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 6                  LIBRARY OF CONGRESS 
 7                  RULEMAKING HEARING 
 8                     SECTION 1201
 9   
10        
11       Date:              May 6, 2009 
12       Time:              10:06 a.m. 
13       Location:          Library of Congress 
14                          Madison Building 
15                          101 Independence Avenue, S.E. 
16                          Washington, D.C.  20540 
17                            
18                            
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22   
0002
 1                 P R O C E E D I N G S 
 2        MS. PETERS:  Good morning.  I’m Mary Beth Peters, 
 3   the Register of Copyrights, and I would like to welcome 
 4   you to our first hearing in Washington, D.C. with 
 5   respect to Section 1201.   
 6        Last Friday we began our hearings in Palo Alto, 
 7   California.  Hopefully the hearing today will not be as 
 8   long as the hearing last week, which was about 10 
 9   hours.  And, last Friday we addressed some exemptions 
10   that -- proposed exemptions that are the subject of 
11   this rulemaking.  Today we will continue to examine the 
12   proposed exemptions to the Prohibition on 
13   Circumvention, and obviously this hearing is part of 
14   our ongoing tri-annual rulemaking process mandated by 
15   Congress in the Digital Millennium Copyright Act.  I am 
16   sure, if you are here, all of you know that Section 
17   1201(a)(1) provides that the Librarian of Congress may 
18   exempt certain classes of works from the Prohibition 
19   Against Circumvention of Technological Measures That 
20   Control Access to Copyrighted Works.  The exemptions, 
21   if there any, last for three years, and they begin on 
22   October -- or they will -- begin on October 28th of 
0003
 1   2009.  
 2        The purpose of this rulemaking proceeding is to 
 3   determine whether there are any particular classes of 
 4   works as to which uses are, or are likely to be 
 5   adversely affected in their ability to make non-
 6   infringing uses of copyrighted works, if they are 
 7   prohibited from circumventing the technological access 
 8   control measures.  This rulemaking establishes a record 
 9   on which my recommendation to the Librarian will be 
10   based. 
11        After the Copyright Office’s initial notice of 
12   inquiry in this rulemaking published in the Federal 
13   Register on October 6, 2008, the Office received 20 
14   comments proposing exemptions to the Prohibition.  We 
15   received 56 responses to these proposed exemptions, and 
16   obviously everything related to this rulemaking, 
17   including the comments, and shortly thereafter the 
18   record of these proceedings, are available on our 
19   website. 
20        In addition to today’s hearing, there will also be 
21   hearings on tomorrow, Thursday and Friday.  The agenda 
22   for the rest of the hearings is also on our website.  
0004
 1   As I mentioned, we are basically having full 
 2   transcripts of all hearings, and they will, in fact, be 
 3   posted on our website as soon as possible.  
 4        The comments, responsive comments, and hearing 
 5   testimony will form the basis of evidence in this 
 6   rulemaking which, after consultation with the Assistant 
 7   Secretary for Communications and Information of the 
 8   Department of Commerce, will result in my 
 9   recommendation to the Librarian.  As I mentioned, the 
10   Librarian will make a decision by October 28, 2009, on 
11   whether exceptions to the Prohibition Against 
12   Circumvention should be instituted during the next 
13   three-year period, and if exemptions should issue, 
14   which particular classes of work should be exempted.  
15   The format of the hearing will be divided into two 
16   basic parts; first, the witnesses present their 
17   testimony, and those of you who have done this before, 
18   this is your chance to make your case, explaining the 
19   facts, the technology, and making the legal and policy 
20   arguments that support your particular claims, and 
21   whether or not there should be a particular exemption.  
22   The statements of the witnesses will be followed by 
0005
 1   questions by the members of the Copyright Office Panel.  
 2   The Panel, I hope, will ask you tough questions, and in 
 3   an effort to define and refine the issues and the 
 4   evidence presented on both sides.   
 5        This is an ongoing proceeding.  No decisions have 
 6   been made as to any critical issues.  In an effort to 
 7   obtain relevant evidence, and to have as much evidence 
 8   and help as we possibly can, we do reserve the right to 
 9   ask questions in writing of any participants in these 
10   proceedings, and when we ask those questions and we get 
11   your answers, those are also posted on the website. 
