Thursday, May 28, 2015

DMCA hearings: remix

Copyright Office: Jacqueline Charlesworth
Michelle Choe
Regan Smith
Cy Donnelly
Steve Ruhe
John Riley
Stacy Cheney (NTIA)
 
Note that my recap does not reflect all Qs because I was participating.
 
Proposed Class 7: Audiovisual works – derivative uses – noncommercial remix videos
This proposed class would allow circumvention of access controls on lawfully made and acquired audiovisual works for the sole purpose of extracting clips for inclusion in noncommercial videos that do not infringe copyright. This exemption has been requested for audiovisual material made available on DVDs protected by CSS, Blu-ray discs protected by AACS, and TPM-protected online distribution services.
 
Proponents: Corynne McSherry, Electronic Frontier Foundation
 
(1)   Urge you to look at record submitted by all sides. You stressed in the NPR that you wanted a record.  Some of the evidence: we submitted many examples of the kinds of videos this exemption would protect and why a court would likely find them fair.  Opponents offered very little on why our examples aren’t fair use, just blanket statements not applied to our example.  Record on harms and statutory factors: ample evidence that artists are relying on Blu-Ray source. And the existing exemption is not controversial so it’s just Blu-Ray.  Opponents conceded Blu-Ray is for bonus features, exactly what vidders might want to comment on.  Currently remix artists use the existing exemption to defend themselves against improper takedown claims. People who use Blu-Ray don’t have that protection, and they don’t know it until they get a takedown, talk to a lawyer, and find out they can’t fight back.
C: did you provide specific examples of uses where the content was only available on Blu-Ray.
A: we do—a whole collection of uses.
C: they may have used it, but setting aside quality, you were talking about bonus features.
A: yes, in our Reply/Coppa’s statement.
W/o exemption 1201 is a trap for the unwary. Trying to do the right thing and ensure creators get paid. Tripped up later by a confusing message that you did the right thing but used the wrong source material.
What is not in the record: any evidence that proposed expansion or current exemption cause harm to availability of copyrighted works. They’ve suggested people won’t make works available on Blu-Ray but that’s speculative. Blu-Ray may be emergent model, but so is streaming, and online streaming services know the existing exemption hasn’t hurt their emerging business model.
C: are you aware of situations where vidders have used HD online content and has that been a workable option?
A: Turk will talk about that.
Opponents have suggested that allowing circumvention might lead to piracy. If that were true we’d have evidence from DVDs and online streaming/downloads. Your Office asked for that evidence and didn’t get it. Pirates don’t want or need this exemption. Remix artists do.
Alternatives: record shows that the technologies opponents might work won’t work. Inadequate for editing that artists need to engage in to produce high quality work taken seriously by audiences they’re trying to reach.
C: artists—how do you define that?  The exemption doesn’t use the word artists.  Is it mainly to allow artistic production?
A: using it as a catchall for a broad array of communities. Wouldn’t tie it to any particular community.  Fanvidders, political remixers, professional video makers who are having their work displayed in museum.  If we tried to try it to an artistic endeavor that would be confusing because of the different communities.
We’ll show you importance of high quality. Dispel a different source of confusion: notion that fair use doesn’t entitle user to particular tech.  Corley is inapposite—discussed in our papers. Artists get the quality they need for transformative purpose. Also a red herring—whether they need the best quality source speaks to the question of adverse effect under the statute.  If it is putting their work at legal risk that’s an adverse effect.
C: most supportive cases?
A: Bill Graham, Warren v. Spurlock, Swatch, Sony v. Bleem (real images were necessary for accurate comparisons)—courts repeatedly take into account what’s necessary for the purpose, and HQ is needed for the transformative purpose.
 
Francesca Coppa, Muhlenberg College: Writing a book on vidders, but to speak to question before—remixers think of selves as artists and cultural critics, increasingly understood as broad art practice.  Already using Blu-Ray or other HD footage in practice. Whether or not they use Blu-Ray depends on some things, including technical or geographical (not everyone has broadband)—all across the country. Blu-Ray is significant source for many people in different parts of country. Using HD for two reasons: (1) they bought it and the idea that they can use one kind of disc and not another is not intuitive; (2) you’re asking them to use lower quality or spend more money for worse footage. HQ allows them to make the transformations they want. They don’t want to play it back. Edit it, crop it, color it, mask it, layer it. The more info in the original footage, the better it stands up to processing and the more complex an idea you can articulate.  Vidders date from 40 years ago, always on the cutting edge of media b/c they care about the quality of image so our image is watchable and not pixelated.
 
Q: distribution—can vary in types of quality.  Today, if you make something to be distributed into lower output can you explain why it matters?
 
A: it isn’t. Even YT has a HD option. Many may be seen in theater-style setting on projector. Hi-retina displays. Emerging practice of remastering older vids in Blu-Ray to keep the artwork watchable and vibrant as an artifact in the community. 
 
C: what’s the process of remastering?
 
A: Turk—but you match the clips and cuts, replicating their process using better quality footage.  On a shot by shot basis.
 
Artistic reasons for doing this: bring background to foreground, as with M video or Captain America vids—a lot of people using those deleted scenes to create critiques of the military industrial complex in Captain America. If you want background to be forward, you can crop and still have a watchable picture if you start w/BR. Deleted scenes often things that editor didn’t think significant, and vidders are often about reprioritizing—having an argument w/the director, what you thought was important isn’t!  Another case for Blu-Ray only content, John Carpenter vid, wasn’t planning to use BR because he was trying to say something about Jamie Lee Curtis over 30 years. Needed to use BR across b/c differences between 1977 and 200X would have been too jarring to the viewer. The last film was only in BR.  Multiple visual sources, trace a theme, make an argument, you need to match aspect ratio, color palette so that the eye goes to the argument the editing is making so it’s not disrupted by images that look widely disparate. It’s a way of talking visually.
 
