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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DMCA hearings: MOOCs

Posted on May 27, 2015 by rtushnet
Copyright Office: Jacqueline Charlesworth
Michelle Choe
Regan Smith
Cy Donnelly
Steve Ruhe
John Riley
Stacy Cheney (NTIA)
 
10:45am-12:15pm: Proposed Class 3: Audiovisual works –
educational uses – massive open online courses (“MOOCs”)
This proposed class would allow students and faculty
participating in Massive Open Online Courses (“MOOCs”) to circumvent access
controls on lawfully made and acquired motion pictures and other audiovisual
works for purposes of criticism and comment. This exemption has been requested
for audiovisual material made available in all formats, including DVDs
protected by CSS, Blu-ray discs protected by AACS, and TPM-protected online
distribution services.
 
Proponents: Brandon Butler, Glushko-Samuelson Intellectual
Property Law Clinic, American University
 
Lawfulness of use shouldn’t depend on medium of storage.
When Wind Done Gone is fair use, it’s fair use in hardback, audiobook, ebook.
So too with teaching. If lectures in a physical classroom are fair, so are
lectures in Coursera. But there are virtually no film studies courses offered
on MOOC platforms, unlike regular course catalogs, because of no exemption.

Fair use can and does operate at scale. The Daily Show uses a wide variety of
clips every night to poke fun of this town and media coverage of this
town.  Clips are then made available
online to be shared by millions.  VCRs
and DVRs reach millions; search engines create search indexes—all of these uses
are litigated fair, and just because they’re big doesn’t mean they can’t be
fair.  If concerns raised about
platform/scale and activities become unfair when big, that would be bad news
for motion pictures. MOOCs may be used as marketing tools, opponents say, and
if a MOOC too lucrative and fun to be fair use, then what do we say about South Park?  Highlight reels for Baltimore Ravens? If big,
and fun, and sometimes making money can still be fair use, then MOOCs can be
fair use.
 
Charlesworth: but profit is relevant.
 
A: yes.
 
Charlesworth: tell me about §110(2). Is that a basis for an
exemption?
 
A: no.  It’s an
interesting contrast between (1) and (2)—several pages of requirements for
blanket protection w/out having to consider fair use.  MOOCs wouldn’t fall within that blanket.
 
Charlesworth: wouldn’t §110(2) provide a basis?
 
A: it’s possible. At least some courses might arguably not
satisfy those requirements.
 
Charlesworth: aren’t there some that would?
 
A: I’d be happy to take advantage of it!  We just didn’t find that the bulk automatically would.

Charlesworth: let’s start with what the law does allow.  [Unlike fair use, which the law doesn’t
allow?]  If students are officially
enrolled, etc.
 
A: Professors, librarians, copyright counsel: 110(2) is
generally considered difficult to comply with. Universities typically do not
try to implement it as a means of being lawful; the boxes are perceived as too
difficult to tick off. The specific tech requirements for using DRM on the clips,
for example, are too difficult. My understanding is that it’s already a dead
letter. So it wouldn’t be useful for MOOCs either.
 
Charlesworth: say we looked at 110(2) and said it was
designed by Congress—should we ignore this entire part of the statute when
talking about online education?
 
A: it’s a safe harbor. Describes very clearly what is always
lawful use. That was seen to be useful at the time, but in the field, the safe
harbor described is too small.  We know
that it’s not designed to replace fair use.
 
Charlesworth: why is it too small? Unable to put TPMs?
 
A: that’s the most cumbersome.
 
Charlesworth: if that were not an issue, would this be more
helpful?
 
A: probably.
 
Charlesworth: other concerns with 110(2)?
 
A: no.
 
Jonathan Band, Library Copyright Alliance: Librarians think
this would be a helpful starting point, but it doesn’t go far enough. A lot of
the terms are unclear.  Even though it’s
very detailed, it’s still uncertain: how long can the material be available
online?  But better than nothing.
 
Return to earlier topic, about short portions: Example of
when you’d want to use more than a short portion. Imagine 2-hour class session,
MOOC or physical.  You might see
cumulatively ½ an hour, interrupted for discussion.  Each clip is a short portion, but it’s
arguable taken together.  I would say as
used in the classroom, clearly fair use, but that would be the kind of thing we
want flexibility for.
 
Principal argument against extension was potential harm from
abuse.  Overlooks the fact that any
potential infringement would be much easier to ID and address. Software tools
owners currently used to locate content on the web will quickly locate
allegedly infringing content.  The notion
of harm also ignores reality. We all know circumvention tools are widely
available and widely used.  Thus abuse of
an exemption in a MOOC could have no discernible impact on the level of
infringing activity. In 9 years of higher ed exemption, not one reported
instance of circumvention leading to infringement.
 
Q: but you want to go beyond traditional higher ed industry,
and have no restrictions on scope or users or availability—what’s your
definition of a MOOC in relation to traditional instruction?
 
A: in our submission we provided a definition. Almost any
definition would be ok, given the widespread availability of DVD circumvention
already.  Open enrollment, closed
enrollment, nonprofit, for-profit, makes no difference. Starting w/ a narrower
definition might be a way to gain comfort. 
 
Q: what’s your positive definition of MOOC?
 
Butler: in the comments we relied on the words: massive,
open, online, and it is a course.  In the
meantime we found an OED definition: a course of study made available over the
internet without charge to a large number of people.
 
Charlesworth: would exclude for-profits?
 
Butler: well, Gmail is provided free. 
 
Charlesworth: how do the for-profits make money in this
space?
 
Band: they don’t really know that yet. It’s Silicon Valley.
 
Decherney: there are a number of ways Coursera and Udacity
try—people pay for certificates of completion.
 
Charlesworth: so they do charge.
 
Decherney: you can take it for free and complete it for free,
but to get a certificate of completion you can pay.  Or companies may pay for their employees to
take it.  There are other models.
 
Band: so far none of them are making money.
 
Q: what would stop me from putting up a full episode of
South Park on YouTube with a minute of commentary and saying that it was a
course?
 
Butler: you’d have to argue straightfaced that’s a course,
and I don’t think you can.  We can augment
the definition.  Courses could be offered
by or in partnership with an institution; with an institution w/ an educational
mission.
 
Q: would that include Khan Academy?
 
A: yes, it’s an institution.
 
Charlesworth: Khan Academy for-profit?
 
Decherney: nonprofit funded by foundations.
 
Band: Putting aside the Content ID issue with South Park, if it’s infringing, it’s
infringing.  This is in addition to the
basic way we deal with problems of this sort, which is copyright law.  (Lots of South
Park clips are already there.)
 
A: but we need “likely noninfringing,” and without
restrictions it’s less likely to be noninfringing. [Unless the definition includes
“noninfringing,” which is a restriction,
and makes it more than likely that everything under the exemption will be
noninfringing.]
 
Band: same parameters as for other exemptions.

Decherney: clarification—Coursera and Udacity offer platforms for others to
offer MOOCs. Universities may use them to offer MOOCs. Just b/c the platform is
for-profit doesn’t mean the institution offering the course is for-profit.
 
Charlesworth: does U Penn do this? Do you have to register
in any way? Do you qualify for 110(2)?
 
Decherney: yes.  As
far as I know, none of the videos we provide have DRM, so they wouldn’t
qualify. I’m planning a course in October. 
Under the UPenn version of this, student must pay to get a certificate
of completion in some cases.  My course
will be through EdX, which will have certificate of completion for free.  Content will be similar to course on history
of Hollywood—clips with criticism and commentary. Canned lecture online rather
than interacting with students. Excerpts: average lecture time is 4:30—with a
quiz or activity; videos are very short and thus clips are short.
 
Charlesworth: what will you do if exemption isn’t granted?
 
Decherney: I’ve put off offering the course for several
years.  I don’t know if I’d offer the
course; unlikely without an exemption. 
How many lectures = course?  8
weeks, 30-40 hours of lectures, of which some portion would be clips. We always
provide high def.
 
Charlesworth: under 110(2), sounds like your issue is the
TPMs? Any other concerns about that definition?
 
Butler: I’ve been poring over it, and there’s no smoking
gun, but people are concerned—Khan Academy, National Geographic Society, World
Bank, UNICEF won’t qualify. 
 
Band: consistent availability of material over time—can it
be available the whole semester?  Just
the week?  Confusion over what the limits
mean.
 
Opponents: Bruce Turnbull, AACS LA and DVDCCA: unbounded—anyone
can declare they’re a student or are teaching a MOOC.  [The horror! Someone might make clips
available on the internet, with commentary!] 
Band says you can always go to court, but part of the purpose of the
DMCA was to avoid going to court via TPMs so you didn’t have to go after
individual users of material.  Tech
reasonably deployed to protect the work by itself. [Though that ship has
sailed, as Band pointed out.] This proceeding is a fail-safe, if a TPM goes too
far. Undermines purpose of DMCA.
 
110(2): if these courses fit w/in that, why aren’t they
using 110(2)? [B/c the DMCA makes it separately illegal?]  More broadly, this was Congress expressing
how they expected the online educational environment to work. Congress thought there
ought to be TPMs. If it’s inconvenient, that’s too bad/that’s what the law is.  [Or you could rely on fair use.]
 
Charlesworth: How difficult would it be to apply TPMs to
clips? [Depends on what you mean by TPMs.]
 
A: I don’t think it’s difficult, though I couldn’t
personally do it. Ability to make use of encryption—you can encrypt your email
w/standard setting; you can encrypt content on your computer w/ a standard
setting—not rocket science. [Um, no, it’s computer science, and encrypting
content on your computer is different from sending it.]  If you are sending to computer linked to TV,
you can trigger HDCP over HDMI to the TV—triggered by the output itself.  [So much for extending courses to people who
can’t afford a lot of equipment].
 
Q: does TPM need to be on each clip, or would passwording
the course be enough?
 
A: TPM must be on the transmission.  Transmission must be encrypted to reasonably
prevent retention of work by recipient and further dissemination of the
work.  It is a TPM that as it’s
transmitted works in the same way that AACS works [so we need a license?] [not
clear that a password wouldn’t do that if the result is a stream]. Doesn’t know
if individual clip would have to be isolated, but at least the clip would have
to be protected.
 
Q: concerns over scope of definition: if MOOCs were tailored
under TEACH Act, would you still oppose?
 
A: if they qualify under the TEACH Act they don’t need an
exemption.
 
Charlesworth: to get the clip.
 
A: if they were protected, we’d still be concerned about the
use of circumvention tools because we’d be promoting the use of these tools for
getting the clip in the first place.
 
Charlesworth: that’s just Blu-Ray; you didn’t object to
continuation of the others.
 