12        So, let me start by introducing -- you know all of 
13   us -- the Copyright Office members of this rulemaking 
14   process.  To my immediate right is David Carson, 
15   General Counsel of the Copyright Office.  To my 
16   immediate left is Rob Kasunic, Principal Legal Advisor 
17   and Assistant Counsel, in the Office of the General 
18   Counsel.  To Rob’s left is Ben Golant, also a Principal 
19   Legal Advisor and Assistant General Counsel, in the 
20   Office of the General Counsel.  And, to David’s right 
21   is Chris Weston, an Attorney Advisor, in the Office of 
22   the General Counsel. 
0006
 1        So, let us begin.  Are you all ready?  Who is 
 2   going first? 
 3        UNIDENTIFIED MALE:  Chris. 
 4        MS. PETERS:  Chris.  Okay. 
 5        MR. SOGHOIAN:  It was stated that this is a 
 6   hypothetical scenario, because in the instances we have 
 7   seen so far, all of the firms that have gone under have 
 8   either given refunds or provided an alternative means 
 9   of access to consumers, and I’ll get into that in a 
10   minute. 
11        One of the first issues that was brought up in the 
12   response comments as well, you know, this -- the fact 
13   that services can go down, this isn’t such a bad thing 
14   for rental markets, and I want to first clarify that we 
15   don’t care about rentals.  We are only concerned about 
16   purchased works.  When you rent a movie, you know, you 
17   only get it for a few days.  So, if a year later the 
18   service goes down, you know, it’s not a problem.  We 
19   are only focused on media stores where consumers 
20   purchase the work with the expectation that they will 
21   be able to keep using that in the future, so I just 
22   want to take the issue of rental; anything but 
0007
 1   purchases is off the table. 
 2         All right.  So we have this general idea of a 
 3   store.  All right.  So consumers go on-line; they buy a 
 4   work; the work is advertised as purchased music.  It’s 
 5   not advertised as a lease; you know, it’s not, you can 
 6   listen to this work for the next two years and then it 
 7   may disappear; it’s, you know, go on-line,  you can buy 
 8   this movie, you can buy this song.  In many cases, 
 9   these stores require that users check in with a server 
10   whenever they transfer to a new device or they 
11   reinstall their computer after they get a virus or 
12   infection of some kind, or the battery on their iPod 
13   fails.  In some cases, like the Google video stores, 
14   consumers actually have to check in every single time 
15   they played the movie, which meant that the moment the 
16   video store went down finally, all works ceased to 
17   function.  So, I mean, that’s sort of the general 
18   category of media store that we are looking at.  So, we 
19   have seen multiple failures -- I think maybe four or 
20   five different failures over the last three years -- so 
21   we have definitely had Microsoft; we’ve had Yahoo; had 
22   Wal-Mart -- there may be one or two more that I am not 
0008
 1   thinking of off the top of my head -- and, in each of 
 2   these instances, the service has initially said, sorry 
 3   we are going to be going down, or we may be shutting 
 4   our service; this is not profitable anymore.  In the 
 5   case of Yahoo, they said, we are switching completely 
 6   to MP3, so they decided that DRM was not the 
 7   appropriate solution for the market anymore.  We are 
 8   switching to MP3.  We are going to be turning off our 
 9   authentication service.  So, you know, they gave 
10   consumers, you know, a few months, and then what 
11   happened was that there was a huge outcry.  Consumers 
12   said, no, you know, this is not appropriate; that we 
13   are going to be cut off from works that we paid for.  
14   And, in these instances, these very, very large 
15   companies with huge pockets because of other more 
16   profitable businesses were able to subsidize remedy for 
17   those consumers.  So, in some cases, consumers were 
18   given refunds.  Initially, Google offered consumers I 
19   think a $10 coupon off of the Google checkout on a 
20   future purchase, and this was such an insult that 
21   Google immediately said, no, no, no, sorry.  We are 
22   going to give full refunds, and then something else.  
