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.

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?

First Person is Convicted Under DMCA for Selling Circumvention Tool

At the DMCA Rulemaking hearings, I recall, I think it was the attorney for the MPAA/RIAA, asserted that no one had ever been convicted under the DMCA for selling/trafficking circumvention tools. While it is not illegal under the DMCA to use these tools, it is illegal to sell them. An example might be a fake access key to access software or a tool to unscramble the CSS on a DVD.

Cnet News reports today that Adonis Gladney has been convicted of selling fake Microsoft product keys.

"Gladney, 24, is believed to be the first person convicted for DMCA violations dealing with the circumvention of security protections on software, according to Assistant U.S. Attorney Craig Missakian. Typically, product keys are used to activate software and are printed on Certificate of Authenticity labels that accompany legitimate products."

http://news.cnet.com/8301-1009_3-10242343-83.html

My opinion is that there's always a balance to be maintained between users/creators and corporate interests. It was clear at the rulemaking hearings that the DMCA's anti-circumvention provisions are completely useless and ineffective. Users are circumventing and creating all kinds of digital remixes. The corporate interests have no choice but to now go after those who sell these kinds of tools that permit hacking. This result also gives me hope though, because maybe the tides are turning for those who circumvent in order to make a fair use of existing materials. If the copyright office grants an exemption to the DMCA for educational users, it will probably be a matter of days before the corporate interests create licenses that permit users to circumvent, and then offer a cheap, legal tool for doing so.

Posted on WIDE's Blog

I posted a summary of the DMCA testimony on the WIDE blog; the title is "DMCA Testimony."

I will be creating an annotated archive and resource this summer.

http://www.wide.msu.edu/content/blog.php?postid=75

Questions that arose during the DMCA 2009 rulemaking hearings

Some issues arose during the 2009 DMCA rulemaking hearing that took place in the US Copyright Office. One of these issues was concerning the use of screen-capturing software such as snag-it, camtasia, and morae. Snag-it was the only application mentioned by name. These discussions took place both during the educational exemption panel (afternoon May 6), and the general exemption panel (the vidders, morning May 7).

No one in the room, either those representing the motion picture industry, the copyright office panelists, nor those testifying in favor of the use, could say whether or not such screen capturing software is accomplishing a "circumvention" of technological protection measures.

So that question was left open.

Another question that arose, was whether or not an exemption for copying is even needed, since the DMCA was never intended to prohibit circumvention for purposes of copying as opposed to circumvention for purposes of gaining access. The MPAA and those opposing the exemption, argue that since both the access and copying controls are folded into one, to circumvent for copying is the same as circumventing for gaining access. I asked the copyright office to address this in its recommendations. They discussed it in the April 3, 2006 transcript, but never made a determination on this issue. The legislative summary I quoted from during my testimony clearly states that it is not the intention of congress to stop people from circumventing in order to make copies.

Another interesting development, was that there was consensus from the other side of the aisle, those opposing the exemption, that the kind of use I showed, a student created montage done for an academic conference, a course seminar, and submitted towards degree completion, was certainly a "fair use" under section 107.

DMCA Rulemaking Hearings Resources and Links

Mp3 files have been posted by the US Copyright Office (the agenda appears below the Mp3 files):

http://www.copyright.gov/1201/hearings/2009/

General info about the DMCA rulemaking hearings:

http://www.copyright.gov/1201

Audio files for the educational exemption hearing, created by the EFF (my testimony is an Mp3 file here).

http://www.screencast.com/users/hotdog2/folders/DMCA%20Hearings%20May%206

Mp3 of my testimony on the educational use exemption.

http://www.screencast.com/users/hotdog2/folders/DMCA%20Hearings%20May%206/media/9377d9d3-ce84-4936-b7bb-757c1d0dcae0

Rebecca Tushnet's blog

http://tushnet.blogspot.com/2009/05/copyright-office-dmca-hearings_7679.html

Boing Boing

http://www.boingboing.net/2009/05/07/mpaa-to-teachers-don.html

Center for Social Media Coverage

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

I will add to this resource list as information becomes available.