A: DVDCCA didn’t object; AACS hasn’t commented. If limited
to TEACH Act qualified, it would be consistent with DVDCCA’s other positions to
say that DVD exemption would be consistent w/what’s already been done.
 
Whether you say 110(2) applies specifically, the point is
that the kinds of exemptions requested make it incumbent on requesters to say “this
is how we can analogize to the requirements Congress placed on how Congress
envisioned online education to work w/r/t online education.” They haven’t done
so.
 
W/r/t DVD, hack is ubiquitous. But overall protection system
has been maintained—last year judge granted injunction.  [So an exemption could hardly change that.]
Unbounded exemption would undermine the DVD CSS licensing system/trust in that
system. If you walk into a legitimate retail store and buy a DVD player, it
does conform to the requirements of the license. That system has been
maintained notwithstanding the broad hack.
 
J. Matthew Williams, Entertainment Software Association,
Motion Picture Association of America, Recording Industry Association of America
(Joint Creators and Copyright Owners): Movie studios do rely on fair use all
the time, and we don’t oppose fair use. We just oppose this exemption,
especially its scope and breadth. Comes close to a disallowed use-based
exemption for all educational uses online, which isn’t comforting.
 
Charlesworth: idea of taking face to face exemption and
extending it to 110(2)—is that too far?
 
A: would like to speak to clients, but keeping all
requirements in place and adding something from the TEACH Act would be
preferable to what’s proposed.
 
Q: they say there are 10,000 MOOCs and only 4 film studies
courses—inhibiting effect?
 
A: not sure that’s true. MOOCs might inherently limit use of
clips. Massive and open has wrong implications. If you’re trying to get this
done in 5 minutes, you might not want a lot of clips, which might be one reason
it’s not happening.
 
Q: is Decherney’s course objectionable?
 
A: it sounds like it’s being done through a third party
actor, and my personal preference would be to make each university build its
own platform to get an exemption as the TEACH Act requires. [Hunh? Even 110(2)
doesn’t go that far—do they have to invent their own encryption too? Run their
own cables?]  He took an existing film
course and found it effective. In week 5, the professor just sits in front of a
webcam, as you’d see on YouTube, and lectures. So no one expects perfection, so
request for high quality images is less compelling.  [No quality for you, proles!]
 
Harm: virtually impossible to collect evidence of harm, to
know that a copy of a movie on a P2P network because a student was introduced to
circumvention tech in a classroom. The burden is on them on these issues b/c
that evidence is difficult/impossible to collect. [They spend a lot of money
studying the causes of piracy; they embed codes in screeners; they could get
this data if it were there, but they don’t even list it as a risk factor in SEC
filings.]
 
Charlesworth: does Penn have contracts w/EdX and Coursera?
 
Decherney: yes, Penn does, and invests in Coursera.
 
Charlesworth: explain the economics.
 
A: Income-sharing; university owns all the IP in the course.
We record the content, available on their platform, and discussion/exams take
place in Coursera. 
 
Charlesworth: do you know whether they can apply encryption?
 
A: I have no idea.
 
Charlesworth: Why would they have a relationship with EdX
and Coursera, competitors?
 
A: Increasingly use multiple platforms b/c some are better
for different kinds of courses. Like publishing w/ many publishers. We use
iTunes U; we use YouTube; we want to disseminate our research.
 
Butler: Almost 3000 people have registered on Coursera since
the panel started—it’s a big phenomenon. It means that if there are adverse
effects—that having an ecosystem of learning w/no film courses is a bad thing—they
are big adverse effects.  Joint Creators
have said it’s really easy and cheap to find the movies you want to watch if
you’re a consumer. People will do that, instead of trying to watch 5 minutes of
Decherney and trying to put a movie back together.
 
Q: Harm revolved around limit on film courses—are there
other limitations/negative effects?
 
Butler: sure: the analogy to standard courses is apt.
Someone who wants to teach the WWII will have the same problem. Anyone who
wants to teach w/media. For methodological reasons, the easiest way to show
that was to count film course.
 
Q: do you have other examples? Other professors who want to
offer that?
 
Butler: I’ve had a number of conversations w/universities
that say they have a hands off policy for moving images for MOOCs across the
board, as a result of conversations w/GCs and IT folks.  They just tell people that it’s off limits
for everyone.
 
Q: can you distinguish between the MOOC and the regular
online course by the university—are there different rules for clips?
 
Butler: My experience is that MOOCs are considered to be
different, even though maybe some do qualify.

Turnbull: If you have IT guys involved, they can certainly use screencap
software and use a high quality pro camera to record off the screen as
alternatives. One of the reasons some other exemptions are workable is that
there is an institution that you can approach if there is a problem. The
arrangement here might let UPenn say it’s Coursera’s problem and Coursera might
say it’s UPenn’s problem. 
[Seriously?  Because universities
routinely say it’s Apple’s problem when someone misuses an Apple computer on
campus?] 
 
Band: Penn is responsible; the contracts certainly give Penn
responsibility for content. And Penn is the one that would be violating the
exemption if it’s the one that’s doing the circuvmention. Please also note that
we don’t know whether screencap involves circumvention. It’s nice to say so,
but an exemption would be appropriate for all.
 
We’re all worried about the cost of education. MOOCs are one
way to lower the cost of education.  We
don’t know what they will ultimately look like, but this is the future, and we
want good courses—the notion of teaching the history of Hollywood with stills
is absurd.  Culture pervaded by media
means that online courses need high quality video.

Butler: reply comment: German professor wants a German MOOC using films as a
great part of the curriculum.
 
Charlesworth: how does the University of Penn distinguish
between MOOC and online course offering in treatment of motion pictures?
 
A: we do offer some courses as online courses or MOOCs—for courses,
you have to apply, and pay, and there’s a small group with more interactivity
w/faculty and students.  MOOCs have
helped us clarify what we offer in smaller online courses and live classes. You
get Penn course credit for online course. 
I’ve taught similar classes and used clips in those classes. 
 
Charlesworth: how do you achieve a level of comfort with
that?  Did you circumvent to include
clips?
 
A: not prerecorded.  I
used clips I use in face to face class.  Right
now MOOCs are novel.
 
Charlesworth: were they just filming you playing a clip?
Would they see a full screen of you playing the clip?
 
A: synchronous live setting. 
Adobe platform that allows me to show clips and everyone can view it or
I can talk over it. Would be possible to have prerecorded videos there. 
 
Charlesworth: did you consider that 110(2) covered?
 
A: our GC said it was fair use.  It’s a course being offered by the university,
seems covered by the existing exemption. We don’t encrypt the output, but I don’t
know what the platform does.
 
Turnbull: Adobe has widely used DRM which could easily have
been applied.  There are platforms
available to do the encryption.
 
Q: would there be any need for students to circumvent under
this exemption?
 
Decherney: it would be great if it were included to allow student
presentations, so they can do the same work they can do in other face to face
classes and online courses, which is the rule for every other kind of student
work output like writing.  Multimedia presentations
are a major part of student work today, replacing essays.
 
All our MOOCs need registration/password.
 
Q: is there a way to control for reception/quality of the
MOOC?  Depends on whether I’m watching on
broadband.
 
Decherney: true, also true of online courses. We only put
out HD quality video b/c we think it’s important. Students in China were having
trouble, so we partnered with a mirroring site to give them HQ access.
 
Q: but if student doesn’t have broadband, it will be
degraded regardless.
 
Decherney: true.
 
Q: Acclimation to HD world, one click away from distraction—YT
will be lower than SD, right? 
 
Decherney: yeah, so it’s better for me if I’m in HD.
 
Q: anything in record about need to extend to video games?
 
Decherney: it’s not something we suggested.
 
Williams: on including students: we are quite concerned
about the huge number of people who could potentially qualify and could lead to
confusion and unfortunate consequences. No examples in the record.
 
Butler: 2015, 21 million college and university students,
eligible for existing exemption—which is more than current MOOC enrollment.
Lots of people already eligible and no catastrophe.

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DMCA hearings: MOOCs

Posted on May 27, 2015 by rtushnet
Copyright Office: Jacqueline Charlesworth
Michelle Choe
Regan Smith
Cy Donnelly
Steve Ruhe
John Riley
Stacy Cheney (NTIA)
 
10:45am-12:15pm: Proposed Class 3: Audiovisual works – educational uses – massive open online courses (“MOOCs”)
This proposed class would allow students and faculty participating in Massive Open Online Courses (“MOOCs”) to circumvent access controls on lawfully made and acquired motion pictures and other audiovisual works for purposes of criticism and comment. This exemption has been requested for audiovisual material made available in all formats, including DVDs protected by CSS, Blu-ray discs protected by AACS, and TPM-protected online distribution services.
 
Proponents: Brandon Butler, Glushko-Samuelson Intellectual Property Law Clinic, American University
 
Lawfulness of use shouldn’t depend on medium of storage. When Wind Done Gone is fair use, it’s fair use in hardback, audiobook, ebook. So too with teaching. If lectures in a physical classroom are fair, so are lectures in Coursera. But there are virtually no film studies courses offered on MOOC platforms, unlike regular course catalogs, because of no exemption.
Fair use can and does operate at scale. The Daily Show uses a wide variety of clips every night to poke fun of this town and media coverage of this town.  Clips are then made available online to be shared by millions.  VCRs and DVRs reach millions; search engines create search indexes—all of these uses are litigated fair, and just because they’re big doesn’t mean they can’t be fair.  If concerns raised about platform/scale and activities become unfair when big, that would be bad news for motion pictures. MOOCs may be used as marketing tools, opponents say, and if a MOOC too lucrative and fun to be fair use, then what do we say about South Park?  Highlight reels for Baltimore Ravens? If big, and fun, and sometimes making money can still be fair use, then MOOCs can be fair use.
 
Charlesworth: but profit is relevant.
 
A: yes.
 
Charlesworth: tell me about §110(2). Is that a basis for an exemption?
 
A: no.  It’s an interesting contrast between (1) and (2)—several pages of requirements for blanket protection w/out having to consider fair use.  MOOCs wouldn’t fall within that blanket.
 
Charlesworth: wouldn’t §110(2) provide a basis?
 
A: it’s possible. At least some courses might arguably not satisfy those requirements.
 
Charlesworth: aren’t there some that would?
 
A: I’d be happy to take advantage of it!  We just didn’t find that the bulk automatically would.
Charlesworth: let’s start with what the law does allow.  [Unlike fair use, which the law doesn’t allow?]  If students are officially enrolled, etc.
 
