest in thinking about under what conditions it’s ok to use
someone else’s work.  Supervised project
= teachable moment. Much better than actual situation—kids doing everything on
their own. That’s why knowing that it’s happening anyway is important: better
that we provide context and structure for kids to understand appropriate
parameters.
 
Charlesworth: what evidence that teachers are giving
guidelines to students?
 
A: right now they’re not because they aren’t allowed.
 
Q: are teachers ever catching students circumventing?
 
Hobbs: yes, that happens quite frequently. Teachers try to
help students use lawfully.

Band: Noncommercial exemption: if the Copyright Office is willing to say that
applies to our situation, awesome.  We
know from previous panels that MPAA and RIAA don’t like that.  Unless we have clear guidance that the
noncommercial exemption applies to students, it would be risky for schools to
encourage students to engage in those assignments.
 
Charlesworth: what’s your interpretation of today’s noncommercial
exemption?
 
A: taken literally, it’s certainly fitting.  Given the specificity of the K-12 exemption
and the restrictions on that, though, I could see an argument being made in the
educational context that it wouldn’t apply. Before educational institutions
encourage educators to make lesson plans w/this kind of project, need more
certainty.
 
Opponents: Bruce Turnbull, AACS LA: Wolf Hall, what’s
unfortunate is that you didn’t try to make copy direct from broadcast, b/c it
should be freely copyable at any quality, using an existing DVR [and moving it
to your computer for editing how?].
 
Charlesworth: is there something about PBS in particular?
 
A: don’t know.  We are
talking apples and oranges.  Instruction
conducted online = 110(2) relevant, not so much here. Anyhow, they aren’t
really asking for circumvention of Blu-Ray—extending existing exemption to
students.  That has to do w/DVD, but not
Blu-Ray. Only one example w/Blu-Ray, where teacher was able to use DVD. 
 
They’re not entitled to whatever quality or format they want
under Corley.  If they can get it another way, it’s sufficient.
 
David Jonathan Taylor, DVDCCA: Exhibit will show subtitles,
which proponents say that they need for educational purposes. We’ve edited the
Matrix clip to show how a student could use this for a project. Used WMCapture.
Then he believes Matrix clip was processed/edited in either MovieMaker or First
Cut. [First Cut?]
 
Chicago clip (wow, that’s low quality) with subtitles.  Video capture was able to record whatever was
in the field, including the subtitles. 
Next: submitted this originally, a scene from Matrix.  Next: Reorganized the scenes—we started off
w/the wife and she has changed position now. 
[NB: They did not reorganize the scene,
though they did move a few shots.] A student could be expected to do this with
video capture.
 
Q: EZVid is the free software listed. Do you have any
experience with it?
 
A: no. We’re not endorsing any specific technology, just
identifying that software is offered.
 
Q: so we don’t know what quality level it would offer.
 
A: true, but you usually get a free trial for 15 or 30 days.
I’ve used that.
 
[PS MakeMKV is free, not paid.]
 
J. Matthew Williams, Entertainment Software Association,
Motion Picture Association of America, Recording Industry Association of
America (Joint Creators and Copyright Owners): We love K-12 educators and
appreciate their work and don’t oppose renewal of existing exemption, only
expansion to allow circumvention by 50 million students, some as young as 5
years old. We want short portions and close analysis/criticism/commentary, and
no Blu-Ray. Keep exemption closer to what is more likely to be fair use. 
 
Proponents argue that copyright law doesn’t warrant creation
of separate rules for different types of digital media, but history of these
proceedings show that format types have been repeatedly used to tailor
exemptions without going too far to upset the balance Congress intended to
strike.
 
For the record: Blu-Ray is a critically important platform
for my clients and there are plenty of alternatives to circumventing; content
is not exclusive to Blu-Ray. As Register concluded in 2012, there’s an
insignificant amount of Blu-Ray only content. 
Using HD digital copies acquired online is fine, or downloaded/streamed
video queued up in advance. [Boy, they’ve really thrown the streaming business
models under the bus here. Good news for streaming that the bus is actually a
wisp that does no damage!] They point to one website, copyrightconfusion wiki
where teachers go for fair use. That site seemed valuable, but a few things
said were far too categorical under the law. 
There’s a statement saying teachers can make copies of TV shows and keep
them for educational use—there might be some situations where that’s fair use
but it might not be.  Fair use to sell
curriculum w/copyrighted materials embedded—some might be, but many not.
 
Harm: potential overlap b/t noncommercial video exemption
and educational exemption was unintentional b/c educational is carefully
tailored and excludes K-12 students. Thinks the reason was that the Office was
concerned that allowing K-12 access could lead to untrackable infringement—we just
wouldn’t know that was the impetus for a student getting started w/that type of
tech.  [Wow, the sex ed analogy just gets
better the more I think about it.]
 
Charlesworth: if we readopted the noncommercial exemption
and it went to court, would the exemption apply to student uses?  Do you agree it’s ambiguous/overlapping? On
its face, that exemption doesn’t speak to students.  Should it be limited to exclude students?
 
A: I do agree that it’s ambiguous, and the record would show
that there was an intended distinction b/t educational uses and the remix
exemption b/c the record was built in two separate tracks and the track focused
on noncommercial videos was focused on remix [which often has a message, and
sometimes that message is educational! It is often commentary, and students
often make remix; this is ridiculous]. 
We did try to point this out last time [and we got a full noncommercial
exemption last time!]. Not sure the way to go about it is to exclude students
from noncommercial exemption; might be able to define that category more
clearly to delineate between the two.  It’s
got to be possible to have a definition [that doesn’t let educational remix
occur?].
 
We do not oppose the continuation in college and university,
but do oppose K-12.
 
Charlesworth: Why?
 
A: we are troubled by the idea of introducing very young
children to circumvention technologies that can be misused.
 
Charlesworth: what about Band’s suggestion they’re doing it
anyway; better to involve a teacher.
 