Vids and other remixes have been featured in major exhibitions at museums and art galleries.  GIFs made with Blu-Ray; starting to see museum exhibitions too as borderline b/t film and photography.  Many times they’re projected on the walls.  It matters what they look like. Increasingly appreciated as artform and grassroots form of film criticism.  Centerpiece for discursive arguments about pop or high culture.  Michael Pidgett called vidders grassroots cinephiles who spot something latent in an image and feel the need to make it prominent and clear to others. HD/BR is important to this and a natural extension of this.  We naturally start with the most info dense images b/c we lose quality in processing. They think they’re doing the right thing.
 
Tisha Turk, University of Minnesota Morris: I’m also here as a vidder, an artist w/in the community.  Emphasize that I’m not a film or TV pro.  No Jim Morrissette. Know b/c I’ve been creating for 15 years. Two points: (1) Quality matters to video remix. The distinction is between what I need as consumer and creator. Consumer doesn’t always need highest quality for its own sake—I might stream Netflix to watch on the couch. Remix video – I need tools that work. The video is something I’m using and manipulating. Vid transforms genre, narrative, meaning—and that requires transforming individual clips. HQ allows me to do that without compromising the end effect.
 
Alternatives to circumvention don’t work. Multiple reasons. Some are aesthetic. Visually acceptable results for Blu-Ray not shown by opponents. Single frame of DVD video: 345,000 pixels. BR: over 2 million pixels—6 times as many. Screen cap can’t keep up.
 
Q: that’s true for material you grab online? If you screencapture from Netflix.
 
A: yes, if it’s 1080p, that’s just the number of pixels that it has. If you capture it, the software can’t deal w/ it all. Lots of things affect this. It’s a lot to ask of software not designed to do this.  It’s designed to make videos where you show your mouse moving.
 
C: Are you saying every vidder would necessarily need HD quality?  There’s no vidders only showing things to their friends? Existing exemption says you should need it.  Does every single vidder need access no matter what their purpose is?
 
A: vidders have a wide range of needs and backgrounds and access to stuff. My audience may not be the same. 
 
C: a beginner might not need to be circumventing Blu-Ray—she might be able to use screen capture. There might be variation.
 
A: variations are possible, but the ceiling is getting higher. What someone wants to do at 14, if they’re interested and keep doing it, in 2 years, they might have very different aesthetic needs and sense of who they’re communicating with. They might want to use more effects. They might want to focus on a character who’s in the background.  There’s a range, but the high end of that range is very high and getting higher as more people get used to high def.
 
Q: Vidder v. remixers. Vidder = subset? Perhaps maybe more of a need to use HD, or remix at large?
 
A: remix at large. Vidders particularly b/c we are fans of the things, our audiences tend to care very much about the source and know it very well. If someone loves a show or a movie in HD and you’re asking them to watch it with pixelization that would turn off our community.
 
Coppa: younger people are more footage-conscious because they have processing power and have lived with shiny screens their whole lives. Unbelievably good editing chops at 18—working in the industry at 22, came in running in a way we’ve never seen before.
 
Turk: It’s not just aesthetic reasons that alternatives don’t work. There are technical reasons. Video can look good to a casual viewer and not be editable or exportable which is in some ways more frustrating.  I tried to submit a video and captured footage wouldn’t work. The point of being remix artist is to edit, not just to look at. Opponents are thinking about alternatives from POV of viewer and consumer. You can see that in the record—they capture. Did you pull it into premiere or final cut, did you apply effects to it? There’s no attempt to transform. I have to assess alternatives from the perspective of a creator, not just a viewer. May be watchable for pirates, but screencap is not good enough to create.
 
Q: Alternative of HD downloads/streams.
 
Turk: People do use them and there are circumstances under which that works. Potential problems or reasons to use BR instead. Some reasons are geographical. Rural Minnesota w/intermittent broadband.  HD downloads are beyond my ability. Being able to get Blu-Ray is useful. The other thing is that HD and BR are not actually the same thing in the way they’re encoded. Different compression algorithms.  BR comes on a disc and there’s no need to download—BR holds a very large amount of data.  Download is encoded to produce a smaller file. If you look at the relative size of 720p versus 1080HD download is not as different as you’d expect given 2 ½ more pixels. The reason is that video is encoded using any of a variety of codecs. There are three different codecs BR supports.  Each has multiple options for compression algorithms. What is the bitrate?  Variable bitrate: if a scene doesn’t have a lot of motion, bitrate is lower—allows better distribution of the data.  Different algorithms serve different purposes. Some maximize sharp detail—something animated needs that. Some maximize smooth motion. Some are designed to produce small file size. You can’t have all of what you want. You have to trade off. Sharp detail = less smooth motion. You make decisions about what’s the most important. HD downloads are aggressively compressed—really big file, but way smaller than what you get if you rip a BR.  BR is not as compressed. Watching, that makes very little difference. But it can affect editing, when you need to do something to that footage. Unpredictable results.  Compression affects the underlying data. There’s a big range within lossy compression algorithms—you lose different things.
 
Q: what’s the scale of the compression? Raw to BR to HD 1080p.
 
Turk: I’d have to look it up.  Raw file is unmanageably enormous.  BR is compressed but not so much.  HD download v. BR would be big size difference.
 
Q: talk about editing limitations.  What would those limitations be?
 
A: the one that comes to mind is cropping and resizing—you would lose quality through HD.  Other kinds of things that might be affected: slo-mo.  Color possibly. Zooming, speed changes.
 
Coppa: After Effects: you can use internal cameras to move a camera over a piece of footage—you need a lot of processing power. I’m not that fancy.
 
Q: have you personally worked with HD downloads?
 
A: I haven’t had much time to vid. 
 
Coppa: vidders I interview for my book have done that. One vidder melted her graphics card—renders can take 26 hours to render one clip.
 
Turk: Vudu HDX—I did a quick look. Direct quote: brings down the average bitrate of 1080p from BR’s dizzying 35 mbps to more manageable 12 mpbs. Which is great for streaming but not editing.
 
