September 8, 2009

Mr. Robert Kasunic
Principal Legal Advisor
Office of the General Counsel
United States Copyright Office
BY EMAIL to rkas@loc.gov

Re: August 21 Supplemental Questions to DVD-Related Hearing Panelists

Dear Mr. Kasunic:

The undersigned ("Joint Proponents") respond to your August 21 2009 questions concerning the proposed DVD-related exemptions (proposed classes 4A through 4H, 11A and 11B) to Section 1201(a)(1). In addition to this joint response, some of the undersigned may also submit separate responses.

You asked:

"From your unique perspectives, is there a limitation, either in terms of duration or percentage (or both), which could be incorporated into the definition of an exempted class of works?"

As your August 21 questions anticipated, the Join Proponents "strongly object to any quantitative limits" because, as you correctly noted, "the permissible amount of a copyrighted work that may be used under the fair use doctrine depends on the specific facts in each case." Courts have repeatedly recognized that, in appropriate cases, fair use permits the use of even an entire work.¹

In the context of the proposed DVD-exemptions, adding a quantitative restriction would disserve the purpose of this rule-making for several reasons:

• First, while some of the beneficiaries of the proposed exemptions may need only a small portion of a motion picture, others will require access to, and the ability to reuse, larger portions. For example, film and media studies professors may want to teach an entire course on a single important film, showing the entire film over the course of a semester.² Similarly, amateur film critics al;ready employ voice-overs and on-screen annotations in order to comment on films, sometimes providing an alternate "DVD commentary" or entirely original audio track for the entire film.³
• Second, exemptions that include quantitative restrictions, rather than providing "sufficient guidance in the regulatory text," are likely to foster misunderstanding among users. Already, there are too many myths tying fair use to arbitrary "bright line" quantitative rules (e.g., "seven second rule" or "three lines rule"). The inclusion of a quantitative limit here would send precisely the wrong message to the user community, many of whom do not have access to sophisticated copyright counsel. Faced with an arbitrary, but "bright line" rule in a promulgated Section 1201(a)(1) exemption, the user community is likely to focus on that rule, rather the more important question of whether the use in question violates copyright law. These users will be justifiably surprised when they discover (likely only after receiving a cease & desist letter, a DMCA takedown, or a file-stamped complaint) that the quantitative guidance provided in the exemption does not constitute a defense to an infringement action.
• Third, the addition of quantitative restrictions to the proposed DVD-related exemptions will provide no marginal protection for CSS or the rightsholders who use it. The opponents of the proposed DVD exemptions have repeatedly argued that the ability to decrypt a portion of a CSS-encrypted DVD necessarily permits the decryption of the entire DVD.⁴ If this is true, then "the effect of circumvention of the technological protection measures on the market for or value of copyrighted works," 17 U.S.C. § 1201(a)(1)(C)(iv), would be unaffected by an exemption that permits decryption of CSS-protected DVDs for the noninfringing purposes set forth in the proposed exemptions, as compared to exemptions modified to include quantitative restrictions.
• Fourth, those who would use any promulgated Section 1201(a)(1) to take too much of a DVD continue to face the prospect of copyright infringement litigation. Congress has instructed courts to evaluate the amount and substantiality of the portion used in considering whether a use comes within the fair use doctrine. 17 U.S.C. § 107(3). Rather than employing a "bright line" test, courts consider both quantitative and qualitative factors. Consequently, any "bright line" quantitative restriction on the proposed exemptions will necessarily be under-inclusive, penalizing some noninfringing users while letting other infringing users slip through. No regulator can, ex ante, imagine all the creative fair uses that might develop in the future, and thus no exemption limited to "bright line" quantitative limits will adequately shelter such uses from circumvention liability under Section 1201(a)(1).⁵
• Fifth, there is no evidence that the 2006 film and media studies exemption, which does not include any quantitative restriction, has resulted in abuses. Accordingly, there is no reason to assume that the lack of quantitative limitations will result in abuses of the proposed exemptions.

