0001 1 2 3 4 5 LIBRARY OF CONGRESS 6 RULEMAKING HEARING 7 SECTION 1201 8 9 10 11 12 13 Date: May 7, 2009 14 Time: 10:11 a.m. 15 Location: Library of Congress Center 16 Madison Building 17 101 Independence Ave, Southeast 18 Washington, DC 20540 19 20 21 22 0002 1 P R O C E E D I N G S 2 MR. CARSON: I am not Marybeth Peters the 3 Register of Copyrights. She is still not feeling well. 4 She left a message saying she hoped she would be in this 5 afternoon, but having heard her voice on the voice mail 6 message, I wouldn't count on it, unfortunately. But we 7 will proceed and she will have the benefit of being able 8 to see everything that was said and shown to us, which 9 will all be part of the record. And, again, we hope 10 we'll see her this afternoon and tomorrow, but that 11 remains to be seen. 12 I would like to welcome everyone to our 13 second Washington, D.C. hearing on the Section 1201 14 Rulemaking. I'm David Carson, the Copyright Office 15 general counsel. To my left is Rob Kasunic, assistant 16 general counsel. To his left is Ben Golant, assistant 17 general counsel. And to my right is Chris Weston, an 18 attorney adviser in the Office of the General Counsel. 19 Last Friday we held hearings in Palo Alto, 20 California that addressed some of the proposed 21 exemptions to this rulemaking -- in this rulemaking. 22 Yesterday we began our hearings here in Washington. 0003 1 Today we'll continue to examine proposed exemptions to 2 the prohibition on circumvention found in Section 1201. 3 This hearing is part of the ongoing triennial 4 rulemaking process mandated by Congress in the Digital 5 Millennium Copyright Act. Section 1201(a)(1) provides 6 that the Librarian of Congress may exempt certain 7 classes of works from the prohibition against 8 circumvention of technological measures that control 9 access to copyrighted works. And the exemptions last 10 for three-year periods beginning on October 28th, 2009, 11 when the current exemptions expire. 12 The purpose of this rulemaking proceeding is 13 to determine whether there are particular classes of 14 works as to which users are, or are likely to be, 15 adversely affected in their ability to make 16 noninfringing uses of works if they are prohibited from 17 circumventing the technological measures that control 18 access to those works. This rulemaking establishes a 19 record on which the Register's recommendation to the 20 Librarian of Congress is based. 21 After our initial notice of inquiry in this 22 rulemaking published in the Federal Register on 0004 1 October 6th of last year, we received 20 comments 2 proposing exemptions to the prohibition on 3 circumvention, and 56 responses to those proposed 4 exemptions. They're all available for viewing on our 5 website. 6 In addition to this hearing today, we'll be 7 conducting hearings tomorrow in this same room. The 8 agendas for all the hearings are available on our 9 website. And there are some hard copies of the agenda 10 out in the entrance to this room. We intend to post the 11 transcripts of all the hearings on our website in a few 12 weeks, as soon as they're available to us. 13 The comments, the response of comments, the 14 hearing testimony will all form the basis of evidence in 15 this rulemaking which, after consulting with the 16 Assistant Secretary for Communications and Information 17 from the Department of Commerce, will result in the 18 Register's recommendation to the Librarian of Congress. 19 And the librarian is to make his determination by 20 October 28th on whether exemptions to the prohibition on 21 circumvention should be instituted during the ensuing 22 three-year period. And, if exemptions should issue, to 0005 1 determine what particular classes of works should be 2 exempted from the prohibition on circumvention. 3 The format of this hearing will be divided 4 into two parts. First the witnesses will present their 5 testimony. This is your chance to make your case to us 6 in person explaining the facts, the technology, 7 hopefully showing us -- to the extent that you can -- 8 what the problem is or isn't, and making legal and 9 policy arguments that support your claim that there 10 should or should not be a particular exemption. 11 The statements of the witnesses will be 12 followed by questions from members of our panel up 13 here. The panel may be asking some tough questions of 14 the participants in an effort to define and refine the 15 issues in the evidence presented by both sides. Anyone 16 who draws any conclusions from the fact that a 17 particular question was asked, is on dangerous turf I 18 would suggest. We try sometimes to be provocative just 19 to get your best answers and to test the issues. 20 This is an ongoing proceeding. No decisions 21 whatsoever have been made thus far as to any critical 22 issues in this rulemaking. And in an effort to fully 0006 1 obtain relevant evidence, we reserve the right to ask 2 questions in writing of any of -- to any of the 3 participants in these proceedings after the close of the 4 hearings. It's something that those of you who have 5 participated in the past know is something we freely 6 avail ourselve -- a privilege that we freely avail 7 ourselves of. 8 I've introduced the panel. So, just a couple 9 of preliminary notes. As we've learned yesterday, cell 10 phones and Blackberrys interfere with our audio signal, 11 so, please do what I did just before I started talking 12 and turn off your Blackberry, or PDA, or cell phone 13 while you're in this room. 14 Any of the witnesses who have not given us an 15 electronic copy of the material they are displaying, or 16 performing, or distributing, please do so. It's 17 important that we have that so that we can review it 18 later. And we want to make this available also as part 19 of our record on our website so the public in general 20 can see what it is that we are looking at ourselves. 21 So, with that, let's move on to the testimony. 22 This morning we're looking at two proposed 0007 1 classes. The first is audiovisual works released on DVD 2 where circumventing is undertaken solely for purposes of 3 extracting clips for inclusion in noncommercial videos 4 -- 5 MR. KASUNIC: That's actually the second 6 issue we're going to do. 7 MR. CARSON: Oh, well, Rob just tells me 8 we're doing it in the opposite order, but I'll finish 9 reading it anyway. Of extracting clips for inclusion in 10 noncommercial videos that do not infringe copyright. 11 Before that we will hear testimony about 12 another proposal for motion pictures and other 13 audiovisual works in the form of digital versatile 14 discs, that's DVDs, that are not generally available 15 commercially to the public in a DVD form not protected 16 by Content Scrambling System, when a documentary 17 filmmaker, who was a member of an organization of 18 filmmakers, or is enrolled in a film program, or film 19 production course at a post-secondary educational 20 institution is accessing material for use in a specific 21 document to refilm for which substantial production has 22 commenced, where the material is in the public domain or 0008 1 will be used in compliance with the Doctrine of Fair Use 2 as defined by Federal Case Law and under 17 USC Section 3 107. 4 We have a number of panelists. I will 5 introduce them as they speak. And our first panelist, I 6 -- Mr. Morrissettee and Mr. Quinn, are you both 7 testifying; is that right? 8 MR. MORRISSETTEE: Yes. 9 MR. CARSON: Okay. So, the first will be Jim 10 Morrissettee of Kartemquin Educational Films, followed 11 by his colleague Gordon Quinn also from Kartemquin 12 Educational Films. 13 MR. MORRISSETTEE: Can we possibly reverse 14 that order? 15 MR. CARSON: Absolutely not. 16 MR. MORRISSETTEE: I think it might be easier 17 than -- 18 MR. CARSON: Of course. Of course. 19 MR. QUINN: Okay. So, I should start? 20 MR. CARSON: Please. 21 MR. QUINN: Okay. Thanks. 22 MR. CARSON: And speak into the microphone. 0009 1 UNIDENTIFIED SPEAKER: Pull the microphone -- 2 yeah. Okay. Yeah. 3 MR. QUINN: Sorry, I should know this. I'm 4 Gordon Quinn. Thanks for the opportunity to come and 5 speak today. I've been making documentaries for over 40 6 years. Our organization, Kartemquin Educational Films, 7 makes films that are broadcast nationally on PBS, on 8 NBC, also on cable channels. Our best known film was 9 probably "Hoop Dreams". We also did a -- some recent 10 work, it is a seven-hour series called "The New 11 Americans", about immigration. A recent film of ours, 12 "Terra Incognita", about stem cell research just 13 received a Peabody Award. And we have a long history of 14 -- we've made over 40 major documentaries, won all kinds 15 of awards, and see ourselves as being very important 16 participants in the culture and -- of our democracy. We 17 play -- we tell human stories about real people in the 18 world and try to put them in a context, historical, 19 economic, social, whatever is appropriate to the story 20 we're telling. 21 I'm here today speaking on behalf of all the 22 commentators who jointly submitted the supplemental 0010 1 comments proposing the exemption for documentary 2 filmmakers. The International Documentary Association, 3 the University Film and Video Association, the National 4 Alliance for Media Arts and Culture, the Independent 5 Feature Project and Filming, and these are all 6 organizations that serve the field of documentary 7 filmmakers. And we happen to belong to all of them 8 except Film Independent, which is based in L.A. We are 9 out of Chicago and have been there for 40 years. But 10 most documentary filmmakers belong to one of these 11 organizations at least. 12 Some of the individual filmmakers are Robert 13 Bahar, producer of "Made in LA"; Kirby Dick, director of 14 "This Film is Not Yet Rated"; Arthur Dong of "Hollywood 15 Chinese"; Jeffrey Levy-Hinte, producer of "Roman 16 Polanski: Wanted and Desired"; David Novack, producer of 17 "Burning the Future: Coal in America"; and Morgan 18 Spurlock, director and star of "Super Size Me". 19 The DMCA prohibition on circumvention is 20 burdensome, intimidating, and it's really impeding our 21 use to make fair use in public domain claims and 22 material in our film. The extent -- or the exemption 0011 1 we're looking for is for a limited period of time, and 2 it's for documentary filmmakers, who we make the case, 3 are relatively educated about what fair use is and what 4 it is not. It's a narrow exemption, and we're only 5 seeking the bare minimum we need to exercise our fair 6 use rights. It's only for CSS, only for the next three 7 years. CSS is the very minimum that we need. It's an 8 important and very narrow class. And we are looking to 9 restore the same fair use rights we have relied on for 10 decades. It's such a narrow class that the benefit of 11 the exemption will vastly outweigh any potential harm to 12 the rights holders. 13 I'm here today with Jim Morrissettee, the 14 technical director of Kartemquin, who will speak about 15 why various alternative circumventions are not really 16 feasible, or extremely burdensome, and really don't 17 provide us with the quality that we need. 18 Jim is -- we're a documentary center. And, 19 so, we work with a group of producers. And, so, we have 20 a core staff of six people. Having a Jim Morrissettee 21 with our organization is not the case that most 22 documentary filmmakers face. Jim has an engineering 0012 1 background. He's a very high-level technician. Many of 2 the things that I'll be talking about and -- or he will 3 be showing you, are things that many of the most 4 important documentary filmmakers in the country are 5 working in very small production companies, and they 6 don't even have access to some of the methods that 7 people are proposing, saying, well, you can do this to 8 get around it, you can do that to get around it. It 9 doesn't work that well. And Jim's going to explain 10 why. But in many cases it causes us a great deal of 11 grief. My colleagues it causes even a lot more grief. 12 Because Jim is able to come to me and say, this is why 13 the broadcaster sent it back. Okay, so, how do we fix 14 it? You know, this is what we're going to do. They 15 don't have -- they have to go seek and pay somebody to 16 help them get through that piece of the process. 17 Fair use is a critical component of what we 18 do. This is undisputed in the reply comments, so, I'm 19 not going to really make -- I don't think I have to make 20 the case for fair use. I think we all understand why 21 that's an important part of a free and open society and 22 a democratic society. 0013 1 Particularly in documentary filmmaking, it's 2 a critical part of how we participate in the democratic 3 process. Fair use in documentary filmmaking has a long 4 history and it's predictable. It's more predictable 5 than many other types of fair use where there may be a 6 great deal of controversy, like, in music and things 7 where people are saying, well, this is, this isn't. 8 Where do you draw the line? 9 The DMCA is really having a burden effect -- 10 burdensome effect on our ability to make fair use. DVD 11 is the default distribution format, at least at the 12 present time. And we anticipate it being so for the 13 next two or three years. To give you an example of how 14 we use fair use to comment on, criticize, put something 15 in film and television, or something in the culture that 16 we get off of these DVDs, let me give you an example of 17 -- from one of our films, "Refrigerator Mothers". This 18 is a film that was made about the mothers of autistic 19 children from the 50s and 60s, who were told by the 20 professionals, by the doctors and the experts, that they 21 caused their child's autism, because they didn't love 22 their child. They were cold like a refrigerator. And, 0014 1 so, it's their story. And as a part of telling that 2 story we show the hold that Freudian psychology had on 3 the popular culture in the 50s and 60s. And we show 4 that there was a culture of putting a lot of weight on 5 mothers for failing about all kinds of things. And we 6 turn to the popular culture to show this. We show 7 examples from feature films. And these are the ones 8 that we managed to put into our film that -- you know, 9 we got off of DVDs. We show it by showing magazine 10 articles and things. We edit this altogether to make 11 this point, that this is how this culture and this 12 belief in this system, in the period that we're looking 13 at, played out as a consequence in these womens' lives. 14 It's a critical part of the film. It's also a very 15 short part of the film. We understand fair use. We 16 never take more than we need. And the amount of fair 17 use material in "Refrigerator Mothers" is probably less 18 than five percent of the total film, which is an hour- 19 long film. It aired nationally on PBS. 20 I think I tell that. We, of course, are 21 concerned about that part of the DMCA which says that, 22 even if the use that you're putting the material to is 0015 1 legal, breaking the encryption is in and of itself not. 2 And that's why we need this exemption. 3 It's extremely difficult to maintain the 4 necessary technical quality for use and broadcast of 5 theatrical distribution. Various alternatives are not 6 viable. It -- tremendous burden in technical expertise, 7 time and expense involved. And Jim is really going to 8 talk more about that. 9 Our proposed exemption provides a solution 10 for that. Comments made in opposition to the proposal 11 exemption has suggested some solutions, some 12 modifications. Instead of enabling fair use rights, 13 these suggestions further burden it. First, licensing 14 as an alternative. Well, fair use -- the whole point of 15 fair use is that you don't have to license it. It 16 undermines the purpose of the Fair Use Doctrine. I'm 17 sure you're familiar with the study that the Center for 18 Social Media conducted "Untold Stories" in 2005, 19 exploring the licensing process as an implication. 20 Licensing costs are often outrageously high, are only 21 increasing. Broadcasters are demanding more and more 22 digital distribution rights. But right holders are 0016 1 unwilling to license copies. 2 Now, I'll just digress for a moment. I was 3 on a panel several years ago, and I was sitting between 4 someone from a -- an archive that was licensing 5 material. And I was -- on the other hand I had the 6 broadcaster. And you have the broadcaster laying out 7 the rights that they expect to get, all of these rights, 8 for digital, other medium, every -- you know, sort of 9 pretty much everything in the universe. 10 And I have the archive person on the other 11 side of me saying, well, if that's the license that you 12 want, here's what the costs are going to be. They're 13 going to be incredibly exorbitant. We don't even know 14 what this stuff is worth, and so you can't even -- half 15 the stuff you're asking for you're not going to be able 16 to license. I'm sitting in the middle and I said, look, 17 guys, you've got to get together on this because I can't 18 make a film if that's the case. So, it's a little bit 19 of a digression, because that's what happens in the 20 licensing world. And that stuff is still not resolved. 21 That's still being battled out. But fair use is not 22 licensing. 0017 1 Rights holders -- you know, I can give you an 2 example of a situation where we did not use something 3 that would have been fair use. This was quite a few 4 years ago. This was in 2004 we released a major public 5 television series, "The New Americans on Immigration". 6 And there's a Nigerian character. And he talks about 7 the film "Coming to America". And he says, we love that 8 movie in Africa. That is our favorite film, because it 9 shows the incredible depth of Americans' ignorance about 10 Africa and Africans. And he says, you know, we wanted 11 to use that line. It's in the film. And we just wanted 12 to show a little clip from the film. We're going to -- 13 10 seconds, you know, just something where you'd see 14 that it's Eddie Murphy, that kind of thing. This was in 15 the period that "Untold Stories", about how we were -- 16 had really lost the ability to make fair use because of 17 all these threatening letters that had gone to 18 broadcasters. Broadcasters weren't accepting it. It 19 was a very dark time for fair use. And we tried to 20 license it -- even though I felt it was clearly a fair 21 use claim -- and we were not able to get the license. 22 We were very persistent. We went up the line and just 0018 1 kept -- absolutely not. They weren't going to give it 2 to us in any way, shape, or form. And, so, we didn't 3 use it. And the film was weaker because of it. 4 In fact, standard provisions and standard 5 licensing contracts prohibit criticism of the studio, of 6 the industry, of the executives, the characters, or of 7 the film. And let me show you -- let's -- maybe we 8 could just look at this slide for a second. Here is 9 something from an actual licensing contract. It's 10 something that I probably had signed, but I probably 11 shouldn't have in the past over the years. "Licensee 12 represents, warrants, and agrees that the production in 13 which the clip is used shall not be derogatory or 14 critical of the entertainment industry, or licensure, or 15 of any officer, director, agent, employee, affiliate, 16 parent, or subsidiary of a licensure, or any motion 17 picture proceeded or distributed by the licensure, or 18 any characters owned or controlled by the licensure, and 19 will not be used in a manner or derogatory or critical 20 of the motion picture for" -- anyway you get the idea. 21 I mean, you know, this is kind of off the chart, 22 particularly if you're talking about fair use. Because 0019 1 the heart of fair use is that we have to be able to 2 criticize, to comment on, to put -- you know, to put 3 things in context. And, so, licensing is simply not a 4 solution to the problem documentary (inaudible) are 5 facing with fair use. Which is not to say that we don't 6 license things all the time, because our view of fair 7 use is very prescribed and very narrow. And, when it's 8 not fair use, our broadcasters expect, and we as 9 professionals believe that, of course, we're going to 10 license it. We only use fair use when it's appropriate. 11 The fair use is in the Copyright Law, because 12 you cannot use ownership to prevent free expression. 13 So, that's my feelings about going down that path. 14 There is also a suggestion that documentary filmmakers 15 be required to ask permission or make up a good-faith 16 effort to obtain an unencrypted copy of the material 17 from the copyright holders. This has some of the same 18 problems. I don't know how this would play out. But 19 the problem is that these are the very people that we've 20 had all these problems with over all these years. It 21 reads a permission requirement into fair use. And, I 22 mean, the lawyers have said -- and I kind of say this 0020 1 wrong, but, I mean, I view fair use as a right. It's 2 like it's something that we need as documentary 3 filmmakers, as storytellers, within these very 4 prescribed guidelines to be able to participate in the 5 culture of the community, to critique things in our 6 society. It's something that I shouldn't have to ask 7 permission for. It can lead us on -- you know, it could 8 lead us on wild goose chases. If we feel it's fair use, 9 we still sometimes do go to the artist, but we shouldn't 10 be required to do so. I have many situations in which 11 I've gone directly to an artist, we're using something 12 in fair use, I want them to know it. We acknowledge 13 it. We, of course, want to acknowledge that, you know, 14 we're using something and we put that in our films. But 15 it shouldn't be a requirement. And it doesn't solve 16 this problem with, how do you get your hands on the 17 material? They can also create requirements to pay lab 18 fees. You know, and, again, this is where things can 19 get a little bit strange. You can get into a situation 20 where you have the DVD, you have the material, you know 21 what it is, and yet, when you go and say, okay, well, 22 you know, could we get this and this in this form, or 0021 1 could we get it unencrypted, all of the sudden somebody 2 is telling you, oh, yes, but we're going to have to go 3 have -- back to the negative, we're going to have to 4 redigitize it, it's going to be -- you know, cost a lot 5 of money. 6 The other thing is that, in our work and in 7 particularly in some other documentaries work which is 8 also very professional and I highly respect, there are a 9 lot of clips used from a lot of different things. 10 They're very short. So, they're putting together -- 11 you're putting together a montage of a whole bunch of 12 stuff creating a new kind of thing to sort of give -- 13 show the culture of the times, or show how people have 14 been treated in certain kinds of media and that kind of 15 thing. And, so, you're using lots and lots of different 16 pieces. If each one has to go through a laboratory 17 process and stuff, it's going to add up to a lot of 18 money. 19 There was one other suggestion to modify the 20 proposed class, by adding the word solely to the class. 21 That would be restricted to accessing materials solely 22 for use in a specific documentary film. We don't object 0022 1 to this change. It -- the Copyright Office thinks it's 2 best to adopt the modification for clarity. We would 3 agree. The modification is consistent with our goal to 4 alleviate the detrimental effect that the DMAC is having 5 on documentary filmmakers inability to make fair use. 6 And, yes, we only want to use it in the documentary that 7 we're making. We don't have all these other things in 8 mind, or some kind of slippery slope. So, that's not a 9 problem for us. 10 We don't see any real harm to copyright 11 holders. And that's important to us, because we are 12 copyright holders. We have 40 years of material that we 13 own the copyright to. We distribute and sell our DVDs. 14 Some have CB -- CCSS encryption, which is put on by our 15 subcontractors. We understand concerns about copyright 16 infringement in the digital age. We think there is 17 really little threat to the value of CSS, because our 18 proposed exemption is narrow. It applies only to fair 19 use and to use of public domain works. The uses are 20 well-established and permitted. It does not apply and 21 could be very -- and cannot be used for infringement by 22 consumers watching a movie in their basement or, you 0023 1 know, that kind of thing, so, for just watching 2 something they didn't buy. It would apply only to 3 established documentary filmmakers community. The 4 potential risk that some filmmaker would circumvent CSS 5 based on their own erroneous determination of fair use 6 is small and growing smaller. The only potential risk 7 presented by the -- this is the only potential risk 8 presented by the exemption, and it applies to the 9 established documentary filmmaking community, which is 10 professional, thoughtful, and responsible about fair 11 use. That's why we came together to come up with a 12 Documentary Filmmaker's Statement of Best Practices and 13 Fair Use, with guidelines and drafting help from the 14 Center for Social Media, and the Washington College of 15 Law at American University, and legal scholars from 16 across the country. So we put a lot of effort into kind 17 of looking at the law, saying what does the law mean for 18 us? And now we take this best practice thing and we 19 speak with it all over the country. 20 Just this year, just since the new year 21 began, I've made six presentations on this to different 22 groups of filmmakers who are also taking it to lawyers 0024 1 and to universities where people are teaching films, 2 because there was a lot of misconception about what fair 3 use is and what fair use isn't. And we want people to 4 have a sense of how it is -- you know, the sort of 5 confines within which it should be used. This statement 6 outlines what we consider to be responsible fair use 7 practice. 8 The other thing that has happened is -- and I 9 couldn't do this -- I couldn't say this a few years ago 10 -- but because of the publication of the statement, 11 because of the work that we have done, now the 12 broadcasters are accepting our fair use claims and we 13 are able to get E&O insurance, which is extremely 14 important, because the broadcasters demand it. And 15 we're getting E&O insurance for our fair use claims. 16 And we have to get that insurance -- we have to go to an 17 IP lawyer and get a letter. They review our fair use 18 claims. We send them all the clips. We send them, you 19 know, the log. They look at it and they give us a 20 letter, putting in kind of legal language for the 21 insurance companies, why this is a legitimate claim. 22 Copyright holders still retain their full 0025 1 rights and remedies for copyright infringement, but 2 without the exemption documentary filmmakers will 3 continue to bear the unreasonable burden in making fair 4 use in public domain. And this burden is real and 5 substantial. You know, I certainly, if someone was 6 stealing our work and infringing on our copyright, I 7 would go over -- after them. And I have other recourses 8 for that which I would use. 9 It is my understanding that it is legal to 10 access public domain materials on DVD, if that is all 11 that is on the DVD. But today -- this is about the 12 whole question of public domain -- but today there's -- 13 almost all public domain material on DVD is bundled with 14 copyrighted material. A silent film in the public 15 domain may be paired with a newer copyrighted soundtrack 16 on the DV -- or the DVD. Or another film in the public 17 domain may be bundled with specific seizures such as 18 mini documentaries, or the making of a film, that kind 19 of thing. 20 If it -- it is clear whether it is legal to 21 access the -- it is far from clear whether it's legal to 22 access the public domain material in these cases. The 0026 1 reply comments seem to ignore this. Public domain works 2 are critical for many important historical 3 documentaries. Without the exemption or some other 4 guidance from the copyright artist, we were unable to 5 access increasingly large amounts of public domain 6 materials. 7 So, you know, in conclusion I would just say 8 that I think this is really -- it's an important issue 9 to us. We're not asking for any kind of broad, and 10 vague, and, you know, unfocused exemption. We just want 11 it -- very much like fair use itself, the part of the 12 fair use law that one of the lawyers read to me, because 13 there was all this question about how much can you use? 14 People talk about the 30-seeked rule. And he read me 15 the part of the law that kind of says, you can use as 16 much as you need and no more. And I think that's all 17 we're asking for here. We're not asking for more than 18 we need, we're just asking for the minimum that we need 19 and no more. And we're not trying to open up some barn 20 door to people -- random piracy or anything like that. 21 And because we are a very defined class of people who 22 has put -- as a group of people spent a lot of time and 0027 1 effort in the last five years or so getting educated 2 about what fair use is, I think it's a fairly legitimate 3 claim. So, that's my testimony. Thank you. 4 MR. CARSON: Thank you. Jim Morrissettee. 5 MR. MORRISSETTEE: Change the technology 6 here. Good morning. My name is Jim Morrissettee. Good 7 morning. Good morning. I'm the technical director of 8 Kartemquin Films. I've been working for Kartemquin for 9 the last 30 years. Gordon and I have worked on many, 10 many productions, and almost all of them have come to me 11 to be fixed at some point or another. 12 I'd like to talk to you today and sort of 13 explain how we deal with the analog alternatives to CSS 14 encryption and the problems that arise from that. 15 Specifically problems that effect our ability to get our 16 shows on public television. 17 It's been suggested that documentary 18 filmmakers like us could use VHS tapes, because they do 19 not have CSS encryption. And we, indeed, have used VHS 20 tapes. And I think, though, that it's pretty 21 universally accepted that VHS image quality, even on a 22 brand new VHS tape, is vastly inferior to DVD to begin 0028 1 with. But the problem doesn't stop there. The problem 2 that we're coming up against right now is availability. 3 It was mentioned by several people yesterday that VHS 4 tapes from distributors are no longer being made. In 5 fact they stopped -- the last distributor ended it last 6 year in 2008 in October. So, newer material, television 7 shows and new movies that have come out, are not even 8 available on VHS. But some of the older ones possibly 9 still are. And for our movie on stem cell research, 10 which was broadcast in January of this year, we wanted 11 to include a fair use clip from the Woody Allen movie 12 "Sleeper". And we said, well, we can't break the 13 encryption, so, let's see if we can find a VHS copy. We 14 couldn't find a VHS copy. We sent interns out to all 15 the local small libraries in the Chicago area and they 16 finally found a copy in a suburban library that had not 17 thrown out their VHS tapes yet. And, so, we used that 18 tape as our source for that clip. And this is what we 19 had to do to get it into our program. 20 This is -- these are the steps necessary to 21 get a VHS tape into a program acceptable for broadcast 22 television. You play the VHS tape on a VCR. You have 0029 1 to run it through a time base corrector in order to 2 remove the analog Macrovision copy control. And then it 3 must be recorded onto a digital form, a digital tape, 4 which is then transferred into the computer, and create 5 a file for editing purposes. And as you can see from 6 the chart, especially the red boxes, indicate problem 7 areas. Problems with the source material, with the 8 Macrovision, problems running through the time base 9 corrector, because the time base corrector essentially 10 has to convert that analog signal into a digital signal, 11 and then back to an analog signal after the Macrovision 12 is removed. The signal is then recorded on a digital 13 VCR which again turns analog into digital before we have 14 a tape that we can use. And in all of these steps we 15 have issues with the brightness, the black level. And 16 most importantly on VHS there's something called head 17 switch, which is a couple of lines of noise at the 18 bottom of every single VHS tape. It's part of the 19 format. And consumers don't usually see it because 20 their televisions don't show the very last line or two, 21 but broadcasters see it. And that's an important 22 distinction that I will make throughout my presentation, 0030 1 is that there's sort of two kinds of quality. There's 2 the image quality, is it in focus, is the black and 3 white contrast viewable? But there's also all these 4 additional hidden signals. The sync signal, the 5 blanking signal, the color burst signal, all of these 6 things which broadcasters insist must be within a very 7 narrow spec. In fact the FCC insists that they be 8 within a very narrow spec. And if we send one of our 9 programs to public television for broadcast and any of 10 these clips are not within spec, the problem comes back 11 to us to fix. And it is not easy. 12 So, what did we do? Well, let's explore a 13 couple of other alternatives to VHS. One alternative 14 that was mentioned and actually presented yesterday is 15 an alternative called scan conversion. Next slide, 16 please. 17 MR. QUINN: Next slide. 18 MR. MORRISSETTEE: Scan conversion really 19 there's three ways to do it, and the way that was shown 20 yesterday is by using a camcorder. This is the exact 21 same setup that was used in the 1950s called kinescope, 22 in order to record live television before videotape was 0031 1 invented. Basically aiming a camera at a TV screen 2 that's playing whatever material you want to play. 3 However, the present -- the steps necessary 4 here raise even more issues that have to be dealt with, 5 both in the transfer, in the setup, and in the 6 postproduction part of it. Shooting a TV with a 7 camcorder -- as you saw on the clip yesterday for those 8 of you who were here -- involves darkening a room, 9 setting up the camera, dealing with audio connection 10 issues, which are a problem with consumer camcorders 11 because they're expecting a mike level signal as opposed 12 to the line or a higher level signal from the -- the DVD 13 player which causes distortion. And the framing is 14 critical. If you aim at a TV set and it's a little too 15 wide of shot, you're going to get parts of the TV set in 16 the picture. If you zoom into avoid that, you start 17 cropping off part of the image of your source material 18 and you start degrading the picture as you magnify it. 19 But there are more serious confusing -- 20 confusion and technical issues that I saw in the 21 demonstration yesterday. In the demonstration yesterday 22 a high definition camera was used to shoot a TV screen. 0032 1 All high definition cameras are wide screen, 16 by 9, 2 unlike the square 4 by 3 standard def image. If that 3 camcorder had been a standard definition camcorder, it 4 might have only been capable of shooting a square 5 screen. Well, what do you do if you have a wide source 6 picture and a square screen? You end up having black 7 bars on the top and bottom which, of course, degrades 8 the image even further, because only about 40 -- 40 9 percent of the picture is turned over to black bars. 10 What concerned me about the demonstration 11 yesterday was that the source material chosen was a very 12 dark, fast moving, quick cutting "Harry Potter" clip. 13 And it was impossible for me to tell whether or not the 14 frame image off the camcorder was jerky, whether it was 15 flickering, whether the colors were true. If they had 16 chosen something more normal that we would use, for 17 example, a presidential speech or something that was on 18 DVD where we could actually see a human face and judge 19 the color, it would have been more easy to compare. 20 But most seriously yesterday was the fact 21 that we did not get the camcorder footage compared 22 directly to a DVD. I'm not sure why they couldn't have 0033 1 just put the DVD in and shown it to us. What they used 2 instead was a downloaded QuickTime compressed file 3 which, of course, didn't look any better than shooting 4 off the screen. And I'm not convinced at all that any 5 of that material would pass the public television 6 standards. So, I was very disappointed. 7 The other thing that they failed to mention, 8 is that once it's on the camcorder, you're not done. 9 You still have to download that footage into a 10 computer. And, if it's high definition and you're 11 making a DVD for presentation or inclusion of standard 12 of program, you have to downconvert that high 13 definition. That's another step before it's able to be 14 used appropriately. So, you know, I don't -- I'm still 15 not convinced that this is at all an alternative to our 16 problem here. 17 Another method, which is a little more 18 sophisticated in this day and age, is to not use a 19 camera at all, but to use a Black Box, a piece of 20 hardware that actually records whatever is on a computer 21 screen. And these kind of literally called scan 22 conversion boxes are often used for people that are 0034 1 making training videos that want to show the cursor, and 2 the movement of -- you know, of how computer software 3 works. But it can be used to capture images off the 4 screen. So, you play your DVD on the computer, capture 5 it with this hardware box, and, so, hopefully output a 6 video signal that you can then record. 7 The problem is, computers don't play video 8 the same way that television plays video. Computers 9 play video in a progressive mode, but public television 10 and all the broadcasters want a final product that's an 11 interlaced mode, which is what's coming out of the DVD 12 if you play it on a DVD player. So, there's this change 13 from progressive, to interlaced, and back to 14 progressive, which leads to a vast amount of image loss, 15 in terms of image resolution, which is literally cut in 16 half. 17 There's also a synchronous problem with the 18 audio, because there's a significant delay coming out of 19 this scan convertor box. It can be as much as half a 20 second. And the audio does not go through this box, 21 only the picture. So, you end up with an out-of-sync 22 product that you then have to re-sync in the editing 0035 1 room. It's doable, but it takes time and effort. 