A: Professors, librarians, copyright counsel: 110(2) is generally considered difficult to comply with. Universities typically do not try to implement it as a means of being lawful; the boxes are perceived as too difficult to tick off. The specific tech requirements for using DRM on the clips, for example, are too difficult. My understanding is that it’s already a dead letter. So it wouldn’t be useful for MOOCs either.
 
Charlesworth: say we looked at 110(2) and said it was designed by Congress—should we ignore this entire part of the statute when talking about online education?
 
A: it’s a safe harbor. Describes very clearly what is always lawful use. That was seen to be useful at the time, but in the field, the safe harbor described is too small.  We know that it’s not designed to replace fair use.
 
Charlesworth: why is it too small? Unable to put TPMs?
 
A: that’s the most cumbersome.
 
Charlesworth: if that were not an issue, would this be more helpful?
 
A: probably.
 
Charlesworth: other concerns with 110(2)?
 
A: no.
 
Jonathan Band, Library Copyright Alliance: Librarians think this would be a helpful starting point, but it doesn’t go far enough. A lot of the terms are unclear.  Even though it’s very detailed, it’s still uncertain: how long can the material be available online?  But better than nothing.
 
Return to earlier topic, about short portions: Example of when you’d want to use more than a short portion. Imagine 2-hour class session, MOOC or physical.  You might see cumulatively ½ an hour, interrupted for discussion.  Each clip is a short portion, but it’s arguable taken together.  I would say as used in the classroom, clearly fair use, but that would be the kind of thing we want flexibility for.
 
Principal argument against extension was potential harm from abuse.  Overlooks the fact that any potential infringement would be much easier to ID and address. Software tools owners currently used to locate content on the web will quickly locate allegedly infringing content.  The notion of harm also ignores reality. We all know circumvention tools are widely available and widely used.  Thus abuse of an exemption in a MOOC could have no discernible impact on the level of infringing activity. In 9 years of higher ed exemption, not one reported instance of circumvention leading to infringement.
 
Q: but you want to go beyond traditional higher ed industry, and have no restrictions on scope or users or availability—what’s your definition of a MOOC in relation to traditional instruction?
 
A: in our submission we provided a definition. Almost any definition would be ok, given the widespread availability of DVD circumvention already.  Open enrollment, closed enrollment, nonprofit, for-profit, makes no difference. Starting w/ a narrower definition might be a way to gain comfort. 
 
Q: what’s your positive definition of MOOC?
 
Butler: in the comments we relied on the words: massive, open, online, and it is a course.  In the meantime we found an OED definition: a course of study made available over the internet without charge to a large number of people.
 
Charlesworth: would exclude for-profits?
 
Butler: well, Gmail is provided free. 
 
Charlesworth: how do the for-profits make money in this space?
 
Band: they don’t really know that yet. It’s Silicon Valley.
 
Decherney: there are a number of ways Coursera and Udacity try—people pay for certificates of completion.
 
Charlesworth: so they do charge.
 
Decherney: you can take it for free and complete it for free, but to get a certificate of completion you can pay.  Or companies may pay for their employees to take it.  There are other models.
 
Band: so far none of them are making money.
 
Q: what would stop me from putting up a full episode of South Park on YouTube with a minute of commentary and saying that it was a course?
 
Butler: you’d have to argue straightfaced that’s a course, and I don’t think you can.  We can augment the definition.  Courses could be offered by or in partnership with an institution; with an institution w/ an educational mission.
 
Q: would that include Khan Academy?
 
A: yes, it’s an institution.
 
Charlesworth: Khan Academy for-profit?
 
Decherney: nonprofit funded by foundations.
 
Band: Putting aside the Content ID issue with South Park, if it’s infringing, it’s infringing.  This is in addition to the basic way we deal with problems of this sort, which is copyright law.  (Lots of South Park clips are already there.)
 
A: but we need “likely noninfringing,” and without restrictions it’s less likely to be noninfringing. [Unless the definition includes “noninfringing,” which is a restriction, and makes it more than likely that everything under the exemption will be noninfringing.]
 
Band: same parameters as for other exemptions.
Decherney: clarification—Coursera and Udacity offer platforms for others to offer MOOCs. Universities may use them to offer MOOCs. Just b/c the platform is for-profit doesn’t mean the institution offering the course is for-profit.
 
Charlesworth: does U Penn do this? Do you have to register in any way? Do you qualify for 110(2)?
 
Decherney: yes.  As far as I know, none of the videos we provide have DRM, so they wouldn’t qualify. I’m planning a course in October.  Under the UPenn version of this, student must pay to get a certificate of completion in some cases.  My course will be through EdX, which will have certificate of completion for free.  Content will be similar to course on history of Hollywood—clips with criticism and commentary. Canned lecture online rather than interacting with students. Excerpts: average lecture time is 4:30—with a quiz or activity; videos are very short and thus clips are short.
 
Charlesworth: what will you do if exemption isn’t granted?
 
Decherney: I’ve put off offering the course for several years.  I don’t know if I’d offer the course; unlikely without an exemption.  How many lectures = course?  8 weeks, 30-40 hours of lectures, of which some portion would be clips. We always provide high def.
 
Charlesworth: under 110(2), sounds like your issue is the TPMs? Any other concerns about that definition?
 
Butler: I’ve been poring over it, and there’s no smoking gun, but people are concerned—Khan Academy, National Geographic Society, World Bank, UNICEF won’t qualify. 
 
Band: consistent availability of material over time—can it be available the whole semester?  Just the week?  Confusion over what the limits mean.
 
Opponents: Bruce Turnbull, AACS LA and DVDCCA: unbounded—anyone can declare they’re a student or are teaching a MOOC.  [The horror! Someone might make clips available on the internet, with commentary!]  Band says you can always go to court, but part of the purpose of the DMCA was to avoid going to court via TPMs so you didn’t have to go after individual users of material.  Tech reasonably deployed to protect the work by itself. [Though that ship has sailed, as Band pointed out.] This proceeding is a fail-safe, if a TPM goes too far. Undermines purpose of DMCA.
 
110(2): if these courses fit w/in that, why aren’t they using 110(2)? [B/c the DMCA makes it separately illegal?]  More broadly, this was Congress expressing how they expected the online educational environment to work. Congress thought there ought to be TPMs. If it’s inconvenient, that’s too bad/that’s what the law is.  [Or you could rely on fair use.]
 
Charlesworth: How difficult would it be to apply TPMs to clips? [Depends on what you mean by TPMs.]
 
A: I don’t think it’s difficult, though I couldn’t personally do it. Ability to make use of encryption—you can encrypt your email w/standard setting; you can encrypt content on your computer w/ a standard setting—not rocket science. [Um, no, it’s computer science, and encrypting content on your computer is different from sending it.]  If you are sending to computer linked to TV, you can trigger HDCP over HDMI to the TV—triggered by the output itself.  [So much for extending courses to people who can’t afford a lot of equipment].
 
Q: does TPM need to be on each clip, or would passwording the course be enough?
 
A: TPM must be on the transmission.  Transmission must be encrypted to reasonably prevent retention of work by recipient and further dissemination of the work.  It is a TPM that as it’s transmitted works in the same way that AACS works [so we need a license?] [not clear that a password wouldn’t do that if the result is a stream]. Doesn’t know if individual clip would have to be isolated, but at least the clip would have to be protected.
 
Q: concerns over scope of definition: if MOOCs were tailored under TEACH Act, would you still oppose?
 
A: if they qualify under the TEACH Act they don’t need an exemption.
 
Charlesworth: to get the clip.
 
A: if they were protected, we’d still be concerned about the use of circumvention tools because we’d be promoting the use of these tools for getting the clip in the first place.
 
Charlesworth: that’s just Blu-Ray; you didn’t object to continuation of the others.
 
A: DVDCCA didn’t object; AACS hasn’t commented. If limited to TEACH Act qualified, it would be consistent with DVDCCA’s other positions to say that DVD exemption would be consistent w/what’s already been done.
 
Whether you say 110(2) applies specifically, the point is that the kinds of exemptions requested make it incumbent on requesters to say “this is how we can analogize to the requirements Congress placed on how Congress envisioned online education to work w/r/t online education.” They haven’t done so.
 
W/r/t DVD, hack is ubiquitous. But overall protection system has been maintained—last year judge granted injunction.  [So an exemption could hardly change that.] Unbounded exemption would undermine the DVD CSS licensing system/trust in that system. If you walk into a legitimate retail store and buy a DVD player, it does conform to the requirements of the license. That system has been maintained notwithstanding the broad hack.
 
J. Matthew Williams, Entertainment Software Association, Motion Picture Association of America, Recording Industry Association of America (Joint Creators and Copyright Owners): Movie studios do rely on fair use all the time, and we don’t oppose fair use. We just oppose this exemption, especially its scope and breadth. Comes close to a disallowed use-based exemption for all educational uses online, which isn’t comforting.
 
Charlesworth: idea of taking face to face exemption and extending it to 110(2)—is that too far?
 
A: would like to speak to clients, but keeping all requirements in place and adding something from the TEACH Act would be preferable to what’s proposed.
 
Q: they say there are 10,000 MOOCs and only 4 film studies courses—inhibiting effect?
 
A: not sure that’s true. MOOCs might inherently limit use of clips. Massive and open has wrong implications. If you’re trying to get this done in 5 minutes, you might not want a lot of clips, which might be one reason it’s not happening.
 
Q: is Decherney’s course objectionable?
 
A: it sounds like it’s being done through a third party actor, and my personal preference would be to make each university build its own platform to get an exemption as the TEACH Act requires. [Hunh? Even 110(2) doesn’t go that far—do they have to invent their own encryption too? Run their own cables?]  He took an existing film course and found it effective. In week 5, the professor just sits in front of a webcam, as you’d see on YouTube, and lectures. So no one expects perfection, so request for high quality images is less compelling.  [No quality for you, proles!]
 
Harm: virtually impossible to collect evidence of harm, to know that a copy of a movie on a P2P network because a student was introduced to circumvention tech in a classroom. The burden is on them on these issues b/c that evidence is difficult/impossible to collect. [They spend a lot of money studying the causes of piracy; they embed codes in screeners; they could get this data if it were there, but they don’t even list it as a risk factor in SEC filings.]
 
Charlesworth: does Penn have contracts w/EdX and Coursera?
 
Decherney: yes, Penn does, and invests in Coursera.
 
Charlesworth: explain the economics.
 
A: Income-sharing; university owns all the IP in the course. We record the content, available on their platform, and discussion/exams take place in Coursera. 
 
Charlesworth: do you know whether they can apply encryption?
 
A: I have no idea.
 
Charlesworth: Why would they have a relationship with EdX and Coursera, competitors?
 