A: that’s a great idea; teachers can be helpful, but you don’t
need to put circumvention tech in their hands. [You don’t need to b/c it’s
already there! [Sex ed joke about their hands omitted]]
 
Charlesworth: what about screencapture? [Oh by the way if
screencap is fine for 5-year-olds then I’m not sure why we’re fighting over
circumvention.]
 
A: our position is the same. 
There are some that are not circumvention [whatever they are].  We haven’t done testing on specific tech. 
 
Q: do students appreciate the distinction between screencap
and circumvention?  That doesn’t seem
plausible.
 
A: I’m not sure. Hard to put myself in a 6 year old
mind.  I doubt they can make those
distinctions. But a lot of places online you go to get circumvention tech don’t
look like legitimate marketplaces for screencap tools.  [Really? 
I invite you to consider MakeMKV
versus Camtasia versus
Handbrake versus Screencastomatic.]
 
Charlesworth: Hobbs?
 
A: students can learn the difference between screencap and
circumvention.
 
Charlesworth: could a teacher help you understand which
tools you can use?
 
A: yes.
 
Q: AP students v. college students—could we draw the line at
high school or AP students?
 
Williams: better than expanding it all the way. There’s a
risk of introducing them to the tech.
 
Hobbs: if we are drawing lines, high school students are no
different from 22 million college students—but K-12 aren’t either!  We haven’t had any problems w/22 million
college students.
 
National History Day matters; more relevant for HS than
elementary schools.
 
Charlesworth: the college exemption is for close analysis.
 
Hobbs: Common Core mandates that all students learn to
critically analyze the form and content of media messages in a wide variety of
forms. It’s not an elective—it’s normal part of instruction in English Language
Arts and Social Studies.
 
Q: can students navigate the differences?
 
Hobbs: in some communities, National History Day media
production is a big tradition.  One
district she works w/takes it very seriously. The opportunity to use HQ content
for a documentary about, say, the history of Ray Kroc is a really meaningful
choice. For other experiences, screencap can be adequate.
 
Q: they want a better output, but are they analyzing the
actual clip.
 
Hobbs: building a documentary to make an argument about Kroc
in the context of his entrepreneurial vision.
 
Q: are they analyzing the lighting of the clip though?
 
Hobbs: those practices blur together in the process of
teaching and learning: content and form are always at issue.
 
Charlesworth: does it require any particular grade of
content?
 
A: No, it says students and teachers are in the best
position to decide.
 
Charlesworth: do they tell you to use DVD level content?
 
A: not to my knowledge. [From our submission: “The [NHD] rules
encourage the use of high quality materials; clarity of presentation, including
quality of visuals, is worth 20% of the evaluation.”]
 
Q: examples of times teachers stepped back from using a clip
and used screencap instead?
 
A: I could go into my Google form and retrieve examples of
educators in that situation.
 
Q: do you know Disc to digital and Ultraviolet?
 
A: No, neither do I know how to record broadcast video [and
make it editable].
 
Turnbull: there are DVD recorders sold on the market.  Blu-Ray recorders, though hard to get.  There are DVRs supplied by cable companies
and you could connect that through an output and presumably make it connect to
a computer.
 
Ultraviolet and Disney Movies Anywhere—more or less the
same. You get the right to stream that content to any one of a number of
registered devices.  Disney: kid titles,
works pretty much the same—right to stream/digital download.  The two systems operate through online
retailers. [Does your license let you use it in a classroom or is it restricted
to private performance? Never mind!] You could cue up clips in half a dozen
movies.  Avoids booting up player.
 
Charlesworth: if you can cue up clips and show them, is that
helpful alternative?
 
A: I’m here today to talk about a pedagogy of instruction
that puts students as authors of media message, not as receivers—critical thinkers
through hands on manipulation. 
 
Charlesworth: but you’ve asked for an exemption for
teachers.  What about for teachers. Are
you saying that teachers don’t need an exemption? For teachers: might that not
be helpful to be able to cue up clips as part of a lecture?
 
A: any fee-based service is going to be an obstacle; teachers
are pretty underpaid.
 
Turnbull: the service isn’t fee-based, though you have to
own the copy of the movie, and that would be the case regardless of the
movie.  W/the exception of taking your
disc and upgrading to digital, where there’s a $2/$5 fee.
 
A: for 40% of the teachers I work with, urban schools, that’s
attractive and intriguing, wouldn’t be readily available. 
 
Charlesworth: where is the original copy?
 
A: on their shelves at school. 
 
Charlesworth: urge you to investigate it as a way to convert
things from hard media into streaming media.
 
Band: Two problems at least. (1) Catalog is relatively
limited. (2) The streaming service assumes really really good broadband. Some
schools have it and some schools don’t; some rooms don’t. You can’t start
showing a clip and have it crap out—you lose the class. That’s why a
compilation is much more effective. Unless the technology gets a bunch better,
what you can’t do is manipulate it.  Two
or three works side by side.
 
A word on Corley,
15 years old.  A lot of this was dicta
(actually, all of it), and in 2015 if the Second Circuit were to revisit the
issue squarely presented—it wasn’t a fair use case—I have no doubt that the HathiTrust circuit would say there’s a
difference between digital and analog and that fair use allows you to make a
copy in the format appropriate for your use; you don’t have to be using
primitive tech that doesn’t effectively convey your message.
 
Charlesworth: any caselaw?
 
A: HathiTrust.  Also Georgia
State: digital format was important; if not available. 
[Also, from our submission: Bill Graham, 448 F.3d at 613 (finding
fair use when copying was of the “size and quality” necessary to the
transformative purpose); Warren Pub. Co. v. Spurlock, 645 F. Supp. 2d 402, 420,
425 (E.D. Pa. 2009) (highquality copied images were fair use because they were
necessary for transformative purpose; “As to Plaintiffs’ argument that Spurlock
could have reduced the larger images or changed all of them to black-and-white,
such modifications would undermine the very heart of the publication, which is
to chronicle the achievements of a renowned artist. Vivid colors are an
important element in depicting monsters, particularly their faces. . . .
[M]aking these changes would directly thwart one of the key purposes of the
book—to showcase the detailed work of Basil Gogos.”); Swatch Grp. Mgmt. Servs.
Ltd. v. Bloomberg L.P., 756 F.3d 73, 85 (2d Cir. 2014) (finding fair use where
copying audio recording provided additional details on tone of voice and emphasis
compared to transcript); Sony Computer Entertainment America, Inc. v. Bleem,
LLC, 214 F.3d 1022, 1030 (9th Cir. 2000) (finding fair use where real images
were necessary for accurate comparisons).]
 
