WIPIP session 5: Anti-Circumvention

Charles Duan, Property v. Property

1201 met connected devices—computers are everywhere. Allowed producers to control coffee machines by putting software in them; can prevent use, resale, using unsupported coffee. Harms: speech, consumer protection (false advertising/disappointed expectations), competition/antitrust, innovation/fair use, interoperability, accessibility, security and privacy, environmental harms of unrepairable devices.

Project: frame these as interferences with tangible property rights (don’t even have to get into digital property claims). Interference with alienability/resale—Molly Van Houweling’s work on interference w/numerus clausus, creation of servitudes. Right to exclude: to prevent others from entering onto our property—1201 interferes w/that, as w/the Sony rootkit (or the Polish trains). Usufructuary rights—use and benefit from property; interference w/right to repair and w/right to use it with other stuff by preventing interoperability. Right of possession: They can break devices remotely. Amazon went into users’ Kindles and removed copies of Orwell’s 1984.

Why: Useful way of organizing concerns and showing how they interfere with specific property rights.

Takings?

Property v. property: TM v. domain names; land v. chattels; IP v. consumer goods.

Cathy Gellis: conflicts b/t two types of property validates propertizing IP, which she doesn’t want to do.

A: there are disagreements.

Gellis: don’t concede too much.

Eric Johnson: right to possess seems difficult—removing 1984 from Kindle seems like interference w/right to exclude. Not necessary to argument.

[RT: Takings might be better reframed as trespass; Eric Goldman will hate this, but some courts are willing to say that having these unwanted bits constitutes a trespass.  1201 is not a property right; it allows these intrusions in defense of a putative property right—self-help? That is, the state has both legalized a certain kind of self-help that would otherwise be illegal and criminalized self-help on the physical property owner side that would otherwise be legal. Maybe that’s a way to frame the takings issue?]

A: takings: Sony rootkit is installed, and you’re not allowed to remove it because of the power of the state; similar to Loretto v. Cablevision. [voluntariness seems like a problem here]

Doing this without privity means that even if it could all be done w/contract, 1201 goes beyond what contract could have done.

Q: virtual goods—contracts completely control and avoid the property questions, so you don’t even need 1201

[I think the Blizzard litigation suggests that 1201 does provide an advantage, at least in remedies]

Boyden: It’s not an accident that we have different intuitions about streaming DVD than controlling your coffee maker—these are legally dubious interpretations of 1201 in the first place.

A: Chamberlain highlights that these are abuses, but you have conflicting precedent w/Blizzard and the Copyright Office saying no, 1201 is absolutely supposed to cover these situations. Highlights that Chamberlain and other cases are about personal property versus 1201’s use of copyright.

Pam Samuelson: don’t forget 1202. You’re forbidden to remove/alter information at pain of $2500/violation. Include some discussion about remedies, b/c 1201 and 1202 violations don’t depend on registration and no one focused on the remedies.

Cathy Gellis, Jawboning in Plain Sight: The Unconstitutional Censorship Tolerated by the DMCA

Prior restraint problem: mere accusation of infringing content online can cause censorship even before any adjudication. The sanction is applied to the expression itself, and in the wake of BMG v. Cox, the sanction is applied to the speaker, even in advance of a finding of wrongfulness.

Safe harbors are important. Prior restraint creates constitutional problems. “Jawboning”: a way for gov’t to do end run about 1A by masking attempts to affect speech with otherwise seemingly legitimate policy actions. Threats to split up FB unless it moderates content in a certain way: tries to intimidate FB, a classic example of jawboning.

Apply this to 512: notice and takedown incorporates prior restraint; mandatory termination provision; subpoena mechanism. 512(f) is an insufficient constraint. Cox case is alarming b/c takedown notices were often so bogus that © claims got dismissed, but they’re still held liable for ignoring bogus notices. It matters b/c it’s censorship. Jawboning is often directed at specific content, more than DMCA, but still procedurally prior restraint, and still makes all speech vulnerable in a way that undermines free expression. Metastasizing of takedown concept to other areas of disfavored speech.

Eric Goldman: Jawboning might not be right analogy—think about gov’t instructions to private speakers, but DMCA notices come from private individuals. The mechanisms are analogous but the terminology might not be helpful. Question: if there was strict liability for publishing infringing speech from a third party, then would a safe harbor be a harm to speech? If it’s fair to have strict liability, why isn’t it fair to have notice and takedown safe harbor? Or is the argument that it’s an unconstitutional condition?

RT: Compare reasoning in Disney case: if you actually retaliate for Disney’s speech, there’s no claim. Jawboning as a concept may be too nakedly political to apply in any coherent way. Bigger specific problem: Shelley v. Kraemer & NYT v. Sullivan—previously, we saw courts unwilling to apply Shelley beyond restrictive racial covenants; also unwilling to apply Sullivan beyond defamation. Is there anything but Sullivan that makes private causes of action into state action? Courts don’t think they’re violating the 1A—Schedule A defendant cases, same set of problems.

Gibson: doesn’t think Cox as a DMCA case at all—those weren’t really DMCA notices because conduits don’t have takedown obligations; they were faux DMCA notices sent w/o any of the few safeguards that exist under the DMCA. They’re making failure to monitor repeat infringers into its own independent basis of liability—so it’s not really a DMCA case, but a conflation of common law and DMCA theories of liability.

Linford: are you arguing in favor of a right to trespass on someone else’s property to speak? Courts won’t want to hear that. Does a strong form of your proposal prevent YT from agreeing to have Content ID, given that the backdrop is the DMCA [and also a huge amount of pressure from lawmakers to expand Content ID, by threatening to amend 512].

Tyler Ochoa: Zacchini is an example of applying Sullivan principles to the ROP.

Bruce Boyden: Privacy cases about the privacy torts also do so.

Blake Reid: © Infringement and Noninfringement Doctrines are Lousy General Purpose Governance Regimes for Solving Every Single Social Problem Involving Creative Works and Uses Thereof

Why does © show up at so many socially important issues and take pride of place? Accessibility, cybersecurity, physical property—making a hash of other areas. AI: © has taken a dominant role despite a wide range of policy concerns. Adjudicating noninfringement is procedurally unfair, and often results in wrong decisions for copyright values, but the bigger problem is that © is fundamentally unsuited to these tasks.

Governance seam between fixation and use: at point of fixation a work is of no particular value to anyone but author; for a work to flourish it needs to be experienced by others, which requires copying, distribution, display, performance, etc. That friction creates a governance seam suited to ©: regulatory benefit on creator/assignee and regulation of downstream uses/users.

Copyright summons its values, institutions and objects to the imagined regulatory scene. Mostly utilitarian in the US. Institutions: courts, Copyright Office, Congress. Centers objects: the work, the infringing/circumventing activity, the rights holder, the infringer.

Even before an action is instituted, © makes a powerful set of preliminary judgments: rightsholder is the hero of the story/presumptive beneficiary of scheme. The work’s existence benefits the public. The downstream user is presumptively an infringer. Secondary assessments might lead to noninfringement, but noncopyright values haven’t entered the story at all. Doctrines of noninfringement are likewise going to give primacy to © values, and so the threshold noninfringement defense is to appeal to © values like the expressiveness of the accusing work. Must invoke limitation or exception on copyright’s terms, only in the context of ©’s chosen institutions. In fair use, 3 of 4 factors center on the copyrighted work, while the first attends to the use, but not to the policy implications of the use or the moral/political status of the user. Instead, vibe check on legitimacy of use. To the extent it considers noncopyright values, funneled through vague concept of transformativeness.

Specific limitations and exceptions are no better, and hard fought over years through (captured) regimes like WIPO or Copyright Office triennial review. At most user can get use declared outside of copyright’s scope, which can be enough if all the user wants is use w/o © liability.

But other regimes might want more outcomes than that—they might seek to afford benefits to creators beyond mere ability to structure transactions. They might have a distinct value system w/radically different regulatory goals.

Inaccessible works: © asks is it ok for a third party to make the work accessible? Reluctantly said yes, but accessibility law sees inaccessibility and the persistence of inaccessible versions as a harm and a barrier to full participation. Might want to compel creators to create accessible works in the first instance, rendering remediation irrelevant.

