The hearings take place every three years in order that the U.S. Copyright Office might consider creating exemptions to the anti-circumvention provisions of Section 1201, Title 17 of the Copyright Act - known as the DMCA. Since I participated in the May 2009 hearings, I received two sets of questions, one for each panel I served on. (Answers due July 10, 2009)
The questions are below. One set of questions is about whether or not screen capturing software works with DVDs and whether or not screen capturing software circumvents the anti-circumvention technologies --CSS of DVDs. The other set of questions is about whether or not the exemption to 1201 could be fairly applied to documentary filmmakers (as a "class" under the statute) and if so how you'd define that class. (Currently the exemption for film studies professors is set to expire in October).
To give a brief context for these questions, the U.S. Copyright Office, during the hearings, was probing for a method for users to remix DVD content without circumventing, and without having to video record TV screens by setting up tripods in their living rooms. The MPAA would not say that screen capturing software was legal under 1201 even when asked directly about this topic during the hearings. I have blogged more about this in this blog if you are interested in details.
In the preface to its questions, the copyright office says that the questions themselves *should not* be interpreted as indicating a recommendation. The recommendation is due in October 2009 from the Copyright Office. See http://www.copyright.gov/1201/ .
Question Set #1 (Quote from Copyright Office Communication)
Introduction:
At the hearings, the MPAA introduced evidence that videotaping the output of a television screen was an alternative to circumvention for desired noninfringing uses by users. In addition to capturing the output of a television or computer screen with a video camera, screen capture software exists for a wide range of purposes. At the hearings, one particular software program was used to illustrate that software-based screen capture is capable of reproducing the output from a CSS-encrypted DVD. Examples of such capture software include: [here the copyright office listed three software producers - this information will be available on the DMCA website and also will be referenced in answer to the questions when those answers are posted on the DMCA U.S. gov website-and is also in the transcripts which are available now on the DMCA site-and likely FOIA-able http://www.copyright.gov/1201/]. The questions below relate to the capture of clips from CSS-protected motion pictures on DVDs.
Please explain whether the legal consequences of using capture software differ from the legal consequences of using a digital video camera (with particular reference to 17 U.S.C. § 1201).
Is it a violation of § 1201(a)(1) to use screen or video capture software (hereinafter "capture software") to reproduce clips from copyrighted motion pictures or audiovisual works?
Is there particular capture software that decrypts the Content Scrambling System on DVDs?
Is there particular capture software that does not decrypt the Content Scrambling System on DVDs?
To the best of your ability, please explain how screen capture software operates, e.g., does reproduction take place after the work is lawfully decrypted?, Does the capture software reproduce the digital output from the computer, or does the capture software reproduce the analog output from the computer? Does this analog/digital distinction matter for determining whether a violation of § 1201(a)(1) is taking place?
Is the output encrypted at the time of capture by the software or is the output decrypted at the time of capture?
Do different screen capture programs involve significantly different methods of capturing screen and/or audio output?
There was an example of screen capture software at the § 1201 hearings and some witnesses pointed out that the example presented revealed quality degradation, e.g., pixelation. Can capture software be adjusted in order to affect the quality of the reproduction of the video or audio captured? If so, how?
Can the computer on which the capture software resides be adjusted to affect the quality of the output, i.e., by adjusting the settings of the operating system, video card or sound card software rather than the settings within the capture software itself?
It was claimed that screen and video capture technology does not work with Microsoft Vista. Is this true, and if so, why?
Are there other operating systems on which screen capture software will not operate?
Question Set #2 (Quote from Copyright Office Communication)
The first two questions envision a scenario where a user intends to reproduce a small portion of a motion picture or audiovisual work on a CSS-encrypted DVD for a particular use, such as the use of a portion in a documentary film.
Can a portion of a motion picture on a DVD protected by CSS be decrypted, leaving the remainder of the motion picture encrypted by CSS?
Is it necessary to make a copy of the entire motion picture as a first step in order to make a copy of only a portion of the motion picture?
Documentary filmakers' proposed class of works limited the persons who would be eligible to invoke the exemption to a documentary filmmaker, who is a member ofan organization of filmmakers, or is enrolled in a film program or film production courseat a post-secondary educational institution. Is it appropriate to limit the persons who would be eligible to invoke the exemption? Why? If you believe it would be appropriate, what criteria could be used?
Are there any other appropriate ways to properly tailor the scope of the exemption?