Williams: Georgia
State there’s a remand.  Very
cautious language about taking fair use too fair.  Too much taking = run risk of eliminating
economic incentive for creation; don’t kill the proverbial goose that laid the
golden egg. Don’t allow too much educational use.
 
We’re not opposing renewal of existing exemption; K-12
educators can get all they need.

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DMCA hearings: library etc education

Posted on May 27, 2015 by rtushnet
Copyright Office: Jacqueline Charlesworth
Michelle Choe
Regan Smith
Cy Donnelly
Steve Ruhe
John Riley
Stacy Cheney (NTIA)
 
Proposed Class 4: Audiovisual works – educational uses – educational programs operated by museums, libraries, or nonprofits
This proposed class would allow educators and learners in libraries, museums and nonprofit organizations to circumvent access controls on lawfully made and acquired motion pictures and other audiovisual works for educational purposes. 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: Renee Hobbs, Media Education Lab, University of Rhode Island: Work in non-school settings. (1) No reason to distinguish those who learn in non-school settings like nonprofits. (2) Perpetuates inequality, since libraries etc. serve underresourced communities, where this form of learning is important. (3) Not useful to create separate rules for different formats.  Recognizing educators’ and students’ ability to make appropriate choices is reasonable. (4) If limiting language is required, “digital and media literacy instructional practices in informal learning contexts” would be reasonable though it’s not required.
 
Q: examples of inability to circumvent outside digital and media literacy education?
 
Hobbs: most of my examples include digital and media literacy education.   Incredible work in library community: Macarthur Foundation invested over $130 in informal learning sector digital initiatives.  Informal learning research and pedagogy has advanced by leaps and bounds. Chicago’s Umedia at public library: teen library services—1000s of teens and young adults have been making media in a wide variety of forms, but they can’t make use of circumvention for their creative work, unlike UPenn students.
 
Q: would exemption require physical presence at library etc.?
 
A: That’s a great question—just as there is so much innovation in tech delivery of digital media, there’s a huge amount of innovation in digital learning space about blending face to face and online learning. Even in libraries, it’s common to have a course on “how to make a blog,” where learners work in the library and then back at home. I don’t think the distinction should be a limiting factor, because today those practices are seamless.
 
Direct harm: Jeanine Cook, Yes Philly, nonprofit helping African-American youth get GEDs; students have negative experiences w/schools so exploring media is really valuable in non-school environment. But she can’t use decryption even though learners in other programs have the right to make such creative work.  Accident of birth keeps them distinct from Penn students not far away.
Charlesworth: what about noncommercial video exception? Would that apply here?
 
A: Opponents say when we look historically the exemptions for K-12 were distinct and separate.  Many of the creative expressions and work products aren’t like remix video artists. They aren’t designed for that purpose.  They’re part of strengthening the media understanding muscle, like an exercise, not designed for an authentic audience with a real world wide distribution. Way to help students learn.  Possible it might apply, but not willing to rely on it.
 
Q: There are a number of adult education programs, some affiliated w/school districts and some not. Is adult education included, GED programs?
 
A: yes. 
 
Q: examples of where this might be used?
 
A: Yes Philly, which I just described, fits that definition.  250 teens and young adults who dropped out and are returning for their GED. Not affiliated with school district; nonprofit.  Jeanine Cook wanted students to use clips from Selma, other film, and was unable to do so because of current limitations.
 
Charlesworth: how are they accredited to grant GEDs?
 
A: State of Pa. offered them accreditation, but not familiar w/the legal mechanism.
 
Charlesworth: some official sanction.
 
A: yep.
 
Q: how would you define educators and learners?  Libraries, nonprofits, etc. have different missions.
 
A: Teachers and learners can be blurred in library programming services. Providence Community Library: media literacy might involve a college student at University of Rhode Island enrolled in one of my grad classes. Learners might be other K-12 teachers; mothers and patrons of library; teens; younger people.  Library programs and services aim to reach the broadest spectrum of Americans.  Teachers are drawn from wide swath of public and learners are drawn from the community served.
 
Q: envisioning a course taught at one of these institutions?
 
A: yes.  Course isn’t correct—usual term is “program” for libraries and museums. May be single session or a series of experiences over a longer period.
 
Q: do you have a way to differentiate a “Best of the Oscars” presentation at the Smithsonian.
 
A: I don’t think we need to confuse exhibition with fair use for learning purposes.
 
Q: so we could exclude exhibitions to general public.
 
A: yes.
 
Jonathan Band, Library Copyright Alliance: Before I talk specifically about libraries and museums, I want to talk about broader issues.  Ultraviolet etc.: I haven’t studied the licensed terms, but wouldn’t be surprised if license prohibited public performance. Would using it in a classroom setting be ok? Sure they don’t want to induce breach of contract.  110(1) wouldn’t take care of the license problem, unless you want to say that 110(1) preempts the license, which would be dandy with us.
Charlesworth: in some settings, 110(1) enables one to show a copyrighted work.
 
Band: yeah, takes care of © but not the license, though he agrees it preempts the contract terms! Also in terms of Corley: other cases that go the other way. Bill Graham Archives, Spurlock, Swatch: court specifically addressed issue of format.  Swatch: was transcript enough or did they need the audio, and the court found that audio was additionally insightful beyond the transcript and that was fair use.
 