Generative AI: a wide range of other laws are relevant—transparency, labor law, antidiscrimination, privacy and data protection. Largely absent from © noninfringement determination. ©’s occupation of the governance scheme reinforces ©’s values even when there’s a noninfringement finding that use/user are in ©’s periphery. Frames wrong questions, diverts resources, yields results hostile to core values of other regimes.

One set of fixes: non© bodies of law shouldn’t concede the governance seam—creation and copying of works that are likely to give rise to other policies. Need stable legal/policy foundations in advocacy groups—disability law; budding law of repair. Those policy agendas are necessary for researchers, remixers, librarians, fan authors.

BJ Ard: Why is it occupying this seam? Access to knowledge mobilization as a response.

A: lots of reasons, including constitutional foundation/mythology. We have a lot of interests that haven’t developed stable law & policy communities or their own political forces to rely on. © gets away with a lot b/c there’s no one there to push back from outside of copyright’s institutions.

RT: Are privacy, defamation also at the seam even though they are not applicable to many works? Accessibility: always applicable. Repair: ??? A distinct set of works. Librarians/archivists/educators as representing a broad social sector?

A: not arguing that © should never be at the seam, or noninfringement never part of the discussion. Fanworks is a good example where fair use is important. But even there, thinks about rights of access. Communities who show up at the triennial review care about access to the work, even more than use in many cases. A right of access might solve more problems than a right of circumvention.

Yes, privacy, defamation, and property are at the governance seam. More than one body of law there at the seam. What happens when multiple bodies of law are there? Unfamiliar territory that needs mapping. Maybe order of operations is the issue: © should fight it out with defamation, property, privacy and see what happens.

Van Houweling: Politics of this—© is something we have, and Congress is something that doesn’t work. Where can one intervene? An FCC-enforced right of access is not going to happen. What about state law?

A: even in tumultuous legislative times, we’ve had accessibility laws and policies pass, even in Congress. Repair gives him some heart. Right of repair started at Copyright Office but people realized that wasn’t enough so legislation bloomed at the state level; White House and FTC got interested.

Zahr Said: where there isn’t an express conflict, maybe you cede ground too quickly. Think about revenge porn—Bambauer v. Tushnet debate, what is the purpose of © policy? We might not know. Work on disability might allow you to embrace disability rights as part of the purpose of ©! Conceptualize it differently as not being outside. Reminds her of “law &” debates: is economics outside law or better conceived of as within it?

A: happy to go where doors are open, but as someone working on triennial review for a long time, the internal approach looks appealing and has low barriers to entry, but over the long term it doesn’t deliver what you want in full.

1201 hearings, LA, streamlined video exemption

IN SUPPORT
Art Neill New Media Rights
Elizabeth Rosenblatt Organization for Transformative Works
Jack Lerner, Brian Tamsut, and Jovan C. Ardy UCI Intellectual Property, Arts, and
 Technology Clinic
Tisha Turk University of Minnesota, Morris
 IN OPPOSITION
Ben Sheffner Motion Picture Association of America, Inc.
 David J. Taylor DVD CCA and AACS LA
J. Matthew Williams Joint Creators II

Tisha Turk presented on problems with screen capture using Movavi, one of the programs that the opponents want people to use.  She showed stuttering, jerkiness, pausing in capture from Netlfix.  Results in nonstandard framesize, which causes technical problems with editing and export.  Capturing streaming is going to be more prone to glitches due to additional layer of difficulty of capture.  Many computers don’t have optical disc drives at this point so streaming might be the only option. 

Opponents: Screencap programs have settings that can be optimized.  Streaming: you don’t know what the internet connection was and whether that was the problem.  Was the codec lossy or lossless?  The lossy format will require a certain amount of compression. You can’t just sit down, use a screencap program for the first time, and get perfect results. The ones we have offered fairly compensate for every program.  Not familiar with Movavi.  Had to learn screen cap programs every three years now.  There are infinite numbers. Also much easier to learn than Handbrake and video editing. As a hobbyist, you can easily spend the time to learn how best to maximize the results. 

Jack Lerner: Two points: Morrissette noted in his statement, attached to Jt. Filmmakers—many sound difficulties with syncing, computer noise, stereo effects & other important parts of the sound that aren’t captured by screencapture.  Also, there is no such thing as lossless screencapture for Blu-Ray.  Maybe he’s referring to highest possible fidelity, but we have found nothing on the market that doesn’t drop frames and lead to stuttering and other problems.   

Betsy Rosenblatt: Movavi is among the popular screencap programs; there are several.  Does screencap require circumvention: nobody knows. Which is one of the issues with an exemption that deals with distinctions between types of programs.  Netflix: this stream was from Netflix, but we have numerous reports of people using screencap who end up with just a black screen.  There are certain sources from which screencap is simply inadequate.  As to whether screencap from streaming is different: it’s necessary to use streaming for some things for unique or timely sources.  To say that one could have an internet lag free screencap is true only for some materials. Resetting screen size was suggested as an option: results in difficulty editing but also loss of material on the sides of the screen—uses the aspect ratio of whatever computer you’re working on.  Professor Turk can speak to this w/other clips.  To the extent that the stutter was supposedly a result of internet lag: that was created in an LA home with high speed DSL; many people have worse.  Even in a perfect internet connection there is frame loss and blurring.

Opponents: the relevance of screencap at this point goes to whether the existing exemption beneficiaries have to make a good faith effort to use it to get the quality they need before moving ahead with circumvention. What’s the point of that if it may or may not be legal? The proponents have consistently questioned its legality, which is why it should be retained. [But that doesn’t explain why there should be a requirement to go to screencap first, especially given its questionable legality, or why the exemption should be written to distinguish between the two.]

CO: The proponents say it’s confusing.

Opponent exhibit: from a woman responsible for VOD output for Discovery.  Transcoded AVI to mp4.  [The unanswered questions here were how these clips in the opponents’ exhibits were created, and how long it took to get those clips to the condition that they could be imported and looked good.  All the opponents’ exhibits start with the clips as if that were simple, something that the opponents’ statement above indicates was probably not the case.]  Asked to determine if these clips would be usable as a deliverable for pro use, and the answer was no. But if a small clip was used in a larger project, providers would accept the whole project.  Using multiple sources with multiple frame rates is common. You use the frame rate that the majority of your clips use, and the hope is that the converted clips will look ok.  Apple is the pickiest of the providers, and has accepted some mixed cadences, just won’t accept a lot.  Inverse telecining: backwards conversion to return it to its remaining frame rate. As long as it comes out converted, and it’s a small portion of the project, it’s usable.

Opponent: screencap in lossless ODS format. Does drop frames.

CO: how is it lossless then?

Opponent: they call it that. [!! My advertising prof senses perk up.] It’s not frame for frame, but for a screencapture, it’s getting 9/10 of the frames, and there’s a lot of frames.  We submitted something different to her [the video maker] than to you b/c there was a learning curve in using the software.  It results in a huge file, but it is high quality—someone who works for Discovery has said this could be included in a final product for Apple.  A small piece, as w/exemptions, is perfectly fine.  Every work requires postproduction editing, and no one gets a perfect clip the first time.

CO: we did find in 2015 that screencap wasn’t enough.  That’s the baseline we’re working from.

Opponent: we’ve shown that screencap has improved enough to meet distribution standards. We aren’t dealing w/close analysis.  Any documentary film that uses an archived clip has to deal with this processing problem regardless of how acquired.

Turk: Codec is just the format in which something is encoded and decoded. Something can be coded in lossless format but all it encodes is what it’s fed—a stream that has dropped frames or is pixelated.

Neill: working with people on distribution contracts—practically, most of the folks getting a contract related to nonfiction, documentary, short films—these are small projects with modest budgets. If you’re told to return and recut the video and find the source material, that takes time and money and eats into subsistence return.  Upscaling isn’t sufficient; there’s Netflix standards on upscaling that reject it. Far-fetched to say that distributors are accepting this across the board. They will ask a filmmaker to go back.

CO: specific films?

Neill: reply comments have cites to client w/broadcaster who rejected clip that was screencaptured.

Lerner: Also, documentary evidence about problems other than framerate.  Taylor asserted that PBS and Netflix don’t matter, but they are very important for documentarians—the record referring to iTunes doesn’t cover PBS and Netflix, the key channel for documentarians, and our record shows that PBS and Netflix don’t like screencap. Our submission addresses ODS. It’s true that they accept 70s footage, but that’s because they understand there’s nothing else available. If you try to submit a modern screencap clip, that will be rejected.  Opponents have not submitted evidence of broadcast standards. Also worth noting that the clip narrator isn’t here to be asked questions.  [CO says that not all the people mentioned in submissions here.]