0009
 1   But -- and I think Wal-Mart didn’t give refunds, but 
 2   they extended the life of their servers, and at some 
 3   point they could, you know, decide to turn them off 
 4   again -- but, in all the instances, we have seen 
 5   services provide some remedy, but that was only because 
 6   these were multi-billion dollar companies, and there 
 7   are smaller fish in the DRM market, who wouldn’t have 
 8   the means to provide a remedy to the consumers in the 
 9   event that they failed.  You know they -- you know, VC 
10   funded companies.  They burned through all their 
11   venture capital, and then the have no money left.  They 
12   decide just to turn the service off, you know, that’s 
13   it.  There is no -- you know, there is no magic bank 
14   account that they can tap to then provide refunds to 
15   consumers.  So, you know, the first point that I would 
16   like to make about this situation is that this is not a 
17   theoretical harm.  Companies have gone under, or 
18   companies have shut out their services, and the only 
19   thing that has been the issue is that these have been 
20   rich companies, but this is a very real harm, and, in 
21   the future, we are likely to see other services fail, 
22   or other services shudder, because, you know, at least 
0010
 1   in the music realm there is finally recognition that 
 2   DRM is not something that consumers want.  Now, the 
 3   stores seem to be pushing this in video and in TV 
 4   shows, and in games, and in books, and these other 
 5   media services that at least, in music, they seem to be 
 6   moving away from DRM.  You know, another thing to 
 7   mention is, you know, the economy isn’t very good right 
 8   now, and so any part of a business that is not, you 
 9   know, pulling its weight, that’s going to be shut down.  
10   And so, we are definitely likely to see more services 
11   shudder in the next three years. So, this is not a 
12   theoretical harm; this is a real harm. 
13        The next point I would like to make is that 
14   consumers are not able to predict that services are 
15   going to fail, right?  Consumers can’t predict that 
16   banks fail, which is the very reason we have the FDIC, 
17   right?  Consumers are protected from the failure of 
18   services, and you know, nowhere else in the IP world do 
19   we see a business go under and consumers lose access to 
20   their works, right?  When Sony finally lost the 
21   Betamax/VHS war, the Betamax tapes in people’s houses 
22   didn’t miraculously stop working one day, right?  You 
0011
 1   could keep -- as long as that player worked, you could 
 2   keep using -- playing those tapes that you had 
 3   purchased, and even if your player had stopped working, 
 4   you could go, you know, onto EBay and buy another 
 5   player, a used one, and keep playing those works.  This 
 6   is the first sort of instance we have had where the 
 7   merchant can sort of reach into the home and disable 
 8   service, disable access to works that people have 
 9   already paid real money for.  Now, it was mentioned in 
10   the Reply Comments that while, you know, it says in the 
11   Terms of Service that the services could go under, or 
12   the services can change, or they can decide to not 
13   offer the authentication servers anymore, and it’s 
14   true; you know, and I-2 -- in the 22 pages of the   
15   I-Tunes Terms of Service, there is a paragraph in there 
16   that states that the services can stop working; but, 
17   you know, I would argue that most consumers don’t read 
18   those Terms of Service; I would argue that most 
19   consumers are not capable of reading those Terms of 
20   Service and understanding the text in there.  It’s not 
21   in clear English; it’s in legalese.  There have been 
22   studies by academics that showed, you know, if 
0012
 1   consumers had to read every privacy policy of every 
 2   website they interacted with, they would -- you know, 
 3   it would take years of their time.  And so, you know, I 
 4   don’t think most consumers read the ITunes Terms of 
 5   Service before they go on-line and buy a song, and I 
 6   think so, to many of them, it’s a surprise that these 
 7   works that they have purchased can miraculously 
 8   disappear. 
 9        So, people expect to be able to listen to the 
10   works that they have paid for, for years and years and 
11   years.  My father is a jazz musician.  He listens to 
12   records, vinyl records from the 1940s and 1950s.  You 
13   know, when his record player poops out, he goes out and 
14   buys a new needle, but the discs keep on working -- you 
15   know, they are a little bit scratchy -- and he is able 
16   to go onto the Internet and buy, you know, used vinyl  
17   -- vinyl records.  You know, people -- consumers expect 
18   to be able to listen to their works for, you know, 
19   decades, not, not -- you know, not ten years, or five 
20   years, or two years.  There was a statement made a few 
21   weeks ago, at a Federal Trade Commission hearing on 
22   DRM, where a woman who had played a key role in shaping 
0013
 1   the MCA had said that, you know, if the consumer goes 
 2   out and buys a copy of the Bambi movie, they don’t 
 3   expect to be able to listen to -- to watch that in five 
 4   years, and I would argue that it’s false.  Consumers 
 5   have an expectation that they will be able to keep 
 6   watching the works that they have paid for. 