Moving on to libraries and museums: sponsor lectures and classes on a wide variety of topics. Following examples from 6 months of NYPL: choreographer used clips of ballets that inspired him; Satrapi used clips from Persepolis; George Clinton used clips of performances that inspired him; William Gibson; magician David Blaine; actor RuPaul; art dealer used clips from documentary about him; Suzanne Farrell used clips about her dances. Not limited to NYPL: Skokie library had lecture from critic about “films that changed my life.” Important part of informal education; doesn’t threaten rightsholder interests.
 
If the noncommercial exemption covers this, great.  That would be a helpful clarification.  Circumvention tools are widely available and widely used for infringing and noninfringing purposes. Educators want to do the right thing. They could ignore the DMCA with impunity, but instead they are going through this complex process. Rightsowners know there’s no impact on the level of infringement.  Understand the frustration about infringement, but don’t take it out on educators just b/c DMCA allows them to do so.
 
Opponents: Bruce Turnbull, AACS LA and DVDCCA: (1) AACS particularly, note that there’s no need for Blu-Ray quality; nothing in the record but vague anecdotal statements amounting to substantial adverse effects. (2) Fair use doesn’t require the user to have any quality level they wish.
 
Charlesworth: And the cited cases?
 
A: I’m not prepared to respond to those on the spot.  Reply comments stated that DVDs dominate the marketplace. Maybe that will change in a few years but that’s what we’ve got now. As to Blu-Ray there’s no record for an exemption. More broadly, the categories suggested here are very vague and broad—all kinds of nonprofits, museums, libraries, not limited to institutions specific to education or activities specific to education. No assurance that participants will be engaged in educational activities at all.  Nonprofits in particular: one could create a museum if they want.  A museum of my own DVD works, inviting everyone to come in from 4-5.  [Why would ability to circumvent matter there?  Couldn’t I just set up a DVD player right now?] It’s possible to create a small nonprofit for all kinds of purposes. [Why would you do that—to make another copy of South Park from a copy you already own?]
 
Q: if we narrowed to educational activities, would you still oppose?
 
A: that would be better, but we’d oppose it with Blu-Ray. If more in character of existing educational exemptions (short clips, close analysis), merely having an educational focus or mission begins to drift away [implicitly, because people are super super untrustworthy, except I guess for the ones who run Ultraviolet].  But degree-granting institutions like GED granting institutions would get closer.
 
Alternatives: as was demonstrated previously, screen capture software does in fact allow you to make use of video, so you’re not deprived of ability to take video clips and manipulate them. You can completely reorder a scene from a movie if you want to, include subtitles.
 
Charlesworth: are you saying you wouldn’t oppose a screencapture safety net for this class?
 
A: if there were a sufficiently narrowly crafted targeted exemption that derived from the comments presented, then yes.  Finally, w/r/t online: Congress has indicated its desire as to how online education should be conveyed in terms of the standards, whether the TEACH Act literally applies or not—both DMCA and TEACH Act mention technical measures, so any online use would need to adhere to those requirements.
 
J. Matthew Williams, Entertainment Software Association, Motion Picture Association of America, Recording Industry Association of America (Joint Creators and Copyright Owners)
 
My clients support educators and education. We’re seeking balance, not unnecessary burdens. This proposal sweeps in so many institutions, organizations, people, that it’s essentially a disallowed user-based exemption.  The Office has taken steps toward referencing a user base, but this would be “all noncommercial uses of motion pictures” and we think that would be both dangerous and inconsistent with the statutory scheme.
 
Charlesworth: does noncommercial exemption apply to these?
 
A: No, b/c there’s an educational exemption and a remix exemption that has evolved over time. That said, b/c this one is so broad, it probably would include some remix content.  If people working at a nonprofit are creating a remix.
 
Charlesworth: what about the GED example?
 
A: aligned with Turnbull. Not talked to clients about it, but targeted limited exemption might be OK.  Reiterate: concern if it extended to students beyond those covered by existing exemption.
 
Swatch v. Bloomberg: not sure how that applies, b/c that was a recording of an entire earnings call posted onto news site and the claim was they didn’t need to post the entire call. [No, the claim was that they didn’t need to post the audio with its full detail of voice etc. instead of a less detailed transcript.] And the court said it wasn’t transformative. [No, the court specifically amended its opinion to make clear that the use was transformative.]
 
Anyway, NYPL uses were achievable without circumvention, showing there’s no need.  On the harm issue, when you’re using a circumvention device to rip a Blu-Ray or DVD you end up with a complete, in the clear copy. That sets it apart from what most people do with screencap. 1.5 million nonprofit organizations. It’s a threat to us for in the clear copies to end up on machines even if it’s not the initial use they make. [Note that the noncommercial exemption hasn’t done this.]
 
Q: screencap. Mac problems. Is there a license providers have to get to disable screencap on new operating systems?
 
A: don’t know the answer.  Interoperability issue.  We haven’t done the testing.  We assume the testing they’ve done is accurate.  If those technologies don’t unlawfully decrypt but captures it after, there’s not a circumvention.
 
Turnbull: I don’t know of any licenses that specifically address screen cap software. W/r/t Mac, I’m completely unaware of licenses b/c Mac doesn’t support Blu-Ray.  I’m certain there’s no DVD license.  What is known as DRM licensing business as robustness rules: you have to make your system so that it can’t be easily attacked by someone seeking to circumvent. [And they define screencap as circumvention for these purposes.] DVD wasn’t as protected; AACS has a different set of robustness rules.  One of the things covered by rules is a requirement that the licensee in making the product protect the content from point of decryption until the point of presentation on a screen. The AACS does not require the use of any particular tech to do that. It is possible that in implementing this, some systems developed tech that is not compatible with screencap software that works on DVD.  Having said all that, since Mac doesn’t support Blu-Ray, doesn’t know what Apple did.
 
Charlesworth: on screencap, what is your view?
 
Williams: seems viable to me. If current exemption covers it, it’s lawful.  Proffered narrower language on informal learning—very vague, I don’t know what that means, maybe b/c I’m not in media literacy field.  Anything should be much clearer. 
 