Rosenblatt: inconsistency in the arguments.  The argument that screencap is good enough for everything is fundamentally inconsistent with the argument that DRM is necessary to prevent piracy. We’re asking people who make art and commentary to sacrifice their vision; turning CO into art critics.

CO: not here to discuss whether DRM is valuable. [That’s true, but the impact of exemptions is very much at issue here, and the fact that it’s not preventing “piracy” is important.]

Opponent: we didn’t oppose renewal.  Expansion is on the table.  They’ve had a hard time establishing uses are noninfringing. Compare that w/the quality of screencap, what we saw was that the quality is pretty good, and that’s true w/experts too. Take that into account when weighing blurry issue of noninfringing status against ease of screencap.

CO: do you envision that the filmmaker has to actually get rejected to use the exemption?

Opponent: it’s good faith/common sense; doesn’t require rejection by the broadcaster. Requires sampling products on the market. If you’ve been rejected in the past or you compare their standards to what you can get, you don’t have to try again.

CO: so now the filmmaker rejected by the broadcaster can circumvent from now on?

Opponent: that would be a common sense approach. Not sure if it was eligible under existing exemption.

[So why do you have to go through this rigamarole if you haven’t yet been rejected?  Good faith makes sense where situations may vary, but ODS is ODS; it won’t work differently from user to user.]

Opponent [Taylor]: didn’t mean to say PBS and Netflix didn’t count.  My discussion w/expert: she offered that in her experience, the most difficult company was iTunes.  Agrees w/Williamsn [opponent] about significance of screencap. It’s an alternative for those looking to expand the exemption. It continues to improve. [Then there’s no point in requiring people to use one rather than the other.  It just makes the exemption more confusing without having any more DRM-protecting or copyright-protecting benefit.]

CO: Question re previous exhibit from DC?

Rosenblatt: It depends entirely on what you’re doing.  People who want to make seamless stories from multiple sources have difficulty w/different frame sizes, frame rates. If you want to focus in  on something, you can’t do that dependably using something that will result in blurriness or loss of material.  We aren’t looking for proof that every use is fair, but for the significant possibility that fair use is deterred.

CO: are people confused about screencapture as an alternative?

Rosenblatt: Turk can address—but this is a law that addresses more what happens after you make a thing than before.  1845 people responded to our survey Q about what the DMCA was: 1400 hadn’t heard of it or didn’t know. Of the 440 who said they did know, only 67 mentioned anticircumvention, and 6 mentioned exemptions.  1/3 mentioned complicated, confusing, convoluted.  The people who knew about it said “I have little understanding do to the confusing and vague language.”  “scared the pants off of everyone in my middle school.” That’s the sort of user we’re dealing with. That may not address directly your Q but it speaks to our argument that people aren’t likely to seek out something that won’t work as well when there’s an option that works, from the consumer standpoint, and they won’t have to go through these multiple steps. They don’t understand why one means of achieving a fair use would be illegal and another wouldn’t be.

CO: Seems in tension w/saying there’s a chill on uses.

Rosenblatt: there is a chill when people know, though it’s fair to say there’s not as many of them.  A lot of the trouble comes when someone who isn’t chilled b/c they don’t know then has to interact w/ an institution like a school, traditional publisher, library, who won’t facilitate/adopt their work, or when responding to a takedown, or trying to get insured. That’s where the chill happens, not in the initial creativity but in the use of what you’ve made. Turns the law into a trap for unwary, makes fair uses more vulnerable to takedowns. When you encounter a gatekeeper, like iTunes, it can turn out what you’ve done is illegal even though it would have been legal if you used a different program.

CO: is it really just because people don’t know if they can use screencap or not?

Rosenblatt: a few levels of confusion. Screencap is one. They don’t know what noncommercial means: if it’s on YouTube.

CO: we’ve always contemplated YouTube in the exemption.  How is that confusing?  You asked for noncommercial.

Rosenblatt: Times have changed a bit regarding the way content is delivered in the sense that noncommerciality and whether someone is personally making money off their creation is just more complicated.  We are very much about noncommercial creation, but we’ve had people come to us increasingly confused about what noncommercial means.

CO: filmmaking and ebook aren’t limited by commerciality; should they be?

Rosenblatt: we don’t propose a change to that.

Opponents: we support simplification, but you can’t do it at the expense of following the law.  Even the proposed exemption is college-level understanding. It’s difficult to craft a legal rule that’s simpler.  Michael Donaldson has tried to simplify fair use: would your use be clear to the average viewer. If you apply that to most of the examples in the record, the fair use doesn’t come through b/c the point isn’t perceivable to the average viewer. That’s why you’ve drawn the lines where you have for filmmaking and ebook authorship. Axanar: use of Star Trek in a “fan” film—no payment there, and the court still said it wasn’t a fair use. The point of the work couldn’t readily be perceived.  [Not really a short exerpt there.]  There wasn’t enough evidence to do “primarily noncommercial” before [that’s a mischaracterization of the record; in that instance the CO indicated that “noncommercial” in its definition encompassed the videos we were talking about, such as videos that were made on commission]  the Dr. Seuss v. ComixMix: transformative purpose, the fourth factor still failed fair use as a matter of law b/c of potential harm to the market for derivative works even if they didn’t license mashups [again, that’s a misdescription of the case; the motion to dismiss on fair use as a matter of law failed, not the fair use defense]. The law doesn’t mandate the simplest exemption.  [Nor does it bar it.]

Turk: The remix community uses what works.  I was mystified that screencap came up at all.  The goal for a remix artist is to get good quality video into the computer. Didn’t understand why anyone would be asked to use something that doesn’t work as well.  Can’t you just know from past experience or other people’s experience that this typically doesn’t work, and that another thing works well, and participate in a community that gives advice about what works well?  Can’t we just say, if it’s fair use, get the video in a way that works for you and go?  I would never say don’t use screenap.  I wouldn’t do it. There might be cases where someone wants or needs it, but I’m interested in the end result.  Is the quality good enough that someone won’t just hit the back button?  Evidence is that if something looks amateurish people don’t watch it. 

CO: Remix and education: K-12 remix activities—screencap might be perfectly adequate?

Turk: It might be. Haven’t taught remix in those settings.  I come back to: don’t disallow it, but don’t impose it on people whose workflow or access to technology works better w/a different format.

Taylor: We endorse joint creators’ proposal for simplifying regulatory language. Improvement over actual statutory exemptions. Not very difficult to understand, once you start looking at it.  If it’s so confusing, could provide them some examples of what activities would look like.  You could provide them examples from this rulemaking.

Neill: We’re dealing w/ a subset of noninfringing uses. The analysis happens on each individual clip. That’s how a real fair use analysis happens, regardless of whether it’s a documentary or YT video or some other format.  Trying to avoid haplessly violating law when making video on day to day basis.  There’s lots of possible kinds of confusion. Looking back, we can see the evolution of filmmakers who do a variety of different formats—not just fictional, but documentary, and other types. People could turn around the next day and use a clip in a way that’s fair use and be excluded as they weren’t the day before. We’re trying to deal with gaps—examples of what’s ok won’t help if you’ve added all these additional layers of requirements.  Many times these requirements have never been developed/delineated in case law.

CO: we’re not looking to break new ground in case law.  [I think he was saying that the requirements that decrease the scope of exemptions haven’t been delineated in case law, because the requirements haven’t been requirements for making fair use.]

Lerner: 8 renewed exemptions have said that people need to use clips which apply to the proposal for expansion, as well as a number of examples for expansion, and the statute doesn’t require the limits that are on the current exemptions.  House Commerce Committee said that motion pictures could be an appropriate category for exemptions, and the report goes on to say that it wouldn’t be appropriate to go too narrow in the sense of Westerns, comedies, etc.

CO: how is all AV works limited?

Lerner: short portions.

CO: doesn’t go to class of works.

Lerner: motion pictures restricted in other ways, such as short portions/commentary, then you’d have an appropriately narrow class under the plain meaning of the statute and what Congress said in the legislative history.