2 A third method -- Gordon, please, thank you 3 -- of scan conversion is using actual software. No 4 Black Box required, just go out and buy $100 piece of 5 software and it will record anything that happens on 6 your computer screen. Well, I've tested some of these, 7 some that were -- had been mentioned yesterday were 8 SnagIt. And we've tried Jing Pro and several others. 9 And while they may be acceptable for producing web 10 clips, small, low resolution web clips, they don't do a 11 very good job. In fact, they do an unacceptable job for 12 our use. Why? Because they don't have the ability to 13 capture the full frame rate of the DVD playback. DVDs 14 play back at 30 frames a second. And these software 15 programs, even on a Quad-Core Intel Mac are lucky if 16 they reach 15 frames per second. So, when you play them 17 back, you get jerky motion. 18 And the other problem is, it's very difficult 19 with these software programs to define a precise part of 20 the picture to record. You obviously don't want to 21 record the player window, and the toolbar at the top, 22 and the cursor, you want to just record where the movie 0036 1 is playing. And, if you get it wrong, your file has to 2 be blown up, or cropped, or something, manipulated in 3 order to get the proper frame size for the program that 4 you're editing. There's only three frame sizes allowed 5 for broadcast and, if you're off, you're in trouble. If 6 the picture's too small, you have black lines around 7 it. That's not acceptable. If you zoom in on the 8 picture to cover up all the black lines, you lose image 9 area and you also degrade, again, the visual quality of 10 the image. So, this is no good either. 11 So, what do we do now? Well, let's go to the 12 next step. And this is the step that we have used -- we 13 are using up to this point, which is called the DVD 14 analog transfer method, often nicknamed the analog 15 hole. And this process is very similar to our VHS 16 process that we used in the past, whereas we play a DVD 17 -- an encrypted DVD on a standard DVD player -- and, 18 again, the DVDs -- I don't know if everybody knows this, 19 but the DVD players also have a Macrovision analog copy 20 control still, so that the analog output of the DVD 21 player is not directly recordable to a VCR. You have to 22 still run it through an expensive time base corrector to 0037 1 strip that off. But then you simply record it on 2 digital VCR and use that as your new source for your 3 program. 4 The problem with this method is several 5 fold. One is you're starting with an analog signal out 6 of the DVD player. And if anybody has ever connected a 7 DVD player to their new plasma screen via analog 8 composite signal and compared that with the digital 9 signal, it's like night and day. The composite signal 10 is blurry. The colors are washed out. It's just a 11 mediocre signal. There's also an issue with black 12 level. And the only reason I raise this is because it 13 effects not only the look of the image, but also whether 14 or not public television will accept it. All analog 15 signals have a black level that's higher than digital 16 signals. And because of that you have to modify the 17 black level coming out of the DVD player. And that can 18 be done in various places, but you have to do it 19 carefully so that you don't degrade the actual visual 20 image quality anymore than necessary. But I'm sure 21 you've all seen on TV shows a lot, all of the sudden 22 they'll cut to a shot and it looks all washed out. It's 0038 1 kind of gray instead of having richness to it. That's 2 because it came from an analog source and it wasn't 3 processed properly. 4 So, these are issues that effect our ability 5 to use this material in a way without having to lose 6 image quality and continue to do this high level of 7 processing. 8 What we do as a standard work flow is that, 9 even with all of my expertise and the equipment that we 10 have at Kartemquin, we still have to send our programs 11 out to a high-tech gatekeeper. And we send them to 12 Pillar to Post, which is in Arlington, Virginia. And 13 they are one of the approved public television quality 14 control houses. And they run our show through their 15 system and they send us back a computer readout, which 16 if it's five pages we feel fortunate. Sometimes it's 17 more. And say this doesn't work, this doesn't work, 18 this doesn't work, in this shot you can't -- this is -- 19 you've got to replace this shot. It's technically not 20 the right signal, the frame is too small, too big, too 21 much blanking, colors off, whatever. And these are 22 things that are grounds for rejection from broadcasts. 0039 1 And, so, either we try to fix them or we have Pillar to 2 Post fix them in some cases, which we did with "New 3 Americans". And, of course, this adds an additional 4 burden, and time, and money. 5 I think it's a key point here, though, that 6 it's not just that we need something that's, quote, good 7 enough. If we were showing a clip in a classroom, you 8 know, some of these other methods possibly would be good 9 enough, even though they're still a heck of a lot of 10 trouble in time and effort. You're not going to have 11 somebody in a classroom say, oh, well, the blanking was 12 off, or your black levels were wrong. But for 13 broadcasts the buck stops there. And, if we wanted just 14 to be able to distribute our films on national 15 television and broadcast -- and it's not just the 16 broadcasters, many of the cable stations, like 17 Discovery, and History Channel, are equally picky about 18 maintaining standards. And, when these analog 19 conversions come into the show, they stand out as being 20 visually and aesthetically, ooh, you know, where did 21 that come from kind of thing; to being outright kicked 22 out and have to be replaced by something that's 0040 1 technically better. 2 A lot of filmmakers don't have the option to 3 do this. They can't afford it and, so, they just give 4 up and don't use the material. If we get this 5 exemption, we'll be able to extract digital files that 6 are the right aspect ratio, the right frame size, the 7 right frame rate, the right black level, everything will 8 be correct, and it's just a matter of cutting them into 9 our show. 10 I think it's critical to mention again -- I'm 11 just going to start with this, but I'm going to mention 12 it again -- that when we make fair use of a clip in our 13 documentaries, we only need these short clips, less than 14 a minute each. We never convert more than that. It's 15 not like there's a copy of -- a de-encrypted copy of the 16 movie sitting on a hard drive somewhere at Kartemquin 17 that an intern could take home. We only capture the 18 short clips that we need, and only those are ever 19 converted to editable computer files for our show. So, 20 it's not like we're just ripping everything as it comes 21 in the door thinking you might need it someday. It's a 22 lot of work to copy these things over. And we only use 0041 1 these -- the small clips that we feel are definitely 2 fair use material. Thank you for your time. 3 MR. CARSON: Thank you. I think that's it 4 for the proponents of this particular exemption, 5 correct? Then we're going to move to the other side and 6 first go to Bruce Turnbull. Congratulations on moving 7 up to the front row, Bruce. 8 MR. TURNBULL: Thank you. Well, as you know, 9 but for the record, I am Bruce Turnbull of the law firm 10 Weil, Gotshal & Manges LLP. I'm pleased to be here 11 today representing the DVD Copy Control Association. 12 Again, we appreciate the opportunity to present our 13 views on the issues this morning. I won't repeat my 14 comments from yesterday, but would ask that you keep 15 them in mind, particularly with regard to the standard 16 for class works. 17 As I stated yesterday, but I really want to 18 emphasize that again this morning, on DVD CCA's primary 19 concern is the viability of its technology. While 20 obviously our technology is used to protect the movies 21 and the other audio/video material, it -- in this 22 context we are the proprietor of the technology that's 0042 1 at issue here. 2 CSS enabled the development of the DVD market 3 and is still critical to its commercial viability. 4 Section 1201 was enacted, in fact, with CSS as the 5 example of a technological protection measure that was 6 in use at the time. CSS was introduced in 1997 in the 7 United States. The DMCA was enacted in 1998 with full 8 knowledge and understanding that this was the premier 9 technological protection measure that was available at 10 the time. And, so, the provisions of 1201 actually were 11 -- I mean, the members of Congress understood how they 12 would work in relation to CSS. And, so, we think it's 13 very important that the protections of 1201 remain, with 14 regard to the viability of the technology. 15 Now specifically with regard to the 16 documentary filmmaking comments, first of all, we see 17 these as being in a different category, because they are 18 commercial in nature and not in relation to education as 19 we discussed at some length yesterday. The 2006 Film 20 Professors Exemption was deemed by the Copyright Office 21 and the Librarian to be necessary for pedagogical 22 purposes. And those were key to the decision at that 0043 1 time. Here we simply don't have that same quality. 2 The -- we just went through -- I won't try to 3 match Mr. Morrissettee on the technology. I will note 4 that he'll be happy to know that almost all DVDs that 5 are being released today do not enable Macrovision. So, 6 for the future all of the circumvention of 7 Macrovision -- I'm sure if they were here they would 8 have something to say about all of that -- but, in any 9 event, it won't be necessary for most movies, not all, 10 but most. 11 The alternatives -- well, understand the 12 limitations of what was presented yesterday by MPAA 13 representative with regard to the camcording, I think 14 the point that was being made -- and I think very well 15 made by that -- was that the camcorder option has become 16 a viable one in light of the development of technology, 17 both as to the nature of the screens that you're taking 18 the picture of, and the type of cameras that are being 19 used. I guess I'm a little hard pressed to think that 20 the professional filmmakers would actually have the 21 great difficulty that were suggested, in terms of sizing 22 the image with their cameras. But I think the image 0044 1 that was presented yesterday, and the comparison that 2 was made with what -- was with what we had available 3 from the film studies professor who said, this is what 4 they wanted to use in their class. And, so, the 5 comparison, I think, was intended to be a comparison to 6 say, is this good enough for the purpose that the film 7 studies professors were putting forward for their use? 8 And, so, I think I -- you know, not quite fair to 9 criticize the comparison that was made. It was made for 10 that purpose. 11 I also think that the -- it's important to 12 emphasize that the documentary filmmakers, while 13 everybody has time constraints, but they do not have the 14 same time constraints as the film and media studies 15 professors had put forward in the last round and again 16 yesterday. Part of the basis of the 2006 decision was 17 that the film studies professors were limited to 18 50-minute class times and couldn't use some of the 19 technologies because of that. And that they're making 20 final revisions to lectures the very night before the 21 lecture is actually delivered. In the filmmaking that 22 we're talking about here, they're talking about a 0045 1 relatively lengthy process. And the filmmakers have 2 time to take the steps to undertake some of the 3 alternatives that the film studies professors felt were 4 not viable given the time constraints. I will also say 5 and reiterate specifically in this regard, in each of 6 the rulemaking context, 2000, 2003, 2006, and again this 7 time DVD CCA has said, we welcome people to come talk to 8 us about their specific needs and concerns. No one has 9 ever done so. And I think that we would be far better 10 off, if the marketplace could work this out through 11 specific arrangements that might be made with DVD CCA as 12 a proprietor of CSS, rather than having sort of publicly 13 -- public permission for circumventing the technological 14 protection measure. That was one of the things that 15 Congress intended to present. 16 I'll be happy to answer any questions. And I 17 guess I'll save my remarks on the other exemption for 18 when we get to that one. 19 MR. CARSON: Yes, please, Steve Metalitz. 20 MR. METALITZ: Thank you. It's good to be 21 back here again this morning. For the record, this is 22 Steve Metalitz from Mitchell, Silberberg & Knupp 0046 1 representing nine copyright owner and creator 2 organizations in this proceeding. 3 And I appreciate the chance to respond to the 4 presentation regarding a proposed exemption 11B. I 5 think it's clear that this -- the proponents of this 6 exemption have made a good effort to try to bring their 7 proposal within the existing framework that the 8 Copyright Office has been using and that Congress set 9 forth. And that stands in contrast to 11A, which I 10 thought until I -- we sat down this morning we would be 11 talking about first. But I think they've definitely 12 tried to avoid some of those flaws, but I think there is 13 still some of the same problems that we also see with 14 the other proposal. Let me start by talking about 15 noninfringing use, and about alternatives, and then 16 about narrowing the -- any proposed exemption in this 17 area. 18 It's clear that the -- what the office is -- 19 needs to be deciding here is whether the prohibition on 20 circumvention of access controls substantially impedes a 21 use that is, in fact, noninfringing. That's the 22 standard that the office has used consistently 0047 1 throughout the proceeding -- the history of the 2 proceedings. Sometimes they say generally 3 noninfringing. I think we've collected the citations in 4 Section 2 of our submission. But it's got to be 5 something that -- the use that has -- is enabled has to 6 be something that you can be quite confident that you're 7 -- can say is noninfringing. Now, is that the case with 8 the use of clips in documentary films? Sometimes it is, 9 sometimes it's not. And, again, on Page 68 of our 10 submission we do make reference to the Presley case and 11 -- it's not the only case, but there certainly are 12 instances in which documentaries were made using clips 13 that were found not to be fair use or found to exceed 14 the scope of fair use. Now, I'm not suggesting that 15 anything that Kartemquin has done falls into that 16 category. But the point is, that the office is not in a 17 position to -- under the law is not in a position to 18 recommend an exemption unless it can determine that the 19 use that's enabled by circumvention is, in fact, 20 noninfringing. And I also think it's fair to say that 21 this is inherently more difficult when the type -- when 22 the basis for the claim of noninfringement is fair use, 0048 1 Section 107. Because that's inherently a case-by-case 2 determination, as we all know. And it's a little 3 different when you're relying on one of the other 4 statutory exemptions, or when permission is involved. 5 But that kind of comes with the territory. I think that 6 is a burden that proponent has to meet. 7 They attempt to meet that in this case by 8 using a couple of proxies. It only applies to a 9 documentary filmmaker who is a member of an organization 10 of filmmakers, or is enrolled in a film program or film 11 production course at a post-secondary educational 12 institution. And I think the intent is -- here is to up 13 the chances, increase the chances that the resulting use 14 is going to be fair -- is going to be a fair use under 15 the law. And I think Mr. Quinn said the risk is small 16 and getting smaller because of the activities of some of 17 the organizations that he is involved with. 18 Well, I -- again, I think this is a good 19 effort to try to come up with a proxy for getting to the 20 -- meeting the test of, in fact, noninfringing. I would 21 have to question whether it succeeds and how much or how 22 exactly being a member of a particular organization 0049 1 increases the likelihood that the use you would be 2 making would be noninfringing. I think there's 3 something of a disconnect there. And even documentary 4 filmmakers have pointed this out, if you look at the 5 reply comments of Vamp (ph) Production, they question 6 why this should be -- why there's necessarily any 7 connection between the likelihood of noninfringement and 8 membership in an organization. 9 As far as film -- enrolling in a film program 10 or film production course, again, that is not clear to 11 me what the connection is that would lower the risk that 12 this would be noninfringing. We heard yesterday from 13 Professor DeCherney, that in any many of the film 14 programs that he's involved with, students apparently 15 never touch a camera or do anything having to do with 16 production. We don't know to what extent they're taught 17 about fair use in these -- in those types of classes. 18 So, I would suggest that being enrolled in a film 19 program or film production course at a post-secondary 20 educational institution would have a very tenuous link, 21 if any, with the likelihood that your use would be 22 noninfringing. 0050 1 So, this, I think, is the first big hurdle 2 that this proposal attempts to surmount, but I would 3 question whether it does so. And that's the question of 4 whether the use will be, in fact, noninfringing. 5 Now then let's turn to the question of 6 alternatives. And there has been a lot of good 7 discussion about this already. There are really three 8 that I'd like to talk just briefly about. One is 9 licensing, or nonobjection, a consensual path. The 10 second is the -- what -- the scan conversion that was 11 talked about, camcording. And the third is the use of 12 other digital formats. 13 On the first point, I think it is important 14 to clear up that this -- there may be some confusion 15 here between two concepts. One is fair use and the 16 other is noninfringing use. They're not identical. One 17 subsumes the other. Fair use does not require 18 permission, but a use that is permitted is a 19 noninfringing use. And, if the office finds that people 20 who wish to circumvent can make a noninfringing use by 21 getting permission to make it, then the test of the 22 statute is certainly satisfied. That's a noninfringing 0051 1 use. 2 So -- and I think Mr. Quinn really gave two 3 reasons why he objected to this. And the second one 4 really is that I shouldn't have to ask for permission in 5 order to make fair use. And that's absolutely right. 6 But you can certainly make fair use without make -- 7 without obtaining these clips. And I guess this is the 8 point at which -- since Fritz Attaway is not here -- I 9 will refer to the decision of the -- the Corley decision 10 in the Second Circuit. Fair use has never been held to 11 be a guarantee of access to copyrighted material in 12 order to copy it by the fair users preferred techniques 13 or in the format of the original. And that conclusion, 14 of course, has been echoed by the office in many of the 15 prior proceedings. So, you certainly don't need 16 permission to make fair use, but you also don't need to 17 circumvent in order to make fair use. 18 There is information in the record about the 19 licensing situation. I'd call your attention to the 20 comments of Time Warner. And I believe it's 368 21 instances last year in which they granted permission or 22 expressed nonobjection to filmmakers involved in 0052 1 documentary projects. So, the picture isn't certainly 2 quite as bleak as it might be presented from the 3 perspective of the proponents. 4 And the discussion of lab fees, I mean, if 5 lab fees is the cost that you incur to get a higher 6 quality clip, it's hard to see that that constitutes an 7 impediment flowing from the prohibition that is impeding 8 noninfringing use, even assuming you can show 9 noninfringing use. Lab fees are sometimes charged 10 certainly by the studios. I think that the Time Warner 11 submission discusses that. But it doesn't seem to me 12 that that would constitute a basis for circumvention 13 under the statute. 14 Then on the scan conversion -- and I think 15 the charts that Mr. Morrissettee presented were very 16 interesting and helpful. And we will take a look at 17 those. The proponents saw fit not to present those in 18 either of the two previous rounds, but to bring them to 19 this hearing where we're seeing them for the first time 20 today. But we'll -- we'd be interested to take a look 21 at that and have some of the technical experts -- which 22 I'm certainly not -- give some reactions to that. 0053 1 And the only point I would make, I think 2 Bruce has already talked about the camcording 3 demonstration from yesterday. And I would encourage the 4 office to compare apples with apples here. We -- I 5 guess we're -- when we got a disc from the Copyright 6 Office, maybe it turned out to be a pomegranate. So, we 7 did the best we could. But I hope we could -- you could 8 make that type of comparison with the material that you 9 have in the record. 10 The final point I'd like to make about 11 alternatives, is that I think the submissions overlook 12 the fact that there are an increasing number of digital 13 formats that aren't protected by access controls that 14 are being used to distribute, at least some of the 15 material, I'm not saying all of the material, that the 16 proponents are interested in excerpting. I would -- I 17 -- the submission says that the DVD format is becoming 18 more and more dominant as the means for distributing 19 digital audiovisual products. I would have agreed with 20 that up until a year or two ago, but I think in the day 21 and age of hulu.com and all of the network sites that 22 are providing a lot of video material in digital format, 0054 1 much of it in the clear, not all of it in the clear, I 2 think there are often or -- and increasingly there are 3 going to be other digital formats that will be 4 accessible without circumvention. And that hasn't been 5 even mentioned by the proponents, and certainly is part 6 of the overall environment here. 7 So, let me turn in conclusion to some of the 8 points about narrowing -- if the office concludes that 9 the proponents have demonstrated that their use will, in 10 fact, be noninfringing; and, if they have persuaded you 11 that none of the alternative means that either they have 12 talked about, or that we talked about and they didn't 13 talk about, such as other digital formats, if you're 14 persuaded that none of those is sufficient, then I think 15 we turn to phrasing of any exemption that would be 16 recognized. And I had eight or nine points here, but 17 maybe -- there may be one or two of them that have 18 already been dealt with. 19 I mean, first of all, just in terms of the 20 phrasing of the exemption, we don't think it's 21 appropriate to refer to public domain material, because 22 no exemption is needed there. The precedent of this 0055 1 proceeding is clear on that. 2 We also don't believe it's wise to refer to 3 -- make the reference to fair use for Section 107. And 4 I think we'll be talking about this later this morning. 5 But we -- I think if that becomes the -- an element of 6 these exemptions, we're far down the road to saying, 7 whatever you do, so long as it results in a 8 noninfringing use is okay. And I think Congress made it 9 clear that was not the law and that's not what they -- 10 that's not within the purview of what they expected or 11 would allow this proceeding to end up with. 12 We do think it's important to stress that the 13 -- any exemption should be applied only when necessary. 14 And we do think it would be a good idea in this context, 15 if there is to be an exemption, to require some 16 documentation of a good-faith effort to obtain the 17 material without circumvention. As we've said, there 18 are many alternatives. And if, in fact, the office 19 finds that it is persuaded that it -- those taken 20 together won't cover the field, then I'm not sure what 21 the objection would be to requiring that good-faith 22 effort and documentation of that good-faith effort. 0056 1 We also suggested that perhaps there should 2 be some notice of use, or some record developed about 3 the circumstances in which there is circumvention here. 4 And that would certainly be useful if an exemption is 5 granted, in terms of looking three years down the road 6 as to how it was used. So, we would encourage you to 7 consider that. 8 I think the solely issue has already been 9 addressed. And we appreciate the proponents agreement 10 on that. 11 Solely for this purpose, we -- I was a little 12 puzzled to hear that circumvention to be accomplished in 13 a way -- at least I thought I heard that circumvention 14 could be accomplished in a way that only a clip of less 15 than a minute would be in the clear. I'm not quite sure 16 how that works. And I noticed that in one of the charts 17 that was not shown here was how the circumvention 18 exemption would operate, which boxes you would go 19 through if you had the circumvention exemption. But 20 perhaps that could be spelled out later. 21 We certainly would suggest that the language 22 that you have used in the e-book exemption be applied to 0057 1 any exemption in this field that requires the 2 conditions, the applicability of the exemption on a 3 showing that all the existing digital editions are 4 protected by CSS. As we've said, there are increasingly 5 digital formats that are available that aren't protected 6 and -- for much of this material. I certainly don't say 7 for all of this material. 8 And, finally, too, which really are just 9 drafting suggestions. One, I don't think it actually 10 clearly states that this exemption is limited to DVDs 11 protected by CSS. I think that's the intent of the 12 proponents. And finally the -- any exemption should 13 clearly spell out who it is that can exercise this 14 exemption. So, these are sort of the more general 15 suggestions we have had for how the office should 16 approach these exemptions that increasingly, and to 17 somewhat distressingly, are defined in terms of the 18 characteristics of the use and the user. I share the 19 concern that Bruce Turnbull has stated for the record, 20 and I'll state it for the record as well, as far as that 21 trend in the -- in this proceeding. But I think some of 22 the safeguards that we've talked about here that could 0058 1 be applicable to any exemption in this area would 2 probably help, in terms of minimizing the risks there. 3 Thank you. And I'd be glad to answer any questions 4 either now or later. 5 MR. CARSON: Okay. Steve, I did want to ask 6 about, just because I wasn't clear what I was hearing in 7 that last in your list of -- your litany of kinds of 8 conditions you'd like to put on it. What I wrote down 9 was you said, clarify who can exercise the exemption. 10 Is that what you said; or, if not, what did you say and 11 could you expand on what you meant by that? 12 MR. METALITZ: Yes. The exemption is kind of 13 drafted in a passive voice. It's motion pictures, with 14 certain characteristics, when a documentary filmmaker is 15 accessing material. So, is the documentary filmmaker 16 the person that can circumvent? That's really my 17 question. Or is it a documentary filmmaker, his agents, 18 his -- who is it that can do this? So, that's just to 19 be clear on. 20 MR. CARSON: Okay. So, it sounds like a 21 drafting issue really. 22 MR. METALITZ: I think so. I think those 0059 1 last two were pretty much drafting issues. 2 MR. CARSON: Okay. The plan was to go 3 directly to the remaining witnesses on the next issue. 4 But I think it might make sense to spend 10 or 15 5 minutes at least asking some questions while we've got 6 these issues in our mind. I'm not saying we're going to 7 ask all the questions we have on that, because we need 8 to make sure we get everyone in. But I do think it 9 probably would be helpful for us to at least ask some 10 questions that -- now that we have them, now that you're 11 here. I don't know, do you want to start, Rob, or ... 12 MR. KASUNIC: Go ahead. 13 MR. CARSON: Okay. Well, let's start with 14 what Steve just was talking about. And these will be 15 questions depending on the particular issue that I'll be 16 asking to both of you, perhaps. I just want to sort of 17 get primarily the reaction of the proponents of this 18 exemption to some of those conditions that Steve was 19 talking about. In some cases I may want some reactions 20 from Steve, too. 21 Let's start with what I have down as the 22 first thing you mentioned. There's no need to mention 0060 1 public domain material, there's no exemption needed 2 there because Section 1201 doesn't cover public domain 3 material. I actually think I heard you respond to that 4 in your main case, but just in any event I'd like to 5 hear your position on that and then Steve may have a 6 response. 7 MR. QUINN: Yeah, I mean, I was a little 8 confused by that. But if -- I mean, the point that 9 we're trying to make is, is that you have a DVD, it has 10 stuff on it that's in the public domain, but it's 11 bundled with and the whole thing is encrypted with all 12 kinds of other material. 13 MR. CARSON: Uh-huh. 14 MR. QUINN: So, to get to the thing that is 15 public domain, you then have to break the encryption. 16 And that's sort of becoming more and more common. 17 I also just want to comment, this idea that 18 there's all these new sources of things. And remember 19 we're talking about broadcast standard here. We're 20 still talking about broadcast. So, a lot of these 21 things that are on the Internet, you know, and other 22 kind of things, are very, very problematic for us. And, 0061 1 you know, some of them we're looking into and that kind 2 of thing but, you know, they're not necessarily there. 3 I did want to respond to the one thing you 4 said about, you know, how is this class of people going 5 to know? And you mentioned the Presley case. And just 6 to reassure you, that's something that I -- when I speak 7 on this matter -- and there are many other people who -- 8 the Center for Social Media, there's a whole group of us 9 in these organizations that are trying to really make 10 our field aware of both what fair use is and its 11 limitations. And we refer to that Presley case all the 12 time and, you know, present it to a group of filmmakers 13 who would feel, you know, if someone did that to them, 14 they'd feel ripped off. So, we're saying, now, this is 15 what it's -- this is -- you know, this is an extreme 16 case, but it's certainly not that. So, we're very 17 concerned about this question of, you know, where do you 18 draw the line and that kind of thing? And the process 19 that went into creating this document was to bring 20 people together from our field, all across the country. 21 We hosted meetings in Chicago -- and there were a lot in 22 other cities -- with lawyers and with people from the 0062 1 Center for Social Media. And we would have this 2 dialogue about, you know, how do we interpret the law, 3 and where do we see it? And I -- you know, and we found 4 -- there was a point where people said, well, wait a 5 minute, you know, that's -- we don't want to go there. 6 You know, that's going too far. So, this is what we are 7 -- we've done a lot of work in this area. 8 And, in terms of the schools and the 9 universities, this year alone I've been to several 10 schools. The last one was the University of -- Michigan 11 State University at Lansing where I spoke on this issue 12 to documentary filmmaker students. So, rest assured 13 that this is rather a robust -- we see this as an 14 important part of, in a sense reclaiming our fair use 15 rights. Because people really need to know what those 16 rights are, and they also need to know what the 17 limitations are and what's in the law. So, you know, we 18 put a lot of effort into that. 19 MR. KASUNIC: Can I ask a follow-up question 20 -- 21 MR. QUINN: Yeah. 22 MR. KASUNIC: -- just in terms of the public 0063 1 domain works that -- what -- can you give us just some 2 idea of what kind of material -- public domain material 3 you would need to get from a protected DVD? 4 Like, for instance, I'm just -- what's coming 5 to mind is something like news reels or things that come 6 up. And, so, in -- is it just a matter -- why would you 7 need to get that from a DVD, as opposed to maybe going 8 back to source material? 9 MR. QUINN: You might not. For certainly old 10 feature films they may not be -- you know, things that 11 are in the public domains, things from the silent era 12 might not be available in other -- any other format. We 13 often do, you know, the -- we often will go back to 14 source material, if you can get your hands on it. 15 Another kind of example are things that are 16 in the public domain. Really the only thing -- because 17 it's not a big element for our kinds of documentaries, 18 it's more the historical documentaries where this is a 19 big issue. But the one time that I did have experience 20 with this was where I got -- this was before CSS 21 encryption, but we made a film called "The Chicago 22 Maternity Center" film. We used footage from Pare 0064 1 Lorentz's "Fight for Life". The film was a government 2 film and it was in the public domain. And, you know, it 3 was a public domain use. I'm not sure if I could get it 4 today. I could look into that and get back to you. But 5 I know that a lot of stuff that other filmmakers use 6 from the early days of film, for things that are in the 7 public domain, from old news footage and stuff like 8 that, some of it is available and some of it isn't. 9 Some of it is, you know, bundled on these -- you know, 10 these DVDs which someone has re-released it. 11 You know, this is actually a fairly common 12 thing, where people take something that they don't 13 actually own, but it's not clear who does own it, they 14 package it with new material and put a copyright on it 15 and say now, you know, we own it. And, in fact, the 16 underlying piece they don't own, they underline the new 17 material, the new soundtrack, whatever it is. 18 MR. CARSON: Okay. So, Steve, let's get your 19 response to that public domain issue, the notion of 20 public domain material being bundled with copyright 21 material and therefore protected by CSS. 22 MR. METALITZ: Yeah, my -- certainly that 0065 1 occurs. And my recollection is that this was an issue 2 in the 2003 proceeding, and certainly it didn't result 3 in an exemption. But I would have to go back and look 4 at the analysis for it. We quoted in our submission, I 5 think, the conclusion about public domain material. And 6 I think it remains the case that circumventing something 7 that -- access control that's been placed on public 8 domain material is not a violation of the statute so no 9 exemption is needed. But I guess I would like to 10 reserve -- I'd like to go back and see what it was that 11 the office said about that specifically -- 12 MR. CARSON: Okay. 13 MR. METALITZ: -- in 2003. 14 MR. QUINN: I -- can -- 15 MR. CARSON: Go ahead. 16 MR. QUINN: Yeah. I think the way that we 17 see the problem is, well, yeah, we need the exemption 18 because, even though it's in the public domain, if you 19 break the encryption, that act in and of itself is what 20 we're concerned about. So, for instance, in the example 21 that Jim gave from "Terra Incognita" from the Woody 22 Allen movie where we -- yes, we did find this old VHS 0066 1 copy in a library and Jim witted all of his magic and he 2 was able -- we finally were able to get it to meet PBS 3 standard and used it in the thing. 4 Of course I look at it and I say, that looks 5 like crap. It meets the standards, but from an artistic 6 point of view, from an aesthetic point of view, it 7 really isn't very good. And if -- particularly when 8 you're commenting on culture and you're talk -- 9 commenting on feature films, feature films are very 10 sensual. They're very visual. You sometimes -- 11 sometimes not, but sometimes it's very important to have 12 in your film some of that quality preserved so that 13 people understand that what's creating attitudes, or 14 creating emotions in people that we may be commenting 15 on, we're saying look at how, you know, these Arab 16 people were portrayed in -- you know, in Stephen 17 Spielberg's film. You know, and it's high quality 18 filmmaking that is effecting how they experience it. 19 So, we often want to get the highest quality that we can 20 in -- even though, you know, you might say, oh, it's a 21 documentary all you have to do is show an example of 22 it. We actually need it to be -- you know, it doesn't 0067 1 have to be, like, high def necessarily. It doesn't have 2 to be what you see in the theater, but it has to 3 approximate that on some level. 4 MR. CARSON: Yeah, Bruce. 5 MR. TURNBULL: I was just going to comment on 6 the public domain. I think the -- if I'm recalling 7 correctly the previous discussion in the past centered 8 on the fact that the basic prohibition of 1201(a) is no 9 person shall circumvent the technological measure that 10 effectively controls access to a work protected under 11 this title. And, if the work isn't protected under the 12 title, the prohibition -- 13 (Speaking at once.) 14 MR. CARSON: Okay. So, let's give you a 15 scenario. You've got a DVD. It's got material that 16 it's clearly protected by copyright on it. It's got 17 material that's clearly public domain on it. It's got 18 CSS on it. So that access control is controlling access 19 to a copyright work. 20 MR. TURNBULL: I think it does. I -- but I 21 think the -- and I do understand the sort of mixture or 22 the bundling and that sort of thing. But if you had 0068 1 something which was pure, simple, straight public domain 2 I think the prohibition on its face doesn't apply. 