Terms of service: to the extent that any of these uses violate the ToS, that’s the case with the existing exemptions for circumvention of digital downloads and DVDs, which has never stopped people in the past, so it’s not a real argument.  [I didn’t know that my DVD came with an enforceable license; I thought there was a first sale!]
 
Many of these uses could be licensed—LA testimony about Fox licensing.
 
Hobbs: Libraries, museums, nonprofits that aren’t gov’t sanctioned/accredited.  In my written reply I describe Nuala Cabral, an educator who runs a small Philly nonprofit called Fanmail: media literacy and social activism for African-American community—people respond to misogynistic representations in contemporary media culture. Wants to create analysis and commentary on Orange is the New Black on Blu-Ray but she can’t access the clips. She’s not making a film, but a learning experience for adult learners.  I don’t think noncommercial would fit.
 
Charlesworth: it can be streamed from Netflix. Has she tried screen capture?
 
A: I don’t know.  I tried to make a screencapture of Netflix and I was unsuccessful three years ago.  Screencapture doesn’t uniformly work on all machines due to unknown tech gaps.
 
Charlesworth: but could you find a way to use screencapture to get clips?
 
A: Potentially. Narrowly written exemption that doesn’t include educators like Cabral would be insufficient. Underserve the people who could most benefit from opportunities to respond to contemporary cultural representations.
 
Band: Matt uses the word “balance,” but that’s our word.  Swatch: P argued that transcript would have been sufficient, and Bloomberg succeeded in arguing that the tone of voice made a difference in analysis.  The court specifically amended the opinion to say it was transformative.
 
W/r/t library example: the point is that those were authorized uses, but b/c of the time that it takes, having to get authorization on short notice means you can’t use what you want. You might be able to clear a few, but a lot of times you can’t.  Use of clips in presentations is on the rise b/c audiences expect that—a growing problem, and clearing the rights will be a challenge.
 
Q: how many of those examples were educators who would have done the same in a university setting?
 
Band: these are artists who were making presentations, but if they spoke on campus they’d do the same thing.
 
Q: contours include lectures, which may not be covered right now?
 
A: Yes, unless the noncommercial exemption covers it.
 
Turnbull: On Swatch case: that was part of what we’ve been trying to show with our screencap demos. If there’s a need to see the wire holding up the lion’s tail, screencap could get that. Need to manipulate clips, we can do that.  The point we’re making is not that nuance isn’t important but that there is an alternative that gets at the stated need.
 
Q: Would you support clarifying the proposed exemption to narrow it to institutions with educational missions?
 
Hobbs: I would support language if it included nonprofits w/ an educational mission.
 
Charlesworth: how do you define that?  That’s a broad term.
 
Hobbs: aiming to reduce HIV with healthcare services might or might not have educational mission in addition to another mission. But that only speaks to the importance of what’s becoming a normative practice. As we try to reach audiences in an increasingly crowded media environment w/lots of choices, we use digital media as part of our toolkit, and we wouldn’t want to narrow it.  HIV education: use of Hollywood clip could be really important to advance prevention goals.
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DMCA hearings: K-12 education

Posted on May 27, 2015 by rtushnet
Copyright Office: Jacqueline Charlesworth
Michelle Choe
Regan Smith
Cy Donnelly
Steve Ruhe
John Riley
Stacy Cheney (NTIA)
 
Proposed Class 2: Audiovisual works – educational uses – primary and secondary schools (K-12)
This proposed class would allow kindergarten through twelfth-grade educators and students to circumvent access controls on lawfully made and acquired motion pictures and other audiovisual works for educational purposes. 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: Renee Hobbs, Media Education Lab, University of Rhode Island: trying to continue exemption and extend it to students for work produced as part of curricular/learning experience. National/international media studies educator.  Five points: (1) Digital learning tools and media pedagogy are in rapid transition; shouldn’t discourage innovation when most needed. (2) Student creative expression has copyright and fair use protection: best way to learn to respect law is by learning how to make something transformative. Media literacy helps our nation’s children understand rights and responsibilities. 
 
Charlesworth: specific evidence?
 
A: In Pennsylvania, worked in charter school on media literacy.  Fourth grade children: interview mom & dad about favorite music video and talk about why they liked it. They had a conversation about emotional attachment to music videos, then the child had to interpret the music video and then make a video where they rolled a piece of the music video along with their voiceover interpretation.  This activity developed writing and creativity but also a conversation—teacher asks how they’re transforming the video.  Fourth grader was able to say: when I add my voiceover I provide new meaning—emerging understanding of fair use.  Clips were long enough for a child to read three sentences out loud.
 
Current law limits innovative practices of teaching and learning—rules about length will limit innovation.  Along the same lines: I ask educators to do things I then expect them to do in their own classrooms, like analyzing a film like Costner’s Black or White, using the five critical questions of media literacy (Exh. 17). Author, purpose, techniques to attract attention, what’s represented/omitted; how might different people interpret it differently?  There might be 29-30 children using a big chunk of the total film ultimately.
 
Charlesworth: does this go outside the exemption?
 
A: teachers found ambiguity discouraging. 
 
Charlesworth: if there were no ambiguity, and clips meant clips as long as they were used for genuine criticism and commentary, why would that be a problem?  Do you want the students to be able to use lengthy excerpts?
 
A: might want to create a compilation of different interpretations, as in teacher showing to the parents. 
 
Charlesworth: couldn’t the teacher present individual videos? Not the parents being educated.
 
A: of course there are tons of workarounds, but the rules contribute to confusion and discourage innovation.
 
Charlesworth: The reason the exemptions say “short” is that it’s much more likely that a short use will be fair than a very lengthy taking. That’s the concern.  Saying it just has to be fair use doesn’t offer more guidance.
 
A: Hobbs has faith in understanding law as written. Context and situation determine how fair use applies. Teachers are fully able to make that determination.
 