A: Increasingly use multiple platforms b/c some are better for different kinds of courses. Like publishing w/ many publishers. We use iTunes U; we use YouTube; we want to disseminate our research.
 
Butler: Almost 3000 people have registered on Coursera since the panel started—it’s a big phenomenon. It means that if there are adverse effects—that having an ecosystem of learning w/no film courses is a bad thing—they are big adverse effects.  Joint Creators have said it’s really easy and cheap to find the movies you want to watch if you’re a consumer. People will do that, instead of trying to watch 5 minutes of Decherney and trying to put a movie back together.
 
Q: Harm revolved around limit on film courses—are there other limitations/negative effects?
 
Butler: sure: the analogy to standard courses is apt. Someone who wants to teach the WWII will have the same problem. Anyone who wants to teach w/media. For methodological reasons, the easiest way to show that was to count film course.
 
Q: do you have other examples? Other professors who want to offer that?
 
Butler: I’ve had a number of conversations w/universities that say they have a hands off policy for moving images for MOOCs across the board, as a result of conversations w/GCs and IT folks.  They just tell people that it’s off limits for everyone.
 
Q: can you distinguish between the MOOC and the regular online course by the university—are there different rules for clips?
 
Butler: My experience is that MOOCs are considered to be different, even though maybe some do qualify.
Turnbull: If you have IT guys involved, they can certainly use screencap software and use a high quality pro camera to record off the screen as alternatives. One of the reasons some other exemptions are workable is that there is an institution that you can approach if there is a problem. The arrangement here might let UPenn say it’s Coursera’s problem and Coursera might say it’s UPenn’s problem.  [Seriously?  Because universities routinely say it’s Apple’s problem when someone misuses an Apple computer on campus?] 
 
Band: Penn is responsible; the contracts certainly give Penn responsibility for content. And Penn is the one that would be violating the exemption if it’s the one that’s doing the circuvmention. Please also note that we don’t know whether screencap involves circumvention. It’s nice to say so, but an exemption would be appropriate for all.
 
We’re all worried about the cost of education. MOOCs are one way to lower the cost of education.  We don’t know what they will ultimately look like, but this is the future, and we want good courses—the notion of teaching the history of Hollywood with stills is absurd.  Culture pervaded by media means that online courses need high quality video.
Butler: reply comment: German professor wants a German MOOC using films as a great part of the curriculum.
 
Charlesworth: how does the University of Penn distinguish between MOOC and online course offering in treatment of motion pictures?
 
A: we do offer some courses as online courses or MOOCs—for courses, you have to apply, and pay, and there’s a small group with more interactivity w/faculty and students.  MOOCs have helped us clarify what we offer in smaller online courses and live classes. You get Penn course credit for online course.  I’ve taught similar classes and used clips in those classes. 
 
Charlesworth: how do you achieve a level of comfort with that?  Did you circumvent to include clips?
 
A: not prerecorded.  I used clips I use in face to face class.  Right now MOOCs are novel.
 
Charlesworth: were they just filming you playing a clip? Would they see a full screen of you playing the clip?
 
A: synchronous live setting.  Adobe platform that allows me to show clips and everyone can view it or I can talk over it. Would be possible to have prerecorded videos there. 
 
Charlesworth: did you consider that 110(2) covered?
 
A: our GC said it was fair use.  It’s a course being offered by the university, seems covered by the existing exemption. We don’t encrypt the output, but I don’t know what the platform does.
 
Turnbull: Adobe has widely used DRM which could easily have been applied.  There are platforms available to do the encryption.
 
Q: would there be any need for students to circumvent under this exemption?
 
Decherney: it would be great if it were included to allow student presentations, so they can do the same work they can do in other face to face classes and online courses, which is the rule for every other kind of student work output like writing.  Multimedia presentations are a major part of student work today, replacing essays.
 
All our MOOCs need registration/password.
 
Q: is there a way to control for reception/quality of the MOOC?  Depends on whether I’m watching on broadband.
 
Decherney: true, also true of online courses. We only put out HD quality video b/c we think it’s important. Students in China were having trouble, so we partnered with a mirroring site to give them HQ access.
 
Q: but if student doesn’t have broadband, it will be degraded regardless.
 
Decherney: true.
 
Q: Acclimation to HD world, one click away from distraction—YT will be lower than SD, right? 
 
Decherney: yeah, so it’s better for me if I’m in HD.
 
Q: anything in record about need to extend to video games?
 
Decherney: it’s not something we suggested.
 
Williams: on including students: we are quite concerned about the huge number of people who could potentially qualify and could lead to confusion and unfortunate consequences. No examples in the record.
 
Butler: 2015, 21 million college and university students, eligible for existing exemption—which is more than current MOOC enrollment. Lots of people already eligible and no catastrophe.
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DMCA hearing: university exemption

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 1: Audiovisual works – educational uses –
colleges and universities
This proposed class would allow college and university
faculty and students to circumvent access controls on lawfully made and
acquired motion pictures and other audiovisual works for purposes of criticism
and comment. This exemption has been requested for audiovisual material made
available in all formats, including DVDs protected by the Content Scramble
System (“CSS”), Blu-ray discs protected by the Advanced Access Content System
(“AACS”), and TPM-protected online distribution services.
 
Proponents:
Brandon Butler, Glushko-Samuelson Intellectual Property Law
Clinic, American University: Why these uses are lawful.  (1) Most important thing is that uses will
very likely be transformative fair use. 
(2) Short portions has never been the law of fair use and isn’t necessary
to require tailoring to purpose. (3) Close analysis is not the law of fair use
either. 
 
Transformative: every use will be educational, which is
independently important, but also for criticism or commentary, core
transformative purposes, not substitutional, productive, use existing materials
as building blocks.  Core First Amendment
uses.  Quite significant that this
criticism/commentary is educational context as well, relative to entertainment.
Transformativeness is a function of the relationship between the purpose of the
user and the creator.

Charlesworth: are all educational uses transformative?
 
A: no. But if something wasn’t made for use in an
educational setting, then its use in education is likely transformative, also
evaluated with relation to whether what you used was reasonable in relation to
purpose.  To point (2): amount is only
one of the factors.  Two striking
examples where the outcome untethered from quantity.
 
Charlesworth: Campbell remanded on quantity.
 
A: but said parody can take more.
 
Charlesworth: enough to conjure up, but had to evaluate
amount in context of the use—not more.
 
A: Parody requires more than parsing a single sentence from
a poem.
 
Charlesworth: depends on the work.
 
A: but that’s the larger point: it depends, from work to
work and use to use, on the facts of each particular case.
 
Q: have you submitted evidence where the short portions was
insufficient?
 
A: Our friends intervened to make this point.  We submitted an example we thought excellent,
Dr. Wallace’s use of what we believed to be short portions, he described as
“longer excerpt.” Can something be both? 
There are longer and shorter short portions, but this is too vague and
subjective, which is why we don’t like the short portions language.
 
Charlesworth: When we write these exemptions, saying it’s
fair use is just circular/doesn’t give guidance. We need to give guidance to
the public.  More likely to be fair use
if it’s a short clip. But we didn’t say 15 seconds. We have to be specific and
targeted, and you have to show a substantial likelihood that it’s fair
use.  [“Fair use” gives exactly as much
guidance as the law requires: if it’s not fair use, it won’t be entitled to the
exception, which more than satisfies “substantial likelihood.” You can even
say, it’s more likely to be fair use if it’s a short clip—that’s the standard
articulated by the law.  This standard as
articulated by Charlesworth presupposes that some fair uses ought to be
excluded, which is not what the statute says.]
 
A: Standard of criticism and commentary/use appropriate to
the purpose incorporates that. 
 
Charlesworth: full film?
 
A: reasonable people know you don’t need to do that.
 
Charlesworth: doesn’t know that’s the case.  [What is the record in this proceeding?]  Could comment on the trajectory of this film.
 
A: this is what courts do when they decide fair use. The
rightsholder who thinks this is a violation of the DMCA would go to court and
do exactly what they did in litigating the fair use question.
 
Charlesworth: the question is general, not individual.  [So is §107.] 
Unlikely an educator would win by copying the whole film, which is why
the exemption reads the way it does. [Short and whole are not necessarily the
full spectrum!  Why is “short” so much
more clear?]
 
A: appropriate amount, or tailored amount. 
 
Charlesworth: amount needed to engage in the criticism.
 
A: fair use doesn’t require necessary, but you could go
there.
 
Q: Negative impacts: you pointed to Dr. Wallace and argued
that the current exception was vague, but he relied on it.
 
A: now we have a high profile proceeding claiming he was
wrong, and GC might read that and wonder.
 
Q: you’re on record contesting that. 
 
A: I love to work with nice people like professors, but we
have small bandwidth to help people.  I’m
happy to talk about “short portion” but a lot of people don’t have access to
those resources.  Read listservs where
professors & librarians are, they talk about that as a grain of sand for an
oyster.
 
Q: wouldn’t they just be fretting over whether this is fair
use in your standard? [But they should be! And they must be anyway!]
 
A: purpose based definition: they know what their purpose
is!  She shouldn’t have to worry about
short portion, but rather about purpose to teaching.
 
Charlesworth: that’s not the law.
 
A: I didn’t say that using it in the class was fair use.
She’s using it for teaching and it wasn’t made for teaching.
 
Charlesworth: that’s not the law.
 
A: yes, it is.
 
Jonathan Band, Library Copyright Alliance: Note that
opponents aren’t opposing renewal, so we’re only talking extension.
 
Quality issues: this argument has been made before, and
makes no more sense than before. If quality doesn’t make a difference, why do
they sell high quality?  If Blu-Ray has
an advantage, those advantages shouldn’t just be available for entertainment
and not education. If screen capture is adequate, why bother with any
TPMs?  Of course screencap exemptions
should be renewed in case they involve circumvention.
 
Image quality makes a difference. If it doesn’t look right,
it doesn’t have the impact the author intended, or the viewer might only see
distorted image, with impact on educational purpose.
 
Charlesworth: Is there a distinction b/t close analysis and
illustration, based on the record/need for high quality. 
 
Band: You need quality to understand the image: Saving Private Ryan, immediacy and
authenticity.
 
Charlesworth: are there cases where not every classroom
experience requires that?
 
Band: you could come up with some examples, but why would we
need to bother with that limitation?  Why
make it difficult to apply an exemption we concede we need, making it hard to
use?  There’s never been any infringement
resulting, so why not make it easy for educators?  Instead of having them parse out which
quality they need for this particular clip—that would save educators and the
Office time, with zero impact on infringement.
 
Charlesworth: opponents say they’re concerned about Blu-Ray.
 