3 MR. CARSON: So, do we have a -- Steve is 4 nodding, so, I want to make -- do we have a consensus 5 from the people who are at least sitting here 6 representing audiovisual copyright owners, or the people 7 who own this particular access control technology that, 8 if somebody breaks through CSS on one of these DVDs that 9 has both copyright protected material and public domain 10 material, but does so only in order to get the public 11 domain material, they are not violating 1201(a)(1). 12 That would be a very interesting concession and very 13 useful for us. 14 MR. METALITZ: What you held before in 2003 15 was that it's not within the scope of this proceeding, 16 because this proceeding only deals with adversely 17 effecting noninfringing uses of a particular class of 18 copyrighted works. So, it's outside the scope of this 19 proceeding. 20 MR. CARSON: That may be what we said. I'd 21 have to go back to that. But I never -- I think you 22 just ducked my question, Steve. 0069 1 MR. TURNBULL: I -- let me say two things 2 here. One is that what I was trying to distinguish was 3 the case where you didn't have everything bundled and 4 all you had was public domain work. 5 MR. CARSON: Oh, sure. No one has got a 6 problem with that. 7 MR. TURNBULL: Well, okay. I just wanted to 8 -- that was the limit of what I was saying. I think the 9 issue that you raised is a more complicated question. I 10 would also say that, as to the other prohibitions with 11 regard to creating the tools and that sort of thing, you 12 don't have even -- even as to -- even if there are some 13 incidental public domain works that are protected, the 14 tool is still prohibited, because the primary purpose of 15 the tool is to gain access. 16 MR. CARSON: All right. Well, I think we all 17 understand. And we've had this conversation a number of 18 times at these hearings so far. We are not dealing with 19 1201(a)(2) -- 20 MR. TURNBULL: Right. Right. 21 MR. CARSON: -- here. Let's please try to 22 stay away from that, because it's not going to be 0070 1 productive for us -- 2 MR. TURNBULL: Right. 3 MR. CARSON: -- to get into that. 4 Now, Gordon and Jim, something I do recall 5 from -- I thought it was 2000, maybe it was 2003 -- when 6 we did have people making the case -- or trying to make 7 the case about public domain material being bundled on a 8 DVD. I very clearly recall that after the hearings we 9 went back to the questions -- which you can anticipate 10 you'll be seeing this time, I won't promise it but I 11 think it would be a good chance that we would -- where 12 we actually asked those proponents to come back and give 13 us evidence, show us the magnitude of the problem. 14 Basically tell us to what extent public domain works 15 are, in fact, bundled with copyright protected works, 16 and have access controls on them, and that's -- and you 17 can't get access to those public domain works 18 otherwise. And my recollection -- which may be faulty 19 -- is that, in that prior proceeding when we asked that 20 question, what we got back was a very paltry showing, 21 which certainly didn't persuade us several years ago. 22 Maybe the situation has changed, or maybe we were wrong 0071 1 and we can take another look at it. But I would imagine 2 that to the extent you're asking for something on that, 3 you may get a follow-up question from us asking us to -- 4 asking you to prove your case essentially. 5 All right. Let's move on. Steve, I think 6 what I heard from you was, in your suggestion that, if 7 we were tempted to recommend an exemption, it should be 8 more narrowly crafted. We shouldn't refer to fair use 9 or Section 107. And I just want to explore that for a 10 moment. Because I guess my reaction to that would be 11 that, putting that in the proposal on the face of it 12 anyway, narrows the proposal down. You're saying, look, 13 you can only do it for this particular purpose, not for 14 any purpose, not for any noninfringing use. And as you 15 yourself have said, there are all sorts of noninfringing 16 uses which are not fair use. So, I would have thought 17 you might be favorably inclined to say, fine, if there's 18 going to be an exemption, let's narrow it down so we're 19 only covering fair use. Granted fair use is sort of a 20 squishy thing, but nevertheless at least it limits it. 21 So, I just want to make sure what you're 22 really saying to us is, if there's going to be an 0072 1 exemption, please don't mention fair use, the product -- 2 the byproduct of that being, I suppose, that documentary 3 filmmakers might well be able to circumvent more broadly 4 than they would be able to if all they could do was 5 circumvent for purpose of fair use. 6 MR. METALITZ: Well, they wouldn't be able to 7 circumvent any more or less broadly, because as I know 8 you have stressed in several of the previous proceedings 9 if, in fact, the use ends up to be non -- ends up to be 10 infringing, it may be a violation. 11 But our concern about this is that, by 12 defining an exemption in terms of a class of works used 13 by certain people in a certain way, if it -- if it's 14 fair use, we are very concerned about the short step, or 15 maybe it's a long step, between 11B and 11A. 11B has a 16 number of elements in it that attempt to serve as a 17 proxy for establishing that the use will, in fact, be 18 noninfringing, which is the standard that you're 19 supposed to apply. 11A doesn't. And, I mean, we 20 actually had some of this discussion yesterday as well. 21 But it's quite clear that one red line you can't cross 22 is to say circumvention for the purpose of making a fair 0073 1 use. That is not an acceptable exemption in this 2 proceeding. And, so, the -- to say circumvention, if A, 3 B, and C are true and it's fair use, I think is a step 4 toward that. So, that's the basis of our concern about 5 it. 6 MR. KASUNIC: Okay. But isn't this an 7 attempt really just to narrow the noninfringing use. I 8 mean, the -- it seems to me the only basis on which the 9 claim is being made that, in any case that this can be 10 used, it's limited to fair use claim on it. So, it's -- 11 it just seems to be an attempt to narrow the scope to -- 12 MR. METALITZ: Yeah, I guess so. But, I 13 mean, let's think this through. So, if a documentary 14 filmmaker have met these qualifications, need this 15 circumvention, but it turns out he didn't -- he wasn't 16 doing it -- he was going to make a movie but the basis 17 -- it ends up being an archival copy in a library that's 18 protected by 10 -- that's -- you know, where the 19 exception is 108 then this doesn't apply? I'm just not 20 sure -- 21 MR. CARSON: The documentary filmmaker would 22 use the 108 exemption? 0074 1 MR. METALITZ: Yeah. I mean, what -- I just 2 don't see what kind of limitation this really imposes, 3 frankly. I mean, the only -- you're right. The only 4 noninfringing use that they've talked about is fair 5 use. But the burden that they have to meet is to show 6 that the uses that will be enabled by this exemption 7 will be fair use and -- 8 MR. CARSON: Well, it will be noninfringing 9 uses. 10 MR. METALITZ: Well, it will be 11 noninfringing. And the only example they give -- 12 they've given is fair use. 13 MR. CARSON: But -- 14 MR. METALITZ: That's the burden that they 15 have to meet. 16 MR. CARSON: Right. I get it. Let's move 17 on, then. Question for Gordon and Jim. Steve talked 18 about how there should be some kind of requirement of a 19 good-faith effort to obtain the material without 20 circumventing. And by that I gather what they mean is 21 the exemption should be drafted such that you can't just 22 automatically circumvent whenever you need it, but you 0075 1 first of all have to make some kind of a good-faith 2 effort to see if there are alternatives that would 3 permit you to get what you needed without 4 circumventing. 5 Any problem with that? 6 MR. QUINN: I -- it just seems to me that's 7 one of those vague things. One of the issues now is -- 8 is that -- probably everybody knows -- that we could 9 break the encryption and use this stuff. The reason 10 that we don't is because it opens us up to a liability. 11 So, what would this procedure be? Who would be 12 supervising it? Where would you -- we -- I mean, in our 13 -- what we do, we make a lot of good-faith efforts to 14 reach people for things that we need to license, for 15 instance. And that becomes really difficult. But we, 16 of course, do it. 17 Jim described a situation where we were 18 trying to use something for fair use where we went to a 19 lot of effort, you know, to find a copy. You know, 20 we're researchers. That's -- we do that kind of work. 21 But the idea of documenting it, and that documentation 22 then being a part of what is going to make this what we 0076 1 see, you know, fairly innocuous activity -- I know they 2 see it very differently -- of breaking the encryption, 3 making us vulnerable to some kind of a lawsuit, I think 4 that would be very, very intimidating. Because it's 5 like, what kind of records are you talking about? What 6 constitutes a good-faith effort? 7 You know, as I mentioned, in many situations 8 we have gone directly to an artist to say, you know, 9 we're going to use this in such-and-such way. We think 10 it's fair use but we'd like you to know about it, or, 11 you know, to be aware of our film. And often I'm 12 seeking their -- you know, just -- it just seems like 13 the right thing to do. So, I'm just confused about how 14 something like that would work, what it would be, and 15 what kind of vulnerability it would open us up to. 16 Because the thing that we live in your community, one of 17 our fears is, is what we were dealing with five years 18 ago that was documented in the Center for Social Media's 19 "Untold Stories" report, which was fair use was off the 20 table. It wasn't being used except in the most, you 21 know, very, very narrow circumstances. Broadcasters 22 weren't accepting it. And it was really being used 0077 1 under the table. Basically the contracts you were 2 signing were saying everything has been licensed, 3 everything in this film. You wouldn't mention it, but 4 sometimes there was something -- you know, it was more 5 almost like don't ask, don't tell. And that was not a 6 good situation to be in. And that came about because 7 the very people who were saying, well, make a good-faith 8 effort to us, and come to us and, you know, somehow 9 create some -- which to me feels like now, what's the 10 next step? When's the other shoe going to drop? These 11 are the very people who, in a sense by being so 12 aggressive, we perceived it as we lost the right to use 13 -- to make fair use over the years as they threatened 14 broadcasters and, you know, we would get the letters, 15 too. You know, everyone was getting these letters. And 16 now we've pushed back as a field, you're not all by 17 yourself. And the broadcasters have finally gotten some 18 backbone and said, no, if it's fair use within these 19 defined context and you can get an opinion and the E&O 20 insurance, we'll be happy to broadcast it. So, I think 21 that's -- you know, those are some of the problems I 22 have with that, which is I'm not -- I just have a 0078 1 feeling that it creates a situation in which -- you 2 know, they're concerned about one kind of slippery 3 slope, that's the slippery slope that I'm concerned 4 about, which is where we see all of the sudden a 5 burdensome situation in which everyone is, like, opening 6 themselves up to possible liability, which then we're 7 not able to use our fair use rights anymore. And I 8 think that that is damaging to our democracy. We really 9 feel very strongly that these rights are crucial to -- 10 you know, I mean, I don't really have to make the 11 argument for fair use here. 12 MR. CARSON: Okay. Related topic. We've 13 heard a lot from the other side about permission and how 14 you should first have to ask permission. What if the 15 requirement that -- was simply that, you have to ask 16 permission. If they say no, fine, you move on and you 17 use any -- you circumvent. If they place conditions you 18 think are unreasonable then, fine, you move on and you 19 circumvent. But just a simple request -- a simple 20 requirement that you ask. What about that? 21 MR. QUINN: Well, there is no permission 22 requirement in the fair use doctrine now. 0079 1 MR. CARSON: Sure. But there might -- we 2 weren't -- 3 MR. QUINN: And we think that's important. I 4 understand. 5 MR. CARSON: Keep in mind we're not talking 6 about fair use -- 7 MR. QUINN: I understand. 8 MR. CARSON: -- we're talking about 1201 -- 9 MR. QUINN: I understand. 10 MR. CARSON: -- which has no fair use 11 provision in it. 12 MR. QUINN: Well -- 13 MR. CARSON: So -- 14 MR. QUINN: -- I think -- and, when I talk to 15 people about this, when I educate people, you know, one 16 of the points that I make is, is that, if you have asked 17 permission and been denied -- you know, if you've said, 18 can I use this material? You know, can I break the 19 encryption or -- well, that isn't the case that we're 20 dealing with now, but I -- in many situations people 21 will come to me and say, well, I tried to license this, 22 they turned me down, now I realize it's fair use, what 0080 1 do I do? And I always say to them, you have not 2 weakened your fair use claim at all by asking 3 permission. In fact, in a sense it's not a bad thing to 4 do. And we do it also. 5 So, I think that the thing that I would 6 resist was having a permission requirement in it, but 7 that, in fact, as a part of our professional kind of, 8 you know, what we do, I think that it's not bad to let 9 people know what you're doing. It's not bad in some 10 cases to -- you know, to seek permission to say we want 11 to use this fair use, we're just letting you know. 12 But fair use, as I see it -- and the lawyers 13 have kind of explained to me, so I'm a little confused, 14 I use the word right. I see it as, you know, something 15 that is a right and that's why it's in the law. I guess 16 there's a better legal way to say that. So, that would 17 be my concern with it. But it's obviously -- you know, 18 as a part of our standard practice it is something that 19 we do. We -- you know, and I'm always trying to make 20 people understand that, that it doesn't -- you -- it's 21 fine -- we -- when we use fair use, we try to give 22 credit and acknowledge it on the film. You know, we 0081 1 want to put it in the credits and all of that kind of 2 stuff. And that's really a change from five or six 3 years ago before we did all of this education, because 4 people were saying, oh, well, you never put it in the 5 credits. You know, and lawyers would tell you that. 6 I'm -- it's not just universities that we go to. We've 7 been to the Copyright Society. We've spoken to all 8 kinds of legal groups and to filmmakers. And, you know, 9 I think there was a lot of confusion out there that has 10 become much, much clearer. Fair use is not as fuzzy as 11 it used to be, at least in our field. 12 MR. CARSON: There's been some back and forth 13 and I just want to see if we can get anymore clarity on 14 it, maybe not. But I think I heard you say -- or I 15 forget now whether it was Gordon or Jim, and I think 16 Steve reacted to that, too, with surprise -- that you 17 can circumvent in such a way that all you're doing is 18 getting a short clip, rather than putting the whole work 19 into the clear. That's something that you clearly 20 understand can be done. 21 MR. MORRISSETTEE: We do it every day with 22 noncopy protected materials. 0082 1 MR. CARSON: Okay. 2 MR. MORRISSETTEE: We're constantly reediting 3 -- pulling clips from our own shows. And there are 4 several software programs that do it directly. You can 5 mark an end point and an out point. It can be as little 6 as one second and as long as two hours. And you say 7 extract and it makes a new file that goes right into 8 your editing timeline. It doesn't work with CSS discs, 9 of course, but it -- 10 MR. CARSON: Right. I'm sorry, it doesn't 11 work with CSS discs? 12 MR. MORRISSETTEE: No, it's -- the program 13 that we use doesn't work with CSS discs. 14 MR. CARSON: Oh, okay. 15 MR. MORRISSETTEE: And we don't pursue CSS 16 discs. 17 MR. CARSON: Okay. Well, let me ask you -- 18 MR. MORRISSETTEE: There are programs out 19 there that do. 20 MR. CARSON: Okay. That -- 21 MR. MORRISSETTEE: And you don't have to take 22 a whole chapter. You don't have to copy the whole 0083 1 disc. You -- we never have a movie -- a copy protected 2 movie on hard drive sitting around to go into a library 3 in ten years. We wouldn't donate the disc space. You 4 know -- 5 MR. CARSON: Okay. 6 MR. MORRISSETTEE: -- we only take what we 7 need and only what's going to be used in the show. 8 MR. CARSON: Okay. Now, Bruce clearly has a 9 reaction on that and Steve may or may not, so -- 10 MR. TURNBULL: I don't want to make a 11 definitive statement, but my understanding of how these 12 programs work that circumvent CSS, is that what it does 13 is it allows you to play back the movie, decrypt the 14 movie, and store the entire movie on some storage 15 device. You may then later go back and mark, you know, 16 I only want 30 seconds here or there. But I don't think 17 that you can on the fly say, okay, I'm only going to 18 decrypt and circumvent the 30 seconds, you know, at, you 19 know, the 90-minute mark -- point in the movie. I don't 20 think that that's how they work. 21 MR. CARSON: Is it fair to say to assume, 22 Bruce, that although you may not have actual knowledge 0084 1 of that, your organization probably would have the 2 resources to tell us? 3 MR. TURNBULL: We could get back to you. 4 MR. CARSON: I think that's an interesting 5 question. 6 MR. MORRISSETTEE: Because I can get back to 7 you, too. 8 MR. CARSON: Just -- yeah, both of you, 9 obviously, the more information you can give us on 10 that. And let's assume for a second, anyway, that it is 11 as you describe it. 12 MR. MORRISSETTEE: Just give me a one-day 13 exemption and I'll try all of these things. 14 MR. TURNBULL: If you want to talk to us, 15 we're -- as I said -- 16 MR. CARSON: By all -- hey, as a general 17 proposition, all of you folks, if you guys want to talk 18 and come up with a unified position on anything, we'd be 19 delighted, obviously. 20 MR. QUINN: If I could just clarify, because 21 I think, correct me if I'm wrong, Jim, but it's like -- 22 I think the point Jim is making is, yes, these programs 0085 1 could enable you to take the whole film, but the 2 original -- and I think what I'm understanding is the 3 original DVD is still going to be encrypted. It's a way 4 of playing it back and getting rid of the encryption. 5 And in our field we don't take the whole thing. We 6 don't -- you know, we take, you know, the piece that 7 we're going to need, because otherwise we've got it on a 8 digital drive. We have to store the whole thing. You 9 know, it wouldn't even -- I mean, drive space has gotten 10 cheaper and I suppose we could, but it's not our 11 practice. We take the short pieces that we're actually 12 going to be working with. And, so, I think that's the 13 point -- is that correct? 14 MR. MORRISSETTEE: Absolutely. 15 MR. CARSON: Assuming that we get 16 confirmation that it is position to decrypt only that 17 short portion that you need without, you know, basically 18 having an unencrypted copy of the entire work sitting 19 somewhere, would there be any problem, if any exemption 20 were to issue, if we somehow were to include in that a 21 condition that you are decrypting only so much as you 22 need to decrypt for purposes of including it in your 0086 1 film? 2 MR. QUINN: No problem at all. 3 MR. CARSON: Any reaction on the other side 4 to that reserving your right to objection to the whole 5 notion? 6 MR. TURNBULL: Yeah. 7 MR. CARSON: But, if we're going to go down 8 that road, would that be something you'd like to see? 9 MR. TURNBULL: I -- yeah, I mean, I think 10 that on the -- I -- that's the kind of thing that adding 11 to the list that Steve had, again, if you're going to go 12 down that road, you know, that would be something that 13 would be helpful. 14 MR. CARSON: Yeah. 15 MR. KASUNIC: As to that point I was -- I'm 16 just a little unclear. Are we talking about software 17 that documentary filmmakers get to decrypt it, or is 18 there -- would it be possible for the DVD Copy Control 19 Association to provide a key to a limited portion of a 20 DVD? 21 MR. TURNBULL: No. They -- I mean, the way 22 the encryption works, if you get the keys, you're 0087 1 capable of encrypting -- of decrypting the entire work. 2 So, it does not -- the -- I mean, it's a very 3 sophisticated encryption. I understand that, you know, 4 you -- the key changes, you know, over time during the 5 course of the work. That's not how CSS works. So, that 6 -- so, literally the answer to your question is, no, we 7 couldn't do that. I -- I mean, there may be -- I mean 8 -- well -- 9 MR. KASUNIC: Well, then, we'd know the 10 answer, then, to the rest of this, right? Because, if 11 there's no way that, at least that you know of, to do 12 that probably that's the way CSS is structured, rather 13 than any flaw in any of their software that's -- that -- 14 MR. TURNBULL: Right. 15 MR. CARSON: Jim. 16 MR. MORRISSETTEE: But it has to do with the 17 user. In other words, if we as an organization only 18 pull out the clips that we need, then we can swear, you 19 know, legally under oath that there is no copy of this 20 movie on our facility -- 21 MR. KASUNIC: Right. Right. 22 MR. MORRISSETTEE: -- and there never has 0088 1 been one. 2 MR. KASUNIC: There's no question of that. 3 We're just trying to clarify, is it technically possible 4 to -- 5 MR. MORRISSETTEE: To isolate it? 6 MR. KASUNIC: -- decrypt portions, rather 7 than decrypt the whole thing -- 8 MR. MORRISSETTEE: I see. 9 MR. KASUNIC: -- and then choose portions of 10 it. 11 And just one, in relation to that as well, 12 then, I guess maybe this is answered by that. But, 13 Bruce, you had made the statement, documentary 14 filmmakers have not come to you to ask about this. What 15 could you have done had they come? 16 MR. TURNBULL: I can't speak for the board of 17 directors and the officers of DVD CCA on what could be 18 done. But what -- the point I was making was that, if 19 somebody came and said, this is what I want to do, is 20 there a way to license? And I don't mean license the 21 content, I mean license the technology such that it does 22 X. That is something that would be considered. Now, 0089 1 whether -- I can't say we would agree. And I can't say 2 that the conditions that, you know, might be worked out, 3 you know, would work for everybody. But it is something 4 that, if somebody came and said, we want to do X, you 5 know, can we find a way to use your technology to do 6 that? 7 And, as I said -- as I've said before, I 8 think we would prefer if that -- if it was possible to 9 have that dialogue, rather than have a sort of widely 10 available public exemption from the circumvention. It's 11 better for the technology. 12 MR. KASUNIC: That would still require a 13 couple of steps. I mean, DVD CCA could not speak to the 14 specific content. 15 MR. TURNBULL: No. No. 16 MR. KASUNIC: It would just be as to that -- 17 MR. TURNBULL: Right. 18 MR. KASUNIC: -- technology -- 19 MR. TURNBULL: Right. 20 MR. KASUNIC: -- and then it would have to 21 relate to the underlying context that is particularly at 22 issue. 0090 1 MR. TURNBULL: There -- yeah, there are a 2 variety of layers that -- where one could get tripped 3 up. I mean, there's no question about it. But purely 4 as a matter of, could we use the technology, you know, 5 on a licensed basis in this way? As I said, no one's 6 coming out. 7 MR. CARSON: All right. Final question. 8 MR. QUINN: I think -- I just want to say 9 that I think that that would be problematic for us. 10 Because ownership should not determine what you can use 11 and what you cannot use for fair use. And I understand 12 the question about the technology, but I guess what I 13 would say is, if your concern is is that we're taking 14 these unencrypted pieces and they're around on our hard 15 drives and that kind of thing, it's like, well, then you 16 come to us and we'll work out a solution so we can say, 17 no, you know, when we take the pieces we make sure that 18 it's erased, why do you need to be assured of that? 19 But it's -- what I'm concerned about is this 20 thing that always comes up which is, oh, there must be a 21 marketplace solution for this or there must be a 22 technology solution. We're talking about a fundamental 0091 1 free speech right. And that needs to be protected in 2 that sense. And, so, there can't be all of these, you 3 know, well, if you just ask, or if you just do this. It 4 gets very, very complicated. 5 I mean, we are all aware on the kind of thing 6 when you go to try to license news footage and they say, 7 well, yes, we've given you the license to the news 8 footage, you've bought that and, blah, blah, blah. But, 9 of course, if you want to use the newscaster, that's a 10 separate contract and you have to go and talk with his 11 agent and get permission to use his footage. 12 On the other hand, if it's fair use and 13 you're using it in a legitimate fair use way, you don't 14 have to do any of that. All of the underwriting -- 15 lying rights are covered. So, I think that's just 16 important. 17 We -- if there is a -- we have an interest in 18 not creating a situation in which people are infringing 19 upon this in illegal ways. We don't want people being 20 able to, you know, steal copyrighted material to use in 21 ways that are not within these narrow confines. And, if 22 something we're doing is creating that situation, well, 0092 1 yeah, then, come talk to us, because we don't want to be 2 a part of that. 3 MR. TURNBULL: I would only remark that, as 4 far as the First Amendment, the Section 1201 has been 5 evaluated. And the protection against circumvention has 6 been upheld as against, you know, people's challenge 7 that it infringes free speech. 8 MR. CARSON: Okay. One final question then 9 we have to move on. I heard from Steve another 10 condition he'd like to have thrown on this, if he's so 11 unfortunate as to have an exemption granted, would be 12 that it only be available when the access controlling 13 question is Content Scrambling System. Is that 14 something that you folks would find acceptable, or I -- 15 Jim is nodding yes. 16 MR. MORRISSETTEE: Uh-huh. 17 MR. CARSON: Okay. Okay. All right. I've 18 got a lot of other questions, but we have other 19 witnesses and I think we need to get to them. So, the 20 rest of my questions may get asked later on in the 21 general Q&A, or we may just have follow-up questions in 22 writing as time is moving on. 0093 1 So, let's move on to our next witness who is 2 Rebecca Tushnet of the Organization for Transformative 3 Works. Rebecca. 4 MS. TUSHNET: Hi. So, my name is Rebecca 5 Tushnet. I'm professor of law at Georgetown. And I'm a 6 member of the board of the Organization for 7 Transformative Works, which focuses on protecting 8 fan-generated works, which are usually based on existing 9 copyrighted work. So, that sometimes works in the 10 public domain. They are noncommercial, which means that 11 they are labors of love, quite literally. They often 12 involve substantial investments of time and energy, 13 sometimes even money. And people get nothing back, 14 except the satisfaction of creating and whatever effect 15 they can have on the culture having created these works 16 and responded to pop culture, sort of talking back to 17 popular culture. 18 We're here in support of exemption 11A, the 19 exemption proposed by fair use -- by the EFF for 20 audiovisual works on DVD, where circumvention is 21 undertaken for the purpose of extracting clips for 22 inclusion in noncommercial fair use noninfringing video. 0094 1 And the thing is, the adverse effect on fair 2 use and on noninfringing use that the exemption 3 addresses is on the system of fair use. The 4 technologies at issue here are important because they're 5 readily available to individuals and, to a layperson, 6 especially to the artist who are inventing remix culture 7 often in their own homes, they are not distinguishable 8 from other readily available technologies. The current 9 regime is a trap for the unweary and it crushes the 10 development of the very fair use jurisprudence that the 11 opponents tell us we must have before we can get an 12 exemption in the first place. 13 The Joint Commenters have conceded that 14 there's a substantial amount of noncommercial fair use 15 done by ordinary citizens in dozens of different 16 contexts all around the country. By definition it's not 17 infringing. The statute requires us to show an adverse 18 effect on that. Once we have shown an adverse effect, 19 which I believe we can, an exemption is on the table. 20 To say otherwise is to say that there's certain time -- 21 types of noninfringing uses that the statute 22 categorically refuses to consider, which I think is 0095 1 inconsistent with the statute itself, especially when it 2 comes to fair use. And, again, we are being detoured 3 from getting precedence from Article 3 Courts on what is 4 a fair use, because our -- the people creating these 5 works can't go to court because of 1201. It's a catch- 6 22. They say we need precedent to be sure it's fair 7 use, we just can't get that. 8 The exemption here is limited to a class of 9 works where there is a demonstrated problem. Works on 10 DVD, not Blu-ray or other media. It's limited to a 11 class of users with particular difficulties, 12 noncommercial clip makers who are in the worst position 13 to know the distinctions between technologies the 14 opponents think they should be making. 15 I want to address the question of why 16 circumvent? We've heard that convenience should not be 17 the standard. And I agree. There's nothing convenient 18 about what's required to do this. Yesterday's 19 distinction between inconvenient and abnormal is really 20 useful. It's abnormal to distinguish between methods of 21 getting a digital file. And it's no wonder that the 22 fair use is with whom we talk and who get takedown 0096 1 notices and want to respond to them and then conclude 2 that they can't because they can't tell you exactly 3 where the clips came from. They don't know they've 4 walked into a trap. We've heard from the Joint 5 Commenters, the best copyright lawyers on the -- in the 6 business are unprepared to answer the question of 7 whether SnagIt is a circumvention tool. A nonlawyer is 8 in absolutely no position to understand what the law 9 supposedly allows them to do and not do. And it makes 10 no sense to tell them that one method that produces a 11 digital file is okay, while another method that produces 12 a, you know, worse but basically similar digital file is 13 okay. The Copyright Office apparently is not prepared 14 to tell us what technology you can use. That -- that's 15 a huge barrier for an artist who does not have legal 16 counsel on hand. 17 Now, it may true that an institution with 18 substantial and very technological resources can figure 19 out work arounds to this. But individual citizens who 20 are creating fair uses for political purposes, lots -- 21 we saw that lots in the Obama Campaign -- sometimes even 22 in the McCain Campaign -- that there are participating 0097 1 cultural exchanges. They don't have AV departments. 2 They can't go to these work rounds. What I see here is 3 essentially a digital literacy test and a digital poll 4 test. The literacy test, as may recall, required 5 perspective voters to interpret an often arcane 6 provision of the law. Here the test proposes that they 7 understand that a digital file created one way okay, 8 while a similar digital file created another way not 9 okay. 10 Then there's the poll test. You have to 11 purchase the proper equipment to create the second 12 digital file. It's expensive. It's nonstandard for an 13 individual artist. We were offered yesterday the 14 prospect of using a $900 camera, plus a tripod -- which, 15 by the way I priced, $300 -- plus a flat screen TV in a 16 room that you can make it completely dark. Do you think 17 you can do that in the average home? You can't even do 18 that in the average school. I was trying to think of a 19 place in Georgetown where I would be able to make it 20 completely dark and also put the camera far enough away 21 to get the right distance, which as we just heard, is 22 very important to getting a right file. I don't think 0098 1 it could be done at Georgetown. It certainly couldn't 2 be done at home. 3 The noncommercial artists that we work with 4 are often pink-collared workers. They work to support 5 their art and they work to support themselves. $900 is 6 regularly more than a month's rent for them. It's 7 crippling. And they don't get paid for the works they 8 create. They can't call the $900 camera an investment. 9 They can't even deduct it. It's because they're not -- 10 they're engaging in free speech, they're not running a 11 business. 12 The poll test, too, is inherent in the 13 responses from the opponents when they argue that the 14 camcorders somehow preserve the technology differently 15 than the technologies we're talking about. That 16 presumes that the camcorder solution is one that won't 17 be used by fair users and, therefore, fair uses will be 18 suppressed. 19 To the contrary I think the possibility of 20 camcording proves that the proposed exemption won't 21 cause any harm. They say camcording is easy and it's 22 good enough to watch. Well, that's true. If that's 0099 1 true, that's what the pirates will use. You can't both 2 maintain that camcording is a substitute for fair use 3 clipping and also that the exemption will degrade 4 protection for CSS compared to camcording. 5 We get rid of the literacy test and the poll 6 test because they detoured people from participating, 7 people whose voices weren't heard otherwise. We did 8 this, even though there were people, brave people, who 9 defied the laws and persevered. Some even managed to 10 register and vote. The problem was -- and it was quite 11 clear -- was all the people who didn't make it through 12 all the hurdles. That was understood as a harm to the 13 political system. And it is so here as well, especially 14 when the voices we're talking about suppressing are the 15 voices of precisely the people who do not have mass 16 media outlets, who get attention, who get heard by 17 responding to what they see, and critiquing it, and 18 saying, by the way, this doesn't represent me. Look 19 here and then look at the way I see. 20 The key here is that distinctions between 21 output files should make sense from the perspective of 22 an ordinary user. Fair use is actually a reasonably 0100 1 intuitive concept, as is the distinction between 2 transformation -- which is what we're talking about here 3 -- and pure copying. Interestingly the Center for 4 Social Media, which you heard about their best practices 5 which have been incredibly helpful to documentarians, 6 they also have a series of best practices for online 7 video remix, which goes through and says, look, fair use 8 is understandable. You can learn to use it. You can 9 learn to use clips. All right. You can learn to 10 comment on them. It's not impossible. It's 11 nonsensical, however. It's even contemptible that one 12 way of making a fair use remix is okay and the other is 13 not. The last thing that Copyright Law needs is another 14 rule that doesn't match up with ordinary people's 15 intuitions about what is legitimate to do, and what is 16 unfair and can only be done with permission. 17 The current situation detours risk adverse 18 remixers from making fair users, because how do you know 19 you did it okay? And the ones who continue find 20 themselves unable to assert fair use defenses for fear 21 of DMCA liability. So, this -- Fred Malone (ph) of the 22 EFF testified about this in Palo Alto. We've seen this 0101 1 at the OTW in our conversations with remixers who get 2 takedown notices. They want to make fair use claims, 3 but they decide that they can't because they don't know 4 about the method they used to capture the clips. 5 They're afraid that it's a circumvention. And this has 6 a substantial effect on the development of fair use 7 jurisprudence. 8 It's just -- basically it's arbitrary and 9 even cruel to tell noncommercial fair users who do want 10 to fight for their fair use right that it's too late for 11 them, that they should have gone to law school before 12 they started remixing, and we can't get the precedent 13 that they want to defend themselves because they're 14 going to -- they're likely to lose on a 1201 claim 15 regardless of whether they have a fair use. 16 I want to speak to the issue of enforcement 17 concerns. The proposed exemption only applies if 18 there's an underlying fair use. Copyright owners are 19 free to challenge anything they don't agree with as a 20 fair use. We welcome the opportunity to develop fair 21 use jurisprudence on the context of noncommercial 22 transformative uses. 0102 1 And here's the thing, none of these 2 commercial creators -- let's assume that 3 counterfactually that they knew the law and could read 4 the, you know, six pages of -- that the DMCA takes up in 5 my statute book, no noncommercial creator would say, I 6 know this isn't fair use, but the prospect is statutory 7 damages -- because, let's face it, they're all 8 registered. If you get a threat letter, they will all 9 threaten you with six-figure liability. I know it's not 10 fair use, but statutory damages aren't enough of a 11 deterrent. Only the additional prospect of DMCA 12 liability is enough to prevent me from infringing. 13 That's -- that is a nonsensical way to think about it 14 and, indeed, nobody does. Any extra deterrents 15 supposedly achieved by the absence of an exemption is 16 only achieved by detouring fair uses. And, frankly, I 17 don't think the statute requires the public to subsidize 18 copyright owner's enforcement decisions by detouring 19 fair uses. 20 The unfortunate concern, of course, is 21 mistaken in other ways as well. As the Joint Commenters 22 readily concede, these technologies are widely available 0103 1 and widely used. What is it exactly that we're trying 2 to detour? That's also not as important as the bigger 3 point. These technologies are not great ways to 4 infringe, they're great ways to get clips. So, just by 5 way of example, downloading a 700 megabyte movie at two 6 megabytes per second -- which is a fairly standard 7 broadband speed. I bet you could get it in this 8 building -- takes 45 minutes. It's less time than it 9 takes to rip specially chosen clips. When you're 10 ripping clips, you actually have to pay attention to 11 what it is that you want. These -- you could even, if 12 you were inclined to do so, rip a high quality version 13 of a whole movie faster than you can get clips. This 14 ties back into the point about making the law 15 comprehensible to ordinary people. 