We aren’t asking you to break new ground for these uses: short portions for criticism/commentary. Not controversial that many fanworks are criticism/commentary; the Register is on record as saying so.  Juxtapose in order to say something new. We’re not talking about a sequel but about a critique. Harry Potter; GWTW.

CO: Harry Potter wasn’t saying fan fiction was always fair use.

Lerner: Sure, but many are, and that’s the proposition that isn’t controversial given the record and the case law. 

CO: [adopts wrong characterization of Dr. Seuss v. Comicmix as definitively not fair use] Give us specific guidance—where do we draw the line?  [Short portions, criticism or commentary] How do we protect only the fair uses.

Lerner: criticism or commentary/new meaning and expression.

CO: Dr. Seuss says it’s not just transformativeness but also no effect on derivative market. And why should we drop noncommerciality? SCt has said that the effect on the market is key. We also have to look at commercial effects. How can we provide enough guidance? 

Lerner: first of all, if someone crosses the line, there’s still a remedy for copyright infringement—you provide enough guidance that way.  [Why does the CO need to provide any guidance in the exemption on what is noninfringing other than the statute does?]

CO: we don’t want infringing uses, so how do we provide guidance so they don’t cross that line? [I thought this was a proceeding about anticircumvention, not designed to expand or contract fair use?]

Lerner: short portions makes a real dent. It won’t match perfectly but that’s ok b/c there’s a remedy for infringement.  This is a phantom threat—if someone is going to infringe, and they’ve ripped to commit infringement they’re claiming criticism and commentary, you have statutory damages for that.

Williams: CO began by denying exemptions for fair use for AV works. Then the CO decided it would specify certain categories of users, it could get there.  [Fortunately we’ve learned since then a bit more about what works and what doesn’t.] When you disregard current boundaries that effort falls apart. Fair use isn’t an appropriate category. TVEyes: transformativeness doesn’t moot the fourth factor.  [Though the short portions thing, as with every other case they’ve mentioned, distinguishes that inasmuch as TVEyes offered people everything.]  Often hard to perceive the parody/transformation in fanworks; use full songs [of what relevance is that to the clips?].  What’s the potential harm to copyrighted works? The fact that there are licensing options for fictional filmmakers and ebook authors!  [That always have anti-disparagement clauses.]  Wouldn’t say it’s never fair use to make criticism and comment generally, that’s a harder sell than criticism and comment of the work directly. Many of these examples don’t comment on the work itself.

CO: is it appropriate/necessary to clarify existing exemptions? If there are examples of things that should be included but aren’t.  [Prosecution/defense uses are a big deal here.]

Rosenblatt: one of the chief confusions is that people are confused about whether they fit into the type of creator category that distinguishes between existing exemptions. We aren’t here to litigate remix video but to talk about where other things might fit in, like multimedia ebooks, and uses that attorneys might make in litigation [yes!].  Documentary about a guy who’s exonerated by footage showing that they were at a baseball game.  Makeup tutorials juxtaposing a face to a clip from a movie. YT reviews of movies. Where do things fit in?  Makeup tutorial is criticism/commentary, short portion etc. Audio only uses of AV works—podcasters who want to rip to get high quality audio b/c listeners expect that.

CO: wants examples of ebooks/podcasts.

Rosenblatt: can follow up w/submission.  Also there are lots of people who have questions: Quora: is it illegal to use audio trailer in my podcast?  Answers are all over the map. Audacity forums where people say, I need to rip to get high quality audio, b/c Audacity won’t let me use it w/o high quality.  I have examples of these questions—could also make a follow up submission.

You could also have like Canada’s UGC provision does, uses that don’t usurp the market.

CO: could we exclude users instead?  Uses that fall to the infringing side.

Rosenblatt: we’re not arguing to eliminate use, just user categorization questions.

CO: you’re not talking about filmmakers. Collapsing all of that. Is there a way to identify problematic use, gray area use?  [Shouldn’t the gray areas be left for litigation, so as not to expand or contract the scope of fair use?]

Rosenblatt: short clips.

CO: no one’s asked to remove that.  [Yes, that’s the point.]

Rosenblatt: that’s enough.

CO: the opponents say it isn’t.  [Why are we required to defer to them and not to the other evidence in the record about the tiny size and contractual restrictions of the licensing market, which by the way is not a “clip” licensing market but a general licensing market, versus the size and variety of the clip uses out there?]

Rosenblatt: educational/derivative uses are hard to separate—a lot of derivative uses are educational. Doesn’t feel comfortable speaking to opponents’ proposed language.

Neill: Williams skipped over the harm to © works from clarifying the language.  There isn’t any. What is the harm that’s on the record after so many proceedings?

Sheffner: Proponents say there’s no viable licensing market.  He says there is. 

CO: in 2015 rulemaking, the Register found that licensing wasn’t viable. Speak to why it has changed. And to which uses there is a viable market, e.g. comment and criticism.

Sheffner: MPAA represents 6 major movie studios, with different divisions (movie, TV, news).  Clip licensing is sometimes centralized and sometimes not.  Different philosophies and business practices, can only speak in aggregate. Overall, every studio licenses clips. They have websites with info about this. In most cases it can be done online through forms, email, phone.  There was an old FAQ that said only a fax, but looking more comprehensively there’s actually phone or email. 

CO: requests ignored, low dollar value/smaller uses?

Sheffner: asked all 6 studios to address.  B2B only licensing? None of the companies outright refused individual licenses, but vast majority was B2B, because they have the wherewithal to engage in the project.  Nonetheless, they do receive individual requests.  Significant portion: individual can’t afford price of license. That doesn’t mean there’s no viable market.  Bel Air houses: most people can’t afford homes there, but there’s a viable real estate market.  [If only copyrights were intangible and nonexhaustible, unlike real estate.]

CO: licensing to remix artists?  Multimedia ebooks.

Sheffner: there is licensing. Hard to generalize about criteria for licensing. None of them absolutely barred licensing in those areas.  [Google Books case on factor 4 is v. good on this—has to be significant as an impact.]

CO: is it frequent?

Sheffner: can’t say that in those specific categories.  Ebooks is a nascent market—there have been licenses. There’s some experimentation. The licensing websites invite inquiries from “all” uses—there’s no prohibition. Relatively unusual for there to be individual licenses, but not unusual for there to be remix videos posted to YT.  The content ID system identifies them and monetizes them. Those aren’t licensed but are [he didn’t finish the sentence because he can’t without doing something that his clients really won’t want him to do].  [Does Content ID distinguish circumvention from noncircumvention? How did the uploaders get the footage?  Does that mean the circumvention used to create the footage was not unauthorized under Sheffner’s interpretation?]

CO: is it fair to say that’s an alternative to licensing b/c you still make money?

Sheffner: it’s a nontraditional kind of license.

CO: is it really a license?

Sheffner: there’s a license agreement w/YT.  [That’s about the footage, not the circumvention.  That doesn’t provide the footage which is the precondition to make the video, as a real license might.]  Tolerated even if infringing b/c enforcement cost too high.  New business model where the work is identified and a license is granted to YT to allow that use even if it otherwise might have been infringing.  [Which suggests that circumvention has no adverse impact at all.]  Several thousand clip licenses per year, but not much ability to give a breakdown fiction/nonfiction/education.  Can’t indicate monetary value, but licenses exist in each category.

CO: nondisparagement clause?

Sheffner: can’t answer whether that would have prevented licensing record examples from proponents. These have been discussed in previous cycles; there’s no change in the record.

CO: we’re being asked to consider different types of uses.

Sheffner: this isn’t really an issue about 1201, but contractual issue.

CO: but it bears on whether this is an alternative to circumvention, if the use is prohibited under contract. [and on fair use!]

Sheffner: not much record evidence of these clauses, which are vestiges, having substantial impact on ability to make fair uses. [because fair users don’t license their clips ….]

CO: what effect is changing the exemption likely to have on the market for © works?

Sheffner: clip licensing is a real market.  [what effect is non-screencap circumvention likely to have on that market?]  It’s significant though not dominant—people have jobs doing licensing.  Fair use looks at the aggregate effect on the market of this kind of activity.  [Fair use activity.] It absolutely would. Clip licensing revenue would dry up if all clip uses were allowed.

CO: we’re talking about arguably fair use for purposes of comment and criticism.  Proponents say that if a use is fair there’s no right to payment. 

