Additional DMCA Rulemaking Questions Received

I have, along with other DMCA rulemaking-hearing participants, received a second question set from the U.S. Copyright Office. The questions are premised by: "For purposes of the question below, please assume that the Register has decided to recommend an exemption to the prohibition for proposed classes 4A through 4H, 11A and 11B, or some portion thereof, relating to motion pictures on CSS-protected DVDs" and ask:

“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?”

Specifically, the copyright office suggests the following language could possibly be used in the context of finished products (remixes) for crafting the new exemption:

“… the portions of any single work used shall be, collectively, no greater than x minutes in duration and represent no greater than y percent of the duration of that work….”

The questions also acknowledge how creating a quantity limitation might be objectionable to some, but since this is not a redrafting of section 107, but is instead an administrative rulemaking proceeding, they are asking for suggestions from hearing participants nonetheless. They state:

“Again, we recognize that for purposes of fair use, what may be a reasonable duration in one case will not necessarily be a reasonable duration in another case, we are not proposing to codify the fair use doctrine in this rulemaking proceeding. However, this is a regulatory proceeding and for the purposes of promulgating a regulation governing exemptions from the prohibition on circumvention, we are inclined to believe that more specific limitations are advisable so that, at least for purposes of predicting liability under section 1201(a)(1), users will find sufficient guidance in the regulatory text.”

The questions were emailed to hearing participants Friday August 21, 2009 at 5:38 pm, EST. Responses are due September 8, 2009 by 5 pm.

Open Video Conference Looks at the Future of Online Video--

The Intellectual Property Watch blog has a great overview of a recent Open Video Conference that took place last week. Video presentations from the conference will be posted on the website soon.

http://openvideoconference.org/

To quote from Kaitlin Mara's article on the IP Watch:

"Video is becoming an increasingly important communication tool on the web, but questions must be asked about its future, said speakers a recent conference. Will it be a medium of self-expression, available for all, or a translation of television to the internet, where content is provided by some and consumed by the rest? A gathering of technologists, academics, filmmakers and others in New York last week issued a call for a freer video culture."

For the full article--
http://www.ip-watch.org/weblog/2009/06/23/now-video-wants-to-be-free-and-open-too-ip-policy-considerations/

U.S. Copyright Office Submits Questions to DMCA Rulemaking Participants

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?

Quote: "Obama Administration Lock(e)s And Loads Against Movie Piracy"

http://www.ip-watch.org/weblog/2009/04/22/obama-administration-lockes-and-loads-against-movie-piracy/

From the Intellectual Property Watch:By Liza Porteus Viana for Intellectual Property Watch @ 12:41 am

[being quote]WASHINGTON, DC - The Obama administration will fight for the movie industry and work to aggressively enforce its intellectual property protections both at home and abroad, United States Commerce Secretary Gary Locke said here Tuesday.

Locke offered almost unabashed support for the industry, which, according to a report released Tuesday [pdf] by the Motion Picture Association of America (MPAA), created 2.5 million American jobs in 2007, paid an average production worker US$74,700 a year in salary, paid out $41.1 billion in salaries to American workers, paid $13 billion in income and sales tax and was responsible for $13.6 billion in trade surplus.[end quote]

I am really concerned about the one-sidedness of Locke's perspective. Where are the voices of the NCTE lobbyists? Do they even know what is at stake here?