16 When we talk to these artists, they say, are 17 you seriously telling me that it would be better for me, 18 from a liability perspective, if I had downloaded the 19 whole movie instead of as I did, paying for the DVDs and 20 taking clips from them? No wonder they don't anticipate 21 that before they get the takedown notice. It doesn't 22 make sense from a very intuitive sense of what is fair 0104 1 to the copyright owner. It makes sense, you pay for the 2 DVDs, all right, they get the reward and you make a 3 noncommercial remix. You're not harming them. You're 4 certainly not putting full copies out there, and yet 5 somehow you're in a worse position than somebody who 6 just downloaded the whole TV series. 7 I want to take a moment also to talk about 8 alternatives. Now, the basic proposition that I want to 9 communicate is that people don't know that these 10 alternatives have different legal consequences. So, the 11 law as applied to them is essentially random. But let's 12 take a look at some of these alternatives. So, for 13 example, screen capture software, we would like very 14 badly a real answer from the Joint Commenters about 15 their perspective on this. We do note that, if using a 16 camcorder on a screen -- pointing it on the screen is 17 not circumvention, we find it hard to see why having the 18 camera embedded in the computer is any different. It's 19 -- if it's capturing the same outlook. And I think Rob 20 Kasunic pointed this out. However, screen capture 21 doesn't produce clips of sufficient quality to make the 22 artistic point that our artists often want to make. 0105 1 Other people will testify about the importance of high 2 quality to remix artists. I would say we would not tell 3 other artists that they could only use crayons and not 4 pencils, or paraphrases and not quotes. We would think 5 that that actually interfered with the art, the result. 6 Here is an example of how quality is 7 important in political critical remix video to show you 8 things that aren't easy to see in the original. There's 9 a video called "How Much is the Geisha in the Window?" 10 It's about a science fiction series, "Firefly", by Josh 11 Whedon, very popular amongst certain segments. It made 12 a fair amount of money, enough to get a major motion 13 picture made as a sequel. "Firefly" is supposedly set 14 in the future where Chinese and American cultures are 15 roughly equal. They've had roughly equal influence on 16 the far-future society. The characters speak Chinese 17 phrases. The set decoration is consistently Asian 18 influenced. There's lots of details, and yet somehow 19 all the main characters are white. All right. So, the 20 remix video is -- pulls out in the background the 21 occasional Asian extra. And the set dressing details 22 and the part where they eat dogs in their charming, you 0106 1 know, Asian way to show exactly how orientalizing and 2 disrespectful of the culture the series actually is. 3 Those details are exactly what are lost if you have to 4 do something in low resolution. It doesn't help the 5 critique to say, okay, well, all these pixilated, you 6 know, background extras look pretty much alike. You 7 can't see the point, which is that there are all these 8 white faces and then only a couple of Asian ones in the 9 background. 10 All of the suggested alternatives in the end 11 limit the source materials people will draw from in 12 various ways. And the point I want to circle back to is 13 there are a wide range of people creating out there, a 14 wide range of creative practices. Potential fair users 15 are being discouraged and will be discouraged because 16 they misunderstand the distinctions between 17 technologies. Without an exemption the rules 18 distinguishing technologies are arbitrary because they 19 don't relate to the nature of the artistic activity, 20 which is the output. The -- any rules should be 21 directed to what it is that you're making, not the way 22 in which you made it. 0107 1 A separate point about screen capture 2 software, as you've heard, it doesn't actually work on 3 many systems and with many DVDs. I know this from 4 personal experience trying it out, as well as with 5 conversations with others. As it appears, content 6 owners are using mechanisms to prevent screen capture 7 software from working. Vista includes new technical 8 protections meant to stop this from working through 9 public protected media path. It's actually put there at 10 the insistence of the MPAA companies as a condition of 11 making formats like Blu-ray available. One of the 12 stated design goals of the protected media path was to 13 block screen capture. It's already deployed in every 14 Vista PC that's shipped and every one that will be 15 shipped in the next three years. 16 Just as neither institutions nor individuals 17 should be expected to hang onto their VCRs forever in 18 order to take advantage of obsolete technologies, 19 neither should we be expected to hang onto our old 20 operating systems. And remember, also, we are talking 21 about people who are not institutions. They have one 22 computer. 0108 1 In fact, I think it's probably true that the 2 studios and their partners have a very strong incentive 3 to implement additional measures to block screen 4 capture. Screen capture makes all formats vulnerable. 5 A DVD exemption is actually a much more targeted way of 6 addressing the current problem. 7 I want to let other people talk about 8 quality, but I do want to say a little bit about the 9 fact that some of the discourse here has seemed to be 10 that you've got to be this tall to make a fair use, 11 right? That fair use is for people who, you know, are 12 educated, are in certain professional positions. And 13 yet fair use is political, it's cultural, it's the way 14 that you talk back to the things that you see around you 15 every day. If we require people to have professional 16 affiliations or other credentials before we allow them 17 to make fair use, we will get a different kind of fair 18 use, and one that does not reflect of what our citizenry 19 is what it should have the right to say. Thank you. 20 MR. CARSON: Okay. All right. Let's here 21 from Francesca Coppa. 22 MS. COPPA: Hi. I'm Francesca Coppa. I am 0109 1 not a lawyer. Rebecca is the lawyer for the 2 Organization for Transformative Works, but I am on the 3 board. And I am also director of film studies at 4 Muhlenberg College. 5 The OTW, as Rebecca has said, the 6 Organization for Transformative Works, advocates for 7 groups of fans making transformative works, which 8 include remix in the broadest -- many different forms of 9 remix. I'm not an expert on this statute, but I am an 10 expert in practice. I'm here representing certain kinds 11 of practice communities. One of things that I think is 12 important to say about the remix practice community in 13 general is that remix stems out of minority cultures. 14 The -- historically remix is practiced by minority 15 groups, women, the various other kinds of ethnic 16 minorities, people of color, and GLBTQ, Gay and Lesbian 17 Transgender bisexual folk. And of our -- the sort of 18 people who are interested in our organization, the 19 people we see making transformative works are almost 20 exclusively women minorities. I literally know very, 21 very few straight men who are doing this sort of remix 22 that I'm here to talk about. 0110 1 My specialty within this remix culture is 2 vidding, which is a predominantly and distinctly female 3 form of filmmaking. Filmmakers are still 4 underrepresented in film schools and nationally. But 5 this is a female -- heavily female dominant form of 6 remix. It is a -- in this grassroots filmmaking forum, 7 clips from television and film are set to music and 8 radically recontextualized, often to celebrate but more 9 often to critique and get you to kind of resee popular 10 culture. 11 A vid in that way is a visual essay that 12 talks to popular culture in the same language of the 13 original. It's a visual essay on a visual source. This 14 practice of speaking back and the making of vids, which 15 has been going on for some time among women who have a 16 fair league, you know, strong community around this, is 17 a form of art making and a form of cultural commentary 18 that does not happen, you know, inside the academy or, 19 you know, in high art circles, though vidding has 20 recently been getting a lot of attention and respect in 21 high art circles. We currently have a vid and the 22 California Museum of Photography asked to include a 0111 1 vid. New York Magazine singled out vidders who are real 2 artists, as well as really savvy cultural critics, as 3 having made the best -- some of the best remix videos, 4 you know, of a particular year. So that there is a kind 5 of high art. I've written about vidding for Camera 6 Obscura, Cinema Journal. The kinds of practices that 7 women do when they vid are very analogous to the sorts 8 of collage appropriation art, remix culture that are 9 currently found in major museums. There are pieces in 10 MoMA done by recognized high artists that are, I would 11 say, less sophisticated than many of the vids that come 12 out of the community that I represent. So, there's a 13 real continuity with digital art, and people in kind of 14 the recognized cultural positions are paying attention 15 to that. 16 The OTW has a test suite of bids online at 17 our site, which is transformativeworks.org. Let me give 18 you a -- I -- one of the reasons I'm not showing vids, 19 vids were -- are often made for -- to be shown in live 20 -- premier at live gatherings on screens much bigger 21 than this, are made to be shown off in kind of theater 22 like settings on very high screens, and made in very 0112 1 high resolution as a form of art for reasons that I'll 2 explain when I talk more about what they do. Vidders 3 who usually have vibal premier or often a vibal premier 4 in a kind of live venue at a premier show. And then the 5 vidder might subsequently offer a high quality file for 6 download, a high quality file sort of being like, you 7 know, 90 or 100 megs. They might then put a streaming 8 version online. Some vidders will not put streaming 9 versions online because the quality is so degraded that 10 it won't show what they want to show. Those who do, 11 it's sort of like an ad or a preview. We'll put some 12 sort of streaming online to sort of say, you know, if 13 you like it or if you think you're going to like it then 14 you download the file. And, so, the quality is really a 15 fairly large issue. Why is it a large issue? 16 Let me talk a little bit about what vids do. 17 Rebecca has already mentioned "How Much is that Geisha 18 in the Window?", which as many vids do, vids often 19 recontextualize pop culture to emphasize the subtextual, 20 the marginal, the thing that was not at the center of 21 the frame. To the extent to which this is a minority 22 speaking back to culture in the broadest sense and 0113 1 representing a kind of alternative point of view, or a 2 talking back to culture, saying that the mainstream 3 culture does not represent your position. You are often 4 not focused on the most predominant thing, but are doing 5 something like bringing the background to the 6 foreground, drawing attention to something absent, 7 missing, marginalized, constructing a reading that is 8 not the most obvious reading. 9 And, so, the idea of having a high quality 10 file is fairly important to -- because you are often 11 recutting and recontextualizing clips in order to 12 emphasize visual patterns that were precisely not 13 apparent in the original, in order to construct a kind 14 of subversive or against the grain kind of reading. 15 So, a vid like "How Much is that Geisha in 16 the Window" is, as Rebecca was explaining, paying 17 attention to exotica, and the way in which actually 18 human beings are treated as exotica in the background of 19 "Firefly" in what is essentially supposed to be a 20 Chinese Creole culture that features no actual Asian 21 people. A vid called "Women's Work", which was made in 22 the fandom "Supernatural." "Supernatural" is a show 0114 1 about two brothers who fight demons. The vid "Women's 2 Work" features no sign of these brothers. It edits 3 together footage of the occasional female characters, 4 most of whom are there to be murdered, so that the 5 brothers can then track down the monsters that killed 6 them. So, the women's work of the vid is, in fact, to 7 be tortured, frightened, scared in various ways in order 8 to provide the pretext. And, of course, the show 9 then -- I mean, as in much horror, you know, the show 10 will provide women suffering as a kind of, you know, 11 cost of doing business, right? I mean, well, of course 12 a woman has got to be killed in the first few minutes so 13 the detective can solve it. But by editing these 14 one-time only characters into a series of montages, you 15 are drawing attention to something that is supposed to 16 be background and bringing it to the foreground. 17 There's a vid called "Wanting to be Nice" 18 that looks at a whole series of buddy cops, male -- 19 paired male protagonist on television to make a gay 20 marriage argument, essentially sort of reframing all 21 these various couples from the whole history of 22 television. And when I say "couples" I mean guys and 0115 1 their partners, guys and their second in commands, 2 various forms of a male friendship is depicted on 3 television, and recontextualizing them as if wouldn't it 4 be interest -- wouldn't it be nice if some of these 5 couples were couples? Wouldn't it be nice if there were 6 some recognized way -- in particular the vidder was 7 talking about gay marriage -- to recognize these 8 relationships? 9 There's a vid called "Martina", which was 10 made about Veronica Mars. Veronica Mars is second -- 11 third season. Third season. Had the character, who we 12 know had previously experienced this sexual assault, 13 tracking down a rapist. And many fans of that show felt 14 that it was -- and I say fans of the show, people who 15 loved the show. To make a vid about a show, you have to 16 care about the show. You've watched it all. The 17 critique you're making is a critique of somebody who 18 loves it, has bought it, is interested in it, and still 19 has problems with it that they want to articulate to a 20 group. But "Martina" was sort of saying -- was 21 artistically trying to articulate that they felt that 22 the show was being insensitive to the way the character 0116 1 would likely have reacted if she had actually been asked 2 to track down a serial character, given her contextual 3 history of abuse. 4 In any case, as I say, all of these vidders 5 are both cultural critics and, as I say, very, very fine 6 artists. Tisha Turk will talk about some of the things 7 that vidders do with footage. They don't simply watch 8 footage, they're making things with footage. I'm 9 talking primarily about the ways in which vidders 10 strategize to draw your attention to things that you are 11 not supposed to see, or were not prominent in the frame 12 before. So, in this way it's a different version of the 13 kind of examples of yesterday where they were talking 14 about a chair, right, that you have to have it fairly 15 clear so you can see that such-and-such a chair is 16 infringing. 17 The kinds of readings we do it tends not to 18 be -- it may be a piece of furniture as in "How Much is 19 that Geisha in the Window?", an oriental vase, or 20 exotica. But very often it's facial expressions, other 21 kinds of subtextual or background characters or ideas 22 that are brought into the foreground. 0117 1 So, what's -- you know, what is our problem? 2 Right -- why -- where's the harm to our community? Part 3 of it is that vidders right now communicate through a 4 series of online tools, social networking tools, 5 YouTube, imeem, streaming video sites. 6 Increasingly, often due to algorithms, 7 material is subject to random takedowns. YouTube did a 8 giant purge in January where they just took down tons 9 and tons of things and claimed that they were 10 infringing. Other sites also will do random kind of 11 takedowns, and cease and desist, et cetera. In that 12 kind of social networkings, that's where people 13 communicate. 14 Many of them provide -- YouTube, for instance 15 provides a mechanism for disputing that takedown. And 16 one of the things that the Organization for 17 Transformative Works has tried to do is to say, if your 18 video was taken down and you think your video is fair -- 19 I should say that we believe that this is fair -- we 20 believe that vids are fair use. Vidders -- the people 21 who are doing what we are saying are making 22 noninfringing, culturally relevant, artistically 0118 1 beautiful fair use works. And we're saying, if you are 2 making one of these, dispute it. Say, I am not just 3 putting up some infringing clip that's piracy, dispute 4 it. And we're finding that, because of the lack of 5 clarity about the methods, that we're getting some 6 people who will just say, I don't want to dispute it 7 because, yes, I think my product is fair, but I -- you 8 know, I may have done such and such and such to get it, 9 to make it and, so, I'm -- I don't want to open that can 10 of worms. 11 I had a particular exchange in my capacity as 12 communications chair of OTW where I encouraged a woman 13 to dispute. And she said that, you know, her daughter 14 had made the vid and she wasn't sure how -- what she had 15 done to get it and, so, she didn't want to fight the 16 takedown. And I think OTW feels very strongly that it 17 is important -- and, again, we're not talking about 18 noninfringing uses. If you're pirating something and -- 19 you know, that's illegal. That's not what we're talking 20 about. But that to the extent which you've made 21 something fair, that your ability to kind of defend your 22 artwork and claim for its right to exist, to be seen, to 0119 1 be shared, is important. And I, myself, you know, have 2 started to write about vidding because these are people 3 who are not particularly capable of putting themselves 4 forward anyway. To the extent to which they represent 5 marginalized positions, the extent to which they are 6 making vids partly because they do not see their views 7 reflected in popular culture, and feel that their 8 position is already marginalized. It's really kind of 9 difficult to say, no, really your speech is valuable, 10 really what you have to say is an acceptable thing to 11 say, stand up and defend yourself against the 12 corporation. 13 Vidders historically -- largely because they 14 were female -- kept their head down. Were very, very 15 nervous about sharing their work online. And, in fact, 16 really have only kind of begun to sort of peep out into 17 the kind of more public spaces of the Internet, because 18 they saw male forms of remix culture doing it. Forms 19 like Machinima, which is a remix culture of films made 20 inside video game engines, and other kinds of parody, 21 "Brokeback Mountain" kind of fair use video. And I 22 think the women of the community I represent said, well, 0120 1 they're not ashamed of what they're making, why am I 2 ashamed of what I'm making? But this is not a group 3 that has historically been able to kind of put itself 4 forward. And we see that as a real form of harm. 5 In addition to the fact that, you know, 6 already you have people who may be nervous about kind of 7 asserting their perspectives. And, again, the lack of 8 clarity about -- I can't even tell them clearly what 9 kind of method would make for a fair use, you know, 10 rather than one. I can tell them to put their -- like I 11 can tell them what a transformative work is. I can tell 12 them, if their product is sufficiently interesting, 13 critical, transformative, right? But it's much harder 14 for me to tell them what method they would need to have 15 used in order to feel safe protesting their work. And 16 it is also hindering a little bit some of the 17 recognition of this art, you know, by the mainstream. 18 Lastly, you know, in terms of the image 19 quality. I do think it would be a shame -- aside from 20 the practical issues that artists will talk about -- if 21 vidders and other cultural critics were first forced to 22 work in degraded images. That -- one of the things that 0121 1 you do when you try to talk back to culture, I mean, if 2 they have all shiny, big luscious looking footage and 3 you have to speak back in a degraded kind of form, your 4 critique is already, you know, marginalized by its 5 position. But the idea that then you have to -- you're 6 almost being forced to create your response in an -- in 7 a degraded way seems very discouraging. So, thank you 8 for letting me testify. 9 MR. CARSON: Sure. Thank you. Let's move on 10 now to Tisha Turk, whose name we heard mentioned once or 11 twice I think already. 12 MS. TURK: My turn. I teach English at the 13 Liberal Arts Campus of the University of Minnesota. And 14 one of my areas of academic expertise is novels that 15 rewrite other novels. And from there it's just sort of 16 short sideways step to video that rewrites other video, 17 which is my new research area. And you can ask me about 18 that, if you would like. 19 But I'm actually here today as a remix video 20 artist. So, I want to talk a little bit about what we 21 do and what we don't do, and why I support the proposed 22 exemption 11A that was submitted by the Electronic 0122 1 Frontier Foundation. 2 I want to start by emphasizing that remix 3 video doesn't harm copyright holders, and, frankly, from 4 my point of view it doesn't really hurt DVD copy control 5 either. I'm part of the community that Francesca has 6 been talking about, the remix video community known as 7 vidders, which is the community specifically discussed 8 in the exemption proposal that was submitted. 9 Vidders are good consumers. We're terrific 10 consumers. My DVD collection is pretty impressive, 11 especially for an English professor. I think we're 12 supposed to be above watching TV and yet I own a pretty 13 staggering amount of DVDs. I have all these shows, and 14 a fair number of movies. And in a lot of cases I have 15 these DVDs because at some point I saw a remix video 16 made by someone in my community and I said that looks 17 neat, I think I'll go get that and watch it, and 18 possibly watch it many times, and possibly make my 19 friends buy it as well. Sometimes the remix videos make 20 the source look more interesting than it actually is, 21 but that's -- you know, that's fine. I'm okay with 22 that. 0123 1 So, when I hear the argument that allowing 2 circumvention will somehow harm the copyright holder I 3 find it -- I have to say I find it a little bit funny. 4 I mean, I have circumvention technology and I know how 5 to use it, and yet I have a lot of DVDs. I mean, I 6 still buy DVDs. I like DVDs. It's what I do with the 7 source that I enjoy, and the source that I want to work 8 with. Sometimes I buy it multiple times, if that's -- 9 you know, if that's required. 10 When I make and when I release a video, I am 11 encouraging other people to buy the source material, to 12 say this is worth watching, this is worth engaging with, 13 you should have this, you should care about this, too. 14 Vidders are cultural critics, as Professor 15 Coppa has mentioned. We offer criticism and commentary 16 on media text, but we're also artists. I mean, if I 17 want to write an essay about a visual narrative, then I 18 write an essay about a visual narrative. I have done 19 that. I mean, I've presented academic papers on "Buffy 20 the Vampire Slayer", on "Firefly". But other times I 21 want to work in the same medium as the visual text. In 22 order to say what I need to say about that text, I need 0124 1 to comment by juxt opposing images. I want to create 2 something that embeds a critical commentary within 3 artistic expression in the same way that we sometimes 4 have literature that is political, right? You don't 5 just write a piece, you do something that accomplishes 6 something both creative and political. 7 It's not a new or unusual impulse. I mean, 8 we see it in literature, we see it in film, we see it in 9 the visual arts. It's a big part of what I study as an 10 academic, and it's also a big part of what I do as a 11 video remix artist. 12 Because the kind of video remixing that I do 13 is an art form, quality is important when I'm 14 manipulating clips. Part of yesterday's discussion 15 centered around the question of whether all digital 16 copies are created equal. And from the point of view of 17 a video remix artist, the answer is a resounding no. 18 And I want to make an important distinction 19 here, as a consumer, I don't always need the highest 20 quality for its own site. I do my fair share of 21 watching TV shows on my laptop using the Netflix watch 22 instantly feature. That's fine for certain kinds of 0125 1 consumption of cultural text. It's not ideal, 2 obviously, in the same way that, you know, watching a 3 particularly exciting movie with lots of explosions is 4 not the same on your TV at home as it is when you go to 5 the theater, which is why a lot of us still go to the 6 theater to see movies. I mean, it's not an identical 7 experience, but it is sometimes good enough just for 8 purposes of consumption. So, when I'm watching for the 9 story, when I'm trying to decide whether I want to buy 10 the DVD, I might use that sort of good enough kind of 11 source. 12 It's the same kind of thing as, you know, I 13 buy a lot of CDs. When I walk to work I listen to MP3s 14 on my iPod because it's more convenient, right? I mean, 15 there's -- those are not mutually exclusive things to 16 want. But when I am working as a creator -- not as a 17 consumer, but as a creator, quality is important. It's 18 very important. I need tools that work. 19 Much of the time I'm not using the clip 20 exactly the way it is in the original. The work that I 21 do is transformative, and often that means transforming 22 the appearance of individual video clips. So, some of 0126 1 the things that I might do in the course -- and I should 2 emphasize here that I am not the most text savvy of the 3 video remix community that I represent. I mean, I would 4 put myself in maybe the 60th to 70th percentile of 5 people who really know how to manipulate source, and 6 that's what they do. I don't have a background as an 7 artist, right? I'm a professor. I'm a professional 8 nerd. I don't have any training with the video stuff. 9 I -- you know, I listen to Jim talk and I'm -- I just -- 10 I have so many questions to ask him. He's fascinating. 11 But things that I might do in the course of making a 12 particular remix video, I might need to change the speed 13 of clips. That's a really common thing, something that 14 I have to do a lot in order to make things lineup with 15 music, in order to emphasize a particular thing within a 16 frame that -- you know, if it's a very short shot and I 17 need to show more of it, I might have to slow it down. 18 If you're working with something like the 19 SnagIt clip that we saw yesterday of "O Brother Where 20 Art Thou", suddenly it goes from being slowed down to 21 being jerk, jerk, jerk, jerk. You -- it literally does 22 not look the same. You cannot slow down or speed up 0127 1 footage that looks like that. Again, it might be good 2 enough to watch, if what you want to see is what happens 3 to the George Clooney character, but you can't work with 4 it. 5 Things that I might want to do, alter the 6 color of clips to create a particular mood. I mean, 7 again I think of that example yesterday, "O Brother 8 Where Art Thou", where the clips themselves, I mean, the 9 way we see it, they've been desaturated, right? Things 10 have been done to that source to make it look in a 11 particular way, to create a particular mood. Say I want 12 to tint everything in remix video that I'm making a sort 13 of metallic blew green to create a particular effect, to 14 produce a particular mood. We all know that color does 15 that kind of work, right? 16 If I'm working with a source that is garbage, 17 I can't do that very effectively. If I'm trying to 18 match colors from two different episodes of a TV show 19 that may have been shot with completely different 20 lighting, I have some tools at my disposal, but if the 21 source that I'm using is a mess, the tools don't work. 22 I cannot do the thing that I am trying to do. I might 0128 1 need to adjust the contrast, or the light levels of 2 clips. I mean, there again, if the source is a mess, it 3 doesn't work. I mean, things turn -- look, what is that 4 beige blur in the corner? I think it's a face. I don't 5 know. 6 I might want to crop clips in order to focus 7 on particular elements. And, if you're working with 8 something that is already quite low resolution and 9 suddenly you need to crop out the outer, say, third of 10 the frame in order to see more closely the fact that 11 these two characters are holding hands; or the fact that 12 there is something going on in the background or off to 13 the side. I'm already -- if I'm working with a really 14 high quality image and I zoom in on it, or I crop it, I 15 am already losing some resolution. If I am working with 16 a frame that is messy to begin with, I may have gone 17 from good quality to still visible. You know, instead 18 of that transition I'm going from you can kind of see it 19 to I have no idea what's happening here. So, that kind 20 of cropping or zooming to direct a viewer's attention to 21 particular elements, these are things where quality 22 really matters. It's not just, you know, I wish it were 0129 1 prettier, it's that you really can't tell what's going 2 on. 3 So, as I hope this litany of things that I 4 want to be able to do to the source as shown, I don't 5 want to rip DVDs because it's convenient for me. And 6 we've heard several times that convenience cannot be the 7 standard. Nothing about what I do is convenient. Okay. 8 This is work. It's boring. It's annoying work, that in 9 order to make the point that I want to make I have to go 10 through all this sort of bureaucratic and technical 11 stuff. I want to rip DVDs, because if I don't, I'm 12 likely to end up with a muddy mess and then no one can 13 see what I'm trying to say, in which case, you know, why 14 make it? I mean, I can sit at home and rant if I want 15 to but the -- you know, there's no point to that from a 16 communication point of view. 17 So, you know, the clip from "O Brother Where 18 Art Thou", the one captured with SnagIt, I mean, it's 19 watchable, I guess. I mean, the flicker would give me a 20 headache. I couldn't watch it. I guess you could. My 21 impulse would be to go buy the DVD and put that in my 22 computer and watch it instead. But there's no way that 0130 1 I could use that clip for the kind of work that I do. 2 It's jerky, it's pixilated. If I try to turn it to 3 color, I don't know what's going to happen to it. This 4 -- one of the first rules of video editing, garbage in 5 garbage out. You start from a messy source, the best 6 you're going to end up with is a mess. And, if my video 7 is that much of a mess, then I can't make the points 8 that I want to make, either because people just won't 9 watch the video, you know, they'll hit play and say, 10 what is this? This looks like crap and, you know, turn 11 it off. Or they literally won't be able to see it. So, 12 for my purposes something like that is not an equivalent 13 alternative to circumventing encryption. It might be if 14 I were just consuming, but it's not if I'm making 15 something with that source. 16 So, for me not being able to circumventing 17 encryption, not being allowed to, or not being supposed 18 to circumvent encryption has adverse effects, 19 effectively criminalizes my creative process. Something 20 like camcording, I was very intrigued by the 21 demonstration of that yesterday. That has adverse 22 effects in that I can't do it. It's counterintuitive, 0131 1 it's impracticable, it's expensive. I mean, I'm sorry, 2 but $900 that's two months of my mortgage. And, you 3 know, I'm a professor. I'm the upper end of the people 4 who are doing this kind of thing. We didn't even get to 5 how much the flat screen TV costs which I was, you know, 6 really hoping to hear about. And, if there's a sale, I 7 want to know about it. So, that kind of process limits 8 my ability to comment on the cultural text that I -- you 9 know, that I care about and that I at the same time want 10 to comment on. 11 And I want to reiterate a point that 12 Professor Tushnet made at the beginning, which is that I 13 think the videos I make are fair use. But right now 14 because there is no positive law on the issue, I can't 15 know that. There's a limit to how much I can assert 16 that. And we can't test that in the courts unless this 17 exemption is granted. Thanks. 18 MR. CARSON: Thank you. Our final -- excuse 19 me -- final witness is Martine Courant Rife, who we 20 heard from yesterday and we're hearing again from today. 21 MS. COURANT RIFE: Hi. Thank you very much 22 for having me here again. And I'm going to be very 0132 1 brief. 2 I am incorporating all of my testimony 3 yesterday by reference. And I'll just briefly introduce 4 myself again. And I'm Martine Courant Rife from 5 Michigan State University and Lansing Community 6 College. And I've been studying the impact of copyright 7 law on digital writing for the last almost four years. 8 My Ph.D is in rhetoric and writing. And I'm also a 9 licensed attorney in Michigan. 10 Yesterday I offered language to attempt to 11 limit the exemption in a way that would include both 12 students and teachers course work, as well as work for 13 and with community groups. I'm concerned about this 14 area where students are working with outside groups, and 15 I'm asking that if you -- when you craft -- if and when 16 you craft the exemption that you would take this into 17 consideration. I hope that my students who are 18 producers of text -- that's the main goal of the writing 19 classroom, my students produce text -- I hope that the 20 skills that they learn in my classroom can be used after 21 the class is over. And, so, that's why I'm here today. 22 It is common for writing classes to work with 0133 1 nonprofits and community groups such as, for example, 2 the Capital Area Community Media Center in Lansing, 3 Michigan. A number of students at Michigan State 4 University work with this particular community media 5 center. They try to help these types of group craft -- 6 types of groups craft educational materials that can 7 assist with community illiteracy. And the community -- 8 the Capital Area Community Media Center in Lansing, 9 Michigan lists other community media centers around the 10 United States. So, this is a type of organization that 11 is developing due to the digital age. 12 I would like the exemption to cover uses 13 where students are working outside the classroom. And I 14 work at a community college, and likewise I am very 15 interested in how the work I do in my classroom or 16 virtual classroom can be transported outside of the 17 educational institution in order to benefit the 18 surrounding communities. There is a literature and 19 rhetoric and composition in my field called community 20 literacies. We have an entire literature and a body of 21 research in that particular area. 22 I want to ask you to consider the issue of 0134 1 vicarious and contributory liability as you craft the 2 exemption. 1201(c)(2) says, that nothing in this 3 section shall enlarge or diminish vicarious or 4 contributory liability for copyright infringement in 5 connection with any technology, et cetera, et cetera. 6 As you craft the exemption, when you think about giving 7 it just to one type of person and not the other type of 8 person that may be working closely, such as student 9 teachers, community groups, I caution you on setting up 10 a situation where teachers, for example, could be found 11 to be vicariously liable for infringement by students, 12 and students by community members. And the Grokster 13 opinion gives us some precedent that that is a 14 possibility. 15 I also want to remind you about Section 16 1201(c)(1), which states that nothing in this section 17 shall effect rights, remedies, limitations, or defenses 18 to copyright infringement, including fair use under this 19 title. 20 The other factors that I want to remind you 21 that you need to consider are 1201(a)(c)(2), the 22 availability of works for nonprofit, archival 0135 1 preservation, and educational purposes. It says 2 educational purposes, and it does not say educational 3 institution purposes. So, this is again connecting back 4 to what I was talking about with work students do with 5 nonprofits and community media centers. 6 Also your -- you will consider the impact 7 that the prohibition on a circumvention of technological 8 measures apply to copyrighted works has on criticism, 9 comments, news reporting, teaching, scholarship or 10 research. Teaching is only one factor listed there. 11 There are other factors that are listed, which are not 12 necessarily confined to the educational institution. 13 And also I do agree that we should look to what members 14 of Congress intended. And the DMC -- the act of 15 circumventing for measures intended to prevent copying 16 was not intended to be prohibited. This is something 17 that you all discussed in the April 3rd transcript in 18 2006, but I didn't see any resolution on this particular 19 issue in the final recommendation. The reason given in 20 the legislative summary about differentiating between 21 copying for access and -- I mean, circumventing for 22 access versus circumventing for copy is to, quote, 0136 1 assure that the public will have the continued ability 2 to make fair use of copyrighted works. Since copying of 3 a work may be a fair use under appropriate 4 circumstances, Section 1201 does not prohibit the act of 5 circumventing a technological measure, it prevents 6 copying. Which is what I'm talking about -- this is 7 what we're talking about, circumventing to copying. 