Sheffner: 1201 itself require that you look at, even if the uses are fair, would allowing the exception cause substantial harm to the market. [Really?  That’s not how I’ve understood the statute—it’s the legitimate market for copyrighted works, not the market for extortion based on technology. The statute wasn’t supposed to eliminate fair use or enable it to be switched to fared use.]  Look at the aggregate effect on new business models. 

CO: but also one of your new models is YT, which is not the traditional way [where you don’t need DRM].  Do you have an idea which makes more?  Or a percentage?  [Considered that way, since YT is a billion-dollar market, I’m thinking that individual clip licensing is probably smaller.]

Sheffner: The more people can break DRM, the less effective it is and the less willing studios will be to use new business models.  [v. screencap?]

Normalization of ripping is dangerous [v. screencap?]  Exemptions need to remain narrow and focused. Broader and less focused they are, the more it becomes nonspecialized and word gets out.  [His assertion is not really evidence of that; indeed, the record evidence is all to the contrary.  I wonder what the APA standard on this is?]  Exemption shouldn’t swallow the rule.  Difficult to quantify.

Neill: In past proceedings, piracy has come up. We haven’t seen any direct evidence why an educator, artist, or filmmaker’s use of a short clip will create piracy.  If you focus on the harm, the Joint Creators make money off of even infringing uses through YT; no one here is talking about infringing uses.  The question is: unidentified harm that is unsubstantiated from people making noninfringing uses. If any harm exists, it’s the inability to get a license from noninfringing uses –which is not a harm.

CO: we also have to consider the adverse effect on the market for derivative works/licensing.

Neill: I’ve worked with folks who have both licensed and unlicensed clips. When a use should be licensed, that happens. Those licensing markets are available to folks who want to make otherwise infringing uses; we shouldn’t be concerned about licensing otherwise noninfringing uses.  When we look at our streamlined proposal, there are specific limits.  As far as slippery slope, our language is linguistically almost identical to past exemptions but for the user language and the access control language—it’s been 9 years.  No evidence offered of some vast slippery slope.

Williams: no studio policy against individual uses.  Sites in the record don’t ask you to verify that you’re a registered corporation.  Dr. Seuss says that even if a plaintiff doesn’t have evidence it’s entered the mashup market, it’s potential if has licensed other uses [Again, misdescription: there, the plaintiff alleged that it collaborated with other rights owners, such as Jim Henson to do a Muppet-Seuss crossover; that doesn’t mean that “mashup” in general is a standard or likely to be developed derivative market, or more relevantly that criticism and commentary are legitimate markets].

CO: can individuals get clips that aren’t on the website?

Williams: yes, you can make contact with the studio. Whether each studio would agree to find the clip you want, he can’t say.  There are also ebook examples: enhanced Harry Potter series, enhanced GoT series. They don’t necessarily use clips from motion pictures, but you could easily imagine them doing clips from the motion pictures. Enhanced Roots with archival footage of author interviews. Making of Indiana Jones: full of stills, and those are always licensed [not true for academic work; see also the Grateful Dead/Dorling Kindersley case] and they have the right to choose who they want to partner with.

With Content ID, not speaking on behalf of studios, they are licenses to YT, not to the individual end users. Whether that’s monetized or not we can’t say across the board. They choose monetization, monitoring, and blocking, subject to user responses.  Agreements are highly confidential, but the fact that program has been made available to address © concerns about mass number of users; there are tons of other websites that don’t provide that kind of response system [and how many views has the Pope?].  Thousands per year of licenses v. thousands per week on YT: doesn’t mean there’s no harm or that the studios aren’t trying to enter the market.  Piracy: my clients don’t have a straight line of sight into who claims the exemptions, who might have gotten a license. Cesar Chavez film: some licensed, some not; no insight into whether there would have been a license w/o the exemption. Nondisparagement clauses: they were in the record last time.  All the things requested last time are requested again, so that hasn’t changed.  Filmmakers: there’s not any examples clearly prohibited by the nondisparagement clause [and if you were the person making that decision, and not making it in the context of this proceeding, that would be more relevant evidence, but you’ve specifically disclaimed the ability to speak for any given studio.]

Not saying that you have to look at factor four even if the use is fair, but if there are some things that are probably fair and others that probably aren’t, you have to see if the spillover from an exemption will cause harm to a market.

Lerner: Universal clips website requires users not to disparage, criticize, belittle, parody, or negatively comment on. This is the sword of Damocles that can be asserted at any time even after licensing.  Telling that Sheffner compared licensing to one of the most exclusive housing markets in the US.  There is a licensing market, but it’s not available to everyone.  Some of our clients use it but most can’t afford it.  A lot of what’s going on is fair use, and 1201 is holding us back.  How much money have studios lost due to existing exemptions? No record evidence. Only harm they’ve articulated is a threat of a marginal number of fair uses that turn out not to be fair. Sometimes rightsholders just say no: MPAA member itself had to make fair use of the Steve Jobs Apple TV ad.  Sometimes they don’t call back: personal experience w/ a number of clients.  Orphan works problem.  People can’t afford licenses.  Dr. Seuss notwithstanding, a sufficiently transformative use doesn’t require a license.  Campbell v. Acuff-Rose found fair use possible despite negotiations about license that broke ground.

MPAA’s proposed language doesn’t change anything.

Taylor: possibly give us an opportunity to review any language before publication: would help in efforts to resolve/simplify.  Current exemption has misidentified AACS as Advanced Access Control System, when it’s Advanced Access Content System.  If we’d been allowed to comment, we could have corrected it.

CO: if you were to make a vid equivalent in the ebook world, would you be editing the clip itself?  Tandy said that remix artists could want to make ebooks. Current video exemption involves a lot of clip editing—would that be true in an  ebook as well, or would it be unaltered clips + writing?

Turk: not sure.

Rosenblatt: the answer is yes, sometimes those ebooks would need or want to alter the images themselves or the sound.  Examples focus in on particular part, or split-screen where they are remixing the video as well as juxtaposing.

Lerner: the video exemptions are the only exemptions that mandate specific technologies. That’s one reason we’ve asked for a tech-neutral exemption: we benefit from seeing what has changed over time, as w/DVD, Blu-Ray, etc.  AACS2.0 is no different functionally from the other mechanisms.

Opponent: AACS2.0 is completely different. This proceeding has given new formats an opportunity to grow before an exemption is granted.  [v. screencap?]

1201 exemption hearing: filmmaking and ebooks

PROPOSED CLASS 1: Audiovisual Works—Criticism and Comment—E-Books and Filmmaking

Michael C. Donaldson, FilmIndependent, International Documentary Association, Kartemquin Educational Films, Inc., Independent Filmmaker Project, University of Film and Video Association, The Alliance for Media Arts+Culture (“Joint Filmmakers”): Discusses use of film as fair use in other films, even nondocumentaries (like Jersey Boys).  Question: is that criticism & commentary? [My answer would have been yes, and that the Jersey Boys court didn’t need to reach that specifically because fair use is more capacious, but historical verification and contextualization certainly counts as commentary for purposes of fair use.]  Answer: Yes, the exception is more limited than fair use but we will work with our clients to come within its confines.  [CO questioner seems focused on commentary; says Register said previously that developing a character/situation isn’t inherently commentary and criticism.  Q: what is your best example of fiction/multimedia ebook that’s used for comment and criticism?]

Heidi Tandy, Organization for Transformative Works: Something we’d like to make. It’s possible to take content from DVD, Blu-Ray, etc. and make a fanvid. The minute you want to make a linear, choose your own adventure style in the format of a game, or ebook that includes different kinds of content, such as video and stills.  Q: would this be commercial or noncommercial?  A: there isn’t a stable and perfect definition of what’s commercial.  If you have a Patreon, is that commercial?  Hasbro’s guidelines don’t consider that commercial, but others may disagree.  Trying to leave commerciality out of the conversation.  Q: would be hard for CO to say that commerciality isn’t part of fair use.  A: But what’s your definition?  If Google puts ads on the side of your work and you aren’t getting revenue, is that commercial?  CO Q: Doesn’t want to get away from fiction/nonfiction in this discussion.

Q: what is your best example?

A: things people want to create for mise-en-scene or to show what happened in the past. Tech doesn’t make it easy but it is getting there.  VR is also coming.