C: why?
 
A: It’s less data.
 
Rebecca Tushnet, I’m a professor at Georgetown Law and I’m here as a legal academic who’s studied these issues for twenty years and on behalf of the Organization for Transformative Works.
 
Thank Office and NTIA for hard work on these issues.
 
(1)        Want to emphasize the wide variety of fair uses involved here: political commentary like that from the Native Americans and anti-abortion groups, historical analysis in National History Day, film criticism from Tony Zhou, cultural and political criticism through remix like soda_jerk and gianduakiss and many others.
Show “Worthy” to 1:35.  You’ll see here a bunch of techniques that can’t be done without HD input. None of the text effects exist in the original.  Swapped out backgrounds using masks (e.g., at 1:15) and altered elements of a character’s face (also at the end which I commend to you: that’s entirely added by the vidder).
(2)        Exemption is a two step process.  First, we’ve submitted evidence that a substantial number of remixes made using circumvention are likely to be noninfringing. This satisfies the statutory demand for showing we are “adversely affected … in [our] ability to make noninfringing uses of that particular class of works.”  Second, the question is then how to word the exemption for which we concededly qualify.  Under our formulation, if it’s not fair use, it won’t be entitled to the exemption, which more than satisfies the standard for “substantial likelihood” of fair use.  You can even say in the exemption that it’s more likely to be fair use if it’s a short clip—that’s the standard already articulated by the law.  A contrary formulation presupposes that some fair uses ought to be excluded from an exemption, which is not what the statute says.  Other standards will inherently add uncertainty over and above the irreducible flexibility of fair use.  [Encourage the Office to recognize that that “limited beyond fair use” and “providing guidance” are not equivalent. Most of the non-fair use-based limits the Office has imposed in the past have been unclear rather than providing guidance, as the debates in earlier panels have indicated.]
 
(3)        Opponents didn’t offer evidence about the quality of Blu-Ray screen capture. Since Blu-Ray is the only exemption they’re opposing, that absence speaks volumes. Even screencapture applied to DVD produces bad results, and opponents haven’t provided and can’t provide evidence that screencapture works even that well on Blu-Ray given Blu-Ray’s higher quality and computer processing demands.  [Show Captain America 2 Blu-ray, captured using SnagIt on a PC: I tried to upload it to YouTube but YouTube rejected it—not on copyright grounds but on quality/size grounds] This is before any editing, which would cause further degradation.  She got lucky. Here’s what vidder Thuviaptharth said: “I spent an hour with WM Capture and 45 minutes with Camtasia Studio, and I can't get either of them to record the Blu-Ray video.  They record the audio, but I can't get it to record Blu-Ray video at all.  The Start menu and the mouse pointer show up, but the video is just black. I tried it with two different Blu-Rays with the same result.” [Also a PC; Mac doesn’t currently support Blu-Ray] Given the evidence we submitted of artists’ actual experience, opponents would need to provide evidence that their purported alternatives would work for Blu-Ray, and they have not done so.
 
(4)        The exemption process looks at adverse effects in the real world. People are using Blu-Ray to make their fair uses.  Absent an exemption, they risk violating the DMCA regardless of the theoretical alternatives.  By contrast, we can currently counsel vidders and others who use downloads and DVDs that they can counternotify when they believe they’re making fair uses, and that’s made a real difference in willingness to do so.  That’s a real lifting of the chilling effect.  Remixers are not lawyers and shouldn’t have to be. 
 
Our testimony comes from women, each of whom have more than a decade editing video, who’ve won awards and been featured in magazines and museums and scholarly articles.  It’s disconcerting to see men who admittedly don’t make or edit video discredit their experiences.  The MPAA has access to real film editors, and I respectfully suggest that there’s a reason that none of them are here to confirm the opponents’ assertions about file quality and editing.
 
A point on adverse effects: in previous panels we’ve heard the opponents suggest that Mac owners should go out and find a completely separate computer for screencap, and make sure it’s old.  Pink-collar workers and teenagers can’t do that, and I note the Register previously held w/r/t the print disabled that having to use multiple expensive devices is itself an adverse impact.
 
Q: Wouldn’t you have to buy a PC to use Blu-Ray anyway?
 
RT: I don’t know.
 
Turnbull: Could you connect a standalone BR player to Mac for playback, potentially. You’d have to circumvent something to capture video that was being played back. It shouldn’t play back.
 
Q: why?
 
Turnbull: AACS requirement. External drive is supposed to authenticate itself. Output you could connect to PC—the output itself would have protection.
 
Q: and screencap?
 
Turnbull: screencap operates on the decrypted video, so it wouldn’t attack HDCP or AACS but could be imposed by Apple or Windows.
 
Turk: Size of uncompressed video: 10 bit BR is 667 gigabytes per hour.  40 minutes on iTunes: about 1.75 gigs. So there’s a pretty significant size difference.
 
McSherry: sometimes your purpose is speed/commenting—HD downloads might be sufficient.  But sometimes your purpose is artistic for display in museum—then you need more.
 
Q: people may take the best quality they can w/out needing.
 
McSherry: they just guess wrong about their source. Counterintuitive.
 
Coppa: “Worthy.” Body in the foreground is mismatched—how difficult it is to integrate text.  Screencap looks like you’re writing on a frame whereas editing so that text moves with the body as if it’s on the body is incredibly difficult.  If someone’s done their job right you  might not see it at all b/c it looks like TV even though it was done by a pink-collar worker.  One vid: the main character hadn’t been in any of the scenes. The editor just put them in.  It’s hard to explain the hours and days of work.
 
While people aren’t using BR all the time, younger people use it b/c they think it’s the thing they have.  And it’s used by people who think they have something to say.  They want to say this matters—if they think their work is fair, they should be able to defend it. Maybe the 14 year old doesn’t think her speech is important to fight a takedown, but I’m interested in the person who is.
 