8 By contrast since the Fair Use Doctrine is 9 no defense to the act of gaining unauthorized access to 10 work, the act of circumventing, a technological measure 11 in order to gain access is prohibited. I would be very 12 interested in you revisiting that dialogue that you had 13 in the April 3rd transcript from 2006 and making a 14 determination about the differentiation between 15 circumventing for copying versus circumventing for 16 access. 17 In my research I also found that digital 18 writing created in educational context travels, and it 19 has a certain kind of permanence. And, so, my main 20 interest is protecting fair use right that travels 21 outside the classroom, with respect to work students and 22 teachers do with community groups. 0137 1 I'm going to end by saying that educators do 2 appreciate the availability of digital media via DVDs. 3 We appreciate the quality. At the same time the quality 4 is what makes the messages contained in that media so 5 very persuasive and compelling. My Ph.D is in rhetoric 6 and writing. In 400 B.C. Aristotle gave us the Five 7 Canons of Rhetoric, delivery, arrangement, memory, 8 invention and style. Three concepts under the Canon of 9 Vechten, ethos, pathos and logos. Ethos has to do with 10 the credibility of the author. And I will tell you that 11 a piece of visual media, or a multi-module media or text 12 that is high quality is going to add to the ethos of 13 that author, and that person will have more credibility, 14 and that person that created the high quality text will 15 be more persuasive. 16 So, while we appreciate the availability of 17 digital media as well as the quality, some of us are 18 also terrified about the ability of the motion picture 19 industry to also produce culture, and now in a way that 20 proliferates unimpeded. There's plenty of research and 21 communication studies to show that media influence is 22 how we think about ourselves and others. I know that in 0138 1 her recommendation the Register of Copyrights will look 2 to strike an appropriate balance. But in the scheme of 3 things, the balance right now is too far in favor of the 4 motion picture industry, and currently there is no 5 readily available effective and legal means to critique 6 this media in the same basic format, the powerful and 7 persuasive format that this media is presented to us. 8 Thank you. 9 MR. CARSON: Thank you. Let's turn to the 10 other side. Bruce, you go first? 11 MR. TURNBULL: Apart from sort of reminding 12 you of what I've said before yesterday and earlier 13 today, my main comment about this is that I think that 14 this -- we're probably in the wrong room. We should be 15 a couple OF blocks down the street in a congressional 16 hearing room, that basically what this is about is an 17 attack on what 1201 is about. This proposed exemption 18 is extremely broad, to the point of not being able to 19 define it. It's not -- the proponent in the submission 20 said admittedly many of the uses that would be enabled 21 by this exemption are not fair uses, and that what 22 they're trying to do and professor -- the law professor 0139 1 here just said it as well, is trying to develop the 2 jurisprudence of fair use by having this exemption 3 permit activity, some of which would be fair use and 4 some of which may not be fair use. I -- it seems to me 5 that is not what this exemption proceeding is about. If 6 this is something that the Congress wants to take 7 another look at, they can certainly do that. But I 8 don't -- I just don't think that this is what this 9 exemption is about, as a fail safe mechanism as the 10 Congress described it for very specific, very 11 articulated fair uses that are not being -- that are 12 being adversely effected. 13 This is -- and Congress considered all of 14 this, I think, in 1998 and rejected it. There's been 15 legislation introduced fairly regularly in the Congress 16 since then, with regard to exemptions to say that 1201 17 applies but not where circumvention is for fair use as a 18 broad matter. And the Congress has not enacted that. 19 So, I just think that we're in the wrong forum here for 20 most of this discussion. 21 Were you to consider this, nevertheless, I 22 think that it's a -- it becomes a quagmire of trying to 0140 1 figure out what is permitted and what is not. And, 2 again, as the representative of the proprietor of the 3 technology that -- here, the very concern that this -- 4 you know, on beyond the situation of the other exemption 5 requests which we're concerned about that I said, this 6 would very much jeopardize the viability of our 7 technology as a whole. And I just don't think that this 8 is warranted as a result. 9 Yeah, I think that basically is the points I 10 wanted to make. Thank you. 11 MR. CARSON: Okay. Steve. 12 MR. METALITZ: Thank you. Steve Metalitz 13 again on behalf of the nine copyright organizations 14 under the label of Joint Creators and Copyright Owners. 15 I'll be very brief as well, because we did discuss this 16 proposed exemption in Palo Alto. And I'll incorporate 17 my -- what I said there. 18 I think, as I said at the beginning of the 19 comments on 11B, the threshold question here is the 20 activity that's being enabled generally or, in fact, 21 noninfringing. That's the standard that you've been 22 given to apply and that you have sought to apply 0141 1 throughout this -- throughout these proceedings. And I 2 think, if there are questions that could be raised about 3 that in 11B, there are much greater questions in 11A, 4 because of the breadth issues that Bruce referred to. 5 I know that Miss Coppa stated categorically 6 we believe that vids are fair use because they're 7 culturally relevant and artistically beautiful. I 8 respect that belief, but I don't think that's a 9 sufficient basis on which to draw the conclusion that 10 the circumvention that would be allowed by this 11 exemption would enable conduct that is generally and in 12 fact noninfringing. 13 I -- in fact, I think it's not really 14 possible to -- for -- to fit this exemption into the 15 standards that you have followed in the past. I think 16 it only becomes -- it only gets on the table if you 17 accept the proposal from EFF that accompanied this 18 proposed exemption to radically change the standard so 19 that anything that might plausibly be considered fair 20 use is covered, and that you can deny an exemption only 21 if no rational court could ever find that the result 22 would be fair use. That's not the standard that 0142 1 Congress asked you to apply. In fact, that is very 2 close to the standard that Congress has consistently 3 rejected, as Bruce indicated. So, I would urge you not 4 to take the von Lohmann leap of drastically changing the 5 standards. And I think, if you don't do that -- if you 6 refrain from that, then I think the proponents cannot 7 meet their burden. 8 Just on the trap for the unweary, I think we 9 went through this in Palo Alto, it's clear that, if I 10 understand the trap, no one has ever sprung it. And 11 there are takedown notices under Section 512 on the 12 grounds of claims of infringement. People do have a 13 right under that statute. And I think virtually all the 14 ISPs implement this in some way for a put back, if they 15 feel that it has been taken down for mistake, or 16 misidentification. There has been fair use 17 jurisprudence in -- well, I should say there has been 18 jurisprudence under 512 that talks about the role of 19 fair use in that calculous. And to think that people 20 are refraining from putting it back because they are 21 afraid that they might get sued under 1201, when there 22 have been zero instances of an individual being sued by 0143 1 a copyright owner under 1201(a)(1). My knowledge is 2 certainly not in this situation. I think the word that 3 Professor Tushnet used to describe this concept that 4 1201 provides the additional deterrence was 5 nonsensical. And I think the argument about the trap 6 for the unweary also fits that label. 7 I will stop there, but just to say as -- and, 8 again, in agreement with Bruce, I think the proponents 9 quarrel is with the statute. I don't happen to believe 10 the statute is contemptible. I don't believe that it is 11 cruel. And I don't believe that it implicates the 15th 12 or the 24th Amendment. But I recognize the views, and I 13 respect the views of the proponents, and they have an 14 avenue for making that argument, it's not within this 15 proceeding. Thank you. 16 MR. CARSON: Thank you. Steve, let's start 17 with you. Martine made a point that -- if I can 18 paraphrase it -- it seems to be that you're really here 19 trying to protect the integrity, if you will, of CSS, 20 not as an access control but as a copy control. 21 In other words, what you're concerned about 22 is that people who circumvent CSS in the context we're 0144 1 talking about here are doing so in order to make 2 copies. Is that a fair characterization of what your 3 concern is all about? 4 MR. METALITZ: I think all the examples that 5 were given do involve the making of copies. But it -- 6 it's also clear that -- and I think it's been well- 7 established in this proceeding and in the courts that 8 CSS is also an access control. It may have copy control 9 features as well, but is an access control. 10 MR. CARSON: Well, explain to me why we 11 shouldn't, however, take into account that the ultimate 12 concern here seems to be that it's being used as a copy 13 control which, of course, we know there's no prohibition 14 on the act of circumventing a copy control. I mean, is 15 the fact that CSS is an access control almost beside the 16 point here when we look at what's really going on? 17 MR. METALITZ: I don't think it's beside the 18 point, because the job Congress asked you to do is to 19 determine whether the inability to circumvent CSS and 20 other access controls, but in this case I think we're 21 mostly talking about CSS -- is impeding the ability to 22 make noninfringing uses and to -- you know, in certain 0145 1 circumstances. So, that's kind of the assignment that 2 you've been asked to give. I think if you were to 3 ignore the status of CSS as a access control and just 4 say -- well, I'm not sure what you would say. I guess 5 you would not grant an exemption, because you would say 6 an access control is not being circumvented but you 7 would then opine ex cathedra that it's a copy control. 8 And that might have some precedential value and, I 9 suppose, could come up in other cases. 10 Certainly.anything you say here, or anything -- any 11 conclusion you reach here would not be relevant in a 12 case brought under any provision under -- other than 13 1201(a)(1). So, it wouldn't be relevant in a 1201(b) 14 case. 15 MR. CARSON: Okay. I think Rob has some 16 follow up on that. 17 MR. KASUNIC: Just in terms of -- to put the 18 -- illustrate that a little bit, and not to point at any 19 particular screen capture, but the issue came up in the 20 context of capture where I put a DVD into my computer 21 drive, obtained access -- lawful access to a lawful copy 22 of a DVD that I had purchased, rented, whatever, and 0146 1 then was trying to make a copy from the accessible 2 portion that I lawfully obtained, how is 1201(a)(1) 3 being implicated? 4 It's true we have acknowledged that, as a 5 general principle, CSS is a form of encryption and that 6 qualifies as a technological protection measure that 7 protects access. But in the context of how this is 8 being done and the uses that are being made of material 9 that is then accessible, how is that implicated? 10 Perhaps it's not a copy control at that point. 11 MR. METALITZ: Rob, you are bound and 12 determined to get me to express an opinion on how the 13 screen capture technology applies to 1201(a)(1). 14 MR. KASUNIC: I am not. I'm just asking you 15 to answer that question. 16 MR. METALITZ: And I am bound and determined 17 to repeat to you that we are not going to give you that 18 answer today. 19 MR. KASUNIC: I'm -- that wasn't real -- it 20 wasn't -- didn't have anything to do with that, though. 21 If -- keep -- put aside anything to do with that, if I 22 have unlawful access and I'm making a copy, is there any 0147 1 access control issue once I have -- if I'm making copy 2 of what I'm accessing, is there an access control issue 3 at that point? 4 MR. CARSON: Well, maybe put it, am I -- is 5 he circumventing an access control when he's making a 6 copy of that to which he has been granted access? 7 MR. METALITZ: Well, I think you're getting 8 back to the same question that you posed before. But, 9 in fact, once you have -- there is -- there are 10 statements in the legislative history about the role of 11 the access control ending once you have access -- have 12 obtained lawful access, but that was not included in the 13 final legislation. That came from the house -- the 14 general house version as I understand it. 15 So, the answer is: Even once you've obtained 16 access, you may have terms and conditions under that 17 access, and circumventing an access control may allow 18 you to do other things that are not consistent with the 19 terms of access. 20 MR. KASUNIC: But there aren't any terms and 21 conditions as to the particular user of a DVD. There's 22 no kind of contractual obligations. There -- 0148 1 MR. TURNBULL: The -- 2 MR. KASUNIC: -- may be to the DVD 3 manufacturers of electronics but -- 4 MR. TURNBULL: Yeah. But I think actually 5 that's the point of the terms and conditions, or at 6 least as I -- which is that the terms and conditions of 7 being able to provide access through the method of 8 decrypting under the CSS license is that there must be 9 mechanisms used in the sort of pathway that the content 10 takes to take it to the point of access, as opposed to 11 the point of making a copy of it. And, so, that is all 12 part of the CSS system and part of the license 13 requirement with regard to how you use CSS. 14 MR. KASUNIC: But that's only relevant in 15 terms of the licensees, not the users of the copy. 16 MR. TURNBULL: Well, I think the question you 17 get to is the question and, again, I -- you know, I 18 don't -- I'm not in a position to talk about either a 19 particular technology that was referenced, you know, 20 SnagIt, or even sort of theoretically at some point how 21 one might conceivably work. But you do get into the 22 question of whether you're avoiding or bypassing, and 0149 1 those parts of the statute which I think would be 2 relevant as well. 3 MR. KASUNIC: Well, just to follow up on a 4 point. And this sort of relates to how we make a 5 determination in -- or recommendation to the Librarian 6 on this particular area, is that, Bruce, you had said 7 that this is something -- and I'm slightly going off but 8 -- 9 MR. CARSON: SnagIt, so -- 10 MR. KASUNIC: Okay. Should be -- this is 11 something we should be -- that -- or this issue should 12 be over in Congress. Yesterday we were told we should 13 be over at the FTC. We're just trying to find where we 14 should be. But isn't it fair to say that, at least in 15 context of understanding noninfringing uses and the 16 impact of the prohibition on circumvention, that 17 although Congress didn't create an exemption, they did 18 create a rulemaking. And that's in part the very 19 purpose of why we're here is to sort of figure out how 20 these -- how these technological changes and 21 developments, like in terms of vidding that may not have 22 existed at the time that Congress was approaching this, 0150 1 or some of the new uses that documentary filmmakers have 2 found that they need to be able to use varying new forms 3 of quality of works, that those are -- that's exactly 4 what we need to sort of understand in the context of 5 fair use and what might be fair use. 6 MR. TURNBULL: But I think the point is the 7 one that Steve made as well, which is that, you know, 8 unless you're going to fundamentally rewrite the 9 standard by which you are judging these exemption 10 requests, and at which point I -- and that -- and, if 11 you do, then I think you've fundamentally rewritten, you 12 know, the statute. But if -- unless you're going to 13 fundamentally, then the requesters of this exemption 14 haven't met the -- it can't meet the standard that you 15 previously laid out and, in fact, have, you know -- and 16 said that a good -- you know, some portion of what 17 activity would go on is not going to be fair use. 18 And -- you know, and that a purpose of this is to 19 develop the jurisprudence of fair use. And I think that 20 is not what this exemption is about. It's this 21 exemption should be about -- or the exemption process is 22 about finding a very particular fair use that has been 0151 1 adversely affected, and then determining whether 2 granting an exemption for that makes sense under the 3 factors of the statute. 4 MR. KASUNIC: But I thought that cuts against 5 the argument that Steve is making, that we should be 6 going back to where we were, in terms of what can be 7 exempted. So, if a class of works has to be some 8 category of copyrightable authorship, without any other 9 references to the use or the users, then we have a very 10 blunt instrument with which to deal with with this 11 issue, and any kind of uses would be on the table at 12 that point. So, if we were to find a noninfringing use 13 that was substantial in being effected in the course of 14 the rulemaking, then we would bluntly issue that tool, 15 and anybody could -- in that class of works could 16 utilize that. 17 MR. TURNBULL: And -- well, you would be 18 faced with the question of whether you should grant an 19 exemption in that -- in those circumstances. And I 20 think, first of all, you have found -- even under the 21 class of work definition, you have found categories of 22 works to be exempted in the previous rulemakings and, in 0152 1 fact, in 2006, other than the film professor exemption. 2 And, so, I think that method of defining class of work 3 has worked in a number of instances. And you've been 4 able to grant exemptions there. 5 I think the question of whether you would be 6 able to grant an exemption for the class of works that 7 is, you know, motion pictures protected by CSS, and the 8 reason why under the previous definition that what -- 9 the determination was no, was that you basically have 10 the point that you're going to undermine the technology 11 as a whole if you grant that. And that's not what the 12 purposes of the exemption is. 13 MR. KASUNIC: But that's not -- then I'm 14 missing something still, because if we then do -- rather 15 than create the harm that such a broad exemption may 16 entail by opening it up to many other forms of views, or 17 for circumvention, some of which may be infringing, if 18 we qualify it, in terms of particular use or users -- 19 and that's something I wanted to clarify in terms of the 20 documentary filmmakers, but I'll come back to that after 21 I put it back to David -- if we do qualify it in that 22 way, haven't we -- we're not necessarily making new law, 0153 1 in terms of saying fair uses of that. We're saying that 2 any documentary filmmaker doing anything will qualify, 3 but it's allowing those uses then within a very narrow 4 subset to be entitled to go forward and make -- at least 5 get to that argument, at least get to the fair use issue 6 so that it's not the development of new law, it's the 7 allowance of the development of new law. 8 MR. TURNBULL: Well, the -- I think -- let me 9 -- give me a second. I mean, I think the film professor 10 exemption is one where, you know, what we -- you know, 11 we looked at and have come back and said, you know, in 12 the context of the revised approach to class of work, 13 that that has the kind of narrow categories, the 14 specific reasons, the demonstrate -- demonstration from 15 the proponents. I think the documentary works -- I 16 mean, Steve laid out -- the Joint Commenters laid out a 17 number of refinements on the definition. But, again, 18 it's a very specific category that can be defined. 19 The concern I have about the current voting 20 exemption we're now talking about, is that it is a very 21 broad, undefined, you know, very difficult to define 22 category where even the proponents admit that some of 0154 1 what will be done here under the guides of that 2 exemption is not fair use. 3 MR. KASUNIC: One last question before -- 4 just to clarify, in terms of the -- I know David said 5 not to talk about 1201(a)(2) anymore, but I'm going to 6 mention one thing about that, is it -- there's been a 7 lot of discussion about how that's not involved, or how 8 the -- any exemption would not apply to that. But at 9 least in the context here, if devices and tools exist 10 out there, which we know they do in terms of DeCSS, has 11 many, many other forms of decryption software. I am 12 right, am I not, that use of those tools is not a 13 violation of anything? 14 MR. METALITZ: Use -- could you repeat that 15 question? You're saying the use of a tool that violates 16 1201 -- if the tool violates 1201(a)(2) it's not a 17 violation of anything to use it? 18 MR. KASUNIC: Well, I'm saying, if there were 19 an exemption -- so, we're looking at the question of, if 20 there is an exemption to -- 21 MR. METALITZ: Oh, okay. 22 MR. KASUNIC: -- 1201(a)(1), and the 0155 1 statement is often made, well, you can't do anything to 2 effect Section 1201(a)(2). If we create an exemption 3 for 1201(a)(1), then if those tools exist there is the 4 opportunity for copyright owners, for anyone to go after 5 the makers, and manufacturers, and traffickers of those 6 tools. But to the extent they exist, they're free for 7 the taking -- or free for the using by anyone who wants 8 to fulfill that exemption. 9 MR. METALITZ: I think I would agree that it 10 -- and it wouldn't just be an administrative exemption, 11 it's maybe easier to look at in terms of a statutory 12 exemption, so -- which exists -- you know, which are 13 permanent. And someone uses a tool that is -- whose 14 manufacturer or distribution is illegal under 15 1201(a)(2), if they use that in order to circumvent in a 16 circumstance in which 12 -- there's an exception to 17 1201(a)(1), then that activity of using it to circumvent 18 in that setting is not a violation. 19 MR. KASUNIC: Is lawful? 20 MR. METALITZ: Yeah, it's not a violation of 21 1201. 22 MR. KASUNIC: All right. 0156 1 MR. TURNBULL: The only point I would make, 2 which is I agree with Steve, but -- is that I think you 3 can take into account, in determining whether to issue 4 an exemption under 1201(a)(1), whether doing so would 5 actually encourage the development of a 1201(a)(2) tool, 6 which doesn't already exist. 7 MR. CARSON: In which case we'd never issue 8 an exemption unless we know there's a tool already out 9 there. 10 MR. TURNBULL: As I said, you can take it 11 into account. 12 MR. KASUNIC: We have taken it into account. 13 MR. CARSON: Okay. We just did. Go ahead. 14 MR. KASUNIC: Okay. I wasn't ready for 15 that. Let's see. The -- getting back to the small 16 question I had about -- I think -- about fixing 17 problems. For Gordon and Jim, that there were -- there 18 was some discussion of the requirements for broadcast 19 and they broadcast gatekeepers who will send things 20 back. I just wanted to find out how -- does the issue 21 come up in terms of -- how do you fix those problems, 22 particularly if the problem would entail -- if you were 0157 1 using some kind of lower quality input to that and the 2 only alternative then was to get a DVD version? How are 3 those problems remedied? 4 MR. QUINN: I mean, from my perspective from 5 the artistic side, generally the things that are sent 6 back to us, it's not the quality of the image that 7 they're talking about, it is these technical things that 8 Jim is talking about. And usually with time, and 9 effort, and money, one way or another we are able to fix 10 that. One of the problems -- you know, and I think I 11 mentioned that in my testimony, and it's the same that 12 these people are referring to -- is that sometimes when 13 the quality is degraded, it's really impeding your 14 ability to make the cultural comment that you're trying 15 to make. So, does that answer the question? 16 MR. KASUNIC: Yeah, it was -- 17 MR. QUINN: Or maybe Jim has a -- you know, 18 the more technical side of it. 19 MR. MORRISSETTEE: Well, I mean, there's 20 always -- or usually a way to do what we need to do, in 21 terms of, if we have a low resolution clip that doesn't 22 meet the screen size or the image size required by 0158 1 public television, we have to magnify it and blow it up 2 and we get what Tisha was saying about lots of 3 pixilation, lots of bad looking video, but we have made 4 it a legal size, and it will pass through the public 5 television gatekeepers. I mean, occasionally they will 6 actually say, why are those clips of this historic 7 footage so much worse than the rest of your whole 8 movie? I mean, they -- people see it and they see it. 9 And we just say, well, that's the only clip that we 10 could legally get was of that quality and that 11 resolution. So, there are ways to fix these things 12 electronically. 13 MR. KASUNIC: Without going to the DVD 14 version? 15 MR. MORRISSETTEE: Without going to the DVD. 16 MR. KASUNIC: Okay. 17 MR. MORRISSETTEE: I mean, we'd much prefer 18 to go to the DVD, because then the issue wouldn't even 19 come up, because the quality of the DVD is so much 20 better right from the beginning. And I think that this 21 issue comes up far more often with stuff that's been put 22 up on the Internet, because it's been processed, and 0159 1 quality lost, and it's copies of copies of copies. It's 2 the wrong frame size. It's got, like, bars on it. I 3 mean, there's all sorts of problems there. So, you 4 know, we try to get the DVDs. And we use the analog 5 method that I described as our current stop gap. At 6 least we have -- if we can get it on a DVD, we can 7 produce an image that's of respectable quality. 8 MR. KASUNIC: And that's also true for 9 compliance with FCC rules? 10 MR. MORRISSETTEE: Yes. 11 MR. KASUNIC: Okay. 12 MR. MORRISSETTEE: Yes. I mean, the FCC 13 rules are what frighten public television, which then 14 say, well, if the FCC wants it this critical, we'll make 15 it even more critical so that there's no issue ever 16 being -- you know, broadcasting material that's not 17 legal, quote, unquote. And, of course, the Internet is 18 the exact opposite, you can put anything up that will 19 play. There are no rules about frame size, and frame 20 rate, and pixalization, and resolution. It's just 21 whatever -- 22 MR. GOLANT: FCC rules only so far as the 0160 1 technical rules, not necessarily the FCC rules. 2 MR. MORRISSETTEE: Yes. Yes. Exactly. 3 MR. CARSON: I'm just looking at the clock. 4 It's 12 minutes after 1. Our afternoon session starts 5 at 2:30. I'd like to set a goal of closing up this 6 session no later than 1:30. Although if we're -- if 7 there's a lot of interest and a lot of questions we may 8 go past that, we'll see. But we've asked Jim Gordon a 9 lot of questions, we may have more, and that's fine. 10 But I'd just like to ask people who have questions for 11 the proponents, other than Gordon and Jim, I want to 12 make sure we get those in, too. So, let's start with 13 you, Rob, do you have any? 14 MR. KASUNIC: Let me just ask one question, 15 in terms of for vidders and others, in terms of -- and 16 proponents of that exemption. We started to talk about 17 it last -- yesterday about necessity. And I just 18 wondered if we could get some comments, in terms of 19 necessity of use as a basis for requirement. I know 20 that, Rebecca, you addressed this a bit, that there is 21 -- is there some point that we get -- that we are going 22 through a number of different hurdles just actually gets 0161 1 to -- gets to diminish the ability to make that 2 particular use a reality? 3 MS. TUSHNET: We're already there. I mean, 4 there are two barriers and they interact. One is the 5 knowledge, because this is a hard distinction to teach, 6 whereas fair use is actually a much easier thing to 7 teach. In -- for example, I mean, if we're fighting 8 about whether screen capture counts, I mean, imagine 9 trying to teach that to someone who, you know, is 10 working their way through school and is -- you know, is 11 not -- and then, even if they happen to have a trust 12 fund on hand, then maybe they could use the way that 13 we're told is the safe way. But that's a big barrier, 14 too. 15 I think the question is: Are -- if these 16 users are going to happen, they are going to be made by 17 citizens who are -- who have understandings of justice, 18 and of fair use, but do not have understandings of 19 copyright law until they get the letter or the 20 takedown. And then they come to us and we say, we would 21 love to help you, you know, but we've got to warn you 22 about this, right? We would be bad lawyers if we did 0162 1 not tell them this is something that could happen. And 2 hearing that they often say, you know, I'd like to make 3 my fair use case, but you're telling me that I have to 4 go against this other provision where fair use doesn't 5 matter. 6 So, I mean, it's -- we're at the point that, 7 if we want these uses to continue, that's what we have 8 to -- we have to have an exemption targeted to that. 9 And I -- let me make clear, we're not attacking 1201. 10 1201 -- the statute requires an assessment of adverse 11 effects and noninfringing uses. These are concededly 12 fair uses specific to CSS and specific to noncommercial 13 users. 14 And I've got to say, this idea that we've 15 conceded that there are no -- that the exemption will 16 cover nonfair uses is not consistent with the text of 17 the exemption we've proposed. There is not a fair use, 18 then there can be a 1201 violation. If -- we aren't 19 asking for arguable fair use standard. 20 And to conclude on that, I think the slippery 21 slope we're being asked to fear is that an Article 3 22 judge will make a fair use determination. From my 0163 1 perspective that's not even reaching sea level in terms 2 of how far down we are. That's perfectly within the 3 scheme that Congress contemplated, especially since it 4 asked to look at whether there is an impact on 5 noninfringing use. 6 MS. COPPA: Can I just very quickly? I don't 7 -- you spoke to one kind of necessity. In terms of 8 technological necessity, just to iterate that most of 9 this is being made by as you say pink-collar workers, 10 but home equipment. One prominent vidder, for instance 11 -- I mean, in terms of I hear some sense that -- you 12 know, that people are storing whole converted movies, et 13 cetera. One of the reasons that we do clip -- and maybe 14 Tisha can speak to the fact that -- that you can't only 15 just take -- decrypt little pieces. Most people will 16 actually wipe their hard drive after a vid. You need to 17 work with uncompressed footage to manipulate it, edit 18 it, color it, put special effects on it. When I say 19 that the final product might be a 90 megabyte file, 20 that's the recompressed version. So, an individual clip 21 might be several megs in your timeline, right? But then 22 -- and then when you're done you compress down to what 0164 1 is still much bigger than, you know, any kind of YouTube 2 stuff. But to work with uncompressed footage on a -- 3 you know, I mean, vidders work on a home laptop. I 4 mean, there's not -- you know, it's just your home 5 equipment. And moreover increasingly computers are 6 packed with imovie, Windows Movie Maker. There is a 7 kind of invitation to talk back to culture that is being 8 proffered by the machine. And I'm not talking again 9 about complex machines, I'm talking about student 10 machines, I'm talking about the -- you know, basic 11 machines. And they literally -- you know, yes, storage 12 is getting cheaper and you might have an external drive, 13 but that's -- it is -- a laptop or a desktop with an 14 external drive is still not the setup one would need for 15 some huge storage of uncompressed digital footage. I 16 mean, do you see what I'm saying? It's just -- it just 17 isn't that set up for our community. 18 MR. KASUNIC: I'll -- if time permits, I'll 19 come back to a Section 512 question I had. But go 20 ahead. 21 MR. CARSON: Okay. Ben. 22 MR. GOLANT: I have a question. This is for 0165 1 Rebecca. And this is a point that I think Bruce alluded 2 to earlier involving case law. But what role in this 3 proceeding, in this context does free speech play? 4 MS. TUSHNET: Oh, thank you. So, I think the 5 role that it plays is in making the point that practical 6 barriers shouldn't matter to us, that because the 7 noninfringing uses -- with which Congress was most 8 concerned when considering -- when putting this 9 procedure in place -- are uses that have substantial 10 political, cultural, social value. Some of those are 11 educational and some of those are made by citizens after 12 they leave the school system and are making political or 13 cultural interventions. And, yes, those have 14 substantial free speech values encoded in them. 15 And the adverse effect is that with -- 16 without an exemption they -- these uses sort of get 17 randomly smacked down. And there's nothing that we can 18 do about them, because people don't make their free 19 speech with a lawyer in hand. The New York Times, right 20 -- look, I -- you know, when I was in private practice, 21 I reviewed stuff for the Legal Times and so on, right? 22 I would give them an opinion before they published. The 0166 1 people doing remix video now do not have legal staff. 2 So, they make their political speech, they think that 3 there's First Amendment value to it, they are right. It 4 turns out that they may have made a mistake in how they 5 did it. And, so, the copyright owner sends a takedown 6 notice, that's the end of it. And I think that has a 7 profoundly distorting effect on even what we get as fair 8 use. Because it's great that the New York Times can 9 make fair use. It's great that educational institutions 10 can make fair use, and documentarians can make fair 11 use. But that is not the only system of fair -- of free 12 speech that we have. And part of the wonderful 13 affordances of the Internet is that suddenly individual 14 citizens can film stuff, and participate, and make big 15 changes in the political system. And that's what we're 16 losing, we're losing the uncounseled fair uses. 17 MR. GOLANT: And this is open, but maybe 18 Steve can answer this. Can we -- and this is in terms 19 of the other factors we can consider -- can we say, if 20 we granted one of these exemptions with regard to DVD, 21 we can use that point to deny another exemption which is 22 basically similar to that? Because otherwise we would 0167 1 just eliminate the entire system of anticircumvention 2 using CSS. Is that -- am I clear on that? 3 MR. METALITZ: No. 4 MR. GOLANT: Okay. 5 MR. METALITZ: You are not. 6 MR. GOLANT: What I'm trying to say is I -- 7 the fact that we would consider one of these classes and 8 grant that exemption, could that be used when we review 9 another class as a reason to deny that because that 10 would be -- would -- you would be going so much into the 11 way of -- well, not -- defeating the purpose of the 12 whole process of protecting DVDs? 13 MR. METALITZ: I think you're asking -- if I 14 understand you, I think you're asking whether 15 cumulatively if you -- 16 MR. GOLANT: Right. 17 MR. METALITZ: -- grant a number of 18 exemptions they could amount to a problem that 19 individually -- 20 MR. GOLANT: Exactly. 21 MR. METALITZ: -- they would not. I think 22 that's true. I think you have to look at the whole 0168 1 context. But I think you also have been asked by 2 Congress to look at this on a case-by-case basis and in 3 each case ask, is the prohibition restricting, or 4 impeding the making of noninfringing uses? 5 And not only do you have to be confident that 6 the use that's being made is noninfringing -- if there's 7 any suggestion here that we are conceding that all of 8 the uses being made that would be covered by this 9 exemption or, you know, by the vidders are 10 noninfringing, I'll just -- let's correct the record 11 right now. Some certainly are, some certainly aren't. 12 But you have to find that. 13 You also have to find that the reason for -- 14 if you find a -- some diminution in the ability to make 15 the noninfringing use, you have to find that it's caused 16 by the prohibition. And you can't base that on 17 speculation, what if, or the view that there's probably 18 a huge beast raging around the country side here 19 threatening people with lawsuits under Section 1201, and 20 that's preventing people from exercising their rights 21 under Section 512 to put back material that's been taken 22 down. There is no evidence of that. Fred von Lohmann 0169 1 was asked that question and there were no cases. And I 2 think, if you ask any of the witnesses today, you'll 3 find there are no cases in which copyright owners have 4 sued people, or threatened a lawsuit under Section 1201 5 after a put back. 6 MR. CARSON: Okay. Chris. 7 MR. WESTON: This is a question for the 8 proponents of the 11A class. Yesterday we talked a lot 9 about narrowing an exemption in terms of the educational 10 use of DVD clip compilations, in terms of professors, 11 what kind of professors, what kind of teachers, 12 students, what kind of students. I have a feeling I 13 know the answer to this, but I feel I have to ask it 14 anyway. Is there any way in your proposal that you 15 could suggest a narrower range of permitted users? 16 I mean, you've certainly talked about the 17 type of users you are concerned with, pink-collar 18 people, people -- racial minorities, women. I'm -- I 19 don't know if that's something you would be -- want to 20 be explicit about in the exemption, though. 