Q: we need to see concrete examples because we can’t evaluate fair use in a vacuum.  People who want to create for comment & criticism.

A: see prepared remarks/submission statement. Using the TV show Supernatural, 14^th season—the fictional world has a series of novels.  My proposal was for a group of fans w/in the world creating a YT series—using the show to illustrate things that fans are creating. The only way right now is a video, not the ability to scroll through to get the experience of being in the fandom—an ebook or PDF would give a better ability to access, different visual and personalizable experience.

Q: why is circumvention necessary?

A: to create the content necessary, I need some of the show itself and some of the images in the DVDs of behind the scenes activity.

Q: why wouldn’t screencapture work?

A: the screencapture would be a static element.  Looks bad versus having the proper flow, especially in VR.  Like in a wedding slideshow, where an element is out of sync with the rest of the video—same with newscasts. 

Q: why wouldn’t licensing work?

A: for larger scale shows, the owners don’t necessarily have time or energy for someone to communicate with millions of fans. Sometimes Hasbro gives a blanket license for certain things, but that’s not always the case.  [In fact, it’s basically never the case that they license use of the footage rather than creative elements as such; I can’t think of an example other than the limited BSG space-fight footage that BSG allowed specific uses of in a contest.]  Some companies can’t do quick turnaround—e.g., the Simpsons episode last week about the problem of Apu.  Even if I only had to wait a business day, I wouldn’t be able to react within the news cycle.

J. Matthew Williams, Joint Creators II: Doesn’t believe he’s heard about criticism and commentary. In his view, some of tthe examples seem infringing (without knowing the context) and some not.  Clients are willing to do some licensing or some no-action (which doesn’t mean that it’s not circumvention).  It’s difficult to do same-day licensing.  Doesn’t think that fan fiction as a class is noninfringing.  Cases mentioned in opposition—things like unauthorized prequels or sequels held to be infringing.  No cases in record on fanworks being noninfringing.  Not saying that they are always infringing, there probably are some that aren’t. 

Q: you’re not necessarily disagreeing about license availability.

A: no record showing unwillingness to license to individuals. Fox testified it would issue licenses to individuals, but the cost is a different question. Doesn’t know price and it would differ for different uses. Might issue no cost licenses, as they do with education.  No record that someone came to his clients and was denied.

Brianna Schofield, Authors Alliance: Jonathan Grey, Show Sold Separately—critiques interaction of audience w/works based on prerelease exposures to the work.  Available online and uses video clips embedded in ebook.  This goes beyond film analysis, which is one aspect of the exemption.  Video Dubliners: a guide to Joyce’s Dublin, uses film clips for context for understanding the book.

Q: were the clips licensed?

A: no first hand knowledge.

Blake Reid, Angel Antkers, and Susan Miller, Samuelson-Glushko Technology Law and Policy Clinic

Jack Lerner (with students Brian Tamsut, Cristen Fletcher, Jovan C. Ardy, Lauren Wertheimer, and Shaia Araghi), UCI Intellectual Property, Arts, and Technology Clinic: The CO has already made presumptive determinations to renew the existing exemption. Some of this discussion feels like an attempt to relitigate the accepted record, in particular the notion of seeking out licenses as a viable noncircumventing alternative. In both the video and ebooks exemptions, the only requirement is that the person engaging in the circumvention reasonably believes there’s not a noncircumventing alternative. The idea that we need a lengthy record of folks seeking a license for every clip goes beyond the existing rules and the record that led to them.

Tandy’s proposed project would clearly be w/in noncommercial video. Where it would make more creative sense to distribute as an ebook, that should be possible.  That’s why we want a unitary exemption for this type of use.

Q: if the Register recommends an expansion for noncommercial use, including fiction, would that be reasonable.

Reid: CO has already recommended multimedia ebook w/o such limits.

Q: but if we added noncommercial fictional ebooks?

Reid: that’s better than nothing, but the Q the Office should grapple with is how that impacts the fair use analysis. There are legit fair uses out there—Jack Lerner can address that in more depth.

Lerner: criticism and commentary can’t be done as a living, or as an incentive, under a noncommercial model. That’s not a good idea and the vast majority of [litigated] fair use is commercial, not just in being on YT but in being sold on the market.  What you’d be doing is taking the incentive away from a large group of creators.

Williams: mischaracterizing our position.  Don’t require everyone to seek a license. But don’t use the idea that my clients are unwilling to license without evidence. [The evidence is among other things in the nondisparagement clauses that are in every license we’ve seen, where such a license can even be acquired, and those are in the record; the sites that the Opponents suggest people use are also nightmares to navigate to even tell whether a licenses are available—take a look at how often their poster site, Universal’s, throws up “unknown” results.  If one wanted to make an argument about George Clooney, for example, Universal will determine whether a film in which Clooney appeared is “available for licensing,” Jt. Creators Opp’n at 13, on a blanket basis; if the film is not available for licensing, the critic is apparently out of luck.  (Actually, given the operation of Universal’s internal search engine, searching for George Clooney will also return results for Rosemary Clooney, Curious George, and George Burns, so the would-be licensor needs some time on her hands.  One will also encounter numerous works in the database marked “unknown,” e.g., https://www.universalclips.com/catalog-items/13872.)]  We also don’t think that fair use is impossible in a fictional motion picture.  The MPAA often asserts fair use.  We just haven’t seen the standard met for large amounts of fair use being suppressed.  Having a low budget doesn’t make your use fair; if there’s a potential market and the © owner is likely to exploit it, then there’s harm regardless of whether an individual user says they can’t afford it.

Susan Miller: The SPN example: it’s a critique of the characters often involving society as a whole—commenting on specific characters & elements—that counts too.  Fan fiction often critiques and comments on society as a whole—that should count too.

Q: that’s the issue—does it need to critique & comment on the work itself? That affects the first and maybe the fourth factor.  [BTW, Bruce Keller & I wrote a whole article on this back in the day—there’s really never been evidence that © owners are more ready to license satirical uses than parodic ones; even the tuggable “blanket” licenses with nondisparagement clauses let them reject uses where they don’t like the context. Thus there’s no effect on the fourth factor.] We’re looking for examples of criticism of the © work.  [But why? That formulation raises the problem of why the CO has decided to exclude an entire kind of fair use.]

Tandy: goes into history of fanworks. How people started writing (e.g., Frances Hodgson Burnett of Secret Garden/Little Princess fame started with Sherlock Holmes). Inherently a commentary: if something wasn’t missing from the original, you wouldn’t have written your version.

Q: that seems to encompass a lot of derivative works too.

Tandy: can see situations where, e.g., cosplay, might not be making a commentary. Say you want to do a steampunk Justice League—the costumes, content and structure would be different. But that’s not what we’re talking about here. Focusing on an ebook/choose your own adventure, it’s inherently a commentary where people are being given choices about how to read the story.

Patricia Aufderheide, American University: You can distinguish documentary and fiction, but that’s one of many ways to slice a unitary form; virtually everything is shared between the forms—structure, reenactments, audio/video and other aesthetics. Many kinds of fiction don’t make criticism and then some do; then there are hybrids in which documentary characters are real-life people who dream of being gangsters in a gangster movie and stage a gangster movie.  It is very hard to say “here’s an example” when people know they can’t add this stuff without enormous complications. As someone who’s worked w/documentarians for 40 years, the complaints never stop about never hearing back from requests to studios/potentially licensors. Beyonce’s Lemonade is an example of a work that refers critically to many real incidents/situations. It’s not hard to see parody/satire in SNL skits—incorporating and referring to and creating commentary on real copyrighted things.  There’s no reason we shouldn’t be encouraging this.  Good Night and Good Luck and other dramas—we should be able to show what they were describing when they quote the description of TV as a “vast wasteland.”

Q: Not trying to make aesthetic judgments, but whether it’s likely to be noninfringing use.  The last rulemaking: there was enough of a record to say that it was likely to be noninfringing for documentaries, and we’re now being asked to extend that to all films.  Biopic as a line? Everyone thought that was unsatisfactory before.  How would that work for you?  Is there a way to exclude types of films that are less likely to be fair use, instead?