If the Copyright Office is concerned that the proposed exemptions not be permitted to sweep beyond the scope of fair use doctrine, a superior solution would be to incorporate into each exemption a requirement that the use in question be noninfringing, as proposed Classes 11A, 11B have already done. The traditional fair use evaluation of the amount used could then be applied to concrete factual circumstances by the courts, yielding further jurisprudence to guide future lawyers and users.

If the Copyright Office nevertheless is inclined to engraft a quantitative limit on the proposed DVD-related exemptions, the Joint Proponents urge it to consider the following suggestions in craftingt he regulatory language:

• Any quantitative restriction must focus on the portion of the DVD that is used, rather than the portion whose protection is circumvented. Fair use by educators, documentarians, and concommercial, transformative users may require the extraction of many small clips from a single DVD.⁶ As has been addressed in detail in previous filings, it can be difficult for users to determine or control how much of a DVD is decrypted "under the hood" when a DVD-decryption tool extracts a clip from a DVD. Moreover, the recent ruling in Real Networks v. DVD Copy Control Ass'n,⁷ demonstrates that copyright owners believe that CSS is comprised of "multiple layers" of protection in addition to encryption; users may need to circumvent one of these additional "layers" in its entirety in order to extract a short clip.
• Any quantitative restriction must apply on a per use basis, rather than a per DVD basis. For example, an educator who is teaching a semester-long course on a single film may need to rip and edit the clips, rather than simply paying it from a DVD player. In this case, it would be critical that any quantitative limitation expressly apply on a class-by-class (rather than whole cours, or whole career) basis. Similarly, a vidder may, over the course of creating dozens of vids, end up usinga large portion of the material contained on a particular DVD. The vidder will have no way of knowing how many minutes or what percentage of a DVD she may have already used in previous vids.
• Any quantitative restriction must treat the durational and percentage metrics disjuntively, permiting excerpts that are "less than x minutes in duration or represent less than y percent of the duration, whichever is greater." This takes into account the fact that percentage limits can disfavor fair uses of short works, while durational limits can disfavor fair uses of lengthy works. For example, a percentage limit that seems roomy to the fair user of a 3-hour motion picture is likely to feel like a straighthacket to the fair user of a 5-minute music video of 10-minute "DVD-extras" interview with a film's director. A durational limit, in contrast, has the opposite problem. A disjunctive "whichever is greater" approach is the only one that resolves this mathematical conundrum.
• Any quantitative restriction must be measured against the collective entirety of the audiovisual works on the DVD, rather than on a work-by-work basis. Put differently, the DVD as a whole should be a unit of measure against which any percentage limit should be measured. DVDs can contain a wide variety of different kinds of audiovisual works, of widely varying lengths, including alternate endings, deleted scenes, mini-documentaries, interviews with cast members, trailers, and music videos. In the vast majority of cases, the technological protection measure used on CSS-encrypted DVDs restricts access to all the works contained therein.
• Any quantitative restriction must take into account the distinct nature of the audio and video portions of the audiovisual works distributed on DVD. For example, if a fair use requires taking the entirety of the video program contained on a DVD, but none of the accompanying audio program, the use should count as no more than 50% of the work.

While we appreciate the efforts of the Copyright Office, in light of the foregoing concerns, the Joint Proponents cannot endorse the proposed formulation set out in your Aug. 21 questions: "...the portions of any single work shall be, collectively, no greater than x minutes in duration and represent no greater than y percent of the duration of that work...."

In the alternative, and only if the Copyright Office concludes over the objections explained herein that a quantitative restriction is necessary, we suggest the following:

"...where any single excerpt used [in a single classroom session, in a single documentary, in a single video] from the DVD constitutes no more than x minutes or y percent, whichever is greater, of the entirety of the audiovisual works contained on the DVD..."

Thank you for the opportunity to address your questions in this matter.

[signatories appear on the following pages]

mary Alice Baish
American Association of Law Libraries (AALL)

Jonathan Band
American Library Ass'n (ALA), Ass'n of Research Libraries (ARL), and Ass'n of College and Research Libraries (ACRL).