Opponents: Bruce Turnbull, AACS LA: There is a vigorous community using existing tech and exemptions without exemption for BR. There are sites on the internet that tell vidders how to use screencap. There are HD quality videos we’ve talked about through HD content under existing and renewed exemption.  There are flavors of HD available online.  HDX is likely to be the highest quality and the largest file. There are some complaints that it took a long time to download which suggests it was big [667 gigs]?
 
Reply cited the use of HD downloads as a good thing [b/c more timely than BR, though]. In terms of content only available on BR, there’s a de minimis amount of that, and some of the online downloads contain bonus features as well.
 
Our view that Corley is good law and is the most directly relevant law. Covering the same law that we are considering. Applying to the same kinds of tech. Applying to video, where cited cases are about audio or posters.  Is from the direct finding of the court on the First Amendment and fair use; was one of the three reasons the court found for the Ps in that case.
 
Harm to market: Recent case in which the judge in SDNY found irreparable harm to AACS from the distribution of tools used to circumvent AACS. Our view that enabling of the further distribution would have similar irreparable harm to AACS. DVD exemptions is commentary on differences b/t BR and DVD b/c DVD hack ubiquitious.  [and difference b/t BR and streaming/downloads?] We’ve been able to contain the circumvention tools to some degree and the use of those tools would cause harm.
 
C: One claim is that complex editing goes better w/BR.
 
Turnbull: I’m not an editor.  I take the point as made. People did make perfectly good remix videos using alternative forms of video. 10 years ago, people would have said this was quite compelling.  You can do it without that. HD content, editing is possible.
 
We don’t maintain that screencap of BR is an alternative. That probably doesn’t work. 
 
C: what about the aesthetic claims?
 
A: under our laws you don’t always get what you want.  Going back to Corley, the fact that a critic might have had a better piece of criticism if he’d been able to take a camera into a theater doesn’t mean it’s legal to go into the theater and use a camera.
 
C: claim is that the bar is getting higher in terms of quality.
 
A: Yes and no.  Companies very much hope everyone will rush out to new ultra HD BR players. On the other hand, DVD is still the dominant optical medium.  Notwithstanding BR’s existence for 9 years.  Online video = people watching all kinds of different resolutions.  When I watch on big screens, it frequently down-rezzes to deal with bandwidth. It isn’t just everyone watching HD all the time.
 
McSherry: On Corley: it wasn’t a fair use case.  Actual fair use cases go the other way.
 
Harm: what opponents cited was a brief court decision saying there’s harm. What they haven’t submitted is any actual evidence. They suggest there’s a distinction b/c with DVDs the circumvention tools were widely available. Based on what we’re hearing from vidding and remix community, these tools are widely available b/c people are using them—that’s in the record. There’s no distinction to be made on that theory of harm.  Many opportunities for opponents to submit some evidence of harm from previous exemptions; never been able to do that.
 
Your Q: Turnbull suggested 5 years ago people were happy with tech, but of course standards evolve.  Many of us aren’t thrilled we have to do this every 3 years but the one benefit is opportunity to see if exemptions need to evolve to new tech and practices.
 
RT: people don’t know about this proceeding! This is in the record: we’re the only ones who present evidence about remixers’ actual knowledge on the ground. Relevant both to alternatives and to alleged harm. May be unfortunate, but you can’t affect the prevalence of BR circumvention no matter what you do in this proceeding.
 
Q: Chilling effect on vidders: what is it?
 
RT: Inability to counternotify: recognized as a problem in 2009; now we have an exemption.
 
Coppa: DVD exemption has been hugely helpful in fighting automated takedowns—allows us to say go ahead and counternotify.  I worry about people who don’t know about BR.
 
McSherry: people incurring legal risk w/ no idea. Not a traditional chilling effect, but a harm: the sword of Damocles, and they have no idea. That in and of itself, given that they’re otherwise making fair use, should be taken seriously.
 
Q: does this encompass ultra HD BR?
 
McSherry: don’t know the difference. We’ve crafted it to cover all BR.
 
Turnbull: we would object to including Ultra HD BR, which is totally different and different tech based on existing AACS technology. No evidence of harm.
 
Q: is it out yet?
 
A: No.  [ok.] When this was raised in LA, their answer was we aren’t talking about that. I would have hoped that would be the case here.
 
Q: if there’s nothing in the record on this format, will you concede that’s not what you mean.
 
McSherry: there’s no record on what’s not yet available. Forward thinking exemption: same problems will apply. There will not be a distinction.
 
Coppa: we’re expecting change—people respond to better technology. No sense there’s a trap.
 
RT: There is something in the record: they use it b/c they bought it, they are not pirates, and they don’t know these distinctions—that relates to any format that might be created in the future.
 
David Jonathan Taylor, DVDCAA: Videos: Matrix clip.  A different clip!  Demo of using that clip with Premiere.  And then comparison of original screencap clip versus what we actually produced in Premiere w/effects.  Images that have been upgraded/processed taken from screencap settings.
 
WMCapture—output as mp4 and we learned that Adobe Premier doesn’t handle mp2.  The clip has crazy aspect ratio and is weirdly squished.
 
C: did the aspect ratio on that change?
 
A: I kept the image size at 720x486, what we talked about w/broadcasters. I couldn’t tell what image size they wanted, so I kept it at 720x486, and the aspect ratio should be 4:3.  You can change the aspect ratios you want, so if you want 16:1 you can choose it. [But apparently you didn’t?]  I don’t know what the original aspect ratio was. It was predetermined by WMCapture’s settings.  It will record it for you optimized for iPad or iPhone. Not necessarily 4:3. 
 
Q: Turk talks about frame size and framerate?
 
A: I did change it from the original. Not sure what original size was. Did change it to 23.97 fps.
 
Then Premiere demo: importing it into Premiere.  Now it’s on the timeline. They wanted us to zoom and crossfade.  We did zoom and crossfade.
 