A: I don’t understand your task. You’re being pretty clear: commentary and criticism of the thing itself. Wouldn’t it be up to the person to be sure they’re coloring within the lines, and if not they pay the penalty?  Letting people have the option of using that across the form, where you’ve already said that an exception for one part of the form (whose boundaries are themselves fuzzy) is acceptable.  There are situations where a documentary could infringe, which is why we do review and licensing where appropriate.  There’s a whole explanation of which clips they licensed for Refrigerator Mother and which they didn’t and why.

Q: To opponents: wouldn’t a limitation to comment and criticism then be sufficient?

Williams: Harder to see fair use in fiction. Showing what it was like to be present in a moment in history is not commenting on that footage.  [Why not?  The effect that it had on the people experiencing it as reality is an important part of criticism and commentary.]    Fan fiction choose your own adventure ebook example—that doesn’t involve criticism or commentary, even if involves additional expression; Axanar and Salinger cases haven’t found such uses to be fair.  Nor would noncommercial be ok. Just the fact that something isn’t for sale doesn’t make it noncommercial, because paying the customary price is part of the analysis so all kinds of noncommercial uses would still cause harm.  The examples I did see were very small.  Showing Kennedy assassination reaction may be important to the story, but that’s not criticism and commentary; they have been able to license some clips, and if you have 60 clips of Cesar Chavez and pick the most engaging, the fact that you don’t want to pay to license it doesn’t make it fair use.

David Taylor: no real concrete examples, particularly in the ebook situation. Sounds more like interactive games.  That’s not an ebook, he thinks. Archival clips aren’t distributed on protected DVDs.  [I think that’s factually wrong in many cases, given the usual archival sources.  I don’t think he has a record on that, though I may have missed something in the opponents’ submissions.]

Michael Donaldson: A few examples: In Search of Fellini, about a woman obsessed with Fellini; clips shown to comment on the power of Fellini’s films—w/o seeing the film you can’t see how impactful they are, and recreating them doesn’t work.  Scripted film about Christine, a Florida news anchor who shot herself on the news. The commentary is: this is what the TV audience saw, not a redo.  [You can’t meaningfully comment on what they saw by telling the story that surrounded it without access to what they saw; your audience has no reason to believe your commentary unless they can compare the recorded footage to what you’re saying about that footage.]

Low budgets: that isn’t why they don’t license.  Insurance companies put real skin in the game even for these low budget films; they insure when they believe it’s fair use. We’ve had pushback from insurers more on risk than on actual fair use, especially for clips surrounding Trump where he’s perceived as litigious.

Lerner: criticism and commentary: you aren’t required to say “here is my criticism and commentary.”  Showing a reaction of a person to a contemporary event is commentary.  Also, there hasn’t been a previous limitation to “criticism and commentary about the work” and we shouldn’t put it in. Fair use cases include the Wind Done Gone.  Also, the noncommercial remix exemption includes fictional use; it is clearly a set of fair use works.

Also, 8 years after documentary exemption exists, lifting the “documentary” limit clearly creates no real risk of infringement/piracy.

Q: would the licensing market be affected?

A: no, we’re talking about the market for fair use.  The © owner has no right to a license to a fair use. What we have now is filmmakers who aren’t doing fair use that they want to do, or they get licenses because they can’t access the material. There’s no dispute that there is a large amount of fair use in the nondocumentary context, but it may be licensed when it doesn’t need to be.

Q: any examples where 1201 caused licensing despite 107?

A: Nearly 70 different films where people wanted to make fair use but didn’t.  Can supplement the record further.  Also remember that Register already said that needn’t opine on the fairness of any given use, but rather that there is a class of works likely to be fair use.  There’s no real dispute that broad, robust, burgeoning fair use exists in the nondocumentary context—the question is whether it will be chilled/allowed to go forward.

Reid: this RM takes place every three years. 1201 makes the creation of these films, where licensing and screencapture aren’t reasonable alternatives, illegal, with the prospect of statutory damages and criminal charges.  It’s understandable that people aren’t coming out of the woodwork with scripts.

Q: we need to look at whether the market has changed; need to tie it to what people would actually do. Difficult to say w/o looking at tangible examples.  It’s been feasible for prior class 1 categories.  [Welllll, our examples had all been created under legal threat, until we got our first exemption.  That seems undesirable.]

Reid: Then we do have specific examples, and then we’re being asked to divide them by genre, prove they’re noninfringing, prove what subgenre (e.g. biopic) they fall into. Sketching out real plans for 3 years in advance is not what the statute requires.

Q: Why in ebook sense didn’t you go for the broader category of mixed video or fan fiction/cosplay?  Is it because the clips they’re using they’re lengthier and not very edited?  The Digital Dubliner seemed like a sophisticated blog.  Why do you really need high quality?

Tandy: high quality is important across all media.  One reason we haven’t talked about fan fiction/fanart is that doesn’t involve circumventing AV locks. This is the other kind of fanworks. Fan films go back to the 1960s.  Now we have quality that no one could achieve before, and if you want to participate in the conversation you need to match the visual sophistication of the other participants.

Q: expanding what we thought an ebook was?

Tandy: yes, though it doesn’t necessarily include text in the way we think about copying and pasting it—can be jpgs and video clips mixed together, with the words embedded in the jpg to create a specific visual expression.

Q: if someone steps over the line, why can’t the Joint Creators just sue? Why do we need more limitations?

Williams: Lerner says no infringement has resulted from exemptions and thus no expansion will infringe.  Our position is that there’s a lot of infringement; a lot of these videos are infringing; we’ve identified examples we think are infringing. We’ve chosen not to continue to oppose those exemptions b/c we’re not going to fight City Hall, but that’s not a concession of no harm.  [No harm from the exemption?  They’ve never shown any evidence of that, which I think was the point of the question.  As we’ve repeatedly noted—and I’m very happy to hear the CO focus on this—1201 itself has virtually no effect on initial creative behavior; most of this is about what will happen when you have to interact with an institution like a school or a traditional publisher who has less incentive to facilitate any given individual creative work, or when you have to talk to a lawyer, whether it’s responding to a takedown or trying to get insured.]  1201 created a new right over and above 106. Saying that litigation should sort it out isn’t very comforting because litigation is expensive.

Q: but if there’s a quantum of likely noninfringing films with short portions etc., why isn’t that reasonable to go to 106?

Williams: it wouldn’t be one or two.  Seen very few noninfringing fictional examples, and even in the nonfictional space. Digital Dubliners could have some good fair use arguments, but he doesn’t know how the clips were selected. Would be seen as CO endorsing a broad swath of content and endorsing misuse. The Office has already said that it thinks a lot in the record is infringing, and yet proponents keep saying the Office has already decided it’s infringing. 

Q: if we still had the comment & criticism, short portion, etc. and added noncommercial, that’s not sufficient?

A: Noncommercial in & of itself is only a factor.  It has layers.  [I initially mistyped this as “it has lawyers.”]  Do you pay the customary licensing fee? If not, that’s commercial use.  Does the CO intend to rely on case law meaning or lay meaning?  Either way, it’s just one factor, as is short portion, and comment & criticism; but none of those add to slam dunk. Even Campbell remanded for analysis of fourth factor in that specific instance.

Q: talk about licensing.

A: links in our comments to websites that provide easy access to contact points for licensing. CNN: you can go on & say I’m looking for a clip from X period of Y person.  You can say “I want to use this in fiction” or education or documentary and they give you different pricing and it pops up almost immediately.

Q: proponents’ reponse to licensing arguments?

Donaldson: It is easier to find out whether they claim to own it, but not whether they will actually license it. Now it’s almost impossible to get to a human, for example to negotiate the posted price for a small film/niche film. 

Wertheimer: a lot of licensing agreements have nondisparagement clauses—can’t make critical use of the clip. Even with a license, that’s not fair use.

Q: Opponents, what have you to say about that?

Williams: you didn’t accept that before.  Not all © owners include nondisparagement clauses—Warner Bros. didn’t have such clauses.  [How nice of them.] A lot of them do. But there’s no examples of actual criticism of the studio or any of the actors or really in this record of the films themselves. Those wouldn’t prevent licensing of the works.  [You can’t speak for the licensors and what they think of a use, can you, though?] These are more about disparagement of the talent and he hasn’t heard anything about that.  [I’d love to see that contractual argument tried by the licensee if the licensor declined to approve a use on grounds that the licensor thought it was disparaging of something other than the actors.  Not that they’d explain their reasoning!  But of course we never get there anyway because the license deters people from trying.]