Francesca Coppa
Director of Film Studies, Muhlenberg College
Board, Organization for Transformative Works

Peter Decherney
Stephen M. Gorn Assistant Professor of Cinema Studies and English
University of Pennsylvania

Michael Donaldson
General Counsel, Film Independent (FIND) and University Film and Video Ass'n (UFVA), and on behalf of International Documentary Association (IDA), and Independent Feature Project (IFP)

Carla Funk
Medical Library Association

Renee Hobbs
Professor, School of Communications and Theater, Temple University

Douglas Newcomb
Special Libraries Association

Gordon Quinn and Jim Morrisette
Kartemquin Educational Films, Inc.

Martine Courant Rife, JD, PhD
Writing in Digital Environments Research Center Affiliate Researcher,
Michigan State University
Professor, Lansing Community College

Tisha Turk
Assistant Professor of English, University of Minnesota, Morris
Organization for Transformative Works

Rebecca Tushnet
Professor, Georgetown Law and Organization for Transformative Works
Organization for Transformative Works

Fred von Lohmann
Senior Staff Attorney, Electronic Frontier Foundation

__

¹ See, e.g., Sony Corp. of Amer. v. Universal City Studios, Inc., 464 U.S. 417 (1984); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007); Bill Graham Archives v. Dorling Kindersley Ltd., 448 F3d 605 (2d Cir. 2006); Nunez v. Caribbean Intern. News Corp., 235 F.3d 18 (1st Cir. 2000); Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992).
² An informal survey of film professors reveals that at least four courses focusing on a single film have been taught recently: Stanford University )Prof. George Stoney, Pather Panchali), Northwestern University (Prof. Peter Wollen, Citizen Kane), University of Notre Dame (Prof. Pamela Wojcik, The Wizard of Oz), and New York University (Prof, Richard Allen, Vertigo).
³ See, e.g., Matt Zoller Seitz, The Substance of Style, Pt. 5, <http://www.movingimagesource.us/articles/the-substance-of-style-pt-5-20090413> (visually annotated version of the prologue of The Royal Tenenbaums); Bill Werde, Hijacking Harry Potter, Quidditch Broom and All, N.Y. TIMES, June 7, 2004 (reviewing Wizard People, Dear Reader, which applies a new audio track to Harry potter and the Prisoner of Azkaban); Zarban.com, The House of Commentaries, <http://www.zarban.com/> (indexing more than 1600 alternate audio commentaries).
⁴ See Responses of the Motion Picture Association of America to Copyright Office Questions in 1201 Rulemaking Proceeding, July 10, 2009, at 5 ("Moreover, once an action of circumvention is sanctioned, we are unaware of any effective means to determine how much of a motion picture protected by technical measures was actually decrypted."); Reply Comments of the DVD Copy Control Association, Inc., Fen. 2, 2009, at 21 ("Once the technology is legally circumvented, the ability to limit the scope of the use of the circumvention may well be impossible, thereby undermining the whole system.")
⁵ Consider Douglas Gordon's work, 24 Hour Psycho (1993), which was featured by the Hirschhorn Museum in Wachington, D.C. in 2004. The piece presents Alfred Hitchcock's classic 1960 film slowed down to play over a period of 24 hours. See National Public Radio, Museum Hosts "24 Hour Psycho" --Literally, Feb. 29, 2004, <http://www.npr.org/templates/story/story.php?storyId=1724372>
⁶ See, e.g., Vogue, <http://www.youtube.com/watch?v=QNRjzUB7Afo> (using multiple clips from 300 in order to comment on the objectification of men and violence); How Much Is That Geisha in the Window?, <http://www.youtube.com/watch?v=fZr9wsZz_bk> (using short clips from many episodes of Firefly in order to show the appropriation of Asian culture by the show, comparing it to hagiography of the Confederacy).
⁷ Realnetworks, Inc. v. DVD Copy Control Ass'n, 2009 WL 2475338, at *20 (N.D. Cal. filed Aug. 11, 2009).

July 10, 2009

Rob Kasunic
Principal Legal Advisor
Office of the General Counsel
United States Copyright Office

Re: Questions to DVD-Related Panelists and Documentarians

Dear Mr. Kasunic:

On behalf of the Organization for Transformative Works, we join in the response submitted by Peter Decherney on behalf of a number of the participants with regard to screen capture technology. We write separately to address some of the issues specific to amateur artists.