Exhibit 33: Side by side comparison of what was produced w/Premiere.  Rendered.  A couple of zooms and crossfades of a few frames each.
 
Q: could you add a character into an existing frame?
 
A: we used screencap as source, and then you can use their preferred software in Premiere to do the same things they said they wanted to do.
 
C: Could you import a different film and add an image to this film using screencap and Adobe?
 
A: we created it from screencap software. You could add as much as Adobe Premiere can handle. [They showed a Matrix image in which Trinity was cut out of the scene, which I can’t help but find symbolic of this whole process.] Ex. 34: Powerpoint called Family Guy.  Still images that are typical of the results. If you process it you can improve the quality of the image. That’s the point in all of this. Any image you have can be edited and processed to improve its quality.
 
C: what did you do?
 
A: upscaled from 720x46 to 720x540.  Video editor algorithm NNEDI3: it takes the interlaced frame made of two fields and drops the second field and reproduces the first to get you a better image when it’s deinterlaced.  You can see clearer details, pixelization disappeared. Strikingly clear.
 
Q: how long does it take to upscale a 1-minute clip?
 
A: 20-30 minutes.
 
J. Matthew Williams, Entertainment Software Association, Motion Picture Association of America, Recording Industry Association of America (Joint Creators and Copyright Owners)
 
A lot to cover: As w/ebook issues, my clients not opposing renewal of existing exemption for remix videos. Opposed to expansions proposed, including uses beyond short portions, coverage of primarily noncommercial, coverage of uses other than criticism and comment, including Blu Rays, and coverage of all AV works instead of just motion pictures. Many of these limits are critical to ensure that the uses at issue are very likely to be noninfringing. We aren’t saying that using a portion of a motion picture is never a fair use, and we didn’t take the position that remix is generally infringing. We take the work vidders do seriously, and I’m not here to criticize it as an artform. That doesn’t mean every remix is a fair use, and we do have to discuss that fact in this proceeding. Despite my readily apparent gender limitations [J] I will try to discuss the factors. Some are just for entertainment value, and that needs to be licensed, which is an option. [For vidders? Not at all!] Online video best practices acknowledge that these types of uses can be infringing—use shouldn’t be so extensive or pervasive that it ceases to function as critique and satisfies taste for the thing or kind of thing.
 
Q: In the record?
 
A: that’s an exhibit to the proponents’ comments.  [We don’t remember that offhand, but we don’t deny its existence and we think they’re pretty cool.] Discussed at documentarians’ hearing. Where a use is a pretext to exploit the popularity or appeal of the work employed or amount is excessive, fair use shouldn’t apply. My clients rely on fair use, even in entertainment, but pure entertainment isn’t at the heart of fair use so we want existing exemptions.
 
Q: do you have opinion about the SPN clip we saw?
 
A: I think I’d need to know more about the series.  I did see what was added and subtracted which seemed significant, but I don’t know which way I’d go.
 
Proponents say we aren’t qualified to evaluate transformativeness. I’m not qualified to talk about quantitative value, but lawyers and judges have to be qualified to apply the fair use factors objectively otherwise no one other than a defendant could opine on fairness.
 
Q: have you opined on their examples?
 
A: we did not try to provide an opinion on every example, and we aren’t claiming there aren’t a significant number of fair uses; my statements today are more about preserving the limitations that are in place, and not everything out there is noninfringing and caution is called for. We only pointed to a couple of videos, and they gave more information about the meaning of the videos; I still have questions about them but they did explain them.  I don’t think the only person who can have the answer is a defendant. [Really not what we’re saying.] What audience takes away is relevant. [Yes!] And it’s not only the intended audience. [No!] It has to be a reasonable observer.  Targeted community is relevant, but can’t be the only question.  Salinger v. Colting: defendant wrote an unauthorized sequel to Catcher in the Rye and there was an expert witness. Second Circuit affirmed Dct.
 
Williams: need good definition of what this covers. Some of what we’ve heard was helpful. Would take more drafting, but sounds like remixes and mashups that are either parodies or satires. Traditional core political statements.  Art display presentations.  [these are the kinds of additions that don’t provide guidance; they take guidance away.]
 
Q: Are you objecting to noncommercial, current description?
 
A: we want that to stay, but we want more than a reference to noncommercial—starts to swallow up other things not intended to be swallowed up.
 
Q: what are some examples of things that weren’t intended under this exemption?

A: currently, K-12 are not covered by educational exemption but there’s an argument for noncommercial video covering them.
 
Q: proponents have used National History Day—should that be excluded.
 
A: I don’t recall that. Is that students creating vids?
 
C: Could be remix video illustrating historical events from films.
 
A: I’m hesitant to speak to that. I’d respond in a letter.
 
Q: are you aware of instances where the prior exemption was abused?
 
A: I have seen on various blogs mention of the lack of clarity and maybe the noncommercial exemption covers K-12 but not claiming abuse. Ability to collect evidence of abuse is really not possible and unfair to put that burden on us.  [You study sources of piracy all the time.] We are honestly concerned about threat of harm.
 
Q: are you seeing an uptick in infringement?
 
A: there are lots of marketplace factors at issue.  I haven’t heard any study of the exemptions increasing infringement.
 
C: Underlying concern—forget about overlap with other exemptions. What’s too broad?
 
A: we think it’s important to cover conduct vetted during the process.  Trying to identify three types of conduct arguably noninfringing a large portion of the time. [fair use = noninfringing all the time] Just saying noncommercial videos is potentially very expansive. [what bads does it cover?] Not all noncommercial uses are fair uses [which is why we say fair use in our proposal] we want the definitions as clear as possible for each exemption so things that aren’t intended to be swept up will be kept outside.
 
Footnote 7 of opening petition: Screencrave.com—10 best YT trailer remixes ever.  Some are old. Some of them seemed pretty clear but others were questionable fair use. #10 is a video asking the question “what if in Ferris Bueller’s Day Off he were sick the whole time?” It’s funny.  I don’t see the real criticism or commentary there. Another if Home Alone was really a horror film. It’s entertaining but borderline.  The genius is it doesn’t change the genre but cranks it up to 11. You didn’t go for plot but for things exploding and this trailer shows it—the movie we wish was made. Sounds like most entertaining portions. Depends on how you perceive it.
 