Peter Decherney, University of Pennsylvania: Saving Private Ryan was made with a
special process on the film stock; this can be captured on Blu-Ray but not
DVD.  Material on studies showing that
students feel the impact of HD—there’s an emotional, physiological response
that’s been quantified.  Educators have
been talking about harm from 2000 on, and we haven’t seen any viable alternatives
yet. 
 
Are there cases in which low quality is enough?  There are many instances when we need DVD or
VHS, when we teach the history of media. What I don’t teach is Blu-Ray because
it’s banned from classrooms.  Conceded by
opponents that there’s real educational value from creating excerpts.
 
Exh. 13: Titanic,
showing how bad the CGI looks in retrospect. 
Blu-Ray uses a very different technology from DVDs.  Blu-Ray = progressive scan, not interlaced,
so as you scrub through you always get a clean frame no matter where you stop,
never have an interlacing issue. 

Charlesworth: If we looked at DVD, it would look different?
 
A: yes: you wouldn’t see the detail in the figures, which
reveals them to be bad CGI. Also if you scrub through you wouldn’t get a clean
frame—they aren’t even frames, but horizontal lines of video, replaced by
additional horizontal lines. In a Blu-Ray you see still images in
succession. 
 
Charlesworth: CGI looked cartoonish, not real.  Are you saying that if we watched in DVD, we
wouldn’t see the difference? Would it look more real?
 
A: it would look like you were looking from a different
lens. They’re just different ways of rendering the world.  “Soap opera effect”
experienced on new TVs is actually a better image. Newer TVs put in extra
frames to try to make older images look better, but we experience them as
different, stage-like rather than screen like. It’s not a continuum, but
different ways of experiencing the image. 
It’s not just b/c it’s better, but different, and access can create a
different or better educational experience.
 
Charlesworth: we heard of more pixels in Blu-Ray.  Higher quality/resolution/detail.
 
A: Cell biology: can be better image than DVD.  Media studies = show differences.  Saving
Private Ryan is actually about physiological impact on students in history
class.  They would just understand the
DVD differently than Blu-Ray.  Three
different ways of using Blu-Ray—there isn’t just one reason.
 
Charlesworth: any other exhibits?
 
A: no. [Though you can see the progressive scan interlacing
effects on their exhibits.]
 
Opponents:
Bruce Turnbull, AACS LA: Corley
says that no particular resolution is required for fair use.  Goes into the uses we’re talking about.  Second Circuit: film critic has no
constitutionally valid claim that a technologically superior review would be
allowed from filming in a theater.  Fair
use is not a guarantee of access. [Even if that weren’t dicta and contradicted
by Eldred and Golan, that’s not the standard! 
1201 asks if the uses are likely noninfringing once made. 1201 exemption process exists to determine whether
likely noninfringing, even if constitutionally
 
Haven’t shown how clips would be made from Blu-Ray. It’s our
understanding that there are only commercial decryption products that require
payment. [Um, so what?] And that they aren’t limited to decrypting short
portions. They decrypt the entire work. You may only use the short portion, but
you have access to the entire work. There aren’t technologies we are aware of
that allow you to capture 30 seconds. [Of course those technologies exist no
matter what happens in this proceeding.] The harm to the ecosystem—methods and
systems used will be important. Not the same as DVD case—no one has ever shown
harm from previous exemptions, and part of the reason is that the hack of DVD
was pervasive and ubiquitious.  [And the
streaming stuff?] You didn’t need an exemption to find a tool and make a copy
if you wanted. [Also true now.]
 
Charlesworth: how do you decrypt Blu-Ray?
 
Decherney: MakeMKV, plus Handbrake, plus editing. 
 
Charlesworth: is that commercial?
 
Decherney: yes, it’s commercially available.
 
Turnbull: using technologies that are of the sort
specifically found to be illegal.  AACS
itself sued a similar tech, DVDFab, which was enjoined. Motion to quash
injunction denied.  MakeMKV works
differently but similar to illegal Slysoft product in Antigua.  How this actually will work, and if there’s a
“legitimate” use then what does that do in the context of other cases/markets.
 
We’ve been given a number of examples, shifting process to
respond to that.  We’re not prepared to
respond to the Titanic because that’s the first time it was presented.  Existing exemption, and screencapture.
 
Q: does any screencap provide Blu-Ray quality?
 
A: No.  Longer answer:
the screencap Taylor will demonstrate was able to capture the particular
elements the proponents said were important—wires in Wizard of Oz and others.  We
were able to recreate those.
 
Q: but you don’t know of any tech that will get higher than
DVD?
 
A: there are ways of upconverting signals, and there are
progressive scan outputs from DVDs. But he doesn’t know of any where HD
screencap exists.
 
Q: is Titanic Blu-Ray decrypted [in the wild]?
 
A: He suspects so. [As do I.]
 
Screencap is viable. 
Ultraviolet/Disney anywhere is also available.
 
Q: you’re not contending Ultraviolet has the right range of
content for universities?
 
A: they don’t natively have content. You bring/purchase your
content, but if you bring a Blu-Ray, there are 1000s of titles available for
conversion and use. It’s not so much how much they offer as how much you can
put in. Many 1000s.
 
Q: For Disney everywhere, they only support kids movies.
Ultraviolet, doesn’t it need a studio affiliation, instead of a science
Blu-Ray?
 
A: yes.
 
Charlesworth: Could you play Titanic on Ultraviolet?
 
A: Believes so.
 
David Jonathan Taylor, DVDCCA: 3 quick clips from
screencap/video capture.  First: in the
DVD, you can see cables pulling lion’s tail in Wizard of Oz, and thus also w/video capture.  Second: exhibits showing compilations can be
used in classroom setting with sufficient. 
Third: demo of using the WMCapture software to show how easy it is.
 
Q: are these noncircumventing?
 
A: yes. [How does he know?] 
The Camtasia/WMCapture issue—I’ve used SnagIt, which is for recording
video capture, to show my process.
 
Wizard of Oz:  marked
the cable pulling the Lion’s tail with an arrow.  [NB: I … can’t really see the cable, though I
see the arrow.  Peter Decherney says as a
student in the fourth row he can’t see it (I’m sitting behind him).]
 
Q: did you use any editing tools?
 
A: we had to use video editing software to stop it and put
an arrow in. 
 
Charlesworth: To Decherney: Could you see the cable?
 
Decherney: there was one moment when it was swinging that I
saw it.
 
Exh. 15: compilations: Q: different technology from other
exhibits? These clips were made from Camtasia. They’ve been edited to be
shorter. But the capture is the same. [I note huge differences in frame size
across the different clips, which would be important in vidding. Not clear if
any of the frames are standard size.] Some interlacing, but many frames are
sufficient for our purposes to see what’s going on.  A little motion blur, but again there is
sufficient color to see what’s going on. Video capture allows compilation for
instructional purposes, and quality includes the details proponents want to
show.
 
Exh. 16: me making use of WMCapture technology, recorded his
process using SnagIt.  [Note that this is
indeed easier than converting Blu-Ray, which means that bad guys who don’t care
about quality will readily use it, and it doesn’t have any problem copying
whole works, meaning that the ecosystem is wide open right now.] Big chunk of
his screen is taken up with the interface. 
Detects content in window and will predict what you want to record.  Lines up almost perfectly with the content he
wants.

Q: is it your opinion this is just as easy/easier than ripping/circumventing? 
 
A: I’ve never ripped a DVD. 
This is very intuitive. I imagine there are nonintuitive programs. What
I understand is that other circumvention products have made it fairly easy as
well. 
 
Q: so no additional time demands?
 
A: no.  If you’re
going to prepare a lesson, you should prepare a compilation of clips, and this
would be quick and easy.
 
Q: others have said some capture does require circumvention.
How do you know? Is one higher quality?
 
A: I assume that if it’s circumventing the content on a
Blu-Ray, it’s going to give you perfect quality and recording.
 
Charlesworth: is it your contention that some screen capture
tech may involve circumvention and some not? 
We’re trying to understand whether there’s a need for an exemption.
 
A: none of the video capture tech I’ve used circumvents.
[How does he know?] There are products that claim to record Blu-Ray that first
circumvent.
 
Charlesworth: is there a way to tell for a consumer?
 
A: ultimately, by looking at output and seeing if it’s less
than perfect. If it’s less than perfect, it’s probably not circumvention. If
it’s perfect, it’s probably circumvention.
 
Charlesworth: it is possible to have DVD screencapture that
does circumvent?  Is that your
testimony?  Or is all DVD screencap noncircumventing?
[There is no such thing as “DVD screencap.” It’s screencap, whatever’s on the
screen.]
 
A: can’t speak to all. There is a product billed as
screencap for DVD/Blu-Ray that is in my opinion a circumvention tool.
 
Q: and the reason you know is the better quality? And you
don’t need to analyze the output, you can eyeball it?
 
A: … I wouldn’t say that. 
I’d be more suspicious when it’s nearly perfect.  You’d need to go frame by frame.
 
Q: has anyone looked under the hood of these programs?
 
A: I don’t know.
 
Continuing explanation: he’s set a framerate, a mp4 output,
and a filename. In his opinion it’s straightforward and intuitive, like the old
tape recorders. Easy for any instructors to use and make a compilation.  The quality of the video capture is
sufficiently high to see lines, colors, etc. Much better alternative than it’s
ever been before.
 
J. Matthew Williams, Entertainment Software Association,
Motion Picture Association of America, Recording Industry Association of
America (Joint Creators and Copyright Owners)
 
We aren’t opposed to renewing the existing exemption. No
reason to expand based on this record. 
Proponents’ record is almost identical to last time and shouldn’t be
expanded when more formats are available now. We acknowledge there are lots of
fair uses, we wouldn’t be comfortable as a “just do it” approach.  We would prefer to keep a balance in
place.  [A balance between things that
are fair use and also ok to circumvent and things that are fair use and not
ok.] We think “short” is a good limit, and we don’t know whether “extensive
quotes” is too much but it looks to us outside the exemption.  There are lots of HD quality downloads.  HDX is very close to Blu-Ray and you can
circumvent that under existing exemption. 
There are only 2 examples of Blu-Ray exclusive content—the Terminator:
Salvation director’s cut, which is available on SD, but only one bonus feature.
 
Q: would you be opposed to exemption for Blu-Ray exclusive
content?
 
A: yes, there are alternatives.  Saving Private Ryan: showing D-day experience
type footage, you can still bring Blu-Ray player into the classroom and cue
that up.  Close analysis limitation
should also stay in place. It’s helpful to give direction to users.  Shows them when it might be necessary to circumvent
as opposed to unnecessary.  The ability
to cue up copies already acquired via download/Ultraviolet is also important.
Not every title is available on Movies Anywhere, but the touchstone titles are,
and manufacture-on-demand DVD. We also think limit on good faith belief it’s
necessary to engage in circumvention is a good idea.
 