Native American Public Telecommunications (NAPT) unveils new website

Earlier this year, Native American Public Telecommunications (NAPT) unveiled its new website

http://www.nativetelecom.org/index.php

Code of Best Practices in Fair Use for Online Video released by Center for Social Media

The Center for Social Media at American University has released a set of best practices for fair use when creating online video – another in its series of best practices in fair use guidelines. The new video guidelines are packaged up in a handy PDF file, under 20 pages. The six best practices are prefaced with a short introduction outlining basic fair use considerations, and are followed by a short list of common fair use myths. This is a very handy tool for teaching, especially for those who teach new media or multimedia. It would certainly be appropriate for first year writing, graduate level courses, or even high school.

http://www.centerforsocialmedia.org/blogs/future_of_public_media/announcing_the_release_of_the_code_of_best_practices_in_fair_use_for_online/

The six best practices in fair use when creating online videos include practices that arise out of the following inventional techniques often used during the remix process:

1. Commenting on or critiquing of copyrighted material.
2. Using copyrighted materials for illustration or example.
3. Capturing copyrighted material incidentally or accidentally.
4. Reproducing, reposting, or quoting in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon.
5. Copying, reposting, and recirculation a work or part of a work for purposes of launching a discussion.
6. Quoting in order to recombine elements to make a new work that depends for its meaning on often unlikely relationships between the elements.

Some key statements in the introduction which I appreciate as illuminative of the sometimes untapped power of fair use include that “where it applies, fair use is a right, not a mere privilege” (p. 3), and emphasis that the uncertainty of fair use determinations provide flexibility, a good thing. In the study I completed for my dissertation (http://sites.google.com/site/martinecourantrife/), I found that the professional writers I studied were unclear about the distinction between fair use and licensed use. The Code of Best Practices emphasizes this important distinction, noting that fair use is use that takes place without permission. It’s unauthorized use. Licensed use, on the other hand, takes place with some form of permission. The Code applies to unauthorized uses.

The Code was put together by a panel of experts who work in the area of copyright. Many on the panel are law professors or legal experts. This is a Code that does not do what many “best practice” guides do – that is, restrict our fair use rights. Instead, this Code presents a robust set of guidelines based on existing case law.

Writing teachers will appreciate as well the focus on attribution, although copyright law or fair use does not expressly require it. The authors assert that attribution will provide evidence of good faith in the event a use is challenged. I have written a chapter on plagiarism that’s in process – co-authored with Danielle Nicole DeVoss. In that chapter though, we argue that sometimes attribution is unnecessary, especially when it’s obvious where materials came from. For example, a short time ago a parody of The Shining circulated widely on the web. I don’t believe the author of the parody credited Stephen King, nor the producer or directors nor the various actors. But because The Shining has become a kind of “common knowledge” in our culture, I do not think attribution is necessary. The point we made in the chapter is that if the viewer doesn’t know what The Shining is, the parody makes no sense, since parody relies on common knowledge of something pre-existing.

Another example of where I think attribution is not necessary because of the common knowledge argument, is when something, even an image, is available in multiple locations on the web. In her blog, Clancy Ratliff writes a bit about defining common knowledge – noting that some state that if something appears in 3 different texts, then it’s common knowledge and a citation is not needed http://culturecat.net/trying-stay-ahead-demand. In my dissertation I have quite an extended argument on this topic of common knowledge – I basically don’t have a rule like Clancy’s, although I think such rules are helpful sometimes for teaching. But I do note that common knowledge is time stamped, and culture stamped. My example for today though is that I recall from an advanced multimedia production class I took with Prof. Ellen Cushman several years ago, an image of Sequoya. If you do a google image search for “Sequoya” you will immediately get a google page showing 5 or 6 of the same image of Sequoya in several locations, just on the first page of your search. Let’s say you were going to use this image. Which citation would you pick? All of them? Some of them? The most credible? The least credible? My argument is that although you could provide a citation, as long as in the context it’s clear you yourself did not create the image, a citation or attribution is not needed, as this image of Sequoya is common knowledge.

As stated, writing teachers will appreciate the Code’s emphasis on good faith attribution. I tend to think that in many remixed texts, attribution is not necessary, and simply lingers as a vestige of our former modes of traditional writing. The other downside to attributing your sources in fair use, is that it might draw attention to your use in the event a copyright holder is policing the web for any use at all. Yet, Foucault predicted that someday we wouldn’t care who wrote what. Perhaps that day is nearing.