Charlesworth: when do they need to use a larger work?
 
A: example.
 
Charlesworth: but that’s multiple clips.  Compilation isn’t necessarily educational.
 
A: key concept of media literacy is that different people interpret same media differently.  Putting together multiple interpretations isn’t just to show parents—it deepens students’ understanding of multiple interpretations. Teacher might reasonably be concerned about whether her educational use falls w/in narrowly written exception.
 
Charlesworth: would she also worry about fair use?
 
A: No.
 
Charlesworth: but fair use also looks at amount. [but doesn’t require “short”]
 
A: children’s active meaning-making results in transforming, using just the amount needed. 
 
Charlesworth: if it were clear that you could take short clips and put them into a compilation into a context to show to students, would that solve your problem?
 
A: it would represent progress. But digital learning is rapidly changing and narrowness discourages innovation.
 
Final point: Recent screencap experience, modeling techniques for teachers. Social studies and English teachers are watching Wolf Hall on PBS. We brainstormed an activity researching English history and creating a video remix to make Cromwell look like villain or victim instead of hero as depicted in film. Tried screencap streaming; couldn’t do it.
 
Q: what tech?
 
A: I tried Screencastomatic and Camtasia.  On a Mac. So now I bought the DVD version and tried screencap.
 
Q: could you stream it?
 
A: it was streaming and I couldn’t capture it from the feed.
 
Charlesworth: was that specific to PBS or the technology you used?
 
A: I don’t know.
 
Charlesworth: there was some specific issue with the PBS feed?
 
A: seems so.
 
Charlesworth: if the problem was specific to PBS, why not stream it from some other source?
 
A: it’s only available from PBS.  I can share it with teachers and demonstrate it if I can circumvent. But it’s not responsible to model instructional practices that can be used by some learners like college students and not by others like K-12. I want to model lawful practices, which is why we need a broad exemption.
 
Charlesworth: There is an exemption for noncommercial videos.  Would your students qualify?
 
A: I took solace in that.  For many instructional practices with students actively involved in taking bits of material and learning to develop an argument, compare and contrast, and research it’s not clear the artifacts resulting would be “videos.” Don’t want to use legal bypasses to represent them as something they’re not.
 
Charlesworth: but they’re noncommercial, commentary/criticism, short clips, why not qualifying?
 
A: they might. But “video” wouldn’t be understood by an ordinary school IT person or teacher as covering this work product.
 
Charlesworth: you need to explain things to fourth graders why this is illegal [I note that I have never been able to do this w/r/t 1201!] You have to explain what it takes to make their projects compliant. Many such products will be compliant with the noncommercial exception, arguably.
 
A: and many not.
 
Charlesworth: what?
 
A: HS schoolers in Rhode Island must do an independent learning project. A student might want to make a critical analysis of a popular music band. Cultural significance of the Grateful Dead—there’s quite a market.  Might want to put into commercial marketplace. Would be a fair use.
 
[note a student’s project might not be remix if it is an analysis of a single clip]
 
Charlesworth: documentary; plus marketing is not part of educational mission.
 
A: 110(2) by the way: very difficult for us in digital education space: mediated instruction activities that use work as integral part of class experience under control of instructor analogous to type of performance that would take place live—really problematic b/c the key learning activities are not the type that would happen live.  That’s the whole point of the innovation occuring now. 
 
Charlesworth: no room for teacher?
 
A: no, but many happen as students learn for themselves. I don’t show them how to make videos—they learn to do it on their own. Direct instruction approach where teacher is treated as transmitter isn’t the kind of pedagogy we use now when every kid has her own laptop.
 
Charlesworth: there’s no guidance at all from the teacher?  The teacher is giving some instruction on what’s expected.  There may be homework.
 
A: media is building blocks in content creation, which is a pedagogy for students to demonstrate their learning.
 
Charlesworth: sure, they’ve been encouraged to write for a long time.
 
A: and 110(2)’s definition doesn’t reflect that.
 
Charlesworth: screencap, if we renew the existing exemption, do you still want a screencapture exemption to deal with tech that may involve circumvention. 
 
A: screencap is vital for media literacy education and we couldn’t do it w/out screencap.
 
Q: do teachers/administrators currently understand the DMCA exemption?
 
A: we work very hard on that, and every year I talk to 300-400 tech directors.  I think we’ve made progress in helping people understand their rights.
 
Q: Are you suggesting that students on their home computer or laptop purchase or download these tools to break encryption for preparation for homework or is that done in the classroom/computer lab where there is supervision to help them understand the parameters in the law?
 
A: all of those practices are normative. It probably wouldn’t be appropriate to limit to any one of those pedagogies—respect choices made by the educators about which practice is most appropriate for the particular learner in question.
 
Q: In the papers, there’s an example of a teacher who wanted to use Blu-Ray; do you have another example of where Blu-Ray was required?
 
A: No.
 
Jonathan Band, Library Copyright Alliance: Opponents don’t oppose renewal. Question is extension to students. Main argument is floodgates.  In the context of MOOCs, ignores reality. Circumvention tools are widely available and widely used.  Classroom = no increase in infringement.  Sounds like argument that sex ed leads to more teen pregnancy.
 
Exclusion is anomalous. College students can circumvent for art history, but HS student can’t do so for an AP class. Media-saturated culture; don’t restrict engagement from speculative fear.
 
Charlesworth: if you have a teacher saying it’s ok to use circumvention tools, that doesn’t influence students on legitimacy?
 
A: exactly because of educational context, teacher can explain limits. Student in better position to understand fair use. Student as creator now has interest in thinking about under what conditions it’s ok to use someone else’s work.  Supervised project = teachable moment. Much better than actual situation—kids doing everything on their own. That’s why knowing that it’s happening anyway is important: better that we provide context and structure for kids to understand appropriate parameters.
 
Charlesworth: what evidence that teachers are giving guidelines to students?
 
A: right now they’re not because they aren’t allowed.
 
Q: are teachers ever catching students circumventing?
 