We think it would be appropriate to change it in one
way—separate it from current motion picture bundle, specifically defined for
educational uses so it’s distinct from remix, ebooks—this one is crafted pretty
will, but others are more vague and we’re afraid people read that to consume
the educational exemption.

Charlesworth: are you suggesting an overlap, where people might think I could
use the educational or noncommercial? Why is that a concern?
 
A: it’s a concern because my interpretation is noncommercial
was targeted to deal with remix/mashup videos, not just all types of
noncommercial videos. Because educational videos are typically noncommercial,
I’d be concerned that people would read noncommercial to cover educational uses
and render tailoring meaningless.
 
Charlesworth: so you view noncommercial as more broadly
drafted?
 
A: yes, but the intent wasn’t as broad as one could argue it
reads. Reference to types of videos in the record—remix style, mashup
style.  [Also, for the record, film
criticism, social commentary, political videos, and a bunch of other uses.]
 
Q for Decherney: Studies about physiological effects of high
definition? Classroom setting?
 
A: Yes, they’re classroom setting HD v. SD.
 
Charlesworth: pedagogically, when would you try to elicit
this response?
 
A: Effect of violence, or romance, or anything with an
affective response. We try not to bore people. 
Works are often being taught because people have responded to them over
time.  Art history, English, even in
science.
 
Q: doesn’t that depend on more factors than image quality,
like darkened screen?
 
A: there are many factors. 
I like blackout shades in classrooms.
 
Q: have people had trouble with the previous exemption being
staggered, so you have to try screencap first?
 
A: more elaborate over time, led to some confusion. Biggest
confusion is confusion over definition of “motion pictures”—that’s definitely
led to confusion.  Chronicle of Higher Ed
had a whole paragraph saying the exemption didn’t cover TV. 
 
Q: is there evidence of non-motion pictures, like video
games?
 
A: we found only a few examples, movies made of still images
like La Jetee, a French film that’s
often taught; documentaries of still images, and we’re not entirely clear about
their coverage b/c they don’t necessarily “suggest  movement.” 
There’s a limited range of AV material, but it can be confusing.
 
Q: were you aware of anyone deterred by the prior
exemption? 
 
A: we clarified—if they find us we can tell them. We don’t
know who didn’t come to us.
 
Williams: if you clarify, still exclude video games b/c
there’s nothing in the record.
 
Band: A couple of quick points about screencap—are the joint
creators willing to certify that screencap doesn’t circumvent and indemnify
educators in case they’re wrong?
 
Charlesworth: are you seeking an exemption for screencap,
assuming some may circumvent?
 
Decherney: 70-90% of educational environments use Macs,
which block screencapture. 
 
A: but you can screencap and then get a file that can be
used on a Mac.
 
Decherney: but that means that educators, students, media
labs would have to buy PCs.
 
A: you’re saying these technologies can’t be used on a Mac
w/out prior circumvention?
 
Decherney: yes.
 
Taylor: that’s not my understanding. Camtasia is a product
we use. Worked with several other people using Macs. We were able to use
Camtasia in Apple just fine. [Oh look,
here’s an article about the most recent Mac OS, explaining what happened:
 
Apple changed the way screen
capture is performed, starting in OS X 10.7 Lion. DVD video played back with
the Mac OS DVD Player software can no longer be captured. Earlier versions of
OS X are not affected.
 
There are two workarounds
Play back the DVD with a different
program such as VLC media player and capture it.
Use DVD ripping software such as
Handbrake (may require installation of VLC and supporting libraries) to convert
the DVD video directly to a usable format such as mp4 or QuickTime movie.
 
Decherney: screencap is insufficient for almost every
purpose.  I’d rather not talk about it.
Changes appearance, pixels, adds interpolated frames, frame size, framerate.
Imagine in any other field—if you want to teach Toni Morrison, you have to
teach pages missing and pages added. 
That’s ludicrious.

Charlesworth: we just saw a screencap that was arguably sufficient, depending
on the use. We found before that many uses didn’t require that level of detail.
To avoid any doubt, we allowed any exemption. You aren’t seeking that.  [NB: We didn’t seek that last time! You just
gave it to us without a request for it!]
 
Band: it would be helpful, speaking as a lawyer, to have
that renewed, even though the educators say it’s insufficient.
 
Butler: In the current screencap exemption, there’s a
requirement that the public representation must be that it’s offered after
content lawfully decrypted.  But we were
now told that the eyeball test is the test. Are these companies making the
necessary representations? We don’t think anyone is making those representations. If there is a future exemption,
maybe that requirement should come out, since we don’t have any evidence that
those requirements are met.
 
Camtasia tech support, January 2015: current OS Macs can’t
capture DVDs. Recommends circumvention instead. 
[Butler found the same link I did!]
 
Charlesworth: any comments on meeting the standard?
 
Williams: I have seen on some of the marketing materials a
circumvention claim. Sometimes in FAQs. 
[Is that in the record?  Should
they submit those?] For the benefit of studios.
 
I have not used Camtasia personally, but people I’ve worked
with have; would have to get back to you. What I see doesn’t suggest it is
circumventing.  It’s been around for so
long that if you circumvent and still don’t get perfect copies, you have a
fundamental challenge.
 
Band: it’s on the latest version of Mac. It could be they
got around the block on an earlier version. 
That goes to the bigger problem, that depending on the software release
it may or may not work.
 
Charlesworth: what version of Mac.
 
Butler: this has been true for a while.  10.7 = DRM blocks DVD and iTunes video
capture. Camtasia tech says, sorry, you just can’t use it on Mac since then.
 
Williams: I can’t speak to the tech question, but the Office
has said that the fact some formats don’t work is not sufficient for exemption.
 
Q: Ability to upconvert/use HDX: what does that mean as an
alternative? Is that viable?
 
Decherney: Upconversion is about playing DVD quality on a
larger TV. It doesn’t add quality. The resolution isn’t higher. The detail
isn’t higher. It just repeats lines of resolution.  I don’t know much about HDX.
 
Williams: there’s upconversion, which improves quality, and
what you could call upconversion with digital programs—take a SD DVD, pay $5,
upgrade to HD copy, and under existing copy, those downloads are covered. HD
and HDX version—marketing is typically that it’s 1080p quality.
 
Don’t know how many titles are available. Everything you can
access in Ultraviolet, he thinks.
 
Decherney: upconversion is the same thing. You can’t give a
SD version more information.
 
Taylor: no, they give you a native HD copy online.
 
Would be covered under digital distribution exemption.  You don’t even have to take the disc in to
Wal-Mart.

Decherney: can you use short portions? Can you put them on slides? 
 
Charlesworth: it’s a digital download—you could do those
things by swapping out your lower res version for a download.
 
Decherney: that’s editable? 
[no]
 
Williams: these copies are relevant—they can often be used
w/out circumvention to cue up in advance and play from the start point.  If you need clip compilation, you would have
to engage in circumvention, but we’re not opposed to a renewal, only an
expansion.  Transmitted/distributed
question—streaming v. downloads might be uncertain [what?!] but these are clear
downloads.

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DMCA hearing: university exemption

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 1: Audiovisual works – educational uses – colleges and universities
This proposed class would allow college and university faculty and students to circumvent access controls on lawfully made and acquired motion pictures and other audiovisual works for purposes of criticism and comment. This exemption has been requested for audiovisual material made available in all formats, including DVDs protected by the Content Scramble System (“CSS”), Blu-ray discs protected by the Advanced Access Content System (“AACS”), and TPM-protected online distribution services.
 
Proponents:
Brandon Butler, Glushko-Samuelson Intellectual Property Law Clinic, American University: Why these uses are lawful.  (1) Most important thing is that uses will very likely be transformative fair use.  (2) Short portions has never been the law of fair use and isn’t necessary to require tailoring to purpose. (3) Close analysis is not the law of fair use either. 
 
Transformative: every use will be educational, which is independently important, but also for criticism or commentary, core transformative purposes, not substitutional, productive, use existing materials as building blocks.  Core First Amendment uses.  Quite significant that this criticism/commentary is educational context as well, relative to entertainment. Transformativeness is a function of the relationship between the purpose of the user and the creator.
Charlesworth: are all educational uses transformative?
 
A: no. But if something wasn’t made for use in an educational setting, then its use in education is likely transformative, also evaluated with relation to whether what you used was reasonable in relation to purpose.  To point (2): amount is only one of the factors.  Two striking examples where the outcome untethered from quantity.
 
Charlesworth: Campbell remanded on quantity.
 
A: but said parody can take more.
 
Charlesworth: enough to conjure up, but had to evaluate amount in context of the use—not more.
 
A: Parody requires more than parsing a single sentence from a poem.
 
Charlesworth: depends on the work.
 
A: but that’s the larger point: it depends, from work to work and use to use, on the facts of each particular case.
 
Q: have you submitted evidence where the short portions was insufficient?
 
A: Our friends intervened to make this point.  We submitted an example we thought excellent, Dr. Wallace’s use of what we believed to be short portions, he described as “longer excerpt.” Can something be both?  There are longer and shorter short portions, but this is too vague and subjective, which is why we don’t like the short portions language.
 
Charlesworth: When we write these exemptions, saying it’s fair use is just circular/doesn’t give guidance. We need to give guidance to the public.  More likely to be fair use if it’s a short clip. But we didn’t say 15 seconds. We have to be specific and targeted, and you have to show a substantial likelihood that it’s fair use.  [“Fair use” gives exactly as much guidance as the law requires: if it’s not fair use, it won’t be entitled to the exception, which more than satisfies “substantial likelihood.” You can even say, it’s more likely to be fair use if it’s a short clip—that’s the standard articulated by the law.  This standard as articulated by Charlesworth presupposes that some fair uses ought to be excluded, which is not what the statute says.]
 
A: Standard of criticism and commentary/use appropriate to the purpose incorporates that. 
 
Charlesworth: full film?
 
A: reasonable people know you don’t need to do that.
 
Charlesworth: doesn’t know that’s the case.  [What is the record in this proceeding?]  Could comment on the trajectory of this film.
 
A: this is what courts do when they decide fair use. The rightsholder who thinks this is a violation of the DMCA would go to court and do exactly what they did in litigating the fair use question.
 
Charlesworth: the question is general, not individual.  [So is §107.]  Unlikely an educator would win by copying the whole film, which is why the exemption reads the way it does. [Short and whole are not necessarily the full spectrum!  Why is “short” so much more clear?]
 
A: appropriate amount, or tailored amount. 
 