21 MS. TUSHNET: I'm not sure the Constitution 22 would allow us to be explicit about that. I -- and this 0170 1 is actually more the point, that we shouldn't be picking 2 winners. Right. The fundamental premise of copyright 3 protection is that we don't pick who gets to create art 4 in the first place. We actually let it get created with 5 -- and we treat it equally. And although the other 6 exemptions have much merit to them, what they don't get 7 at is the fact that creativity comes from so many 8 places, and that you only get it often by letting 9 everyone play. Which is not to say -- and, again, I 10 want to go back to this deterrence point. This is not 11 an exemption for arguable fair uses. This is only an 12 exemption for actual fair uses and, therefore, there can 13 be no adverse effect. It is ridiculous to suppose that 14 people who understand themselves to be making nonfair 15 uses are detoured now but would not need to be detoured 16 once we have an exemption in place. That's not how 17 people reason about this. It's also particularly not 18 how they reason about this, given that the commenters 19 concede how widely available this software is. Like 20 what exactly is -- will change in practice, other than 21 that people who get takedown notices will say, okay, I'm 22 going to send the put back notice now, because I am 0171 1 confident that I can make my fair use case? 2 MR. CARSON: Anyone want to answer her 3 question? I'll give you a chance in a moment, but I -- 4 I'm more interested in their answers. Not to exempt 5 you, but -- 6 MR. MORRISSETTEE: I was going to address 7 what Rebecca was saying. 8 MR. CARSON: I'm -- just wondering -- 9 MR. METALITZ: Could you repeat the question? 10 MR. CARSON: Do you want to repeat your 11 question? 12 MS. TUSHNET: How will a change in deterrence 13 work? What will people think in the presence of this 14 exemption that they wouldn't have thought before? 15 MR. METALITZ: I don't -- I'm not sure I can 16 answer that question of what will people think. I think 17 you -- the proponents have made the argument that the 18 law is very unclear in this area, 1201, crystal clear in 19 the fair use area. That's easy. That's an easy 20 determination to make, I heard them say on at least two 21 occasions. That -- you know, that doesn't really accord 22 with my experience, but -- and I'm sure -- I guess my 0172 1 clients -- a lot of my clients would be eager to know 2 what it is that makes these fair use determinations so 3 easy. 4 But I think the law on 1201 is clear. It is 5 not random. It's -- and I think Professor Tushnet made 6 a very good point when she said, if you don't know the 7 law, then the results appear random. And I think that's 8 absolutely right. And certainly there's more that could 9 be done in many areas to make the -- you know, to 10 improve people's understanding of the law. There 11 certainly are things -- I mean -- and without getting 12 into Rob Kasunic's favorite topic, we know there are 13 some ways to make these fair uses that clearly don't 14 involve any 1201 liability or whatever. And you -- and 15 we also know that fair use doesn't entitle you to make 16 the copy necessarily in the way you want or in the best 17 quality way. But the purposes of fair use, including 18 the free speech purposes, are fully served in other 19 ways. And we've even seen this in the 1201 context. I 20 mean, it's been clearly adjudicated in the 1201 21 context. 22 So, there are methods for people to make this 0173 1 speech. And I hope people advising them will advise 2 them of -- about those methods and give them their best 3 advice on what the law is. 4 But this -- again, this idea that this 5 specter of 1201 litigation is somehow impeding the 6 development of fair use jurisprudence, I mean, I -- it 7 seems to me that fair use jurisprudence is coming along 8 quite nicely. Thank you, very much. 9 MR. CARSON: Jim, do you -- you had something 10 to say, do you still? 11 MR. MORRISSETTEE: Well, I was just curious 12 to find out, there's all this talk about, you know, 13 these people putting these video compilations together, 14 that they're not aware of, you know, some of these free 15 speech and fair use laws. I'm wondering if they're 16 aware at all that using the de-encryption software is 17 also illegal. I mean, it's one thing to sort of be 18 ignorant of, you know, the uses in terms of copyright, 19 but in terms of the rules again breaking CSS, is that 20 something that -- 21 MS. TUSHNET: And the answer is -- many of 22 these are, no. In fact they find out when they get the 0174 1 takedown notice. And always say, okay, we have to 2 assess what method you've used to get this. And the 3 answer, quite frankly, is often, well, I don't have a 4 camcorder, right? I don't have a $900 camcorder. I 5 don't have a $1,000 screen on my wall, right? I -- when 6 I started out, I searched Google to find out, how do you 7 make a remix video? And the first result you get, for 8 example -- if you search ripping DVDs -- is Lifehacker, 9 a huge site, giving you five great programs to rip DVDs 10 with. Of course they thought they were operating in 11 copyright law, right, where they were able to make fair 12 uses? It turns out they're operating essentially in 13 text law where, no, you actually needed somebody to 14 guide you through beforehand. The artists who are doing 15 this who are, by the way, you know, are often young, 16 they're certainly not lawyers, find that out way too 17 late. And they don't have the resources to do it any 18 other way. If we want these free uses, they're going to 19 have to come through these methods, because they don't 20 have the camcorders. They're -- if the SnagIt software 21 improves and if we can -- it turns out that it's not 22 circumvention, I will happily engage in the education 0175 1 campaign. You know, I will make that my life's work. 2 But we're not -- 3 MR. CARSON: He may join you. 4 MS. TUSHNET: In a way I have. But think 5 about -- think, like, when you -- when you're in private 6 practice, if you're at the New York Times, if you're 7 lucky, they clear -- they come to you before they do the 8 stuff that they know is iffy. But even when we're 9 counseling really savvy, big clients, half of the 10 trouble that they get themselves in is stuff that they 11 assumed was okay and didn't need to clear with you, 12 right? And that's for the big companies. That is not 13 how ordinary people go around making art. They don't 14 think of it in that way. And that is the fundamental 15 problem. 16 MS. COPPA: Can I, too -- I mean, one of the 17 sort of fundamental misunderstandings is the distinction 18 people might make is between owning the DVD and not 19 owning the DVD. In other words, there's this 20 understanding that if you, like, pirated a copy, if you 21 downloaded a copy, like that's not good. But the 22 assumption is that, if you bought your DVDs, that is 0176 1 good. And to sort of explain it, that's actually not 2 necessarily -- that seems to be a sort of ethical sense, 3 like you should pay for your source if you want to vid 4 with it. That's a very common comprehensible notion 5 that people have. And then when we come and say, well, 6 no, actually it doesn't matter that you've -- 7 MS. TUSHNET: Yeah, you should have. 8 (Speaking at once.) 9 MS. COPPA: Well, it is -- people sort of 10 think -- and, as I say, I mean, historically vidders 11 have bought multiple copies of the best, you know, 12 quality often of a show, or a movie would release 13 several times. People vid "Star Wars", for instance, 14 are very attached to older, prefixed fixed versions of 15 the film. But, in fact, there is actually, in our 16 community, a very strong sense of ethics. But it 17 usually has to do with paying artists, which they 18 understand. The idea that something that they own is 19 not then free for this is quite a difficult concept to 20 get across from an educational standpoint. 21 MR. CARSON: Okay. It's 1:30. And let's -- 22 all right, Bruce. 0177 1 MR. TURNBULL: One very quick point, which is 2 that the purpose of 1201 was to enable the technology to 3 make -- to allow the content to flow and not to force 4 people to sue individual users over -- as some other 5 industries have been forced to do. And I think that -- 6 if we get to the point where we undermine the technology 7 to the point where it doesn't work for that and, in 8 fact, we have exemptions that are broad enough that we 9 wind up developing the jurisprudence unfair use, then we 10 have just really undermined what 1201 was all about. 11 MR. KASUNIC: Can I ask a yes or no question? 12 MR. CARSON: A what? 13 MR. KASUNIC: Yes. 14 MR. CARSON: A yes or no question? If we 15 have a binding promise from everyone out there that, if 16 you answer, it's only going to be yes or no. Maybe it 17 will be acceptable but with no explanation. 18 MR. KASUNIC: But that longer than my 19 question. If -- Steve or Bruce, I just -- I think Bruce 20 you mentioned about the CSS was known at the time of the 21 creation of the DMCA and was considered all throughout. 22 Are you aware of any specific mention of CSS in the 0178 1 legislative history? 2 MR. TURNBULL: No. 3 MR. KASUNIC: Okay. 4 MR. CARSON: All right. I suspect there will 5 be further questions, which will be sent to you folks in 6 writing. But it's been a long morning and we have a 7 long afternoon to look forward to starting an hour from 8 now. So, thank you all very much, and we'll see some of 9 you in an hour. 10 (Pause in proceedings.) 11 MR. GOLANT: Ready? Okay. Let's get 12 started. 13 UNIDENTIFIED SPEAKER: Yes. 14 MR. GOLANT: All right. We're ready to begin 15 our afternoon session. Rather than re-read the 16 statement we read at the opening of the session this 17 morning, copies have been passed out. So, those of you 18 who weren't here to hear it can now read it, if you 19 like. It's just sort of giving a general overview of 20 the ground rules. We have been joined by the Register 21 of Copyrights who is sitting at the end of the table so 22 as to only infect one of us. We're grateful that she's 0179 1 here, even if in a diminished capacity. 2 MS. PETERS: Excuse me. 3 MR. GOLANT: And I guess we have -- the treat 4 of having only four witnesses, not that the more is not 5 the merrier, but will make for hopefully an easier 6 afternoon to get through. 7 Our witnesses are -- well -- yes -- okay. 8 Yes. We have Alex Halderman from the University of 9 Michigan. Blake Reid and Harry Surden from the 10 Samuelson-Glushko Technology Law and Policy Clinic. And 11 Steven Metalitz is it -- yes -- from the Joint 12 Commenters. I -- 13 UNIDENTIFIED SPEAKER: Metalitz. 14 MR. GOLANT: I will read the two proposed 15 classes that we will be discussing this afternoon. 16 First 8A, literary works, sound recordings, and 17 audiovisual works accessible on personal computers and 18 protected by technological protection measures that 19 control access to lawfully obtained works, and create or 20 exploit security flaws or vulnerabilities that 21 compromise the security of personal computers when 22 circumvention is accomplished solely for the purpose of 0180 1 good-faith testing, investigating, or correcting such 2 security flaws or vulnerabilities. And 8B, video games 3 accessible on personal computers and protected by 4 technological protection measures that control access to 5 lawfully obtained works, and create or exploit security 6 flaws or vulnerabilities that compromise the security of 7 personal computers when circumvention is accomplished 8 solely for the purpose of good-faith testing, 9 investigating, or correcting such security flaws or 10 vulnerabilities. 11 So, we'll hear first from the proponents. 12 Which of you would like to go first? 13 MR. HALDERMAN: I'll go first. 14 MR. GOLANT: Very good. 15 MR. HALDERMAN: All right. Well, good 16 afternoon everyone. I am Alex Halderman. I am a 17 professor of electrical engineering and computer science 18 at the University of Michigan. 19 I'd like to begin by thanking you all for 20 granting my request in the last rulemaking proceeding. 21 The exemption you granted covering sound recordings 22 protected by DRM that compromises the security of 0181 1 personal computers has provided valuable protection for 2 security researchers and consumers to test, investigate, 3 and correct these dangerous vulnerabilities. 4 Today we're here to ask you to expand this 5 exemption to cover other classes of works where DRM 6 presents serious security risks. We respectfully 7 request exemption to the anticircumvention measures for 8 literary works, sound recordings, and audiovisual works 9 accessible on personal computers and protected by TPMs 10 that create or exploit security flaws. 11 In the alternative we request that you grant 12 an exemption targeting pixie-based video games protected 13 by DRM that compromises the security of personal 14 computers. 15 Each of these exemptions would be limited, as 16 we've said in our request, to cases when circumvention 17 is accomplished solely for the purpose of good-faith 18 testing, investigating, or correcting such flaws. 19 The same risks apply in these classes of 20 works we're talking about today. As stated in the sound 21 recordings exempted in the last rulemaking proceeding, 22 in the infamous Sony CD rootkit episode, Sony's DRM 0182 1 surreptitiously updated the user's computer to replace 2 security components with ones that would provide more 3 content protection. But these updated components 4 provided meager protection to the security of the user's 5 PC. They created avenues through which hackers could 6 gain unrestricted access to the computer and the user's 7 personal data. Half a million users were put at risk in 8 the last -- in the Sony rootkit incident. 9 Since that time we have seen other prominent 10 examples where harm was caused by DRM systems that were 11 outside the scope of the sound recordings exemption last 12 time. One case is Macrovision's SafeDisc product, one 13 of the most widely used DRM systems for PC-based video 14 games. It's so widely used that Macrovision contracted 15 with Microsoft to ship the SafeDisc component with 16 nearly every copy of Windows. 17 But in 2007 malicious hackers discovered a 18 flaw in SafeDisc that would allow them to bypass the 19 computer's security systems. This vulnerability 20 affected nearly 1 billion PCs, 2,000 times as many as 21 the Sony rootkit. 22 As bad as these problems were, many security 0183 1 researchers now believe that they're just the tip of the 2 iceberg. Merely highlighting security issues that are 3 endemic to DRM products. There's often tension between 4 the strength of DRM software and the security of the 5 user's PC. That is for several reasons. One, DRM 6 systems tend to be very complex, and complexity is the 7 enemy of security. 8 Two, DRM systems tend to adopt risky, often 9 unsupported programming techniques, or like the Sony 10 rootkit, techniques more commonly used by hackers. And 11 these are more prone than standard well-supported 12 programing techniques to cause security faults. 13 And, three, DRM systems tend to transfer 14 control away from the user putting it in the hands of 15 the content providers or other third parties, for 16 example, through mandatory automatic software update 17 mechanisms. This is an invitation for attackers to 18 subvert these mechanisms and turn them against the owner 19 of the computer. 20 These problems are compounded by the chilling 21 effects of the DMCA's anticircumvention measures. This 22 chilling effect detours security researchers from 0184 1 investigating problems in DRM software because of the 2 potential threat of lawsuits. 3 As I detailed in my research plan comment, 4 potential DMCA liability might occur in many scenarios 5 that researchers could find themselves in while 6 investigating the security of a DRM product. For 7 example, DRM software is often designed to resist 8 attempts to monitor and understand its behavior using 9 standard software engineering, and debugging, and 10 forensics techniques. To investigate and understand 11 this behavior, I -- a researcher like me wanting to 12 investigate the problems would have to bypass these 13 parts of the protections. 14 Another example is that certain kinds of 15 vulnerabilities that a DRM product have could only -- 16 might only occur in portions of the software that were 17 invoked during an attempted circumvention or after a 18 partial circumvention of the product. So, in -- you 19 might say in the nooks and crannies of the program. 20 To test all of these cases, a researcher 21 would need to be able to reproduce those scenarios, 22 circumventing those parts of the system. On the other 0185 1 hand, a malicious hacker, someone who actually wanted to 2 attack a user, would have no qualms about doing this. 3 Hackers are already not law abiding. And, so, it's 4 unlikely that they would be detoured from malicious 5 behavior by the threat of a DMCA lawsuit. 6 Finally, in past instances where DRM systems 7 have caused security problems, such as the Sony rootkit, 8 the simplest way for users to defend themselves has been 9 to partially disable or remove portions of the DRM 10 system. In order for users to do this, they need to 11 circumvent part of the system. In order for researchers 12 like me to develop and test such fixes so that we can 13 help users help themselves, we also need to circumvent 14 portions of the system. 15 In my past research about DRM security, as a 16 result of these kinds of -- these kinds of necessary 17 behaviors, I often spent more time speaking with my 18 lawyers and discussing the potential legal risks than 19 engaging in actual science. Several of my co -- my 20 papers have listed more legal team members than 21 scientist's coauthors. That's not the way it should be. 22 Even with the tremendous pro bono legal help 0186 1 of a number of different lawyers, I've had to perform 2 this work at substantial personal risk, due to the 3 threat of lawsuits, like the lawsuit threat that I 4 actually received from SunCom after exposing defects in 5 their DRM system. 6 Many researchers cannot make these sorts of 7 personal sacrifices and choose not to study DRM products 8 at all. We find evidence for this in the ongoing 9 controversy over Sony's video game DRM platform called 10 SecuROM. There have been anecdotal reports from users 11 and others that the product causes security harms and 12 other ill effects for consumers, resulting in a number 13 of class-action lawsuits that are pending. 14 For months this situation has been crying out 15 for an investigation by reputable security researchers 16 in order to rigorously determine the nature of the 17 problems that this system cause, and dispel this 18 uncertainty about exactly what's going on. But SO far 19 no such rigorous, independent analysis has been 20 published. And I believe the chilling effects of the 21 DMCA are partially to blame. People have other things 22 that they could be spending time researching that are 0187 1 interesting to them that result in benefits to 2 consumers, but that carry far less costs and personal 3 risk. 4 I have a tenure clock running. I have seven 5 years to establish a case for why the university should 6 tenure me. And, quite frankly, that for most junior 7 faculty members involves trying to do as much and 8 meaningful research as possible in that time. If I have 9 to spend twice as much time doing a research project 10 because I have to stop at many points to consult with 11 lawyers or, if I have to risk that most of the way 12 through that project I'll find that I can't finish it 13 because there would be an unacceptable level of risk, 14 then that is a project that perhaps I should -- I would 15 not consider repeating. 16 DRM is not going away. On the contrary it's 17 finding new uses in e-book readers, high definition 18 Blu-ray discs, online music rental services, and 19 streaming video platforms. It's likely to continue to 20 see wide-spread adoption, as long as it serves to enable 21 new business models. 22 The inherent security risks of DRM and its 0188 1 continued adoption make it inevitable that further 2 security problems will be found in the next three 3 years. But the question is: Who will discover these 4 vulnerabilities first? Will it be researchers who are 5 seeking to protect consumers, or will it be malicious 6 hackers who are trying to find problems in order to 7 exploit them and damage the security of consumer's 8 computers, as happened with the SafeDisc DRM system? 9 Over 40 of the worlds most respected security 10 researchers have signed a comment in support of our 11 exemption request. They state that PC-based DRM 12 technologies prevented serious security risks, that they 13 are likely to continue to present serious security risks 14 in the future, and that they are likely to present 15 inherent security risks. More over these 40 researchers 16 including people like Ron Rivest, Ed Felten, and Bruce 17 Schneier state that the potential liability under the 18 DMCA chills security researchers acting in good faith 19 from discovering and fixing such security flaws. 20 Almost also software has security flaws, of 21 course. But they're routinely detected and corrected by 22 independent security researchers. DRM software by its 0189 1 nature poses an elevated security risk. So, it's 2 unacceptable that the DMCA's chilling effects exempt DRM 3 from the same kind of security scrutiny as is applied to 4 other software. The exemptions we're requesting today 5 would help ensure that security researchers are able to 6 provide that scrutiny for a variety of DRM products in 7 the coming three-year period. Thank you. 8 MR. CARSON: Thank you. Mr. Reid, you're 9 next. 10 MR. REID: Thank you. Good afternoon. And 11 my name is Blake Reid. I'm a law student at the 12 University of Colorado and part of Alex's, 13 unfortunately, large legal team. 14 Again, I'm here in support of Professor 15 Halderman and proposed exemption 8A, and in the 16 alternative proposed exemption 8B. I'm also here on 17 behalf of the Samuelson-Glushko Technology Law and 18 Policy Clinic. And joining me in that regard is CU Law 19 Professor Harry Surden who is sitting to my right, but 20 he won't be offering any remarks. 21 In the interest of getting to the question 22 and answer period, I'll try to keep my remarks 0190 1 relatively brief. Just to add a few things on to what 2 Alex had to say. 3 At the outset I would like to thank the 4 Copyright Office for its continued consideration and 5 accommodation of our exemption request. Throughout the 6 proceeding and at this hearing today, we appreciate your 7 attention to the details of the request. 8 The chilling effect that Alex talked about is 9 underpinned by not only explicit threats of lawsuit and 10 implicit threats otherwise, but by an uncertain legal 11 backdrop surrounding the existing statutory exemptions. 12 In that -- in particular the Security Testing Exemption 13 that's enumerated in 1201(j). In 2006 the Registrar 14 stated that it wasn't clear that 1201(j) applied to this 15 sort of security research behavior that is substantially 16 contained within our proposed exemptions. Indeed it 17 wasn't clear in 2006 and there have been no developments 18 that make it any clearer today. 19 Now, we're not going to say that 1201(j) 20 doesn't apply to this behavior, indeed we hope it does. 21 If our exemption is not granted, and someone like Alex 22 is ever faced with a lawsuit, 1201(j) is likely to be 0191 1 the first defense to be raised in court. Unfortunately 2 we're simply uncertain whether it provides the sort of 3 coverage and -- that we would need to successfully 4 defend what would otherwise be a claim of fair use and 5 comport with the congressional intent for these 6 proceedings, which is to fill gaps in the statutory 7 exemptions. We think that a -- an exemption would be 8 appropriate, just as the Sony Rootkit Exemption was 9 appropriate in the last proceeding. 10 There's insufficient guidance for university 11 and house counsel to provide the kind of sign off for 12 both professional and academic security research 13 projects, like the one that Alex has talked about, under 14 the cover of 1201(j). So, as conscientious citizens in 15 the copyright world and the DMCA world, security 16 researchers are likely to ask for that sort of sign off, 17 and they're not liable to get it. So, accordingly the 18 uncertainty under 1201(j) forms a serious part of the 19 chilling effect that Alex referenced. And that 20 uncertainty is a sufficient basis we think to grant the 21 exemption. 22 There are half a dozen other statutory 0192 1 exemptions enumerated in 1201(d) through (i). I don't 2 think there's any serious contention that any of these 3 apply to all of the behavior contemplated by this 4 exemption, so, I won't address any of them specifically 5 unless you have questions about them in the question- 6 and-answer period. But, as a threshold matter, a lot of 7 security research simply doesn't implicate any of these 8 exemptions. And, in the limited cases where it might 9 implicate one or another, the exemptions, there's 10 similar types of uncertainty to the type that surround 11 1201(j). So, again, I'm happy to get into that on -- in 12 the Q and A, but I don't think there's any contention 13 that they apply. 14 I'll conclude with a brief comment on the 15 Joint Commentator's proposed limitations to the 16 exemptions if granted. Again, I won't address them all 17 specifically unless there are specific questions. But 18 to put on the record, we strongly oppose all of these 19 limitations as written. As they would, in many cases, 20 completely vitiate the exemptions as we've proposed. We 21 don't believe that they're necessary to curb abuse. We 22 believe that the language in the proposed exemptions as 0193 1 written is going to be sufficient to curb abuse, along 2 with traditional remedies available at -- you know, in 3 contract law and in copyright law. 4 So, with that I will yield the floor and look 5 forward to answering any questions. Thanks. 6 MR. CARSON: Okay. Mr. Metalitz. 7 MR. METALITZ: Thank you, very much. Good 8 afternoon. It's nice to be back here again on behalf of 9 nine copyright organizations. They're listed in our 10 submission and they are going under the moniker of Joint 11 Creators and Copyright Owners. 12 And I want to point out for the record it's 13 nice to be back here on May the 7th, 2009. This is 14 2009. It's not 2003 when SunCom sent a letter to 15 Professor Halderman that he thought was illegal threat. 16 It's not 2006 when this proceeding got deeply involved 17 in the Sony rootkit situation and there was a great -- 18 based on a very thorough investigation that Professors 19 Felten and Halderman had already done about the Sony 20 rootkit and some of the other techniques involved. So, 21 we're not in 2006 anymore. We're not in 2003. We're in 22 2009. We have to focus on now whether the prohibition 0194 1 on circumvention of access controls is substantially 2 impeding noninfringing uses of particular categories, 3 particular classes of copyrighted works. And we have to 4 look at whether it's likely -- more likely than not, if 5 that's not occurring now but it will occur sometime in 6 the next three years. So, I will step -- try to step 7 through some of those questions, as well as to respond 8 to some of the points that have just been made. 9 The questions that we've been going through 10 for the last -- well, now the third day of hearings, is 11 there a noninfringing use that's being impeded? Is that 12 use being impeded, and are there alternative means that 13 don't require circumvention in order to carry out that 14 use? 15 The first question actually is a tougher one 16 than one might think, in the case of an exemption on a 17 subject matter that has already been addressed. If you 18 look at Pages 12 through 13 of Professor Halderman's 19 submission, he gives two noninfringing uses. One is 20 research. Let me get -- if I -- if you'll indulge me, I 21 want to get the exact language here. Engaging in good- 22 faith computer security research is number one. Number 0195 1 two, installing and utilizing the works. 2 So, what works are we talking about here? 3 One category that -- the category that was covered in 4 the 2006 exemption, which, of course, expires on October 5 28th and we're now considering these de novo, was sound 6 recordings. I don't think there's any evidence in the 7 record that any access controls are being implied to 8 sound recordings today. Certainly they're -- it's a -- 9 that's a vanishing breed. And, so, I don't think 10 there's any evidence that that type of work is 11 involved. We have heard -- really, if you look at 12 what's in the record, the only examples have to do with 13 video games. And then I suppose the argument is that -- 14 even if the argument for current interference with 15 noninfringing use has to do with video games, then it 16 may -- or rather it likely will in the future -- 17 according to the proponents -- involve some of these 18 other categories of works. 19 So, if we go back to the noninfringing use, 20 engaging in good-faith computer security research. I am 21 at a loss to understand how that involves a 22 noninfringing use of a video game. Installing and 0196 1 utilizing the works, assuming we're talking about a 2 video game, I don't think that the DMCA Section 1201(a) 3 is preventing people from installing and utilizing their 4 -- the video games that they've purchased. So, it's 5 very difficult to see what noninfringing use we're 6 talking about here. 7 I think this is why, perhaps, the office 8 stated in the 2006 decision that it is difficult to fit 9 these issues into the framework of this proceeding. And 10 I agree with that. And I think it's going to be more 11 difficult this time, because the evidence is quite a bit 12 different, quite a bit thinner, quite a bit more 13 tenuous. But, in any case, that's why we're having such 14 a problem fitting this into the criteria that we're 15 using to address every other proposed exemption that is 16 coming before this proceeding. 17 That is quite relevant to this issue that 18 Mr. Reid brought up at the end about the statutory 19 exemptions. And I'll come back to that later, but I 20 think that that is why this is so difficult, because we 21 have statutory exemptions to deal with these -- with 22 this general subject matter and it's not satisfactory to 0197 1 the proponents, so, we're looking at a potential 2 exemption as well. 3 So, if we're talking about video games, let's 4 assume that we have some noninfringing use. And I'm not 5 sure again how it would be impeded, but let's look at 6 the evidence that's in front of us. There are two 7 examples given. One is SafeDisc. The evidence there is 8 that researchers, for whatever reason, apparently did 9 not discover this problem until after some bad guys 10 discovered it. But they were able to very quickly do 11 the research that was needed to generate a fix and have 12 that widely distributed. Professor Halderman paints 13 this episode in apocalyptic terms of the millions of 14 computers that were infected, and how much worse this 15 was than the Sony rootkit. I don't want to underscore 16 the obvious, there was no rootkit involved here. And, 17 if you look at the way the normal channels adapted to 18 this, to identify the problem, develop the fix and 19 distribute the fix, we give two examples of that in our 20 submission. And neither of them thought this was a 21 world-ending problem. It was a problem. There's no 22 question the fix was important. But the system worked, 0198 1 the research was done, and the security problem was 2 solved. 3 The other example, of course, is SecuROM. 4 There we have a lot of sound and furry. What it 5 signifies is another question. I would submit to you 6 there's far less there than meets the eye. There is no 7 concrete evidence, no concrete evidence, of any type of 8 security vulnerability whatsoever. 9 Now, it's interesting some people, among the 10 numerous bloggers and commenters who have been 11 complaining about SecuROM and how it's been applied with 12 regard to particular video games, have raised some 13 security concerns. That's quite marginal. I'd say it's 14 a tiny percentage of the concerns, most of which have to 15 do with, why can't I install this on more machines, or 16 use it in more ways? Why isn't it more flexibility? 17 Perfectly legitimate consumer concerns, but not security 18 concerns. 19 But one allegation, of course, was, well, 20 this is another rootkit. And somehow researchers were 21 able to do enough research into SecuROM to determine 22 that it was not a rootkit and to get that information 0199 1 widely circulated. Again, I believe we cite this in our 2 submission. 3 So, with SecuROM I would urge you to read 4 very carefully what the submission says, and the follow- 5 up submissions. And Professor Halderman is very careful 6 not to make any assertions about any security 7 vulnerabilities about SecuROM. He simply notes 8 accurately that there are class-action lawsuits pending, 9 that a lot of allegations have been made, there's a lot 10 of furor, there's a very toxic atmosphere surrounding 11 it. And then he makes the assertion that the reason 12 that this can't be cleared up is because security 13 researchers are being chilled in their ability to 14 conduct this research. 15 Let's look a little bit at that assertion. 16 Again, we're not talking about six years ago, we're 17 talking about 2009. And we have Professor Halderman's 18 sincere observation and belief that DMCA must be at 19 least partly to blame for the apparent lack of fully 20 independent research into SecuROM. 21 I think there are a lot of other possible 22 explanations for that. One might be whether anyone has 0200 1 ever asked to conduct this research or ever sought the 2 cooperation of either the developer of the software or 3 of the copyright owners that employ this software. I -- 4 there's no evidence of that in the record. It may be 5 there is something that's not in the record and will be 6 brought forward today. But I think it's -- I think you 7 have some conclusionary -- well, I should say 8 conclusionary allegations here that somehow the DMCA has 9 something to do with it. 10 Clearly there could be a lot of other factors 11 at work, and Professor Halderman has mentioned some of 12 them today. Such as whether this is an attractive topic 13 for security researchers that are seeking tenure, and 14 whether he would have to -- someone who would undertake 15 this research would have to consult counsel. 16 I don't think that the necessity to consult 17 counsel is necessarily a nonstarter here. It's not 18 something that takes this type of research outside the 19 pail. I think it's probably fair to say that the entire 20 computer security field is becoming a bit more fenced 21 around with law. There's a lot of legislation on this 22 topic. And I'm not an expert on it, but I hardly think 0201 1 that the DRM situation is unique. 2 I think it's also worth giving the same kind 3 of scrutiny to some of the -- some of the statements 4 about security problems being endemic in DRM, that DRM 5 is a suspect because complexity is the enemy of 6 security, because DRM has mandatory automated software 7 update mechanisms, because DRM systems install a number 8 of drivers in someone's system. Every single one of 9 those statements is equally at least true of many other 10 types of software programs. And I know everyone's 11 always complaining the complexity of new operating 12 systems and trying to come up with simpler systems. I 13 know I have -- I've installed software that has plenty 14 of mandatory automated software update mechanisms, and I 15 do hope and trust that they're not doing me any harm. 16 And I've taken -- you know, you take steps to try to 17 prevent that. But my point is that all of these 18 characteristics that are attributed to DRM are also true 19 of lots of other types of software. 20 So, let's turn to -- we've talked about the 21 -- as best we can about the infringing -- no, excuse me, 22 the noninfringing activity and whether it's being 0202 1 impeded. Let's talk about alternatives. And in 2 particular look -- if you look at the research plan that 3 Professor Halderman put forward, I think what you find 4 that's striking there is how little of it actually seems 5 to involve circumvention. It involves monitoring the 6 operation of DRM's systems and observing it. I think 7 the first time we talked -- that it talks about 8 circumvention is on Page 3 when he says, look, we want 9 to be able to reproduce these behaviors in a number -- 10 we want to have a number of instances running. And 11 SecuROM only allows you -- it's part of the DRM -- it 12 only allows you to install the game on a certain number 13 of systems. I'm oversimplifying here, because there are 14 actually a lot of ways to increase that. But let's just 15 assume that it only allows you to install it on five 16 platforms and you need to run 15 or 150 instances in 17 order to be -- gain enough data to observe what the 18 problems might be. 19 Well, his -- he says the most straight 20 forward technical solution would be to defeat this part 21 of the DRM so that the system would behave as if it had 22 not reached the usage limit, but it is unclear as to 0203 1 whether this would violate the DMCA anticircumvention 2 preventions and, so, they have to seek the advice of 3 counsel. Well, with all due respect, if you need to run 4 15 instances and the DRM only allows you to run five, 5 you can solve that problem by buying two more copies. 6 There's a very easy alternative that's available that 7 doesn't require circumvention. 8 Similarly the -- several -- a lot of the 9 other points in the research plan involve observing what 10 happens when, for example, fuzzing, sending -- you're 11 basically sending some randomized packets and you're 12 observing what happens, how the system reacts to that. 13 A lot of this, again, does not involve circumvention. 14 Now, I'm not saying that nothing in his research plan 15 would require circumvention. I'm sure he wouldn't have 16 submitted it if that were the case. But I just think 17 it's worth a careful read to see how much of a problem 18 -- any limitations on circumvention might be in his 19 carrying out this research. And I think that's relevant 20 to this whole question of whether there's a chill in the 21 air. 22 The -- let me just turn to -- just mention 0204 1 briefly the question of the statutory exemptions. In 2 2003 the office said, where statutory scheme exists for 3 a particular activity, persons must utilize such 4 statutory exemption to accomplish their goals, or 5 provide evidence why the statutory exemption is 6 unavailable to accomplish a noninfringing use, not 7 simply that the user could have accomplished his or her 8 goal more conveniently by deviating from the 9 congressional design. 