Q: the Steve Jobs example, where the family didn’t like the use—they rejected that.

A: Universal relied on fair use.

Q: that’s an example of license refusal, though.

A: sure, not going to claim that some © owners don’t like criticism. 

Q: how is licensing a feasible alternative then?

A: it isn’t always.  The examples of that in this record and all prior records are very few and far between.  [And the justification for denying the exemption is….] Has heard that it’s unacceptable to condition exemption on those who’ve asked and been denied.  Proponents don’t want to go ask.

Q: You’ve said there’s no market for multimedia ebooks. If that’s true, how could there be an adverse effect on the clip licensing market?

David J.Taylor, DVD CCA: if you believe there is a market or that one will develop, our argument is that it’s ours and should be licensed just like documentaries are licensed.

Q: is it the studios’ view that this is a traditional, reasonable, or likely to be developed market?

Williams: it’s potential/likely to be developed.  Simon Swart from Fox last cycle testified they’d be willing to license multimedia ebooks, and Ben Sheffner from MPAA will testify in LA on issues related to licensing as well as the importance of access controls.

Josh Welsh, FilmIndependent: Documentary/nondocumentary—there is a growing trend to blurring the lines. These aren’t just one off but a growing hybrid genre.  A new award: the Heterodox award at a major event to deal w/unclassifiable films.  The Looming Towers—a mix of traditional documentary and scripted fiction, where the elements play off each other.  Errol Morris’s Wormwood: scripted actors intercut with documentary.

Q: are they comment & criticism?

Welsh: I’m showing why granting or denying an exemption based on a genre is a bad idea given how porous the genre boundaries are. This is an exciting growth area for film. Doesn’t make sense to limit by genre.

Aufderheide: has developed a category of thinking: imagination foregone (see report based on fair use-free Australia). What do you not do if you think something’s prohibited?  Instance after instance of people excluding entire categories of behavior, which is why she is concerned about looking for current practices—a lot of people are not imagining thinks.  Topical dramas like Roseanne, Black-ish etc. can easily incorporated criticism and commentary.

Taylor: they just haven’t shown the need for a larger exemption. The problem with going back to 106 is that the RM is tasked with creating an exemption based on the evidence produced. [This seems like a carefully misleading claim about the definition of “evidence.”  Evidence can include (as it does here) expert testimony about the practices of the relevant creative communities, and about the affordances of technology when it is or isn’t encumbered by 1201 without an exemption.]

Bruce Turnbull, AACSLA: In the past, the focus was on the much more elaborate nature of the ebook. None of what was promised 3 years ago has actually appeared.  Also, the platforms are limited. 

Q: trends about fictional works—proponents say the trend is increasing. Is that enough for evidence?

A: you need the evidence for that. For the ebook, we have a number of things 3 years ago that didn’t happen.  Discussion of platforms’ restraints—those have inhibitions [I think this means they can’t use the tech?].  If the idea was noncommercial video/people don’t view what they did as a “video,” it may be that is the place to look at whether something could be included to facilitate some of the fan fiction kinds of things.

Williams: Donaldson identified a trend of people wanting fair use in fictional films in his own practice. But his starting premise was that people weren’t using clips in fictional films before that, and that’s not true, e.g., Oliver Stone films.  Major studios were probably licensing clips.

[video demo in which screencap was inserted into a widget which was able to create an ebook without circumventing a TPM (if that’s in fact what the screencap does—we don’t know)]

Tandy: defers to tech expert on the tech, but the widget doesn’t let you get the effects.

Q: it doesn’t stutter, drop frames. What would you have seen that you didn’t?

Tandy: I don’t know what was lost or how these clips were created.

Q: does the eye lose anything?

Tandy: linking the content together [seamlessly?] you need more capacity—you have to be able to obtain additional software, which people may not be able to do.  Couldn’t do it in Windows Movie Maker though maybe it’s possible in pro software. 

[The real ridiculousness of this is opponents’ contradictory insistence that (1) the quality of (noncircumvention) screen capture is amazing but (2) 1201 is super, super necessary to prevent piracy so exemptions should be guarded like state secrets.  Both of these things can’t be true, and they aren’t.  The key reason people need to be able to use whatever makes sense to them to make their fair use clips is that almost no one knows that this is currently legally important. The main reason 1201 is a barrier is because when you encounter a gatekeeper it can turn out what you’ve done is illegal even when it would have been perfectly legal had you used a different program. Also, since we usually don’t know whether any given program is circumvention, the uncertainty created serves no valid purpose in limiting the exemption to the class of noninfringing uses.

Turnbull: Screencap quality is accepted by Apple for publication.

Q: would this be enough for a film festival/distribution?

Jim Morrissette, Kartemquin Educational Films,Inc.: Nope. More gatekeepers than ever before. The current exemption works really well for documentarians. Blu-Ray has made the difference for even using fair use any more. Abacus, about a small bank in NY; wanted a clip from It’s a Wonderful Life.  Blu-Ray enabled that.

Turnbull: Screencap limit is good because it prevents widespread removal of TPMs.  [I’d love to see the record evidence on that.]

Q: do you violate 1201 by using screencap?

Nobody is willing to answer that, because we don’t know.

Williams: there appear to be screencap that captures after lawful description.  But I won’t answer your question. The current exemption addresses the concern that people might not know, so accidental circumvention isn’t illegal.  Basically gives proponents comfort and encourages people to use only the tech that they need for the quality they need.  [And here is the complete gap in the evidence.  What’s the encouragement effect?  If you-the-creator even know about the exemption, you still have to deal with the uncertainty created by the question of whether a court (or a copyright owner, even, in its threats and allegations) would disagree with your assessment of needing to make the jump from one kind of software to another for quality reasons.  There’s a good reason that courts prefer to shy away from making aesthetic judgments and defer to creators on that question, including the aesthetic judgment of just how sharp an image “needs” to be. Adding that into the exemption creates a non-fair use related standard whose main function would be to trip people up, if & when they encountered it.]

Q: but is there any specific tech that people are worried about?  Apple allows screencap. Does the current exemption with two stages serve a real purpose?

Peter Midgley, Brigham Young University: Provides zero comfort, only confusion. Suggests screen cap is by default unlawful.

Q: would expanding the exemption increase infringing distribution of works? Should we require them to put DRM on fictional uses?

Lerner: problematic—how do you define that?  More fundamentally, you’d be really requiring people to change their straightforward fair use to additional restrictions on access. When I make fair use, that’s my speech.

Reid: We’d object to a distribution scheme b/c it transforms an exemption that’s supposed to look at the moment of circumvention (unless post circumvention behavior is probative of intent) into a regulatory regime for downstream distribution. Far beyond what Congress intended to delegate to CO. Raises 1A concerns too—conditioning distribution of speech on further tech restrictions.

A: Congress has said for 110 that tech protections are required. Evidenced a willingness to go that far.

Reid: no evidence in the record. If you’re thinking about that, we need more opportunity.

Midgley: we need to think about this but really shouldn’t put a mini 110 in this exemption.  [Yeah, no kidding.  110 is for uses that might be otherwise outside the scope of 107 or need extra certainty because of the institutional features of face to face teaching. This exemption isn’t sought to implement 110, in which case compliance with 110 would be reasonable as a requirement.  Instead the exemption is sought to implement 107, and you actually have a right to distribute a fair use (indeed, it’s hard to think of a fair use case that didn’t involve both reproduction and distribution).]

Donaldson: See the negative effects of the current regime heartbreakingly w/editors and directors who move from doc to not and want to do what they did last month and all of a sudden it’s a criminal act.  It’s one thing to have a marketing definition of a documentary. But acts legal in May are now illegal in June when the person switches to a different project and that’s bad.

Antkers: will respond to the demo in LA.  [My reaction, not being able to comment on quality given the fact that I was watching a YT stream of a camera recording of a screen, is that the demo missed the most important step, which was the creation of the clip in the first place; I’d sure like to know how exactly that clip was created before it was incorporated into an ebook.]

Lerner: Bobbette Buster, client of UCI. Can confirm she’s still working on her book. Others have personal delays, but evidence doesn’t need to include examples for every possible issue. Evidence can also include evidence from experts about creative practices. That’s more than sufficient to meet our burden especially given the utter absence of concern about piracy or increased unauthorized sharing as a result of changing the exemption.