Q: and you want us to look at the HP Lexicon case?
 
A: yeah, that’s more extensive copying, but those cases support caution.
 
Small sliver of stuff only available on BR. Only 2 examples.  As in 2012, Register decided it was insignificant.
 
Q: do you object to clarifying streaming v. download?
 
A: that’s a bit of a wrinkle. Current exemption – distributed. You could read that narrowly, but I think in the Recommendation the looser language implies streaming video was supposed to be covered. We wouldn’t oppose clarification but are hesitant on short portions, if you haven’t paid for access to a full copy, you shouldn’t be able to walk away from your streaming subscription with a bunch of full copies of works.
 
No streaming providers here: note that MPAA member studios are partners/investors in streaming services and they want cautious approaches.  I regret there’s no business executive witness, but we did produce them in LA, including Chief Tech Officer of Disney.
 
Q: exemptions for screencap?
 
A: we need it for a few situations especially political remixers and given the uncertainty we need it.
 
Q: and motion pictures?
 
A: we’re cool with that as long as it includes TV.
 
Q: primarily language.  We did try to clarify that paying for production can be considered noncommercial.
 
A: we’re totally happy with putting that in the guidance.
 
RT, what I didn’t get to say: [on transformativeness: we don’t think it’s the creator’s own view; have the interpretations of flourishing existing community; Mr. Williams has given an excellent explanation for why you shouldn’t put other limits on the exemption, precisely so courts can apply these factors. Our limit is perfect; his limits don’t work and take away guideposts.  Bleistein’s antidiscrimination principle: don’t judge what you don’t understand. A judge would hear this evidence.]

DMCA hearings: 3D printing

Copyright Office: Jacqueline Charlesworth
Michelle Choe
Regan Smith
Cy Donnelly
Steve Ruhe
John Riley
Stacy Cheney (NTIA)
 
Proposed Class 26: Software – 3D printers
This proposed class would allow circumvention of TPMs on firmware or software in 3D printers to allow use of non-manufacturer-approved feedstock in the printer.
 
Proponents: Sherwin Siy, Public Knowledge: be specific about the copyrighted work at issue. The software embedded in the printer, not anything produced by the printer, and not even necessarily the software embedded on the chip.  Since 2003, when 2D printers came up, Lexmark has moved that a bit more out of the arena of discussion.  Adverse effect: Stratasys is quite clear about how they view their ability to lock TPMs to particular printers can benefit them, and their incentives are clear.
 
Charlesworth: tell me more about the software as you understand it at issue here.
 
A: we’re concerned about whether accessing the software in the printer would constitute access under 1201. 
 
Charlesworth: reading through submissions, seemed that there are two components: (1) the chip on the cartridge that (2) then locks into the software on the machine. How does your exemption deal with both, or does it?
 
A: Ultimately what we want is to be able to use a chip that was not created by the original mfgr or use feedstock not created by the original mfgr. Both programs are involved, but the © work at issue would be the one in the printer, as in the Lexmark case. 
 
Charlesworth: what’s the nature of the circumvention?
 
A: number of ways. Could copy software on the chip.  That would interface w/the computer program on the printer.  Q is whether access by using the printer and creating potential RAM copies triggers 1201. Substitute chip.  You could also reuse/modify an existing chip.
 
Charlesworth: and in copying software is there circumvention involved in the chip?
 
A: I don’t think there’s circumvention.  It’s likely to access a noncopyrighted program. But to the extent that’s necessary … It would vary based on the nature of the system. 
 
Charlesworth: what TPM is on a chip?
 
A: it protects the interface b/t the chip and the printer itself.  In many cases there is no overt TPM, it’s just a question of reading off the chip itself. It depends on other variables.
 
C: there might be a © issue but not a TPM issue.
 
A: yes.
 
C: and the machine?
 
A: the circumvention would be circumventing the measures that require a mfgr-created chip to operate.  Authentication. The TPM controls the authentication. 
 
Q: are you doing anything to the software itself?
 
A: it depends on what the feedstock is. You might want to change some of the variables in the program itself.  It would vary depending on the model of the machine and other factors.
 
Michael Weinberg, former VP at Public Knowledge, now Shapeways, here in personal capacity: Part of the issue is that once you get past an abstract level: feedstock container and chip verifying that the container came from mfgr—there are a number of technical ways to implement that verification. You could make the chip very dumb, with most info/action on the software side. You could structure the system w/ more info in the feedstock container chip so the two pieces talk to each other more intensively. Depends on how you implement it. The key thing is that at a high level of abstraction, there is at a minimum software on the printer waiting to be used until it can verify that it has approved input and that software is likely protected by © so the only way you can access the interface is to convince it you have approved feedstock. Implementation varies from machine to machine and mfgr to mfgr.
 
C: the TPM is the need for the chip to make the printer run? Explain what the TPM is.
 
Siy: the system in its entirety that requires the presence of the chip. Whether the code is on the chip or more likely on the printer, that software code is the TPM, the part that requests authentication.
 
Weinberg: it’s easier to describe a dumb chip on a cartridge and a smarter printer, but I want to be clear that we aren’t restricting our request to that specific type of system.
 
C: what do you mean by a dumb chip?
 
Weinberg: may be as simple as serial number or RFID.  Information presenting to be read.
 
C: like a key.
 
Weinberg: like a swipe card to get into a building. It’s not doing any processing, but w/out it the locks on the building won’t work. You could have a smartphone that would communicate back and forth with the building.  The level of technical sophistication in keycard v. phone is different.
 
Q: is this intended primarily for consumer use or at the manufacturer level?  Larger 3D printers?
 