1. Like the other respondents, the OTW has not reverse engineered the commonly available software. However, it is not only possible but common for video artists to clip a particular chapter of a disc rather than the entirety of a disc. Video artists who prefer to work with clips of the highest possible quality want their video source files uncompressed; uncompressed video files are enormous (three minutes of video requires several gigabytes of hard drive space using generally available programs), and thus many artists will try to keep snippets as small as possible to conserve space on their hard drives, consistent with their practices of making remix video rather than using substantial portions of an original work.
2. As this common practice demonstrates, it is not necessary to make a copy of an entire motion picture as a first step in order to make use of the proposed exemptions. Simply breaking a DVD's encryption does not produce a copy on the computer; it merely enables the user to copy all or some portion of the files on the disc. It is a standard feature of decryption programs to allow users to select less than an entire motion picture for clipping.
3. With respect to the issue of image quality and screen capture technology, we cannot stress enough how important quality is for many amateur video artists. Currently available screen capture software is insufficient to allow artists to communicate their messages or achieve intended artistic effects.

   Screen capture software, as demonstrated at the original hearings, presents two primary problems for a remix artist: reduced frame rate and increased pixellation.¹ Both problems result from the loss of visual information. Screen capture software is based on what is called lossy (as opposed to lossless) compression and decompression: the visual information that comes out of the program is inevitably not the same information that went in.²

   NTSC television plays at 30 frames per second (fps) and film on DVD plays at 24 fps, but capture software typically captures at 15 frames per second: up to half the original source frames are lost. Though some programs claim to offer up to 30 fps, experiments with them indicate that frame rate is variable.³ This inaccuracy and loss of intermediate frames results in jerky playback, especially during scenes that feature motion, whether motion within the screen (a character running, a ball being thrown) or motion of the camera (a shot of landscape going by from the window of a moving vehicle). Jerky playback is distracting under the best of conditions, but it presents special problems for an artist manipulating the speed of clips: when sped up or slowed down, low-fps footage looks even worse than it does at its original speed. Because speed manipulation is one of the most commonly-used effects, this problem is hardly a minor one.

   Pixellation represents another form of data loss: entirely separate from the frame rate problem, screen capture software (and other lossy data formats) reduce the total video data (and thus the size of the file to be downloaded or streamed) by converting color gradations into blocks of solid color: for example, 16 pixels of slightly different colors might become a 16-pixel block of a single color. Viewed at relatively small sizes, this problem may not be noticeable. At larger sizes, such as when viewed on a TV screen, it becomes significant. Loss of pixel data poses particular difficulties when transforming the source material: cropping the frame to re-focus a viewer's attention, zooming in on a visual element to emphasize it or to add visual interest (think of the many documentaries that zoom in on photographs to render dynamic a shot that would otherwise be static), altering the contrast or light balance of a clip, altering the color of a clip to contribute to a particular mood or to match the appearance of another clip, adding glow or other special effects.

   Using pixellated source thus constrains creators' use of available tools and effects, which are often vital to the transformative message of a remix—cropping the frame to single out a particular character, drawing attention to the background, changing the tone of a clip through adjusting color, and so on. Examples of remix video that use these techniques to make their arguments include How Much is that Geisha in the Window?, discussed at the hearing as a critique of the Orientalism and simultaneous marginalization of Asian people in the television series Firefly, as well as the videos in the OTW's test suite, listed in our original comment and available at http://transformativeworks.org/projects/vidtestsuite.

   As Tisha Turk pointed out in her oral testimony, screen capture may potentially provide a watchable first-generation copy of a clip, but transformative uses involve digital transformation as well as transformation of meaning and message, and therefore screen capture is vastly inadequate to such uses.⁴ Limiting footage extraction to screen capture technology would thus handicap artists without improving protection for rightsholders. Given the widespread availability of screen capture software, there is no plausible argument that an exemption for noncommercial fair uses of decryption software would threaten rightsholders' legitimate market.