Charlesworth: amount needed to engage in the criticism.
 
A: fair use doesn’t require necessary, but you could go there.
 
Q: Negative impacts: you pointed to Dr. Wallace and argued that the current exception was vague, but he relied on it.
 
A: now we have a high profile proceeding claiming he was wrong, and GC might read that and wonder.
 
Q: you’re on record contesting that. 
 
A: I love to work with nice people like professors, but we have small bandwidth to help people.  I’m happy to talk about “short portion” but a lot of people don’t have access to those resources.  Read listservs where professors & librarians are, they talk about that as a grain of sand for an oyster.
 
Q: wouldn’t they just be fretting over whether this is fair use in your standard? [But they should be! And they must be anyway!]
 
A: purpose based definition: they know what their purpose is!  She shouldn’t have to worry about short portion, but rather about purpose to teaching.
 
Charlesworth: that’s not the law.
 
A: I didn’t say that using it in the class was fair use. She’s using it for teaching and it wasn’t made for teaching.
 
Charlesworth: that’s not the law.
 
A: yes, it is.
 
Jonathan Band, Library Copyright Alliance: Note that opponents aren’t opposing renewal, so we’re only talking extension.
 
Quality issues: this argument has been made before, and makes no more sense than before. If quality doesn’t make a difference, why do they sell high quality?  If Blu-Ray has an advantage, those advantages shouldn’t just be available for entertainment and not education. If screen capture is adequate, why bother with any TPMs?  Of course screencap exemptions should be renewed in case they involve circumvention.
 
Image quality makes a difference. If it doesn’t look right, it doesn’t have the impact the author intended, or the viewer might only see distorted image, with impact on educational purpose.
 
Charlesworth: Is there a distinction b/t close analysis and illustration, based on the record/need for high quality. 
 
Band: You need quality to understand the image: Saving Private Ryan, immediacy and authenticity.
 
Charlesworth: are there cases where not every classroom experience requires that?
 
Band: you could come up with some examples, but why would we need to bother with that limitation?  Why make it difficult to apply an exemption we concede we need, making it hard to use?  There’s never been any infringement resulting, so why not make it easy for educators?  Instead of having them parse out which quality they need for this particular clip—that would save educators and the Office time, with zero impact on infringement.
 
Charlesworth: opponents say they’re concerned about Blu-Ray.
 
Peter Decherney, University of Pennsylvania: Saving Private Ryan was made with a special process on the film stock; this can be captured on Blu-Ray but not DVD.  Material on studies showing that students feel the impact of HD—there’s an emotional, physiological response that’s been quantified.  Educators have been talking about harm from 2000 on, and we haven’t seen any viable alternatives yet. 
 
Are there cases in which low quality is enough?  There are many instances when we need DVD or VHS, when we teach the history of media. What I don’t teach is Blu-Ray because it’s banned from classrooms.  Conceded by opponents that there’s real educational value from creating excerpts.
 
Exh. 13: Titanic, showing how bad the CGI looks in retrospect.  Blu-Ray uses a very different technology from DVDs.  Blu-Ray = progressive scan, not interlaced, so as you scrub through you always get a clean frame no matter where you stop, never have an interlacing issue. 
Charlesworth: If we looked at DVD, it would look different?
 
A: yes: you wouldn’t see the detail in the figures, which reveals them to be bad CGI. Also if you scrub through you wouldn’t get a clean frame—they aren’t even frames, but horizontal lines of video, replaced by additional horizontal lines. In a Blu-Ray you see still images in succession. 
 
Charlesworth: CGI looked cartoonish, not real.  Are you saying that if we watched in DVD, we wouldn’t see the difference? Would it look more real?
 
A: it would look like you were looking from a different lens. They’re just different ways of rendering the world.  “Soap opera effect” experienced on new TVs is actually a better image. Newer TVs put in extra frames to try to make older images look better, but we experience them as different, stage-like rather than screen like. It’s not a continuum, but different ways of experiencing the image.  It’s not just b/c it’s better, but different, and access can create a different or better educational experience.
 
Charlesworth: we heard of more pixels in Blu-Ray.  Higher quality/resolution/detail.
 
A: Cell biology: can be better image than DVD.  Media studies = show differences.  Saving Private Ryan is actually about physiological impact on students in history class.  They would just understand the DVD differently than Blu-Ray.  Three different ways of using Blu-Ray—there isn’t just one reason.
 
Charlesworth: any other exhibits?
 
A: no. [Though you can see the progressive scan interlacing effects on their exhibits.]
 
Opponents:
Bruce Turnbull, AACS LA: Corleysays that no particular resolution is required for fair use.  Goes into the uses we’re talking about.  Second Circuit: film critic has no constitutionally valid claim that a technologically superior review would be allowed from filming in a theater.  Fair use is not a guarantee of access. [Even if that weren’t dicta and contradicted by Eldred and Golan, that’s not the standard!  1201 asks if the uses are likely noninfringing once made. 1201 exemption process exists to determine whether likely noninfringing, even if constitutionally
 
Haven’t shown how clips would be made from Blu-Ray. It’s our understanding that there are only commercial decryption products that require payment. [Um, so what?] And that they aren’t limited to decrypting short portions. They decrypt the entire work. You may only use the short portion, but you have access to the entire work. There aren’t technologies we are aware of that allow you to capture 30 seconds. [Of course those technologies exist no matter what happens in this proceeding.] The harm to the ecosystem—methods and systems used will be important. Not the same as DVD case—no one has ever shown harm from previous exemptions, and part of the reason is that the hack of DVD was pervasive and ubiquitious.  [And the streaming stuff?] You didn’t need an exemption to find a tool and make a copy if you wanted. [Also true now.]
 
Charlesworth: how do you decrypt Blu-Ray?
 
Decherney: MakeMKV, plus Handbrake, plus editing. 
 
Charlesworth: is that commercial?
 
Decherney: yes, it’s commercially available.
 
Turnbull: using technologies that are of the sort specifically found to be illegal.  AACS itself sued a similar tech, DVDFab, which was enjoined. Motion to quash injunction denied.  MakeMKV works differently but similar to illegal Slysoft product in Antigua.  How this actually will work, and if there’s a “legitimate” use then what does that do in the context of other cases/markets.
 
We’ve been given a number of examples, shifting process to respond to that.  We’re not prepared to respond to the Titanic because that’s the first time it was presented.  Existing exemption, and screencapture.
 
Q: does any screencap provide Blu-Ray quality?
 
A: No.  Longer answer: the screencap Taylor will demonstrate was able to capture the particular elements the proponents said were important—wires in Wizard of Oz and others.  We were able to recreate those.
 
Q: but you don’t know of any tech that will get higher than DVD?
 
A: there are ways of upconverting signals, and there are progressive scan outputs from DVDs. But he doesn’t know of any where HD screencap exists.
 
Q: is Titanic Blu-Ray decrypted [in the wild]?
 
A: He suspects so. [As do I.]
 
Screencap is viable.  Ultraviolet/Disney anywhere is also available.
 
Q: you’re not contending Ultraviolet has the right range of content for universities?
 
A: they don’t natively have content. You bring/purchase your content, but if you bring a Blu-Ray, there are 1000s of titles available for conversion and use. It’s not so much how much they offer as how much you can put in. Many 1000s.
 
Q: For Disney everywhere, they only support kids movies. Ultraviolet, doesn’t it need a studio affiliation, instead of a science Blu-Ray?
 
A: yes.
 
Charlesworth: Could you play Titanic on Ultraviolet?
 
A: Believes so.
 
David Jonathan Taylor, DVDCCA: 3 quick clips from screencap/video capture.  First: in the DVD, you can see cables pulling lion’s tail in Wizard of Oz, and thus also w/video capture.  Second: exhibits showing compilations can be used in classroom setting with sufficient.  Third: demo of using the WMCapture software to show how easy it is.
 
Q: are these noncircumventing?
 
A: yes. [How does he know?]  The Camtasia/WMCapture issue—I’ve used SnagIt, which is for recording video capture, to show my process.
 
Wizard of Oz:  marked the cable pulling the Lion’s tail with an arrow.  [NB: I … can’t really see the cable, though I see the arrow.  Peter Decherney says as a student in the fourth row he can’t see it (I’m sitting behind him).]
 
Q: did you use any editing tools?
 
A: we had to use video editing software to stop it and put an arrow in. 
 
Charlesworth: To Decherney: Could you see the cable?
 
Decherney: there was one moment when it was swinging that I saw it.
 
Exh. 15: compilations: Q: different technology from other exhibits? These clips were made from Camtasia. They’ve been edited to be shorter. But the capture is the same. [I note huge differences in frame size across the different clips, which would be important in vidding. Not clear if any of the frames are standard size.] Some interlacing, but many frames are sufficient for our purposes to see what’s going on.  A little motion blur, but again there is sufficient color to see what’s going on. Video capture allows compilation for instructional purposes, and quality includes the details proponents want to show.
 
Exh. 16: me making use of WMCapture technology, recorded his process using SnagIt.  [Note that this is indeed easier than converting Blu-Ray, which means that bad guys who don’t care about quality will readily use it, and it doesn’t have any problem copying whole works, meaning that the ecosystem is wide open right now.] Big chunk of his screen is taken up with the interface.  Detects content in window and will predict what you want to record.  Lines up almost perfectly with the content he wants.
Q: is it your opinion this is just as easy/easier than ripping/circumventing? 
 
A: I’ve never ripped a DVD.  This is very intuitive. I imagine there are nonintuitive programs. What I understand is that other circumvention products have made it fairly easy as well. 
 
Q: so no additional time demands?
 
A: no.  If you’re going to prepare a lesson, you should prepare a compilation of clips, and this would be quick and easy.
 
Q: others have said some capture does require circumvention. How do you know? Is one higher quality?
 
A: I assume that if it’s circumventing the content on a Blu-Ray, it’s going to give you perfect quality and recording.
 
Charlesworth: is it your contention that some screen capture tech may involve circumvention and some not?  We’re trying to understand whether there’s a need for an exemption.
 
A: none of the video capture tech I’ve used circumvents. [How does he know?] There are products that claim to record Blu-Ray that first circumvent.
 
Charlesworth: is there a way to tell for a consumer?
 
A: ultimately, by looking at output and seeing if it’s less than perfect. If it’s less than perfect, it’s probably not circumvention. If it’s perfect, it’s probably circumvention.
 
Charlesworth: it is possible to have DVD screencapture that does circumvent?  Is that your testimony?  Or is all DVD screencap noncircumventing? [There is no such thing as “DVD screencap.” It’s screencap, whatever’s on the screen.]
 