Hobbs: yes, that happens quite frequently. Teachers try to help students use lawfully.
Band: Noncommercial exemption: if the Copyright Office is willing to say that applies to our situation, awesome.  We know from previous panels that MPAA and RIAA don’t like that.  Unless we have clear guidance that the noncommercial exemption applies to students, it would be risky for schools to encourage students to engage in those assignments.
 
Charlesworth: what’s your interpretation of today’s noncommercial exemption?
 
A: taken literally, it’s certainly fitting.  Given the specificity of the K-12 exemption and the restrictions on that, though, I could see an argument being made in the educational context that it wouldn’t apply. Before educational institutions encourage educators to make lesson plans w/this kind of project, need more certainty.
 
Opponents: Bruce Turnbull, AACS LA: Wolf Hall, what’s unfortunate is that you didn’t try to make copy direct from broadcast, b/c it should be freely copyable at any quality, using an existing DVR [and moving it to your computer for editing how?].
 
Charlesworth: is there something about PBS in particular?
 
A: don’t know.  We are talking apples and oranges.  Instruction conducted online = 110(2) relevant, not so much here. Anyhow, they aren’t really asking for circumvention of Blu-Ray—extending existing exemption to students.  That has to do w/DVD, but not Blu-Ray. Only one example w/Blu-Ray, where teacher was able to use DVD. 
 
They’re not entitled to whatever quality or format they want under Corley.  If they can get it another way, it’s sufficient.
 
David Jonathan Taylor, DVDCCA: Exhibit will show subtitles, which proponents say that they need for educational purposes. We’ve edited the Matrix clip to show how a student could use this for a project. Used WMCapture. Then he believes Matrix clip was processed/edited in either MovieMaker or First Cut. [First Cut?]
 
Chicago clip (wow, that’s low quality) with subtitles.  Video capture was able to record whatever was in the field, including the subtitles.  Next: submitted this originally, a scene from Matrix.  Next: Reorganized the scenes—we started off w/the wife and she has changed position now.  [NB: They did not reorganize the scene, though they did move a few shots.] A student could be expected to do this with video capture.
 
Q: EZVid is the free software listed. Do you have any experience with it?
 
A: no. We’re not endorsing any specific technology, just identifying that software is offered.
 
Q: so we don’t know what quality level it would offer.
 
A: true, but you usually get a free trial for 15 or 30 days. I’ve used that.
 
[PS MakeMKV is free, not paid.]
 
J. Matthew Williams, Entertainment Software Association, Motion Picture Association of America, Recording Industry Association of America (Joint Creators and Copyright Owners): We love K-12 educators and appreciate their work and don’t oppose renewal of existing exemption, only expansion to allow circumvention by 50 million students, some as young as 5 years old. We want short portions and close analysis/criticism/commentary, and no Blu-Ray. Keep exemption closer to what is more likely to be fair use. 
 
Proponents argue that copyright law doesn’t warrant creation of separate rules for different types of digital media, but history of these proceedings show that format types have been repeatedly used to tailor exemptions without going too far to upset the balance Congress intended to strike.
 
For the record: Blu-Ray is a critically important platform for my clients and there are plenty of alternatives to circumventing; content is not exclusive to Blu-Ray. As Register concluded in 2012, there’s an insignificant amount of Blu-Ray only content.  Using HD digital copies acquired online is fine, or downloaded/streamed video queued up in advance. [Boy, they’ve really thrown the streaming business models under the bus here. Good news for streaming that the bus is actually a wisp that does no damage!] They point to one website, copyrightconfusion wiki where teachers go for fair use. That site seemed valuable, but a few things said were far too categorical under the law.  There’s a statement saying teachers can make copies of TV shows and keep them for educational use—there might be some situations where that’s fair use but it might not be.  Fair use to sell curriculum w/copyrighted materials embedded—some might be, but many not.
 
Harm: potential overlap b/t noncommercial video exemption and educational exemption was unintentional b/c educational is carefully tailored and excludes K-12 students. Thinks the reason was that the Office was concerned that allowing K-12 access could lead to untrackable infringement—we just wouldn’t know that was the impetus for a student getting started w/that type of tech.  [Wow, the sex ed analogy just gets better the more I think about it.]
 
Charlesworth: if we readopted the noncommercial exemption and it went to court, would the exemption apply to student uses?  Do you agree it’s ambiguous/overlapping? On its face, that exemption doesn’t speak to students.  Should it be limited to exclude students?
 
A: I do agree that it’s ambiguous, and the record would show that there was an intended distinction b/t educational uses and the remix exemption b/c the record was built in two separate tracks and the track focused on noncommercial videos was focused on remix [which often has a message, and sometimes that message is educational! It is often commentary, and students often make remix; this is ridiculous].  We did try to point this out last time [and we got a full noncommercial exemption last time!]. Not sure the way to go about it is to exclude students from noncommercial exemption; might be able to define that category more clearly to delineate between the two.  It’s got to be possible to have a definition [that doesn’t let educational remix occur?].
 
We do not oppose the continuation in college and university, but do oppose K-12.
 
Charlesworth: Why?
 
A: we are troubled by the idea of introducing very young children to circumvention technologies that can be misused.
 
Charlesworth: what about Band’s suggestion they’re doing it anyway; better to involve a teacher.
 
A: that’s a great idea; teachers can be helpful, but you don’t need to put circumvention tech in their hands. [You don’t need to b/c it’s already there! [Sex ed joke about their hands omitted]]
 
Charlesworth: what about screencapture? [Oh by the way if screencap is fine for 5-year-olds then I’m not sure why we’re fighting over circumvention.]
 
A: our position is the same.  There are some that are not circumvention [whatever they are].  We haven’t done testing on specific tech. 
 
Q: do students appreciate the distinction between screencap and circumvention?  That doesn’t seem plausible.
 