4. Legal distinctions between screen capture technology and other methods of excerpting video only highlight the incomprehensibility of the law to most amateur artists. For amateur artists who do not have access to legal counsel, it is counterintuitive for one technology for clip extraction to be permissible but not another. Therefore, most would be unaware of any potential wrongdoing in choosing one technology over the other. This has two key consequences: First, the availability of screen capture, whatever its technical merits or demerits, will not protect fair users who find out too late—when they are attempting to assert their fair use rights in response to notice and takedown, as described in our testimony—that they have or may have chosen the wrong technology. Second, an exemption that would simply align with amateur artists' existing expectations and behaviors would not lead to any market harm for the rightsholders.

   Confusion in the existing law is most harmful for those who actually want to comply with legal restrictions due to legal uncertainty. After all, if the rightsholders themselves as well as the Copyright Office are unclear as to whether screen capture and DVD ripping are legally similar—a question that may not be answered for any particular piece of software without expensive litigation—then a layperson certainly could not be expected to grasp the difference. Currently, the majority of noncommercial artists, because they believe that they are not violating the law if they are making fair use of excerpted material, create their works first and then find out about the DMCA's anticircumvention provisions only if they are unlucky enough to have their work noticed and taken down by rightsholders. The question then is whether they will assert their rights to fair use if challenged—and our experience shows that the DMCA serves as a powerful deterrent for them to do so. In sum, distinguishing between capture technologies only harms artists, while simplifying this issue with the proposed exemption would not harm the rightsholders.

5. It has been suggested that further limits should be placed on the proposed exemption such that eligibility for invoking them would require, for example, membership in a filmmakers' organization or enrollment in an academic film-related program. We believe that the proposed exemption 11A itself contains appropriate limits that should not further be cabined by artificial membership tests.

   Limiting eligibility discourages the production of art by amateurs; it professionalizes the art of video remix. Although there are many advantages to professional training and affiliation, the community of video remix artists is largely decentralized and proudly amateur. It is based on principles of experimenting, innovating, doing-it-yourself, and thinking outside the box rather than on professionalization.

   Art has historically not been created solely by those who have had formal art training or who have been paid for their work. Even professional artists generally begin as amateurs, working in their medium in order to learn and grow; it is a rare filmmaker these days who makes his or her first film in film school. Creating a class with criteria such as schooling or specific memberships would be arbitrary and discriminatory: imagine only allowing those enrolled in art classes to own paintbrushes.

   Furthermore, additional limitations based on credentialing are unnecessary, as the proposed exemption itself already contains significant limitations. The exemption applies only to artists who not only are making fair use of limited portions of the source material, but who are creating noncommercial work. Noncommercial use is a powerful limitation in and of itself, ensuring that the activities at issue are far from the piracy with which the DMCA's anticircumvention provisions are concerned.

Respectfully submitted,
(signed)
Rebecca Tushnet
Organization for Transformative Works

—

¹ The technologies specifically identified by the Copyright Office are not designed to capture the detail necessary to manipulate, analyze, or otherwise transform recorded video. For example, SnagIt is designed and optimized for capturing still images (a page of a website) or simple motion (the movement of a cursor to demonstrate something in an online tutorial). Snapz Pro X bills itself as suitable for "making training videos, producing product demos, creating tutorials, archiving streaming video"; it is not intended or optimized for capturing video in a format appropriate for editing. It claims to offer "precise control over video compression," but the sample file types it lists (.bmp, .pict, .gif, .jpg, .png, .tiff, .pdf) are all for still rather than moving images.
² DVDs are not themselves lossless; they are encoded in MPEG-2, a lossy format. See http://en.wikipedia.org/wiki/MPEG-2. It is therefore especially important that a remix artist not lose any more of the already-compressed video through additional compression/decompression; each operation imposes quality costs. As Microsoft's site explains, "Lossy compression discards data in order to achieve a lower bit rate. ...[E]very time you save your file in a lossy file format, it discards more of the data—even if you're saving it in the same format. A good rule of thumb is to move to a lossy format only as the very final step in your project." http://www.microsoft.com/windowsxp/using/moviemaker/expert/digitalvideo.... (emphasis added).
³ For reports of persistent inability to reach advertised frame rates in screen capture-generated video, see, e.g., http://machouse.mhvt.net/?p=833 (Screen Mimic 2.1), http://machouse.mhvt.net/?p=1170 (Screenium 1.0), and http://machouse.mhvt.net/?p=824 (SnapZ Pro X 2.1.0). It is possible that professional equipment may produce different results, but noncommercial videomakers rarely have access to such equipment.
⁴ As Wikipedia's article on video compression notes, "[i]nterframe compression works well for programs that will simply be played back by the viewer, but can cause problems if the video sequence needs to be edited." http://en.wikipedia.org/wiki/Video_compression. See also http://en.wikipedia.org/wiki/Lossy_compression ("An important caveat about lossy compression is that converting (formally, transcoding) or editing lossily compressed files causes digital generation loss from the re-encoding.").