Weinberg: Motivated by consumer use, but no reason to exclude manufacturing/more sophisticated commercial players. Worth noting there may be and likely are noncopyright related restrictions on what owners or possessors are doing—contractual, warranty. The focus is the ©/DRM part.
 
Q: This is just about feedstock bypass, not software that reads 3D modeling.
 
Weinberg: exactly correct. Nothing to do w/models going into machine or coming out. Not even related to software running the machine except for the feedstock part.
 
Q: does breaking TPM for feedstock affect 3D modeling software?
 
A: the process that reads and verifies the input doesn’t have to be linked to the process linked to slice the model.  One thing the machine will do is slice model horizontally into thin layers and establish a traveling path through each layer to create it. While the path is determined by the type of material, it’s not determined by the origin. It could be implemented in a tied way on a machine.
 
Opponents: Ed Kerry (sp?), Stratasys Ltd. (or designated alternate Stratasys witness): The output is very dependent on the material and authenticity, though the input is not.
 
A: agree.
 
Siy: though that only means product quality, not © status.
 
C: might different TPMs protect the basic software v. the modeling software? Or once you break it do you have access to everything?
 
Weinberg: there’s no technical reason. Mfgr can decide how to implement it differently. You can choose one that simply governs feedstock source.
 
C: what’s in the market?
 
Weinberg: I don’t know b/c no one is particularly interested in making unauthorized copies of the software that runs the machine. The reason people worry about these is that they want to use unapproved feedstock; not discussion about accessing the software to copy it.
 
C: do you need to copy the software to modify the feedstock?
 
A: depends on the mfgr.
 
C: What is the legal basis for your exemption?
 
Weinberg: two core harms.  Both flow from a cloud of ambiguity over whether this behavior even triggers 1201.
 
C: what is the noninfringing use? [um, making stuff, which doesn’t itself implicate ©?]
 
Siy: We want to figure out §106 uses—RAM copies made in the utilization in the printer itself, or modifications necessary to use the feedstock.  Both fall within §117.
 
C: if you alter the software you might be creating a derivative work.
 
Siy: allowed by §117: adaptations or copies created as essential step. They aren’t being made to distribute or even leave the machine.
 
C: who owns the computer program in the machine?
 
Siy: the person who owns the machine.
 
C: what’s the evidence of that?
 
Siy: you could recognize that to the extent owned by the hardware owner, §117 requires; MDY ruled that any contracts were covenants when the Q is whether the use of the software is licensed or not.
 
C: what are the typical mfgr practices?
 
Siy: regardless of language of license, that will allow you to use the printer.
 
C: but are they even claiming it’s under license?
 
Siy: it will vary from mfgr to mfgr.
 
Weinberg: especially in the consumer market, while I don’t have a study of current licenses, there are probably 70 desktop 3D printer companies of highly variable legal sophistication. It would be highly surprising if you didn’t see almost every version of © license theory applied to software in this space, including silence.
 
C: have you seen any purported licenses?
 
W: not in context of these proceedings.
 
C: any you’re sure are sold without a claimed license?
 
W: there are printers that are open licensed.
 
Q: have you looked at the printers using TPMs for their licenses?
 
A: no.
 
Kerry: VP for Stratasys.  Deal w/ top 120 manufacturers in the world. Prototypes/mfgr of parts. Those same customers buy low end Makerbots as well.  New 3D companies this year: 150. We have revolutionary technologies, including using inkjet heads. Our software calculates droplets and can use 3 different materials at a time. My customers also use our service business, where we make parts for customers. We are helping them go to direct digital manufacturing of tools and end use parts.
 
A large airplane manufacturer is putting 1000 plastic parts on a plane; we spent years certifying this plastic for airplane parts. The highly integrated machine that prints it as FAA certified part is very important.
 
C: Are the airline companies making those parts?
 
A: they’re airline companies and downstream manufacturers.
 
C: why do they care?
 
A: customers don’t want anybody to be able to get into that integrated system. They want a reliable part that is exactly what they declared it to be. They don’t want people using cheaper feedstock. Traceable and reliable to be kept for years. [And that is related to © how?] Important that no derivative works are created and no feedstock introduced.
 
C: are there specific regs on making airplane parts?
 
A: The FAA. The FDA regulates medical devices. I’m not an expert.  [Why is the © Office making decisions about this?] We help our customers certify parts and materials to the FAA and FDA.
 
C: these are manufacturing type customers, not Makerbot customers.
 
A: correct.
 
Q: can you test the part itself to make sure it’s used the right material?
 
A: The customer does test the part, though I don’t know if they test the material. Test it as they’d test from any manufacturer.

C: do they test every part? [© Office lawyer as airplane mechanic.]
 
A: depends on what the part is. 
 
Q: Is the fear that someone not in the normal manufacturing stream gets ahold of inferior materials and then tries to put that part into the stream via passing off?
 
A: that’s my customers’ fear. They have multiple suppliers who supply counterfeit parts, which would affect our brand and that of the customers.  [Wouldn’t that already be illegal and violate the suppliers’ contracts and probably trademarks?]
 
Our printers are fully integrated systems. They’re servers, not printers. We’re talking about the operating system and derivative works.  Have to meet tight tolerances.  Controlling the slicing is important. We track lot numbers, enabling verification of parts.  Inkjets sold 600 million printers last year; we’ve only sold 120,000 systems and we’re the biggest—nascent industry.
 
C: answer Makerbot v. more sophisticated: how do you handle the software?
 
A: by license. 
 
C: do you provide ongoing updates?
 
A: yes, we have an ongoing relationship. Thingiverse. We accept files made by different design software.
 
Weinberg: But Thingiverse doesn’t update the software.
 
C: do you send out patches to the Makerbot?
 
A: don’t know, but on the other lines we do.
 
Weinberg: I own a no longer supported Makerbot.  There are machines that are no longer upgraded.
 
C: how do you get upgrades if they were there?
 
Weinberg: SD cards were required. As machines get more sophisticated they might be able to do direct downloads; it depends.
 