 7        One of the other points I would like to make is 
 8   that, you know, let’s look at a hypothetical issue.  
 9   So, a consumer builds up a catalog of lawfully-
10   purchased works; they go out and they spend real money, 
11   to build up this catalog, and then one day the service 
12   decides to shut.  They are given two months’ notice, 
13   and they say, okay, you know, in two months you lose 
14   access to your works.  So, the business is not in the 
15   position to be able to offer refunds, so the consumer 
16   loses access to their works.  Now, what are they going 
17   to do?  They have already paid all this money.  They 
18   could go out and buy the same works again, but what is 
19   more likely going to happen is that that consumer is 
20   going to be driven to piracy.  Those works are all 
21   available on-line for free in the underground, and I 
22   would argue that by shuddering these services and 
0014
 1   denying consumers the ability to keep accessing works 
 2   they have paid for, we are going to be making life so 
 3   difficult that we are going to be pushing these 
 4   consumers in a direction that we really shouldn’t be 
 5   pushing them.  You know these are -- we are not talking 
 6   about making life easier for pirates, because people 
 7   who want to pirate can already go on-line and download 
 8   those works for free anyway; we are talking about 
 9   making life easier for people who buy works.  These are 
10   the people we are supposed to be encouraging to 
11   purchase, right?  These are the people who should have 
12   faith in the system, and by taking the works away from 
13   them, we are going to make them lose respect for the 
14   system. 
15        So, I mean, one of the points that has been raised 
16   in criticizing this is that this could lead to piracy; 
17   that this exemption could make it easier for people to 
18   pirate works, and I would like to that that’s not the 
19   case; that if you want to pirate, there are way easier 
20   means to obtain unauthorized copies.  No one is going 
21   to go through the effort of sharing a DRM-encumbered 
22   file, downloading that file from peer-to-peer network 
0015
 1   or the friend, and then going out and finding some tool 
 2   to strip the DRM, and then stripping that DRM off.  
 3   They are just going to go straight to the Internet and 
 4   download the DRM-free version that is available 
 5   everywhere.  This is not at all about making life 
 6   easier for pirates; there are already means for them to 
 7   do it. 
 8        There is one last point I would like to make about 
 9   the first exemption request.  There seems to be a bit 
10   of an elephant in the room with regards to some of the 
11   issues that I have seen in the exemption process, and I 
12   think that relates closely to our exemption, but 
13   relates to some of the others, which is that we sort of 
14   pretend that people don’t use tools.  I listened to 
15   some of the MP3s of Friday’s session on the plane 
16   yesterday, and I thought it was really funny that 
17   people kept saying, you know, how would you -- how 
18   would -- if you are a professor, how would you make a 
19   clip of a movie?  So well, hypothetically speaking, you 
20   know, we would do this, right?  And everyone knows that 
21   there are tools out there, right?  And, there is -- 
22   there is this sort of missing piece in copyright policy 
0016
 1   in America today that we don’t like to talk about, and 
 2   that’s the French, right?  So, if you are a film 
 3   studies professor, and you want to make a clip of a 
 4   film, what do you do?  You go to a French website and 
 5   download Handbreak, which is the most popular McIntosh 
 6   DVD ripping tool -- you download Handbreak; you make 
 7   your 20-second clip; and then you use that in your 
 8   class, right?  So, there are no film studies -- or, I 
 9   would argue that there are less than five film studies 
10   professors in this country, who have the cryptographic 
11   skills necessary to break CSS by themselves.  I would 
12   probably argue that it’s less than two.  They all use 
13   tools, the same way that, you know, if people want to 
14   do the regional unlocking themselves, they are not 
15   going to, you know, circumvent the DRM on the firm 
16   themselves; they are not going to reverse engineer it; 
17   they are going to go and download the tool.  And I 
18   realize that DMCA does not give, you know, you the 
19   power to allow people to use tools, but I think we 
20   should at least recognize that tools do play a very 
21   real part in the process, right?  We cannot expect 
22   consumers to circumvent DRM themselves.  These tools 
0017
 1   will always exist, and right now the tools are made; 
 2   they just happen to be illegal.  And so, you know, this 
 3   is  not -- nothing in this process, whether you make 
 4   the exemptions or  not, is going to either increase or 
 5   decrease the likelihood that tools are going to be 
 6   available.    Handbreak was available long before the 
 7   exemption for film studies professors was created.  You 
 8   know, DeCSS was available long before anything was 
 9   discussed.  Those tools are there; they just happened 
10   to be released outside U.S. borders, and what this 
11   process does, it doesn’t legitimize the tools, what it 
12   does is allows lawful use -- I mean, it allows people 
13   to circumvent the encryption without sort of being in 
14   the shadow of the underworld.  And so, in that same 
15   situation in our exemption request, you know, we should 
16   recognize that there are going to be tools, because we 
17   cannot expect consumers to circumvent this stuff 
18   themselves.  They are not -- you know, very, very few 
19   people have this capacity, which is sort of leading me 
20   into my researcher exemption, which is that we need to 
21   provide the ability for researchers to collect the 
22   information necessary to make these tools.  And, you 
0018
 1   know, the DRM that surrounds these authentication 
 2   server-based systems is unique, in that once it gets 
 3   turned off, the information necessary to circumvent the 
 4   DRM disappears, all right?  So, once Apple turns off 
 5   their servers, researchers lose the information 
 6   necessary to tell people how to circumvent the DRM, 
 7   right?   