10 I think that was the right way to approach 11 this and remains the right way to approach this issue of 12 the impact of statutory exemptions. I think that viewed 13 as a whole, if you look at the 2006 record, the office 14 was confronted with a -- with what appeared to be a very 15 serious situation. I think that kind of comes through 16 pretty clearly in the recommendation from 2006. And I 17 believe it deviated from this principle. And it 18 basically said, well, you tell us whether the statutory 19 -- both sides tell us what you think the statutory 20 exemption means and whether it applies. And -- because 21 there wasn't a conclusive answer there the office said, 22 well, we're not -- we don't think we're foreclosed from 0205 1 going ahead in this area, so, we're going to go ahead 2 and fashion an exemption. I don't think that's 3 consistent with the statute. 4 The burden is on the proponents to show every 5 element that's needed for an exemption. And the very 6 first element is to show that the activity they want to 7 undertake is a violation of 1201(a)(1). If it's not a 8 violation of 1201(a)(1), then there's obviously no need 9 for an exemption. And, if it falls within a statutory 10 exception or exemption, it obviously does not violate 11 1201(a)(1). 12 So, although they haven't really addressed 13 the subject, you know, I think these hearings have -- 14 like the hanging in Dr. Johnson's dictionary-- has 15 helped concentrate a lot of people's minds. And this is 16 another example of an issue that never was really 17 ventilated during two rounds of submissions, but we get 18 here on May the 7th, 2009 and we now -- now we're going 19 to hear why Section 1201(j) doesn't cover this activity, 20 why Professor Halderman can't bring his act -- his work 21 within that exemption. And we'll look forward to 22 hearing that and to responding to that after we've had a 0206 1 chance to study it. 2 I would say it's not just 1201(j). We cited 3 a couple of other, 1201(g), I believe, and other 4 provisions that might also be relevant here. But it 5 seems clear to me that the design of this proceeding is 6 that the burden of showing the inapplicability of 12 -- 7 of a statutory exemption, and the inability to bring 8 your conduct within it falls squarely on the proponents 9 and they have not met that up to this point. 10 Finally on the narrowing issue, we did 11 suggest some narrowing changes which we'd be glad to go 12 into, if you -- if this is an area where you decide to 13 recognize a -- an exemption. I think the only -- again, 14 based on what's happening in 2006, the evidence in the 15 record and anything going forward, I'm not sure how this 16 could be extended beyond video games. But even if it 17 were, we've made some suggestions which we'd be glad to 18 talk about in terms of ways that this could be brought, 19 we think, more closely into line with the previous type 20 of exemptions that you've recognized. And, you know, 21 we'd be glad to go through those. A lot of them are the 22 same types of drafting that we've suggested with regard 0207 1 to other exemptions. 2 Let me just close with this. We've heard 3 today that the Sony rootkit was the tip of the iceberg. 4 And I suggest to you that sometimes what looks like the 5 tip of the iceberg is just an ice flow, and it flows -- 6 and it floats out to sea, it's never seen again. A lot 7 of people in the industry, I think, have taken a lot of 8 lessons from the episode of the Sony rootkit. And 9 that's why I think you see such a sparse record today of 10 any real evidence of security threats arising from DRM 11 -- or from access controls. Of course there's no way to 12 guarantee that there are none, but we also know that we 13 have an ecosystem in place -- not only about DRM but 14 about all kinds of software -- that relies on people in 15 the field to identify and bring to the attention of the 16 developers the flaws that may exist. We talk about this 17 in the SAFECode example in our submission. That 18 obviously is also applicable in the DRM area. 19 But unless you're persuaded that what lies 20 underneath that chunk of ice from three years ago is an 21 iceberg, I think you have to say -- you have to rule 22 against this exemption, because the burden of persuasion 0208 1 will not have been met. Thank you. I'd be glad to 2 answer any questions. 3 MR. CARSON: Thanks. Let's first go Alex and 4 Blake an opportunity to just respond to anything they've 5 heard from Steve. 6 MR. REID: Great. Thank you. It seems that 7 Mr. Metalitz may be conceding that 1201(j) does apply 8 and -- to the behavior here, in which case great. But I 9 don't think we're here to litigate 1201(j). That's a 10 matter for the Courts. And just as the last proceeding 11 showed, I don't believe that the office needs to reach a 12 formal conclusion on 1201(j) in order to grant this 13 exemption. We think that that uncertainty, that 14 constitutes part of the chilling effect on research, 15 which is one of the statutory factors, is sufficient. 16 Just to address briefly the 1201(g) exception 17 for encryption research, some digital rights management 18 simply may not involve any type of encryption. And for 19 that that does -- that exception contains a caveat that 20 the research needs to be specifically tailored to 21 advance the state of encryption research. And any kind 22 of encryption research happens to be tangentially 0209 1 related to security research, maybe not done with 2 advancing the state of encryption in mind and may not 3 succeed in that regard. And, in fact, I think that's a 4 -- that may be pretty likely. Alex may have a little 5 more to say about that. 6 Finally, you know, there's an assertion that 7 this is not 2003 and this is not 2006. And the question 8 that's brought to mind for me is: What has changed to 9 remove that chilling effect since 2003? And I don't 10 think there's anything on the table that suggests that. 11 And just to make this chilling effect clear, I want to 12 read a quote from SunCom's CEO, Peter Jacobs, when he 13 was threatening Alex with a lawsuit in 2003. He said 14 "This cat-and-mouse game that hackers and others like to 15 play with owners of digital property is over. No matter 16 what their credentials or rationale, it is wrong to use 17 one's knowledge and the cover of academia to facilitate 18 piracy and theft of digital property." 19 Well, let me review another quote that's a 20 little bit more of a recent example from the FTC hearing 21 last month -- that I know Rob was a part of -- from 22 Debbie Rose for the Association of Competitive 0210 1 Technology, who represents the DRM industry. And she 2 said regarding pursuing this kind of security research, 3 she said, hey, go for it. If you get scared by one 4 threat of a lawsuit, well, there are lawsuits all the 5 time. Just try it. The Electronic Frontier Foundation 6 will pay for your defense. 7 So, I think that's the -- when we're talking 8 about the chilling effect, there's that kind of rhetoric 9 floating out there. So, I think this -- the suggestion 10 that this -- that the threat of lawsuit has faded since 11 2003, I don't think there's any solid evidence of that. 12 So, I'll turn it over to Alex to address some 13 of the other thoughts. 14 MR. HALDERMAN: Thank you, Blake. Just a few 15 things. We heard about -- we heard a question of 16 whether this is an iceberg or an ice flow. I think that 17 was the question facing the Titanic. And there's 18 certainly ice in the water. There's certainly chilling 19 going on. I would say that granting these exemptions is 20 certain to alleviate some amount of harm. I believe 21 that it's going to alleviate a great amount of harm. 22 If there is no harm -- if there is no 0211 1 evidence of harm in the future, then there will be -- 2 then I'll be proven wrong. But I don't expect that 3 that's going to be the case, and neither do the 4 signatories of the supporting comment from experts in 5 the security community. 6 A couple of other things, talking about the 7 -- I think Steve mentioned the toxic atmosphere that's 8 -- and the furor that has come out of the SecuROM 9 uncertainty, all these unanswered technical questions 10 about what the software does, what ill effects it's 11 having. These are very interesting questions for 12 researchers about what the SecuROM software is doing, 13 what harm is it causing? Is there evidence that -- what 14 evidence does it contain about just the general nature 15 of security in DRM? All of these questions could be 16 resolved quickly, if people were able to study it, to 17 study software like SecuROM without worrying about a 18 threat of a suit. I could task some grad students on it 19 and we could have answers in a few weeks. Instead of 20 it's been -- I don't know it's been nine months or 21 something since the controversy erupted. And it's 22 amazing. 0212 1 I have to say that, if you want evidence of a 2 chilling effect, I personally have been chilled from 3 making this a top priority for my research group. This 4 is not something that I've tasked people on, precisely 5 because I don't want to have to put my students at risk 6 at this time. 7 I think there was one other thing I wanted to 8 address. Actually I guess I'll take -- I'll reserve the 9 rest of our time. 10 MR. CARSON: Okay. Questions? 11 MR. KASUNIC: A couple. I don't know if 12 they're in any particular organization, but let's try. 13 One of the questions that I think was raised by Steve 14 was -- or points made that there -- it isn't clear 15 whether permission has ever been asked for this. And 16 maybe that would be a way of just clearing up all of the 17 chill and uncertainty. Is that case? Has -- have you 18 had -- besides the threat in 2003, which obviously 19 didn't need any further questioning -- have there been 20 other interactions and attempts to get -- obtain 21 permission to do what you want to do? 22 MR. REID: I haven't embarked on a permission 0213 1 request before or prior to any of the DRM security 2 research that I've done in the past. It's generally not 3 common practice in security research to ask permission. 4 Because we worry that a regime of requesting permission 5 before would result in a kind of selection bias, that 6 software makers who know that there are problems in 7 their software and don't want them to come up, would 8 just routinely deny permission to experiment with their 9 software; and software makers that really thought they 10 had covered all their basis would gladly grant it. So, 11 it's not the general practice in research to seek 12 permission. 13 I would worry that, if the requirement was 14 the same to perform research on DRM systems, that we 15 would see exactly that kind of effect. That the systems 16 that were -- that really had problems under the hood, 17 like the Sony rootkit, would be -- would -- their makers 18 would not grant permission readily, whereas software 19 that was behaving well would. 20 MR. KASUNIC: So, how do you respond to -- at 21 least in terms of -- well, maybe you can explain a 22 little, just to get to the encryption research exemption 0214 1 that -- which deals specifically with encryption 2 technology and examining scrambling or -- and 3 descrambling information. That particular statutory 4 exemption in 1201(g) does require that a person made a 5 good-faith effort to obtain the authorization before the 6 circumvention. I mean, is this something -- is -- and 7 I'd address this to Blake, too, to what extent does 8 1201(g) resolve or encompass the kind of research that 9 you need to do, or in what ways is it too limited? 10 MR. REID: I mean, I -- again, I have to go 11 back to my previous response -- and maybe Alex can chime 12 in as well -- not all digital rights management research 13 is going to encompass encryptionary search. And in any 14 case it's not going to be done necessarily -- let's 15 see. I'll point you at Subsection 3A, which was -- 16 whether the information was disseminated in a manner 17 reasonably calculated to advance the state of knowledge 18 or development of encryption technology. And I think 19 that's just not necessarily going to be the case in any 20 -- in every single type of security research. 21 Alex, maybe you can chime in a little bit 22 more. 0215 1 MR. HALDERMAN: I think the uncertainty for 2 me is over what counts as encryption research. And I 3 have not -- I am not a legal expert, but I have not been 4 convinced to any degree that research like what we have 5 done in the past into the Sony rootkit would count as 6 encryption research. That was not a system that 7 involved substantial encryption. 8 MR. KASUNIC: Steve. 9 MR. CARSON: Can I just interject on that 10 while we're on that topic, though? Let's talk about 11 SafeDisc, which is the one recent example we know 12 something about. 13 MR. HALDERMAN: Yeah. 14 MR. CARSON: Is encryption involved in that? 15 MR. HALDERMAN: I don't believe that there's 16 encryption involved in the component that was at issue, 17 the component that had the -- 18 MR. CARSON: Uh-huh. 19 MR. HALDERMAN: -- danger. So, in the 20 research field, encryption research is a separate area 21 of research from the area that deals with security 22 problems in computer systems. 0216 1 MR. CARSON: Uh-huh. 2 MR. HALDERMAN: And, so, from my perspective 3 I see that -- I have some questions in my mind about 4 what the law means and whether it means the same thing 5 to -- whether that distinction is embodied in the law or 6 not. 7 MR. CARSON: I gather whatever it means, what 8 I'm hearing from you with respect to SafeDisc, it's not 9 likely that whatever you would be doing with respect to 10 SafeDisc would be considered encryption research by -- 11 under anyone's definition, is that what I'm hearing from 12 you? 13 MR. HALDERMAN: It wouldn't be considered 14 under the academic definition anyway. I'm not sure 15 about the legal definition. 16 MR. KASUNIC: There probably isn't one, so, 17 you might have to go back to the academics. 18 MR. HALDERMAN: And the encryption technology 19 defined as meaning the scrambling and descrambling of 20 information, using mathematical formulas or algorithms. 21 MR. METALITZ: Rob, could I just comment 22 briefly on that? 0217 1 MR. KASUNIC: Yeah. 2 MR. METALITZ: First, whatever was needed to 3 be done in SafeDisc was done without regard to -- 4 evidently it was not chilled by the DMCA, because it was 5 fixed. I'm not arguing about whether it's encryption 6 research or not. 7 Second, the sentence that -- I just wanted to 8 read the rest of the sentence that Blake read which from 9 (g)(3)(A), he asked about whether the information was 10 disseminated in a manner reasonably calculated to 11 advance the state of knowledge or development of 12 encryption technology. The sentence goes on, versus 13 whether it was disseminated in a manner that facilitates 14 infringement under this title or a violation of 15 applicable law under this section. 16 That tells us a couple of things, one is that 17 you -- if you're -- if Congress used the word versus -- 18 which doesn't appear in a statute that often -- but as a 19 contraster -- in order to contrast the two means of 20 dissemination I think it suggests that, if you're 21 disseminating it in a way that isn't to facilitate 22 infringement, that you probably do qualify. 0218 1 And, second, I mean, it brings up the 2 question that -- to be blunt I was asked by, you know, 3 every security specialist that I asked to look at these 4 submissions, which was, gee, I wonder what -- if he's 5 able to conduct this research I wonder what he's going 6 to do with the results. And I think while I do not 7 condone or associate myself with the remarks of the 8 person from SunCom six years ago, I think they raise a 9 -- it does raise this question, this concern about how 10 the results of research would be disseminated. And that 11 certainly is relevant in terms of an exemption. And the 12 office decided last time that it would authorize an 13 exemption, it would recognize an exemption, even though 14 it wasn't sure whether the statute already had an 15 exemption that applied. But it did say it was trying to 16 apply the same policies that led Congress to enact 17 1201(j), that that provided the rationale. 18 MR. CARSON: Cell phones off. 19 MR. METALITZ: So, if you look at -- if you 20 take that into account -- sorry, if you take that into 21 account this time as well, you might look at the -- the 22 policies Congress wanted to promote, well, we see in the 0219 1 passage you read they wanted to encourage people to seek 2 authorization in this area. We also saw that they had a 3 concern about whether dissemination would be done in a 4 way that advances infringement. 5 So, these are certainly factors that you 6 would probably want to take into account, if you decide 7 that, even though the proponents haven't demonstrated 8 that the exception doesn't apply to them and that they 9 can't bring their conduct within it, if you wanted to 10 recognize an exemption. 11 MR. KASUNIC: Isn't one of the problems, 12 though, in that section in -- is that (a)(3) or (g)(3), 13 that deals with the versus language, that that's a -- 14 that's addressing the trafficking provision. So, in -- 15 that would really not be the -- 16 MR. METALITZ: No. 17 MR. KASUNIC: -- act of circumvention, 18 wouldn't it? 19 MR. METALITZ: It's addressing Paragraph 2, 20 which is an exception to (a)(1)(A). 21 MR. KASUNIC: Okay. 22 MR. METALITZ: So, it does effect -- yeah, it 0220 1 goes to exactly this provision. 2 MR. KASUNIC: How do we reconcile that with 3 1201(j), which is on security testing, which is at least 4 arguably -- and I would suggest probably closer to what 5 we're talking about here -- which doesn't have that kind 6 of a stipulation in it? 7 MR. METALITZ: Well, it does say as a factor 8 for determining the exemption, whether the information 9 derived from the security testing -- I'm looking at 10 (j)(3)(A) -- whether -- and that's not me -- whether the 11 information derived from the security testing was used 12 solely to promote the security of the owner operator of 13 the computer, or shared with the developer, moreover it 14 doesn't facilitate infringement. So, the same concern 15 about what happens with the results is there. 16 Now -- 17 MR. KASUNIC: But nothing about seeking 18 permission? 19 MR. METALITZ: Yes, there's -- it's not a 20 prerequisite to seek permission, that's true. But 21 basically, if you're using it in a way that's adverse to 22 the security of the owner operator, the person you 0221 1 didn't seek permission from, then you may not get the 2 exemption. But you're right, it doesn't specifically 3 say you have to ask for permission. 4 MR. KASUNIC: One of the problems, I think, 5 the same with 1201(j) that we were faced with last time 6 and I think that we continue to be faced with, is that 7 it wasn't clear to us to what extent some of the 8 application of DRM to particular copyrighted works 9 actually fit what the purpose of this provision was, in 10 terms of security testing in relation to accessing 11 computers, computer systems, or computer networks. 12 It seems initially when Congress introduced 13 this, they were dealing with a different type of 14 security interest than the DRM security breaches. So, 15 to what extent -- I guess I'll start with you, Steve, 16 this time. We talked about that a little last time, but 17 to what extent, given the facts that we've seen that 18 this -- this doesn't seem to be what Congress was 19 interested in at the time that it created the 20 exemption? And since -- I think one thing we have to 21 acknowledge here, and that Congress acknowledged in 22 making the rulemaking, was to address things that 0222 1 Congress could not have foreseen in 1998. And one thing 2 that it didn't foresee was the security issues that this 3 country his faced since then and that are significant. 4 And then to -- in the last -- I think after the Sony 5 rootkit situation we saw public statements that were 6 included in the testimony from Homeland Security about 7 the concerns of copyright over -- copyright owners using 8 DRM technology that jeopardizes other security 9 concerns. 10 So, how -- isn't that a relevant 11 consideration, given the changing environment in which 12 we exist now? 13 MR. METALITZ: Yeah. I mean, it certainly is 14 a changing environment. And Congress, looking at this 15 question today, might answer it differently or address 16 different issues than it addressed in 1998. The 17 question is: Did they expect that they would be the 18 ones to look at it, or did they expect by setting up 19 1201 -- that the 1201(a) rulemaking that they were 20 giving you a charter to go into areas that they had 21 already addressed and -- where they tried to strike the 22 balance -- or they struck the balance as they thought it 0223 1 was -- saw fit, requiring a good-faith request for 2 authorization in some cases, obviously not requiring it 3 explicitly in other cases. You know, Congress decided 4 what Congress decided. 5 So, did they expect that you would then go 6 into the field, perhaps, authorize activity that they 7 decided not to authorize, or failed to authorize 8 activity that they thought should be protected? It 9 seems as though the question is: Who -- once Congress 10 has addressed an area in detail -- in some detail, who 11 -- do they then give you the authority to -- or the 12 Librarian the authority to go in and change that? Or 13 was it more the fail safe mechanism where it was areas 14 that they hadn't anticipated? And I think many of the 15 examples that we've given, because they don't fall 16 within a -- or that -- one of the exemptions that 17 you've recognized was they don't fall anywhere near an 18 existing statutory exemption, are obviously something 19 that Congress said, we didn't address this and we want 20 the office and the Librarian to address it if the 21 statutory criteria are met. 22 MR. KASUNIC: But that's where we felt we 0224 1 were in the last -- in 2006, is it wasn't clear to us -- 2 to us -- we felt, if it wasn't clear to us within the 3 office, how could we -- whether this provision addressed 4 that particular type of activity, how could we give 5 anyone -- the only way to provide a bit of security -- 6 not to use -- a bit of understanding of what was 7 addressed was to issue an exemption for something that 8 we -- that was established to be a significant harm. 9 And I think that at least we see that the scope of this 10 is fairly significant, in terms of when it can 11 involve -- with Microsoft putting it on operating 12 systems that can involve a billion users. This is -- 13 this scope is fairly -- 14 MR. METALITZ: But again I think you're 15 looking below the -- you know, you're looking for the 16 iceberg instead of the ice flow here. You had a record 17 there that, in your view -- and I'm not stating a view 18 on it -- but I think you found that there was a serious 19 problem. And I think that comes through very -- and 20 that it was existing right then. And I think that comes 21 through the entire recommendation. And, as I interpret 22 it, I think that meant that you felt that even though 0225 1 the -- under the 2003 standard that you had set, the 2 proponents really hadn't shown that they couldn't bring 3 their activities within the exemption. You were going 4 to go ahead and anyway, because you thought it was 5 consistent with what was in the exemption and go -- in 6 the statutory exemption, and you were going to go ahead 7 and recognize an administrative exemption. 8 Now, leaving aside whether that was the right 9 decision or not, that's not the record we have here. We 10 don't have a record here of people having a rootkit on 11 their computers that opens up a lot of vulnerabilities 12 that you -- and I think you felt were documented in the 13 record. 14 We have here two examples, neither of which 15 have to do with sound recordings, I would point out -- 16 one of which has been -- was fixed, the other of which 17 we have the regime of -- I have to go back and find the 18 page. But we basically have a very noisy class-action 19 litigation pending in State Court in California, a lot 20 of allegations. And Professor Halderman cited every 21 single one of them and said, well, I'm not saying any of 22 this is true. But we have this regime of allegations. 0226 1 I just encourage you not to be stampeded by that. The 2 record here does not show any significant threat. It 3 shows that a few people have made a few allegations. 4 And then we have the issue of what would be necessary to 5 try to dispel it. 6 MR. KASUNIC: Well, I do want to turn it over 7 to Alex and Blake and get some understanding of exactly 8 why should we be secure that -- again -- that this is 9 not going to happen in the future? Is everything now 10 fine? 11 MR. HALDERMAN: I would like to address that 12 point, yes. I think SafeDisc is an interesting 13 situation. This is the dangerous -- the flawed DRM 14 software, that although it -- the -- I should say the 15 DRM software with the security flaw, it may have 16 otherwise been perfectly fine DRM software -- that was 17 distributed on -- to a billion users. The problem in 18 this software was found only after malicious hackers 19 detected it, and discovered it, and started using it to 20 attack people. Only then did the community of security 21 researchers, who are the protective ecosystem for users, 22 learn about the problem and get to develop a fix. 0227 1 And I think it was a similar case with Sony, 2 that the -- with the Sony rootkit, that the problem was 3 -- became something that was widely studied in the 4 research community only after there was a smoking gun, 5 after there was a reason why -- everyone knew the DRM 6 system had a serious problem that needed to be looked 7 at. And the threat of a lawsuit was there -- was thus 8 impractical -- as a practical matter reduced. Because 9 after it was clear to the world that there was a 10 problem, going after people who were volunteering to 11 help would have been unseemly for the vendor, even if 12 the law entitled them to. 13 This form of -- this smoking gun incidences, 14 though, they're both reactive. What we really need is 15 more work being done to proactively secure these 16 systems, to do the type of testing, the type of problem, 17 the type of debugging that the research community does 18 for other kinds of software that is being suppressed by 19 the chilling effects in the DRM. It's like a get out of 20 jail free card for DRM producers, that they're not going 21 to be subjected to the same kind of scrutiny as other 22 software. 0228 1 Blake, do you have anything to add? 2 MR. REID: No, I think that wraps it up. 3 MR. KASUNIC: Should we care -- and I guess I 4 address this, too, to Steve -- that your point was that 5 the problems that have existed have -- they've been 6 solved without too much of a problem occurring. That 7 even though it may have been that initially they -- in 8 some cases these are found only after malicious attacks, 9 which is not necessarily the best way to find things 10 out, but even though that happened they were able to be 11 quickly addressed. Isn't it important, though, that the 12 people who tended to address those and discover the 13 issues are the ones who are seeking the exemption? That 14 it's less often the companies who are deploying, or who 15 are manufacturing these systems who end up solving -- 16 creating the fix to them, than the researchers who are 17 actually finding the flaws that maybe those companies 18 never even understood to begin with. So that don't we 19 as a society want some of this activity going on? 20 MR. METALITZ: Yes, we do want independent 21 research going on. But I wouldn't necessarily buy the 22 premise that there's somehow no incentive for the 0229 1 developer of the DRM, or the company using the DRM to 2 protect its copyrighted works to try to anticipate these 3 problems. I think they have a lot of incentive to do 4 it, and they need only look at the experience of Sony 5 Music and what that company went through over the 6 rootkit issue. It was not a good thing for that 7 company. And I think it is -- presents an abject lesson 8 that they want to try to prevent problems, to scrutinize 9 their vendors more carefully to try to find these 10 problems before they arise and somebody turns them to 11 bad purposes. I think there's lots of incentives to do 12 that. And I actually don't accept the premise that the 13 problems are usually found by independent researchers. 14 We don't know which problems were found before the 15 product was even released and that were fixed before 16 release. 17 But, with that being said, again, look at 18 this in context. And the context is a very robust 19 ecosystem, much more so, I think, than six years ago for 20 identifying problems, bringing them to the attention of 21 developers and getting them fixed. And, again, we have 22 some information about this in our submission. The idea 0230 1 would be, of course, that no flaw would ever be 2 discovered by a bad guy first. That probably is not a 3 reality. It's probably never going to be a reality. 4 And the fact that you have one instance in which the 5 flaw was discovered by a bad guy first, it was then 6 pretty quickly fixed, and at least the two services that 7 were involved in it didn't seem to think it was the 8 worst problem they had ever encountered. I'm not saying 9 it wasn't a problem, because it was. But, you know, it 10 was the second lowest ranking of the -- from the firm 11 that initially brought this to life, their second lowest 12 security ranking. 13 If you look at the -- take the broader 14 picture, look at the broader system, there are problems 15 with software out there, and they are getting found. 16 And I think it's probably no different with DRM. 17 MR. KASUNIC: What would be the harm from -- 18 that you could foresee to -- and I'll address this to 19 both sides -- if there was an exemption, what would -- 20 what has been the harm in terms of, if any that you're 21 aware of, Steve, that's resulted from the last 22 exemption? And what harm would we expect if that was 0231 1 broadened, in terms of the works addressed within the 2 proposed exemption, but limited in the way or maybe 3 further limited in some other ways? 4 MR. CARSON: You want to start, Steve? You 5 can answer first. 6 MR. METALITZ: My impression is, and I'd be 7 -- I would be interested in what Alex and Blake have to 8 say -- is that the exemption you adopted in 2006 has 9 been basically a dead letter, because it only applies to 10 sound recordings. And very few access controls are 11 being applied to sound recordings. Not -- I mean, I 12 think I -- it's obvious one reason why is the Sony Music 13 saga. So, you know, the market does have a way of 14 trying to respond to -- what appear to be catastrophic 15 events. And I think a lot of people have learned some 16 lessons out of this. 17 But I don't think that -- and I'd be 18 interested to know what -- because I thought I heard 19 something a little bit different about the value of the 20 exemption from the proponents. But my impression has 21 been that it hasn't had a lot of significance, because 22 the problem it was aimed at really hasn't -- hadn't -- 0232 1 most of it is prevalent in the next three years. 2 MR. HALDERMAN: You were asking about the 3 harm that would be -- that would be felt if the 4 exemption was granted. 5 MR. KASUNIC: Right. 6 MR. HALDERMAN: I think that that harm would 7 be quite limited, because the language of the exemption 8 is basically following what all of you have set out in 9 the Sound Recording Exemption, and is narrowly tailored 10 to be limited to when circumvention is accomplished 11 solely for the purposes of good-faith testing, 12 investigation or correcting security flaws. So, I think 13 the harm, in terms of increases in infringement, would 14 be minimal. In fact, I think it would do a lot to 15 enable further use of work within the DRM system. 16 Because by finding and correcting flaws in DRM systems, 17 we're going to help to make DRM systems that people can 18 trust, can use without worrying that they are going to 19 cause security harms to their computers. Right now we 20 have this extreme distrust between consumers and certain 21 DRM platforms as epitomized by this SecuROM controversy. 22 What more research, more ability to test and 0233 1 investigate problems in these systems will do is clear 2 the air. It will reduce this distrust and help make 3 security -- help make DRM systems that don't have 4 security problems, and help make people less worried 5 that they do. 6 MR. REID: Yeah, I mean, I think we're 7 extremely sympathetic to what the Joint Commenters have 8 said over the past several days, which is that they 9 think DRM is going to be necessary to enable the 10 business models of the future. And it's certainly not 11 our business to be involved with that. But to the 12 extent that we can help make more secured DRM -- like 13 Alex says, that's going to engender more goodwill with 14 consumers -- I think it's a plus for rights holders to 15 grant this exemption. 16 MR. METALITZ: Rob, I clearly misunderstood 17 your question, and if you would like me to answer -- 18 MR. KASUNIC: Sure. 19 MR. METALITZ: -- the question now. I 20 apologize. I was talking about the last exemption. 21 Our concern about granting this exemption, 22 first of all, it's not going to allow some noninfringing 0234 1 use to be made of works that's not being made now. 2 Because as I pointed out, there's really a disconnect 3 between the exemption and any particular noninfringing 4 use of the work. But our concern would be -- 5 particularly if the broader version is granted -- that 6 it simply opens up a very, very wide field for people to 7 circumvent access controls, not in order to make 8 noninfringing uses, but simply to gain unauthorized 9 access to these materials. Because it almost -- nothing 10 is easier than to say -- for anybody to say, oh, I'm 11 doing this for testing, investigating, or correcting 12 security. Everybody's worried about their computer -- 13 security of their computers. And it would be child's 14 play to say, I'm investigating this security 15 vulnerability, and then proceed to circumvent. That's 16 one reason why we suggested, among the narrowing 17 provisions, was that this ought to apply to only to bona 18 fide researchers that actually -- if it's going to be 19 recognized at all -- it ought only to apply only to bona 20 fide researchers who meet certain credentials. And we 21 also suggest that there should be some effort made to 22 obtain permission before doing it. That it seems to me 0235 1 -- I mean, the scenario that Professor Halderman is 2 talking about, the kind of research that would improve 3 DRM, would take that path. It wouldn't just be -- 4 necessarily be open to anyone who decides that they have 5 a worry about computer security to go ahead and 6 circumvent. 7 I'm also a little skeptical about the rosy 8 scenario that the proponents are putting forward here. 9 They open up their presentation by saying that DRM is 10 inherently risky. It's inherently insecure on the PC 11 platform, and yet they apparently want to overcome that 12 inherent insecurity and build better DRM. I think 13 people would be more ready to accept that, first of all, 14 if any exemption were limited to bona fide researchers. 15 And, second, if the proponents answered the question 16 that I suggested earlier, which was: What do they 17 intend to do with these results? How do they -- if 18 Professor Halderman takes -- carries out his research 19 plan and to the extent that it has to -- that it has to 20 involve circumvention, what's going to -- well, what's 21 his intended use of the results? How would that feed 22 into making more secured DRM that would serve a business 0236 1 purpose, that would fit the business model? 2 MR. KASUNIC: Well, let's go further. I'm 3 not finding the particular part -- did you provide the 4 particular language or how we could determine what would 5 be -- what would -- how would we figure out what a bona 6 fide researcher, or what the scope of that would be? 7 UNIDENTIFIED SPEAKER: Fifty-five 8 submission. 9 MR. KASUNIC: Page 55. Okay. 10 MR. METALITZ: We did not provide specific 11 wording for it, but we did identify several issues that 12 we thought -- where we thought should be narrowed on 13 Page 55. 14 MR. KASUNIC: Okay. Do you want to express 15 that now? What -- how could that -- what would be the 16 scope of that? 17 MR. METALITZ: Well, you -- I mean, you could 18 -- there are some models in the statute, you know, I 19 believe in G about -- for encryption research, and 20 perhaps some language could be adapted to that. But, 21 you know, Professor Halderman is talking about an 22 academic field that has definitions about certain 0237 1 things. And I'm sure we could -- that, if that were the 2 route, you could come up with a meaningful definition 3 that would limit it to bona fide researchers. 4 MR. HALDERMAN: Could I respond to that? 5 MR. KASUNIC: Yeah, please. 6 MR. HALDERMAN: There isn't any credentialing 7 process within even academic computer security. We 8 accept papers published by anyone, if they're 9 interesting, interesting to members of the research 10 community. We often have -- much of the work is 11 conducted by undergraduate and graduate students who 12 obviously have not yet completed an academic degree. 13 And, in the broader security community, even 14 outside of academia, there's a tremendous amount of 15 beneficial work that is done by people who are not even 16 professional scientists or professional computer 17 engineers. Some of the problems with the Sony system 18 were first detected and reported by just amateur 19 investigators on online bulletin boards and were later 20 confirmed and elaborated on and written about by 21 scientists. But the initial that that was founded on 22 was by people who have no -- who are not professionals 0238 1 or experts in any sense. 