C: in many cases, you might be receiving upgrades for a consumer device.
 
A: it’s possible.
 
Q: is that software encrypted?
 
Kerry: it’s compiled to run on the printer. The feedstock chip is encrypted.
 
C: what is your warranty policy if someone modifies your printer?
 
Kerry: it’s no longer warranted. 1 year warranty otherwise.
 
Q: are you claiming the feedstock chips are copyrightable?
 
Kerry: not today, but we anticipate it might be.
 
3D printing is more complicated than 2D printing.  IP is critical to the industry to justify investments for future development. I’m not a lawyer or DMCA expert, but I understand it was enacted to prevent circumvention of TPMs designed to prevent copying of IP. Exemptions were to be exceptional—a fail safe where there are substantial adverse effects on noninfringing uses.
 
Petitioners’ proposed exemption would deprive industry of useful tool during critical period. They aren’t seeking lawful access, but misusing the exemption process to encourage users to bypass controls where DMCA doesn’t apply and encourage users to infringe. Showing is insufficient.
 
C: Cheaper feedstock is a benefit, no?
 
Siy: and different.
 
Kerry: today that chip is not copyright protected, though we do plan to have one.
 
C: are you saying you don’t object to doing something w/ the chip?
 
Kerry: we highly object to counterfeiting the chip and to the exemption.  This industry is just starting. They will not do medical devices, airplane parts, or car parts if they can be hacked.
 
C: on the consumer end, if I buy a makerbot and want to use different feedstock and break my warranty, so what?
 
Kerry: if the part comes out not right it affects our brand.  Bigger concern on high end b/c derivative works of our server system is a huge issue b/c of our competitors in other companies. Opening that up for competition and un-integrating the system will stunt the industry.
 
C: are you familiar with the Lexmark case saying that using a different cartridge didn’t violate ©?
 
Kerry: yes, but that wasn’t a server.  Printer toner is basically all the same. We print 100s of different kinds of plastics in different ways. Not a fair comparison.  People rely on the objects we make.
 
C: respond to concern about the integrity of mfg chain?
 
Siy: in both consumer and commercial context, the person making use of the exemption is the person using the printer. They’ll be fully aware they’re the ones using 3d party feedstock.  That’s their responsibility. [And has nothing to do with ©!]  As for the commercial context, the FAA regulations will dictate what’s relevant. If you need a certain plastic, then the certification will say so.
 
C: but the concern is that bad guys will sneak bad stuff into the chain, b/c it will seem legitimate to use cheaper stuff.  
 
Siy: Q of integrity of product as functional object depends on manufacturer and supplier. If they’re counterfeit, they’re counterfeit. The TPMs don’t solve the problem of unreliable suppliers.
 
C: makes it more likely that suppliers would circumvent and use inferior feedstock.
 
Siy: people would be violating their contracts.
 
Kerry: there are plenty of open printers w/ no encryption.
 
Siy: people who want to produce parts on the cheap can do that already then.
 
C: do you have specific examples in the record of people who want to circumvent commercial/mfg type printers as opposed to consumer printers?
 
Siy: no.
 
Weinberg: there are companies actively developing alternative feedstocks for industrial printers. They see themselves engaging in an activity unrelated to © and don’t understand why they should come to this proceeding.  One thing that can easily get lost: you have the idea of the primary benefit being lower costs of existing materials, but there also new materials for existing printers that are already owned. They’re looking at specific printers b/c different printers compete on different tech/functional capabilities—they aren’t a commodity.

C: why not just target it to open printers?
 
Weinberg: there are in desktop space, less so commercial. But the reason is some printers are the only printers that can achieve particular tech goals. If some are locked down you can’t necessarily achieve the same goal.
 
C: example?
 
Weinberg: Stratasys says there are things only they can do.
 
C: others?
 
Weinberg: the people who’ve developed open bio-3 printing started w/ a Stratasys machine b/c that was the machine w/ the technical ability they required for initial stages of their process.
 
Kerry: we regularly offer licenses for research/development for this exact reason. There are a lot of developing materials, and we’re the #1 material developer. It’s our greatest area of investment.
 
Weinberg: some of the techniques are patented, and by definition they’re only found in one printer. 20 years of patents tied to specific manufacturer.
 
Q: how useful 1201(f) could be?
 
Siy: That was pre Lexmark—we don’t know about the printer engine.  About reverse engineering, not about interoperability. Copying chip directly makes 1201(f) uncertain alternative. As for reverse engineering the software itself: the Q is what the allegedly infringing use. If the act is reverse engineering, 1201(f) works, but the use itself doesn’t get certainty from (f).  It does not obviate the need for an exemption across the uses necessary depending on the circumvention at issue.
 
Q: specifics?
 
Siy: no b/c of wide number of ways in which TPMs can be implemented. Kerry just said they wanted to include more sophisticated/copyrightable software on chips. Where the circumvention is necessary might change.
 
§117 is one of the ways in which the use by a consumer of a 3D printer of third party is feedstock is noninfringing. There are other reasons for noninfringing uses—use with permission. Even the most restrictive license will provide for the use of software. The only way in which use of a third party feedstock could infringe would be if you believed that a functional condition of the grant was not using third party feedstock.
 
C: but you might be altering the software.
 
Siy: but you have the right to use.  [I don’t know why alterations in parameters would create a derivative work—if it’s swapping one set of physical facts about a material for another, that’s not enough creativity to create a separate work.] Also fair use.
 
Q: how much change in the software would be necessary?
 
Kerry: we test and tune the machine for new feedstock, and sometimes up to a year before the machine produces a high number of reliable parts. Motion control, heating, distribution, and layering b/c customers demand precision parts.
 
Q: but how much of the code is changed?
 
A: don’t know.
 
Q: any other distinguishing characteristics b/t high end and low end consumers? We say prosumer, tends to be professional. Home market is lower end. Pro engineer will use one on his desk.