 8        So, if you buy a DVD today, even though -- let’s 
 9   just pretend that DeCSS has never been released -- you 
10   could potentially reverse-engineer the DVD, even if all 
11   the companies producing it have gone bankrupt.  You 
12   experiment with it.  You see what signals are getting 
13   sent back and forth between your player and the DVD.  
14   You can reverse engineer it.  But, once that 
15   authentication server has been turned off, you lose 
16   access to the basic information that will tell you 
17   what’s happening, because there are signals there, the 
18   unlock code, the message that says it’s okay to play 
19   that song today, or it’s okay to play that movie, those 
20   are no longer being sent, you know?  It’s sort of like 
21   Ali Babba and the 40 thieves, right?  If all the 40 
22   thieves had disappeared, Ali Babba wouldn’t be able to 
0019
 1   them saying Open Sesame, right?  You need to be able to 
 2   overhear that message at least once, to figure out 
 3   what’s happening, and once those services have been 
 4   turned off, we lose the ability to do that.  So, you 
 5   know, while we really would like our first exemption to 
 6   be given, without the second it loses much of its 
 7   power, in that it is far less likely that even if 
 8   people have the ability, the lawful ability to 
 9   circumvent the DRM after the service fails, if they are 
10   not able to gather the information necessary ahead of 
11   time, there is not going to be much they can do.  I 
12   mean, it might be possible to circumvent the DRM, but 
13   it’s going to be exceedingly difficult, far more than 
14   if the information was available ahead of time.  So, I 
15   would like to stress the importance of providing this 
16   exemption to good-faith researchers. 
17        Okay.  So, I think that’s everything I wanted to 
18   cover for now, and hopefully we can get into some more 
19   in the questions 
20        MS. PETERS:  Thank you. 
21        MR. SOGHOIAN:  Mmm-hmm (in the affirmative). 
22        MS. PETERS:  Thank you.  Sandra? 
0020
 1        MS. AISTERS:  Do you want to start, Steve, because 
 2   I think mine has just more technical -- 
 3        MS. PETERS:  Oh, okay.  Steve. 
 4        MR. METALITZ:  Thank you, very much.  And, I 
 5   appreciate the chance to be back here and talking about 
 6   these two exemptions. 
 7        Well, Mr. Soghoian has made an ingenious argument 
 8   here, and I am glad he has the chance to develop it at 
 9   a little more length.  There are only four main things 
10   wrong with his argument, with regard to exemption 
11   10(a).  There are some other problems with regard to 
12   exemption 10(b); the research exemption. 
13        Under the ground rules for this proceeding, as set 
14   by Congress, and as this, the Office, has developed 
15   them over the last decade, the burden of persuasion, of 
16   course, is on the proponent of an exemption to the 
17   Prohibition on Circumventing Access Controls, and I 
18   don’t think that Mr. Soghoian, in his submission, or in 
19   his testimony today has carried that burden.  He has 
20   sketched out a scenario, but he hasn’t shown any 
21   evidence that it has happened, or that it is happening.  