A: can’t speak to all. There is a product billed as screencap for DVD/Blu-Ray that is in my opinion a circumvention tool.
 
Q: and the reason you know is the better quality? And you don’t need to analyze the output, you can eyeball it?
 
A: … I wouldn’t say that.  I’d be more suspicious when it’s nearly perfect.  You’d need to go frame by frame.
 
Q: has anyone looked under the hood of these programs?
 
A: I don’t know.
 
Continuing explanation: he’s set a framerate, a mp4 output, and a filename. In his opinion it’s straightforward and intuitive, like the old tape recorders. Easy for any instructors to use and make a compilation.  The quality of the video capture is sufficiently high to see lines, colors, etc. Much better alternative than it’s ever been before.
 
J. Matthew Williams, Entertainment Software Association, Motion Picture Association of America, Recording Industry Association of America (Joint Creators and Copyright Owners)
 
We aren’t opposed to renewing the existing exemption. No reason to expand based on this record.  Proponents’ record is almost identical to last time and shouldn’t be expanded when more formats are available now. We acknowledge there are lots of fair uses, we wouldn’t be comfortable as a “just do it” approach.  We would prefer to keep a balance in place.  [A balance between things that are fair use and also ok to circumvent and things that are fair use and not ok.] We think “short” is a good limit, and we don’t know whether “extensive quotes” is too much but it looks to us outside the exemption.  There are lots of HD quality downloads.  HDX is very close to Blu-Ray and you can circumvent that under existing exemption.  There are only 2 examples of Blu-Ray exclusive content—the Terminator: Salvation director’s cut, which is available on SD, but only one bonus feature.
 
Q: would you be opposed to exemption for Blu-Ray exclusive content?
 
A: yes, there are alternatives.  Saving Private Ryan: showing D-day experience type footage, you can still bring Blu-Ray player into the classroom and cue that up.  Close analysis limitation should also stay in place. It’s helpful to give direction to users.  Shows them when it might be necessary to circumvent as opposed to unnecessary.  The ability to cue up copies already acquired via download/Ultraviolet is also important. Not every title is available on Movies Anywhere, but the touchstone titles are, and manufacture-on-demand DVD. We also think limit on good faith belief it’s necessary to engage in circumvention is a good idea.
 
We think it would be appropriate to change it in one way—separate it from current motion picture bundle, specifically defined for educational uses so it’s distinct from remix, ebooks—this one is crafted pretty will, but others are more vague and we’re afraid people read that to consume the educational exemption.
Charlesworth: are you suggesting an overlap, where people might think I could use the educational or noncommercial? Why is that a concern?
 
A: it’s a concern because my interpretation is noncommercial was targeted to deal with remix/mashup videos, not just all types of noncommercial videos. Because educational videos are typically noncommercial, I’d be concerned that people would read noncommercial to cover educational uses and render tailoring meaningless.
 
Charlesworth: so you view noncommercial as more broadly drafted?
 
A: yes, but the intent wasn’t as broad as one could argue it reads. Reference to types of videos in the record—remix style, mashup style.  [Also, for the record, film criticism, social commentary, political videos, and a bunch of other uses.]
 
Q for Decherney: Studies about physiological effects of high definition? Classroom setting?
 
A: Yes, they’re classroom setting HD v. SD.
 
Charlesworth: pedagogically, when would you try to elicit this response?
 
A: Effect of violence, or romance, or anything with an affective response. We try not to bore people.  Works are often being taught because people have responded to them over time.  Art history, English, even in science.
 
Q: doesn’t that depend on more factors than image quality, like darkened screen?
 
A: there are many factors.  I like blackout shades in classrooms.
 
Q: have people had trouble with the previous exemption being staggered, so you have to try screencap first?
 
A: more elaborate over time, led to some confusion. Biggest confusion is confusion over definition of “motion pictures”—that’s definitely led to confusion.  Chronicle of Higher Ed had a whole paragraph saying the exemption didn’t cover TV. 
 
Q: is there evidence of non-motion pictures, like video games?
 
A: we found only a few examples, movies made of still images like La Jetee, a French film that’s often taught; documentaries of still images, and we’re not entirely clear about their coverage b/c they don’t necessarily “suggest  movement.”  There’s a limited range of AV material, but it can be confusing.
 
Q: were you aware of anyone deterred by the prior exemption? 
 
A: we clarified—if they find us we can tell them. We don’t know who didn’t come to us.
 
Williams: if you clarify, still exclude video games b/c there’s nothing in the record.
 
Band: A couple of quick points about screencap—are the joint creators willing to certify that screencap doesn’t circumvent and indemnify educators in case they’re wrong?
 
Charlesworth: are you seeking an exemption for screencap, assuming some may circumvent?
 
Decherney: 70-90% of educational environments use Macs, which block screencapture. 
 
A: but you can screencap and then get a file that can be used on a Mac.
 
Decherney: but that means that educators, students, media labs would have to buy PCs.
 
A: you’re saying these technologies can’t be used on a Mac w/out prior circumvention?
 
Decherney: yes.
 
Taylor: that’s not my understanding. Camtasia is a product we use. Worked with several other people using Macs. We were able to use Camtasia in Apple just fine. [Oh look,here’s an article about the most recent Mac OS, explaining what happened:
 
Apple changed the way screen capture is performed, starting in OS X 10.7 Lion. DVD video played back with the Mac OS DVD Player software can no longer be captured. Earlier versions of OS X are not affected.
 
There are two workarounds
Play back the DVD with a different program such as VLC media player and capture it.
Use DVD ripping software such as Handbrake (may require installation of VLC and supporting libraries) to convert the DVD video directly to a usable format such as mp4 or QuickTime movie.
 
Decherney: screencap is insufficient for almost every purpose.  I’d rather not talk about it. Changes appearance, pixels, adds interpolated frames, frame size, framerate. Imagine in any other field—if you want to teach Toni Morrison, you have to teach pages missing and pages added.  That’s ludicrious.
Charlesworth: we just saw a screencap that was arguably sufficient, depending on the use. We found before that many uses didn’t require that level of detail. To avoid any doubt, we allowed any exemption. You aren’t seeking that.  [NB: We didn’t seek that last time! You just gave it to us without a request for it!]
 
Band: it would be helpful, speaking as a lawyer, to have that renewed, even though the educators say it’s insufficient.
 
Butler: In the current screencap exemption, there’s a requirement that the public representation must be that it’s offered after content lawfully decrypted.  But we were now told that the eyeball test is the test. Are these companies making the necessary representations? We don’t think anyone is making those representations. If there is a future exemption, maybe that requirement should come out, since we don’t have any evidence that those requirements are met.
 
Camtasia tech support, January 2015: current OS Macs can’t capture DVDs. Recommends circumvention instead.  [Butler found the same link I did!]
 
Charlesworth: any comments on meeting the standard?
 
Williams: I have seen on some of the marketing materials a circumvention claim. Sometimes in FAQs.  [Is that in the record?  Should they submit those?] For the benefit of studios.
 
I have not used Camtasia personally, but people I’ve worked with have; would have to get back to you. What I see doesn’t suggest it is circumventing.  It’s been around for so long that if you circumvent and still don’t get perfect copies, you have a fundamental challenge.
 
Band: it’s on the latest version of Mac. It could be they got around the block on an earlier version.  That goes to the bigger problem, that depending on the software release it may or may not work.
 
Charlesworth: what version of Mac.
 
Butler: this has been true for a while.  10.7 = DRM blocks DVD and iTunes video capture. Camtasia tech says, sorry, you just can’t use it on Mac since then.
 
Williams: I can’t speak to the tech question, but the Office has said that the fact some formats don’t work is not sufficient for exemption.
 
Q: Ability to upconvert/use HDX: what does that mean as an alternative? Is that viable?
 
Decherney: Upconversion is about playing DVD quality on a larger TV. It doesn’t add quality. The resolution isn’t higher. The detail isn’t higher. It just repeats lines of resolution.  I don’t know much about HDX.
 
Williams: there’s upconversion, which improves quality, and what you could call upconversion with digital programs—take a SD DVD, pay $5, upgrade to HD copy, and under existing copy, those downloads are covered. HD and HDX version—marketing is typically that it’s 1080p quality.
 
Don’t know how many titles are available. Everything you can access in Ultraviolet, he thinks.
 
Decherney: upconversion is the same thing. You can’t give a SD version more information.
 
Taylor: no, they give you a native HD copy online.
 
Would be covered under digital distribution exemption.  You don’t even have to take the disc in to Wal-Mart.
Decherney: can you use short portions? Can you put them on slides? 
 
Charlesworth: it’s a digital download—you could do those things by swapping out your lower res version for a download.
 
Decherney: that’s editable?  [no]
 
Williams: these copies are relevant—they can often be used w/out circumvention to cue up in advance and play from the start point.  If you need clip compilation, you would have to engage in circumvention, but we’re not opposed to a renewal, only an expansion.  Transmitted/distributed question—streaming v. downloads might be uncertain [what?!] but these are clear downloads.
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UK ASA thinks “sponsored by” isn’t sufficient disclosure for pure ad

Posted on May 27, 2015 by rtushnet
ASA
Adjudication on Procter & Gamble (Health & Beauty Care) Ltd
 
A video entitled “Easy Lip
Makeup Tutorials for Winter Time” viewed on the “Beauty
Recommended” You Tube channel [owned and run by P&G], featured a model
vlogger. It showed the vlogger talking about and using a number of Max Factor
products, as well as products from other brands, in the context of a lip makeup
tutorial. At the beginning of the video text appeared which stated “Sponsored
by BEAUTY RECOMMENDED, brought to you by Procter & Gamble”. The video
description, which could be viewed in full by clicking the text “SHOW
MORE” beneath the video, summarised the content of the video, listed all
six Max Factor products featured and included a link to buy the products via
the online shop “SuperSavvyMe”. Text at the bottom of the description
stated “Sponsored by BEAUTY RECOMMENDED, brought to you by Procter &
Gamble”. . . .
 
We considered that viewers should
have been aware of the commercial nature of the content prior to engagement.
Furthermore, we considered that “sponsored by” and “brought to
you by” did not make clear the marketing nature of the videos. Although
they might indicate to some viewers that Procter & Gamble had been involved
in the process, they did not clearly indicate that the videos were marketing
communications, as opposed to, for example, material that had been financially
sponsored, but over which the creator retained editorial control. For those
reasons, we considered that consumers would not be aware that the videos were
ads promoting Procter & Gamble, and instead were likely to believe the
videos were impartial editorial content. We concluded, therefore, that the
videos within the “Beauty Recommended” channel, including the “Easy Lip”
tutorial, were not obviously identifiable as marketing communications.

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