A few legal stories that might be of interest to followers of the OTW:

From publicknowledge.org: UGC is More Than Hamsters on a Piano is an essay by Michael Weinberg at publicknowledge.org, talking about the "assumption that the UGC is essentially commercially worthless – it is all first grade ballet recitals, dogs jumping up and down, or kids falling off of skateboards. The real action (and money) is around the "real" content. Since the money will only come from the professional content, the concerns of today’s professional content owners (usually having to do with filtering or kicking people off of networks) tend to dominate the discussion." But Weinberg points out that we are not all sitting around waiting for professionals to come and entertain us, and that today's established studios may not have "the best interests of their future competitors at heart."

From boingboing.net: Meet the 42 lucky people who got to see the secret copyright treaty: Fans should be aware that a number of parties are trying to negotiate an international, anti-copyright treaty "that contains provisions that criminalize non-commercial file-sharing; require net-wide wiretapping for copyright infringement and border-searches of hard-drives and other devices; and disconnection from the Internet for people accused of violating copyright." A lot of people, including publicknowledge.org, BoingBoing, the EFF, and others--are protesting the secretive nature of these negotiations.

From Rachel Maddow: Hey, Rachel Maddow follows BoingBoing: could we love her more? Rachel interviews BoingBoing's Xeni Jardin about the Ralph Lauren photoshop disaster--but gets that the real story was the attempted DMCA intimidation of BoingBoing after the fact, when reprinting the photoshopped image to mock it was a classic case of fair use. Because Boingboing's ISP was in Canada, they didn't have to comply with the DMCA, and Rachel immediately gets what she calls "the deeper part of this story", that "ISPs just immediately cave whenever they're confronted by anything like this, and it sort of hurts the first amendment."

Lastly, our own Rebecca Tushnet caught the story that Mattel has licensed "Barbie Girl". For those not familiar with the case, 12 years ago, Barbie sued the Danish pop band Aqua, claiming trademark and copyright infringement. The claim was dismissed and the song was ruled as protected speech. Now, Mattel has licensed and rewritten the song to promote its new line of Barbie products. If you can't beat 'em...?

The OTW is proud to have been asked to collaborate with the American Library Association, the Association of Research Libraries, the Association of College and Research Libraries, and the Right to Write Fund on an amicus brief in the pending Salinger/60 Years Later case. The OTW's Rebecca Tushnet and Casey Fiesler collaborated with lawyers from Stanford's Center for the Internet and Society and the UC Berkeley School of Law to produce the brief, which was served on August 3, 2009. The appeal is scheduled to be heard in New York's Second Circuit Court of Appeals in early September.

While the OTW isn't typically interested in defending commercial uses, we obviously do have a stake in the way courts define transformative use. We participated to support the position that the really restrictive definition adopted by the district court (seeing transformativeness very narrowly as parody and nothing else) be reversed on appeal. The New York Times and Public Citizen also filed amicus briefs.

For more information:

• Download a .pdf of the amicus brief (right-click and save).
• Read attorney of record Anthony Falzone's blog post about the brief, Confusion Over Copyright Injunctions And Other Restraints Of Speech.