22   He -- and of course those are the tests that the 
0021
 1   statute requires, which is whether people are being 
 2   impeded in their ability to use non-infringing works, 
 3   as a result of the Prohibition, in Section 1201(a).  
 4   Nor, has he shown that it is likely to happen in the 
 5   next three years; nor has he shown that if it did 
 6   happen, it would have any cognizable impact on the 
 7   ability of people to make non-infringing uses; nor, if 
 8   there were such a cognizable impact, he hasn’t shown 
 9   that there would not be lots of alternatives available, 
10   lots of ways that people could make exactly the same 
11   use of exactly the same works, without circumventing 
12   access controls.   
13        Now, our arguments in support of this are all 
14   spelled out in our submission that we made, but let me 
15   -- I will go through that briefly.  I do want to say 
16   that the type of technology we are talking about here 
17   through the use of authentication servers is really a 
18   prime example of the sort of access control that 
19   Congress was thinking of when it adopted the DMCA, and 
20   we know that from the legislative history, which talks 
21   about use-facilitating access controls, and this is, as 
22   Sandra Aistars will demonstrate and talk about a little 
0022
 1   bit more in just a minute, this is a prime example of 
 2   use-facilitating access controls; it provides a kind of 
 3   flexibility and responsiveness to consumer concerns, or 
 4   to market forces, that is really quite unique when you 
 5   compare it, for example, with other types of access 
 6   controls, like the CSS that we have been talking about 
 7   on DVDs.  So, it enables companies to respond to the 
 8   marketplace, to give people a greater flexibility in 
 9   how they use the materials that they have gained lawful 
10   access to, and that’s really been -- I think the record 
11   is replete with examples of that, not -- perhaps not as 
12   much on -- with regard to this exception, but elsewhere 
13   in the record, to show that these use-facilitating 
14   access controls that are enabled through authentication 
15   servers, have been employed to give consumers greater 
16   flexibility and more ability to make non-infringing 
17   uses.  So, I think one thing that the Office has to be 
18   concerned about here, as a policy matter, is what would 
19   be the signal sent by allowing an exemption, or 
20   approving, or recommending an exemption, to allow or to 
21   facilitate circumvention of these use-facilitating 
22   access controls; and, in particular, the question of 
0023
 1   whether you would basically be telling companies that, 
 2   if you get into this market, you have no exit strategy; 
 3   you are not allowed to get out of this market, or if 
 4   you do, you will be subject to people hacking through 
 5   your circumvention.   
 6        Now, 10(b) raises some other questions, which I’ll 
 7   get to in a minute, but let me just talk a little bit 
 8   about 10(a).  Of course, some services using 
 9   authentication servers have closed down, or have 
10   changed their policies, or have -- I think Mr. Soghoian 
11   has narrated well, you know, what is happening in these 
12   cases -- but, I think when you look at all of them, 
13   what has happened is that consumers have retained 
14   access to the material that they purchased access to, 
15   or that they licensed access to, and when they haven’t, 
16   there have been plenty of alternatives made available 
17   to them; whether through refunds; through the ability 
18   to burn copies to other media; or other types of 
19   alternatives, so the scenario of -- of consumers being 
20   stranded really has not occurred.  There is nothing in 
21   the record to indicate that it has ever occurred.  Mr. 
22   Soghoian says that will occur with -- he is confident 
0024
 1   that will occur in the next three years when the 
 2   smaller fish get into this circumstance.  The problem 
 3   is that, in this proceeding, he can’t just refer the 
 4   smaller fish.  He’d better catch one and bring it to 
 5   you in the net, and show you that this either has 
 6   happened, or demonstrate that it is more likely than 
 7   not to happen in the next three years, and I don’t 
 8   think he has met either of those -- of those tests. 
 9        So, we don’t, it seems to me, have evidence, 
10   persuasive evidence, that people are or are likely to 
11   be impeded in their non-infringing uses as a result of 
12   this scenario.  Now, if this scenario did occur, would 
13   it -- what impact would it have on non-infringing use?  