A: I’m not sure. Hard to put myself in a 6 year old mind.  I doubt they can make those distinctions. But a lot of places online you go to get circumvention tech don’t look like legitimate marketplaces for screencap tools.  [Really?  I invite you to consider MakeMKV versus Camtasia versus Handbrake versus Screencastomatic.]
 
Charlesworth: Hobbs?
 
A: students can learn the difference between screencap and circumvention.
 
Charlesworth: could a teacher help you understand which tools you can use?
 
A: yes.
 
Q: AP students v. college students—could we draw the line at high school or AP students?
 
Williams: better than expanding it all the way. There’s a risk of introducing them to the tech.
 
Hobbs: if we are drawing lines, high school students are no different from 22 million college students—but K-12 aren’t either!  We haven’t had any problems w/22 million college students.
 
National History Day matters; more relevant for HS than elementary schools.
 
Charlesworth: the college exemption is for close analysis.
 
Hobbs: Common Core mandates that all students learn to critically analyze the form and content of media messages in a wide variety of forms. It’s not an elective—it’s normal part of instruction in English Language Arts and Social Studies.
 
Q: can students navigate the differences?
 
Hobbs: in some communities, National History Day media production is a big tradition.  One district she works w/takes it very seriously. The opportunity to use HQ content for a documentary about, say, the history of Ray Kroc is a really meaningful choice. For other experiences, screencap can be adequate.
 
Q: they want a better output, but are they analyzing the actual clip.
 
Hobbs: building a documentary to make an argument about Kroc in the context of his entrepreneurial vision.
 
Q: are they analyzing the lighting of the clip though?
 
Hobbs: those practices blur together in the process of teaching and learning: content and form are always at issue.
 
Charlesworth: does it require any particular grade of content?
 
A: No, it says students and teachers are in the best position to decide.
 
Charlesworth: do they tell you to use DVD level content?
 
A: not to my knowledge. [From our submission: “The [NHD] rules encourage the use of high quality materials; clarity of presentation, including quality of visuals, is worth 20% of the evaluation.”]
 
Q: examples of times teachers stepped back from using a clip and used screencap instead?
 
A: I could go into my Google form and retrieve examples of educators in that situation.
 
Q: do you know Disc to digital and Ultraviolet?
 
A: No, neither do I know how to record broadcast video [and make it editable].
 
Turnbull: there are DVD recorders sold on the market.  Blu-Ray recorders, though hard to get.  There are DVRs supplied by cable companies and you could connect that through an output and presumably make it connect to a computer.
 
Ultraviolet and Disney Movies Anywhere—more or less the same. You get the right to stream that content to any one of a number of registered devices.  Disney: kid titles, works pretty much the same—right to stream/digital download.  The two systems operate through online retailers. [Does your license let you use it in a classroom or is it restricted to private performance? Never mind!] You could cue up clips in half a dozen movies.  Avoids booting up player.
 
Charlesworth: if you can cue up clips and show them, is that helpful alternative?
 
A: I’m here today to talk about a pedagogy of instruction that puts students as authors of media message, not as receivers—critical thinkers through hands on manipulation. 
 
Charlesworth: but you’ve asked for an exemption for teachers.  What about for teachers. Are you saying that teachers don’t need an exemption? For teachers: might that not be helpful to be able to cue up clips as part of a lecture?
 
A: any fee-based service is going to be an obstacle; teachers are pretty underpaid.
 
Turnbull: the service isn’t fee-based, though you have to own the copy of the movie, and that would be the case regardless of the movie.  W/the exception of taking your disc and upgrading to digital, where there’s a $2/$5 fee.
 
A: for 40% of the teachers I work with, urban schools, that’s attractive and intriguing, wouldn’t be readily available. 
 
Charlesworth: where is the original copy?
 
A: on their shelves at school. 
 
Charlesworth: urge you to investigate it as a way to convert things from hard media into streaming media.
 
Band: Two problems at least. (1) Catalog is relatively limited. (2) The streaming service assumes really really good broadband. Some schools have it and some schools don’t; some rooms don’t. You can’t start showing a clip and have it crap out—you lose the class. That’s why a compilation is much more effective. Unless the technology gets a bunch better, what you can’t do is manipulate it.  Two or three works side by side.
 
A word on Corley, 15 years old.  A lot of this was dicta (actually, all of it), and in 2015 if the Second Circuit were to revisit the issue squarely presented—it wasn’t a fair use case—I have no doubt that the HathiTrust circuit would say there’s a difference between digital and analog and that fair use allows you to make a copy in the format appropriate for your use; you don’t have to be using primitive tech that doesn’t effectively convey your message.
 
Charlesworth: any caselaw?
 
A: HathiTrust.  Also Georgia State: digital format was important; if not available. 
[Also, from our submission: Bill Graham, 448 F.3d at 613 (finding fair use when copying was of the “size and quality” necessary to the transformative purpose); Warren Pub. Co. v. Spurlock, 645 F. Supp. 2d 402, 420, 425 (E.D. Pa. 2009) (highquality copied images were fair use because they were necessary for transformative purpose; “As to Plaintiffs’ argument that Spurlock could have reduced the larger images or changed all of them to black-and-white, such modifications would undermine the very heart of the publication, which is to chronicle the achievements of a renowned artist. Vivid colors are an important element in depicting monsters, particularly their faces. . . . [M]aking these changes would directly thwart one of the key purposes of the book—to showcase the detailed work of Basil Gogos.”); Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 85 (2d Cir. 2014) (finding fair use where copying audio recording provided additional details on tone of voice and emphasis compared to transcript); Sony Computer Entertainment America, Inc. v. Bleem, LLC, 214 F.3d 1022, 1030 (9th Cir. 2000) (finding fair use where real images were necessary for accurate comparisons).]
 
Williams: Georgia State there’s a remand.  Very cautious language about taking fair use too fair.  Too much taking = run risk of eliminating economic incentive for creation; don’t kill the proverbial goose that laid the golden egg. Don’t allow too much educational use.
 
We’re not opposing renewal of existing exemption; K-12 educators can get all they need.
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