2 MR. KASUNIC: Well, I'm just trying to figure 3 out how a system could work. Can you understand that, 4 if this is -- if an exemption was stated very generally, 5 that it -- basically anyone could assert -- well, all I 6 was trying to do was research and find problems with 7 it? So, it could be an extremely broad exemption that 8 could be asserted. Is there any way to limit this? 9 And also just in terms of the amateurs who 10 are not in any way accredited or associated with any 11 kind of institutions, is it likely that they will 12 continue doing what they're doing, whether or not 13 there's an exemption in place? 14 So, I -- in that situation with the Sony 15 rootkit, it was put on a bulletin board. That's 16 information that then could and have been -- if there 17 was someone who wasn't in an accredited situation could 18 pick up with that information and then go further with 19 that research without fear of the prohibition. But -- 20 so, is there some way to limit -- that you can think of 21 to limit the scope of who could use this? 22 MR. REID: Well, absolutely. I mean, and I 0239 1 think that's written into the proposed exemptions 2 already, in terms of concern about unauthorized access. 3 It -- I don't think this situation that's described 4 where someone says, oh, I'm just doing security 5 research, I'm really concerned about the security of my 6 computer, and gains some sort of heightened or otherwise 7 contractually unauthorized access to the work. I don't 8 think that falls within the scope of the exemption, 9 because the circumvention needs to have been 10 accomplished solely for the purpose of good-faith 11 testing, investigating, or correcting security flaws. 12 So, I think the second that that 13 circumvention is accomplished for getting heightened 14 access, or getting unauthorized access, someone is 15 outside of the exemption. So, I think that concern for 16 abuse is just unfounded. 17 MR. METALITZ: Well, this is why we suggested 18 that, if there is to be an exemption, it should not only 19 go to the purpose of the circumvention but also the 20 effect of the circumvention. And you have language -- 21 again, we can pillage the statute for this since we're 22 going to piggyback on what Congress already did -- 0240 1 1201(i)(C). The act of circumvention is a sole effect 2 of -- well, this is about, you know, surreptitious 3 information collection, but it's basically the same 4 issue -- and has no other effect on the ability of any 5 person to gain access to any work. 6 So, I think there are ways to draft this to 7 try to minimize the risks. I don't think you would 8 eliminate them. And I also think -- I mean, in terms of 9 this chilling effect, if there is one, I've got to 10 assume that it's felt most strongly by people who 11 actually do have some type of institutional connection, 12 who have lawyers that they can consult and that they 13 don't want to consult and thinks -- think it interferes 14 with their research, and worry about whether they're 15 going to get tenure or not. Those are the people who -- 16 if anybody is chilled, I assume that's who's chilled. 17 And the person in the basement who posts something on a 18 bulletin board probably isn't chilled anyway. 19 MR. KASUNIC: And what about Steve's other 20 point about the limitation as to how any information 21 obtained could be used? I mean, what would be the 22 output of this research and how could that -- how do we 0241 1 deal with that? 2 MR. HALDERMAN: Well, I think you can look to 3 our Sony rootkit research as a model for that. Ed 4 Felten and I, working on the Sony rootkit investigation, 5 discovered a series of additional problems with the 6 system. And we were able to communicate them to the 7 public through blog entries to describe what the risks 8 of the system were. We were able to work with Sony to 9 help them develop and test the fixes for the system. 10 And we eventually published an academic paper that 11 described, both what was wrong with the system in 12 technical terms, and attempted to draw out broader 13 lessons that would help future developers and 14 implementers avoid the same kinds of problems. 15 So, talking about the output, it's on a 16 variety of runs, both within the research community 17 communicating to the public and working with vendors. 18 And what we would write would depend on what we found, 19 of course. But the interesting things to write, the 20 things that are -- the details that we need to 21 communicate as scientists are the the ones that people 22 need to understand, and fix, and reproduce the problems 0242 1 involved. 2 So, does that answer your question? 3 MR. KASUNIC: I think so. I -- does it 4 answer your question? 5 MR. METALITZ: Well, I think, if there's some 6 way to come up with a explanation, or a -- to distill 7 that into language that could be a further limitation on 8 the exemption, it might be worth considering that. I -- 9 again, I would stress it on the credentialing issue. If 10 you look at the people that signed the supplementary 11 submission, it's mostly academics. And they're the ones 12 that are asserting that they are chilled anyway. So, I 13 can't -- I think that would be the focus of it. 14 There are obviously a lot of other things you 15 can do in this exemption to make it clearer. You know, 16 we don't even have a definition of security flaws or 17 vulnerabilities. And I think we raised that point last 18 time. There are a lot of things that could be done to 19 make it clearer and narrower. But I would hope that you 20 would conform it to the scope of the evidence and -- in 21 terms of what actually has been shown about the 22 existence of these -- the need to circumvent in order to 0243 1 conduct this research, and the likelihood that some 2 noninfringing use would be impeded in the next three 3 years if the exemption is not granted. 4 MR. KASUNIC: Well, I think that's another 5 good point. How far do we go with that language of 6 security flaws and vulnerabilities? And one thing 7 question -- a sort of specific question I had is in 8 relation to the FTC event a month or so ago, was that 9 there was a statement -- I think by the same party 10 mentioned before -- having to do with -- that soft -- I 11 think it was software companies or computer gaming 12 companies aren't using DRM anymore, but that there was a 13 new way of, basically, providing an authentication 14 system, which seems to be at least a different form of 15 protection. To what -- does those kind of 16 authentication systems fall within this type of 17 situation for security vulnerabilities or flaws? 18 MR. HALDERMAN: Well, are they DRM? I think 19 they probably fall outside the law's definition. 20 MR. REID: I think you might be talking about 21 the new valve service. And I think that was -- we can 22 get into that the details of that further in a 0244 1 posthearing question -- but I think that service was 2 simply branded as not DRM and some kind of a marketing 3 pitch. But I think the subsequent analysis of what that 4 system looked like, it -- you know, it walks like a duck 5 and quacks like a duck, and that -- I'm pretty sure that 6 that was a DRM system that would fall under this. I 7 think that was just a -- that was some kind of a 8 marketing pitch. 9 MR. KASUNIC: Well, then is there any way to 10 really define the scope of what we're talking about that 11 would be -- that would implicate security flaws, or is 12 this really just doing any kind of checking with these 13 categories of larks that are protected? 14 MR. HALDERMAN: Well, I -- we could try to 15 define security flaws, of course. There are definitions 16 for these things. And I think a reasonable definition 17 of security flaws would -- can probably be found in the 18 statute somewhere, maybe outside of the copyright 19 statutes. 20 MR. REID: Yeah, I think there might be 21 something in maybe the Computer Fraud and Abuse Act or 22 something like that, but we could -- 0245 1 MR. HALDERMAN: Yeah, that might be it. 2 MR. REID: -- look into that after the fact. 3 MR. HALDERMAN: I mean, I think the important 4 thing is to tailor the definition of security flaws to 5 the -- wide enough to cover the kinds of problems that 6 we see in other types of software. And I -- we're not 7 asking to do any extraordinary kinds of testing that 8 aren't done to discover faults in other programs today, 9 we're just asking to be able to do the same kind of 10 investigation on DRM software without having the risk of 11 a lawsuit. 12 MR. REID: And the nature of the secure flaws 13 may not be revealed until the completion of the 14 research. So, we've got kind of an expost -- ex ante 15 problem. You know, if Alex does the research and then 16 suddenly finds that the security flaws that he's 17 discovered fall outside of the -- or fall outside of the 18 definition, and then is he subject to liability? So, to 19 the extent that there's any limitation on that front, I 20 think it needs to address that situation. 21 MR. METALITZ: Rob, I would just suggest that 22 this conversation we've been having the last 15 minutes 0246 1 exemplifies why this is the type of issue that Congress 2 addressed in these exemptions. And Congress may yet 3 choose to address it further. But this falls pretty 4 squarely, I think, in the neighborhood anyway of a lot 5 of these statutory exemptions. And I just would 6 reiterate that the office needs to be extremely 7 cautious, follow the path that it's -- that it followed 8 until 2006. And I believe it was, in my view, bumped 9 off that path because of the various -- what it felt was 10 very strong and compelling evidence of an immediate 11 problem. 12 We don't have that here. And without that I 13 think it's time for the -- I would recommend that the 14 office step back, take another look at this and see 15 where its role ends and that of Congress begins. Where 16 did Congress -- how far did Congress want it to go? 17 MR. HALDERMAN: There is an immediate 18 problem, and that's why I'm here, because we really do 19 feel a chilling effect within the research community. 20 But, if I can point out something that has 21 changed since the DMCA was passed, is that when the DMCA 22 was conceived, we didn't yet have this idea that DRM 0247 1 technologies themselves would pose a -- an elevated 2 security risk. This is something that -- this is an 3 idea that was only really fully formed after we saw what 4 happened with the Sony rootkit. Then people -- security 5 experts started to say, wait a minute, these 6 technologies are doing things that are different from 7 normal application software and they seem to be 8 presenting unusual levels of risk. 9 So, when the DMCA was written, this may not 10 have been a category of security testing that Congress 11 had in mind. So, it's not surprising that the existing 12 exemptions at least do not seem to directly match the 13 structure of the kinds of problems that we've seen. 14 MR. METALITZ: Well, I beg to differ with 15 that. I think you can look no further than 1201(i) to 16 see that Congress was well aware in 1998 that bad things 17 could happen under -- through the use of technological 18 protection measures, in this case surreptitious 19 collection of personal -- personally identifiable 20 information and, so, they provided a remedy for it. 21 Yes, I -- I'm sure they didn't anticipate the Sony 22 rootkit, but I think they did anticipate that there 0248 1 could be problems and that there should be a way to fix 2 them. And I don't think that that's at all excluded in 3 the way 1201(g), 1201(j), and these other exceptions are 4 drafted. 5 MR. CARSON: Okay. Steve, my notes tell me 6 -- and I have a vague recollection at this point -- that 7 toward the end of your opening remarks you said 8 something that -- if my notes are accurate, I didn't 9 follow it, so, maybe you can either tell me whether it's 10 inaccurate -- 11 MR. METALITZ: Yeah, I didn't either. 12 MR. CARSON: Well, I was going to say, it may 13 be too long after you said it for you to be able to 14 explain to me what you meant. Let's give it a try. You 15 said there's a disconnect between the exemption and any 16 noninfringing use of a work. 17 MR. METALITZ: Yes. 18 MR. CARSON: Okay. Can you elaborate? I 19 wasn't sure I was following what you said. 20 MR. METALITZ: This actually goes back to the 21 beginning of my presentation, when I suggested looking 22 at Pages 12 to 13 of -- 0249 1 MR. CARSON: Of ... 2 MR. METALITZ: -- the submission of the 3 proponents here. 4 MR. CARSON: The original proposal? 5 MR. METALITZ: Yeah, the original proposal. 6 MR. CARSON: Okay. 7 MR. METALITZ: In which, of course, they had 8 to identify, what is the infringing -- excuse me -- the 9 noninfringing use that's involved here. And -- thank 10 you. So, we enumerate in this section two noninfringing 11 uses of the proposed classes of works. All right. 12 Adversely effected -- so, one is engaging in good-faith 13 computer security research. 14 Let -- to simplify this, let's just say we're 15 talking about video games, because that's part of the 16 class of works anyway. So, what is the noninfringing 17 use of a video game that is involved in good faith and 18 computer security research? To me there's a disconnect 19 there. And then installing and utilizing the works, 20 clearly people aren't prevented from installing their 21 video games because of the DMCA. So, I'm just not sure 22 what the connection -- again, in the analysis we've been 0250 1 walking through on exemption after exemption, we first 2 look at, what is the noninfringing use that is allegedly 3 impeded? 4 MR. CARSON: Okay. Well, let's take it from 5 Page 12 -- 6 MR. METALITZ: Yes. 7 MR. CARSON: -- or 13, as you referred to. 8 What's described here -- the first thing they describe 9 is engaging in good-faith computer security research. 10 MR. METALITZ: Yes. 11 MR. CARSON: So -- 12 MR. METALITZ: That is a noninfringing use, 13 but it's a noninfringing use -- is it a noninfringing 14 use of any work that's protected by its access control? 15 MR. CARSON: I heard a yes over there. Let's 16 get an explanation. 17 MR. REID: I mean, I'm at a loss to explain 18 how you could perform security research on a TPM 19 surrounding a work without using the work itself. I 20 mean, unless we're coming up with a particularly narrow 21 definition of the word use, that's -- this seems pretty 22 obvious to me. Alex, you want -- 0251 1 MR. HALDERMAN: Yeah, maybe I would need to 2 install the video game on my computer and run the video 3 game, et cetera. And aren't these noninfringing uses 4 that are -- 5 MR. CARSON: Well, that I think that may be 6 to your second your point. 7 MR. HALDERMAN: Okay. I thought that's what 8 you were talking about. 9 MR. CARSON: No. We're talking about the 10 good-faith computer security research. So, I guess the 11 question Steve is posing is, on a close reading of the 12 statute, is your good-faith computer security 13 research -- which may in a vacuum be a noninfringing 14 act -- is it a noninfringing use of a work -- or of the 15 work in question -- or to be more precise -- a 16 noninfringing use of a particular class of works? 17 MR. METALITZ: Well, fall under their 18 particular class. 19 MR. REID: I mean, yes. I mean, we can't 20 very well do computer security research on the product 21 while it's sitting in a box. It needs to be put into 22 the computer. As Alex said, it's going to get installed 0252 1 and used. And I think that's distinct from our second 2 instance of installing and using, where we're talking 3 about users that are chilled because of the security 4 issues on a particular piece of software from using that 5 software. The Joint Commentators have point out in one 6 of their limitations that, in fact, one of the remedies 7 may be to simply delete the software. So, I -- that's 8 the sort of installation use we're talking about in that 9 context. 10 In the security research context we're 11 talking about installation and use that's necessary to 12 perform the security research, so -- 13 MR. CARSON: So, you are -- your position is 14 you are using that work? You're using the particular 15 computer game when you are performing the security 16 research on the DRM that's attached to it? 17 MR. HALDERMAN: Yes. 18 MR. CARSON: Okay. 19 MR. REID: Correct. 20 MR. CARSON: All right. So, you -- 21 MR. METALITZ: No. Well, the question is: 22 Are you doing it when you circumvent that you access 0253 1 control? You get in the door -- 2 MR. REID: Right. 3 MR. METALITZ: -- are you then doing anything 4 inside the house? That's the -- 5 MR. CARSON: When you say "inside the house", 6 what do you mean? 7 MR. METALITZ: Well, you've circumvented the 8 access control. 9 MR. CARSON: Yeah. 10 MR. METALITZ: You've gained unauthorized 11 access. 12 MR. CARSON: Uh-huh. 13 MR. METALITZ: Now what? So, that's the 14 question. 15 And I think the other way to look at it is, 16 is this the kind of use that Congress had in mind when 17 they said, we want the Copyright Office and the Library 18 of Congress to look out to make sure that noninfringing 19 use is being protected? I don't think so. 20 MR. CARSON: Well, one reason we have this 21 rulemaking that Congress wasn't quite sure of what kind 22 of use you had in mind. That's why they left it to us. 0254 1 MR. METALITZ: No, that's true. But usually 2 you would -- I just think this is distinguished from a 3 lot of the other things we've talked about, because it 4 doesn't really -- it seems to me you're getting -- 5 you're breaking the lock, but it doesn't necessarily 6 mean you're doing anything with what lies behind the 7 lock. That's the concern. Maybe that needs to be more 8 clearly defined. 9 As far as installation and use, I think what 10 I just heard is that people are chilled by the DMCA from 11 installing and using the game because there's a 12 prohibition on circumventing the access control. And I 13 just don't think there's any evidence of that. 14 MR. HALDERMAN: Okay. So, may I respond? In 15 terms of -- get back to the question of how -- whether 16 there is noninfringing use involved in the research, I'd 17 like to first refer you to the research plan document 18 that I submitted, which I think details many of the 19 steps that would be involved in actually studying the 20 security questions in a system. 21 But just to give some examples, things that 22 we might need to do to test the system involve -- well, 0255 1 let's say we found a problem like the Sony rootkit, and 2 the -- in that case the fix that -- one of the fixes 3 that we tested and developed involved removing a 4 component of the DRM system, namely the rootkit itself 5 that was causing the harm. It's like cutting out the 6 tumor in the DRM software. And in order to develop and 7 test this fix, we actually had to remove the rootkit, 8 thereby circumventing a part of the DRM, and then use 9 the system to see whether -- to test whether it was then 10 secure. 11 So, if using the system after -- following 12 that circumvention and making -- let's say running the 13 software, making copies in RAM, all of that is not a use 14 of the work, then I guess I don't really understand. 15 MR. METALITZ: But, excuse me, wasn't the 16 work in question there the sound recording? Were you 17 playing the sound recording? 18 MR. HALDERMAN: I think we needed to test 19 whether the disc was still playable. I mean, what good 20 would the fix be if it then rendered the sound recording 21 totally useless? 22 MR. METALITZ: Okay. But, when you're 0256 1 talking about analyzing the code and so forth, that's 2 the software, the DRM itself. And clearly this 3 proceeding is not about noninfringing use of the DRM. 4 MR. HALDERMAN: Well, we're -- 5 MR. KASUNIC: It's about noninfringing use of 6 the work that lies behind the access control. 7 MR. KASUNIC: We're talking about testing, 8 investigating, and correcting problems. And aren't 9 there reproductions and -- made in the course of that 10 testing? 11 MR. HALDERMAN: Things like temporary copies 12 in RAM, yes. 13 MR. KASUNIC: Okay. 14 MR. HALDERMAN: Installing the software onto 15 a -- 16 MR. KASUNIC: That's a use, right? 17 MR. METALITZ: Pardon me? 18 MR. KASUNIC: That's a use and potentially a 19 noninfringing use -- 20 MR. METALITZ: Noninfringing use, yes. 21 MR. KASUNIC: -- if it's for a legitimate 22 purpose. 0257 1 MR. METALITZ: Right. 2 MR. CARSON: Okay. Okay. I assume you've 3 read the analysis we did three years ago, when we 4 recommended the exemption that you asked for. Have you 5 read that recently? 6 MR. REID: It depends on to what extent but, 7 yes, hopefully. 8 MR. CARSON: Okay. Well, you've probably 9 read it more recently than I, because I probably haven't 10 read it in the past three years. But let's go on my 11 recollection, because Steve's characterization -- let's 12 assume for a moment that Steve's characterization of 13 what was going through our minds when we made that 14 recommendation is accurate in the following respect: We 15 had evidence of a real problem, a recent problem that 16 everyone agreed was a big deal, a big problem. We had a 17 situation where we had a statutory exemption that may or 18 may not apply. It wasn't entirely clear. And in the 19 face of all of that we concluded certainly -- because 20 Steve wasn't quite as sophisticated in his arguments 21 three years ago, I have forgotten about them -- we 22 didn't have the benefit of Steve's analysis of what the 0258 1 noninfringing use of a particular class of works was, 2 so, we didn't have to deal with that. So, we -- fine. 3 We've got a noninfringing use. We've got a real 4 problem. We've got a ambiguous statutory exemption that 5 you may even not be able to take care of. We've got 6 something we really need to worry about here. Let's 7 just deal with it, give you a free pass essentially to 8 fix it and there we are. 9 Three years later we're in a situation where 10 the whole point of this rulemaking, as we understand it, 11 is to take a look at the marketplace every three years, 12 see what's going on out there, and deal with what's 13 going on now. It's not our job to legislate. It's not 14 our job to put into place permanent exemptions. It's 15 our job to say, what are the problems we are facing now 16 or that we know with some degree of certainty we're 17 going to be facing in the next three years and let's 18 deal with those. 19 We don't have a record this time I would 20 suggest that's anywhere near like the record we had 21 three years ago. I think we're all grateful for that. 22 The rootkit is quite a few years in the past now. So, 0259 1 we've got two examples you have, one of which I think is 2 a situation where there are allegations. We don't know 3 whether they're accurate. Another is one where there is 4 apparently a problem. But I have to say. Having read 5 the submissions on this particular proposal, I don't 6 have a clue what the facts are. The -- all of the 7 submissions on both sides seem to be incredibly thin, in 8 terms of informing me what the heck it is we're talking 9 about with this -- what is it called secure lock or 10 whatever it is? 11 MR. METALITZ: SafeDisc. 12 MR. CARSON: SafeDisc. I don't have a clue. 13 I had a pretty good clue about the rootkit. I mean, I 14 couldn't have technically explained it at all, but three 15 years ago I understood it was a problem. I understood 16 something about the nature of the problem. I understood 17 the harm. No one has given me a whole lot of 18 information as to what the problem is here, the nature 19 of it, the extent of it. And, while Steve has told us 20 that the problem is solved, I don't quite understand by 21 whom, or how, or under what circumstances. So, I'm at 22 sort of a loss on the record in front of us to evaluate 0260 1 the nature of the harm that we are facing right now. 2 And in evaluating the state of affairs today and the 3 likely estate of affairs in the next three years, I've 4 sort of got to look at what the evidence is in this 5 snapshot we have right now. And this snapshot right now 6 is incredibly blurry to me. So, anyone who can help me 7 I'd be grateful. 8 MR. HALDERMAN: Well, I would be happy to 9 talk about SafeDisc in more detail if you would like. 10 But I'd also like to talk about the other example that 11 we are trying to bring to your attention, that is the 12 SecuROM system, where the facts are blurry. There's a 13 lot of uncertainty. We can't say much to you. And 14 that's precisely because of the problem that we're 15 pointing out, which is the chilling effect that the DMCA 16 is having on security research. 17 So, the -- I would posit that the evidence is 18 there, right in the fact that this is blurry, that we 19 have a problem that needs to be addressed. 20 MR. REID: I mean, I think the other thing to 21 point out is that the rootkit was the first example that 22 you saw, and then you saw SafeDisc, and now we see this 0261 1 blurry situation with SecuROM. Take that, with the 2 assertions that you've had over the past several days, 3 that the use of DRM is absolutely necessary to enable a 4 lot of business models. Is it going to continue 5 extensively? Even in -- we've talked a lot about who -- 6 adobe's poised to add DRM to the FlashPlayer. The use 7 of DRM and the delivery of content is only going to 8 increase. 9 And I think, when you look at that with the 10 idea that DRM is going to have some endemic security 11 issues -- which those researchers pointed out in the 12 letter -- you see a pattern developing. And, so, not 13 only do you have the issue with SecuROM right now, you 14 have an extremely high likelihood that it's going to 15 happen again, and it's going to happen a lot in the next 16 three years. And I think that's important to address as 17 well. 18 MR. CARSON: Well, I guess the pattern I see 19 is, I see the rootkit thing, which is four, five, six 20 years ago. I don't know. And then where does the 21 pattern go after that? Well, we've got SecuROM. We've 22 got SafeDisc where -- which, as I said, are pretty 0262 1 blurry. But I'm trying to find a pattern. Arguably I 2 need to see a little more than one thing that everyone 3 acknowledges was a disaster several years ago. 4 Hypothetically we might have had a record 5 today where everyone who came to us would say, gee, 6 nothing's happened since then, at which point I think it 7 would be very hard for anyone to persuade us we need to 8 do anything. What we have now is something somewhere in 9 between that and another disaster. We've got some 10 allegations of problems, one of which is nothing but 11 allegations. And another one of which is people 12 assuring me there's a problem but not really telling me 13 what the problem was, not giving me any details 14 whatsoever, I think. Now, I -- grant it, there is some 15 footnotes and I didn't follow the footnotes to the 16 source, maybe that lays it out in great detail. But in 17 what was presented to us, all I picked up from it was, 18 hey, there's a problem out there. And all I picked up 19 from Steve was it got fixed. Okay. But I don't know 20 enough to make any evaluation on either -- I can't 21 evaluate your assertion of the problem. I can't 22 evaluate your assertion it was fixed. 0263 1 MR. HALDERMAN: May I gave you more 2 information? 3 MR. CARSON: Yeah, I'd love it. 4 MR. HALDERMAN: Let me tell you some more 5 about the SafeDisc problem. So, the SafeDisc DRM system 6 made use of a component that was distributed with 7 Microsoft Windows. And the purpose of this component 8 was to allow SafeDisc to low level things with the 9 computer hard space that would not be normally permitted 10 by the operating system security model. To deal with -- 11 to -- this was something that the DRM system used in the 12 process of inspecting copies of a game CD to make sure 13 it was original. I believe that was the extent of the 14 purpose of the component. So, it was a DRM function 15 that this was executing. 16 But the way it was implemented had a 17 programing defect where it did not check whether 18 particular input provided to it by this -- the other 19 running software on this system was correct. And, as a 20 result of this, a malicious piece of software -- if it 21 was installed on the system while the -- with the 22 SafeDisc component, could use it to also bypass the 0264 1 operating system security functions, to execute its own 2 program within what we call the ring zero, or the -- you 3 might hear it's called kernel mode in other sources. 4 So, it was very much like -- it was in some 5 ways parallel to the rootkit problem. Someone who 6 already has some access to the computer can use this to 7 bypass the rest of the security system. That was the 8 case with the initial rootkit problems as well. That's 9 why neither of these problems directly allowed remote 10 access to the computer. 11 We later found out that other components of 12 the -- of -- that Sony had used on their CD copy 13 protection did. Specifically their uninstaller programs 14 opened up a backdoor. But the severity of this problem 15 and the severity of the rootkit on a machine-by-machine 16 basis were comparable. And the secure -- the SafeDisc 17 problem affected a much greater number of machines. 18 MR. CARSON: And, in the real world as a 19 practical matter, was that problem exploited; and, if 20 so, in what respect and what were the consequences? 21 MR. HALDERMAN: I must admit that my -- I 22 don't know whether we have a complete record about how 0265 1 it was expolited. I'm not sure that there has ever been 2 anything published about the extent of it. We may never 3 know. But what we do know is that the bad guys found it 4 first and were using it to attack people. And that's 5 how it was initially discovered by the -- by security 6 professionals who were later published about how to fix 7 it. But we know that the bad guys were using it to 8 attack real users. That was the start. 9 MR. METALITZ: David, could I tell you what I 10 know about this -- 11 MR. CARSON: Yes. 12 MR. METALITZ: -- which is a lot less than 13 what Professor Halderman knows, but I did read the 14 bulletins that Microsoft issued about this. They stated 15 that it's a -- it is a -- it's a -- it -- it's a driver 16 that's installed with Windows, but it remains inactive 17 until it's invoked by a game. So you have to be running 18 a game, as Professor Halderman said. It's helping to 19 check the authenticity of the game. There was a 20 vulnerability. It was expolited at least once, because 21 it came to people's attention. It can only be -- it 22 can't be expolited by a remote user. This I think is a 0266 1 big -- as I understand it is a big difference from the 2 rootkit situation. It can -- an attacker must convince 3 a user to run an executable -- or must have valid log on 4 credentials to exploit this vulnerability, according to 5 Microsoft. And, you know, in his submission Professor 6 Halderman refers to this as a fiasco. I think the 7 evidence is that it was a problem that was rather -- 8 that was not discovered until someone had made malicious 9 use of it. I don't know how extensive the malicious use 10 was, but then it was relatively quickly resolved by an 11 update to the the operating system that Microsoft sent 12 out and that they encouraged people to update at their 13 earliest opportunity. It was apparently -- I'm aware of 14 two security firms that were involved with this that, 15 you know, had one of them -- you know, Microsoft and a 16 Danish firm. They have boards where these -- or they 17 have sites where these vulnerabilities are discussed and 18 patches can be distributed. The -- Microsoft said it 19 wasn't an important problem. It was the second -- it 20 was not their highest severity rating, but it was lower 21 than that. I think they have four system. And I think 22 the Danish firm had has a four system, and they gave it 0267 1 a second lowest rating, less critical. 2 I'm not in a position to judge whether those 3 are the right evaluation or not, but the people at -- 4 that are experts identified this problem. I think it's 5 -- I would not characterize it as a fiasco. And I would 6 certainly think it's quite readily differentiated from 7 the rootkit. 8 MR. CARSON: Can anyone tell me whether 9 Microsoft and this Danish firm had to violate Section 10 1201(a)(1) in order to do what they did to fix the 11 problem -- analyze and fix the problem? 12 MR. HALDERMAN: Eventually. Yeah, I honestly 13 can't say, but potentially. 14 MR. CARSON: Well, actually, I mean, you may 15 be the person who's in the best position to help us on 16 this. 17 MR. HALDERMAN: Yeah. 18 MR. CARSON: In order to figure out the 19 problem -- 20 MR. HALDERMAN: Yeah. 21 MR. CARSON: -- and to resolve it, would they 22 necessarily have had to circumvent access controls or 0268 1 would there have been another way to do it? 2 MR. HALDERMAN: I'm trying to think of 3 another way to do it. Well, let me get back to you. 4 MR. CARSON: Okay. Okay. I don't want to 5 put you on the spot. The fact that you had to think 6 about it for a while may tell us something right away. 7 But -- okay. That may be all I've got right now. 8 MR. KASUNIC: May I ask one question? 9 MR. CARSON: Yeah. 10 MR. KASUNIC: What is it about -- this is 11 limited to just DRM or these particular categories that 12 are on personal computers, what is it about the DRM on 13 personal computers that sets it apart from other 14 security issues? 15 MR. HALDERMAN: Well, we have the most 16 evidence that -- of security problems occurring in DRM 17 software on personal computers. So, for one thing we 18 tailored it to attempt to fit the facts. 19 Secondly, the security side effects that DRM 20 has are more pronounced -- are most pronounced when it's 21 implemented on software on personal computers, because 22 that is where these factors that I talked about of 0269 1 complexity, of needing to take on a certain amount of 2 control of the computer, that's where these come into 3 play. 4 If you have DRM that's implemented, say, in a 5 DVD player, then that's not going to implicate the 6 security of your other data, because it's separated from 7 your computer. If you have DRM that's implemented, say, 8 in a Blu-ray drive that is used as a computer 9 peripheral, then the software in the drive is, again, in 10 a certain way isolated from the computer. It can 11 implement protections without having to compete with the 12 user for control and administrative understanding of the 13 operation of the computer. 14 MR. KASUNIC: So, that in some way goes to 15 the depth of the DRM within the computer and the -- 16 MR. HALDERMAN: It -- 17 MR. KASUNIC: -- kernel and -- 18 MR. HALDERMAN: Yes, it goes to the -- it 19 goes to this tension that seems to exist between 20 implementing DRM entirely in software, and having it be 21 strong, and things like the complexity of the system. 22 That implementing -- implementers of DRM entirely in 0270 1 software tend to have to go -- tend to resort to very 2 complex measures. They tend to resort to -- they tend 3 to have to limit the user's ability to understand what's 4 going on in the system, as the rootkit was directly 5 designed to do this. But those things are not 6 necessary, if you're implementing DRM outside of 7 software. So, I don't think there is -- that we know 8 today a reason to conclude that there are endemic 9 security risks to DRM implemented in other forms that is 10 not implemented in software. 11 Now, this may change in the future as we -- 12 if we have the opportunity to study it, but the problem 13 as I see it now is one that is primarily one of DRM 14 software. 15 MR. KASUNIC: And given that depth and 16 complexity within the operating system, then, is that 17 something -- I mean, it seems like it basically can 18 integrate into that other computer -- the operating 19 system in order -- this goes back to that same question, 20 and if you can't answer this now and can answer that 21 when -- getting back to us on it, but to what extent -- 22 and this was an issue with the rootkit, too -- to what 0271 1 extent can the owner of the operating system, like 2 Microsoft in this case, simply create a fix that deletes 3 those particular portions; or to what extent does it -- 4 does this involve some kind of use of the actual work 5 itself? So, if you can -- 6 MR. HALDERMAN: So, the owner of the 7 operating system, Microsoft, could produce a fix and 8 they did produce a fix to the SafeDisc component. But 9 in -- I'm not sure about the exact facts in the SafeDisc 10 case about what they would need to test. But in cases 11 like the Sony incident, they certainly needed to test 12 whether the software was still functional after they 13 deleted the rootkit component. And that would 14 necessarily involve circumventing the DRM themselves. 15 And I think it's likely that they would need 16 to do something similar in the SafeDisc case in order to 17 test the -- whether the fixes they put in place left the 18 games involved in a functioning state, or whether it 19 rendered them unusable. 20 So, the circumvention comes up in various 21 points in the research plan. But the thing where even 22 the operating system vendor, they were just told there 0272 1 was a problem here, they would still need -- they would 2 still have a duty to their customers to test the fix 3 that they were rolling out to make sure that it was 4 functional, to make sure it didn't do more damage than 5 the original bug. 6 And that -- that's a case where, as I talked 7 about in the plan, circumvention may be necessary. 8 MR. CARSON: Ben, any questions? 9 MR. GOLANT: No. I'm good. Thank you. 10 MR. CARSON: Chris? Well, I think for now 11 that does it. Good chance you'll get some follow-up 12 questions from us once we've absorbed all of this. 13 Thank you, very much. And we resume tomorrow 14 morning at 10 again; is that right? 15 MR. GOLANT: That's right. Thank you. 16 MR. METALITZ: It's like getting out early 17 for recess. 18 MR. CARSON: You don't have to come till 19 later. 20 21 (Whereupon, at 4:33 p.m., the hearing was 22 concluded). 0273 1 CERTIFICATE OF COURT REPORTER 2 3 I, Natalia Kornilova, the officer before whom 4 the foregoing hearing was taken, do hereby certify 5 that the witness whose testimony appears in the 6 foregoing pages was recorded by me and thereafter 7 reduced to typewriting under my direction; that said 8 the hearing is a true record of the proceedings; that 9 I am neither counsel for, related to, nor employed by 10 any of the parties hereto, nor financially or 11 otherwise interested in the outcome of this action. 12 13 14 15 16 NATALIA KORNILOVA 17 NOTARY/COURT REPORTER 18 IN AND FOR THE DISTRICT OF COLUMBIA 19 20 21 22