14   I think there are two answers to that; one more legal 
15   in character, and one perhaps more practical in 
16   character.  On the legal side, I think it is a fact 
17   that, in virtually every case, the terms of service 
18   under which consumers have gained access to this 
19   material contemplate the possibility that the service 
20   might not last forever.  They are not signing up to be 
21   buried in the Pyramids at Giza (ph), where something is 
22   going to -- they could be counting on being there 5,000 
0025
 1   years from now -- they are signing up for a service in 
 2   a rather volatile marketplace, one marked by a lot of 
 3   experimentation and change, often change that 
 4   increases, I would say, their ability to access, make 
 5   use of, and disseminate the material that they are 
 6   obtaining access to, but also the possibility that the 
 7   service might not continue.  So, the limits of what use 
 8   they have that -- what uses they are making that are 
 9   not non-infringing are defined by that license; that 
10   license spells out what uses are authorized and what 
11   uses are not authorized. So, if, in a situation where 
12   the consumer has entered into that license agreement 
13   that provides for, or contemplates termination of the 
14   service, if the service were to in fact terminate, that 
15   wouldn’t be -- have any impact on non-infringing use.  
16   Now, Mr. Soghoian raises, and quite properly so, issues 
17   about whether consumers read the contracts; can they be 
18   expected to read these license agreements; what are 
19   there expectations; and those are all, I think, 
20   completely legitimate issues.  They are not issues 
21   relevant to this proceeding.  Those issues are relevant 
22   in the buildings eight blocks from here, at 600 
0026
 1   Pennsylvania Avenue, at the Federal Trade Commission, 
 2   which is looking at this issue, and we know that from 
 3   the Town Hall meeting that he and I participated in, 
 4   and that Rob Kasunic participated in, that the Federal 
 5   Trade Commission is looking at issues, like consumer 
 6   expectation and disclosures, and whether, you know, 
 7   whether disclosures, in the terms of service, are 
 8   adequate, and the use of certain terminology, and so 
 9   forth, and I don’t question the legitimacy of those 
10   issues, but they really don’t have anything to do with 
11   this proceeding.  This proceeding is about access for 
12   non-infringing -- for non-infringing use, and as a 
13   legal matter, in these circumstances, once the service 
14   is terminated, the further use is not non-infringing.   
15        Now, let’s turn more to the practical side of 
16   this, and not the legal side, and that really has to do 
17   with what has happened, and what is likely to happen 
18   when a service like this, like one of these services 
19   decides to shut down, and, as I said, there is -- that 
20   has -- there have been shut-downs, and there 
21   undoubtedly will be shut-downs in the future.  But, the 
22   record so far is that many alternatives are made 
0027
 1   available; whether they are alternatives that involve 
 2   the ability to port the work from the server -- from 
 3   the system, in which authentication is required, into a 
 4   medium, such as a CD, on which authentication is not 
 5   required; that’s one example.  I should say that for 
 6   most of these services -- I won’t say all of them -- I 
 7   think Google video might be the only exception to this, 
 8   as Mr. Soghoian describes it, but for most of these 
 9   services, if you are going to continue to access the 
10   material on a piece of equipment, or on a platform that 
11   has already been registered with the authentication 
12   server, there may be absolutely no impact whatsoever.  
13   You can continue to access it, because authentication 
14   is generally only required when there is a change in 
15   the equipment; change in an operating system, or other 
16   -- or to register or authenticate a new piece of 
17   equipment, and so forth.  So, in many cases, -- I won’t 
18   say all -- but, in many cases, people will be able to 
19   continue to make the same uses that they have made in 
20   the past, even if the server is not continuing to 
21   authenticate.  But, in those cases where they can’t 
22   continue to make those uses, I think the record has 
0028
 1   shown that they are offered plenty of other 
 2   opportunities, some of them subsidized by the -- by the 
 3   -- in the past, have been subsidized by the operator of 
 4   the service; some perhaps not.  And again, I think from 
 5   the standpoint of this proceeding, that’s probably a 
 6   distinction without a difference.  The question that 
 7   this proceeding asks is, do they find -- do they have 
 8   no alternative way of making non-infringing uses of 
 9   these materials; and the answer is clearly, no, they do 
10   -- or rather, no, they don’t have any -- they are not 
11   blocked from doing that; yes, they do have many 
12   alternative ways.  For example, I don’t think Mr. 
13   Soghoian has cited a case of a single title that is 
14   available only through a single authentication server 
15   system; and if that’s the case, then any title that 
16   someone accessed through an authentication -- through a 
17   system backed by authentication servers that stopped 
18   operating, they would have other ways of finding that 
19   in the marketplace, through other systems, through 
20   other services, or by the great old-fashioned method 
21   that, you know, his father uses, and a lot of people 
22   use; you can go out and buy a copy of it, a hard copy, 
0029
 1   in a store or on the Internet, and, in many cases, 
 2   that’s going to be a higher quality copy than you are 
 3   getting from the on-line service anyway.  But, 
 4   regardless of whether it’s a higher quality copy or 
 5   not, there certainly are plenty of ways to continue to 
 6   make the non-infringing use that you were making 
 7   before, of listening to or enjoying the product without 
 8   having to resort to circumvention.  Again, issues such 
 9   as whether you have to pay for this or not are 
10   legitimate issues; legitimate issues at 600 
11   Pennsylvania Avenue, not really issues here, where the 
12   precedent is quite is clear; the fact that there might 
13   be some charge incurred, which has not happened, I 
14   would point out, in any of the previous examples, but 
15   even if it were to happen, that would not make -- 
16   really make a difference, in terms of meeting the 
17   burden in this proceeding, to establish this exemption. 
18        Let me just talk briefly about 10(b), the proposal 
19   for, as I would call it, anticipatory circumvention.  I 
20   think this would convey to companies that are thinking 
21   about entering into this business, thinking about 
22   experimenting with this new method of delivering 
0030
 1   product to consumers, it would tell them your service 
 2   is legally hackable from day one; anybody who wants to, 
 3   because Mr. Soghoian’s submission rejects the idea that 
 4   there would be any qualifications, or certification, or 
 5   credentialing involved here, anybody who wants to can 
 6   circumvent them against the possibility that some day 
 7   in the future, you are going -- the service is going to 
 8   end.  And, it’s also very clear, both from his 
 9   submission and from his testimony today, that the 
10   purpose for this is to make tools that violate Section 
11   1201(a)(2); in other words, to make circumvention 
12   tools, or prepare to offer circumvention services that 
13   are in violation of the law.  Now, he is absolutely 
14   correct, at one level; that nothing that’s done in this 
15   proceeding has any impact on the availability of tools; 
16   and again, at one level, that is correct, because this 
17   proceeding is only limited to Section 1201(a); the act 
18   of circumvention.  So, granting an exemption or not 
19   granting an exemption doesn’t change the legal status 
20   of any tool that is developed.  And, if the tool is 
21   developed for the purpose of circumventing an access 
22   control that is used by copyright owners, and if it 
0031
 1   meets the criteria in the statute, and without going 
 2   into all of those, then it’s illegal to manufacture, 
 3   and it’s illegal to traffic in it, and so forth.  So, 
 4   again, he is correct that this proceeding doesn’t 
 5   change that one way or another, but it strikes me as it 
 6   would be an odd use of this proceeding, and probably 
 7   one that Congress did not intend, if an exemption were 
 8   granted for the rather explicit purpose of allowing 
 9   people to do the work necessary to develop and prepare 
10   to distribute tools that violate Section 1201(a)(2). 
11        Finally, on the 1201 -- on the 10(b) matter, it 
12   wasn’t clear to me from the submission, and I think 
13   it’s less clear to me now, what case he has made that 
14   circumvention is actually required, in order to study, 
15   test and document, which is what -- the verbs that he 
16   uses in his submission -- study, test and document the 
17   DRM systems that are involved here.  I think he says 
18   that it may be necessary.  I believe that he said today 
19   that you can reverse engineer these -- if 
20   authentication servers are operating now, you can 
21   reverse engineer it by observing the signals that are 
22   transmitted back and forth, and apparently can do that 
0032
 1   without circumvention, and you wouldn’t be able to do 
 2   that if the server had turned off, but I didn’t really 
 3   hear any clear explanation of why circumvention is even 
 4   needed to do this for a functioning server.  But, I 
 5   think that’s almost a footnote to the larger problem 
 6   that we would have with 10(b), which is that it’s an 
 7   anticipatory circumvention exemption that’s being 
 8   proposed explicitly for the purpose of developing 
 9   illegal circumvention -- illegal circumvention tools, 
10   and it would be open to anybody, so I think beyond the 
11   four basic reasons that I talked about with regard to 
12   10(a), I think that there are a lot of other issues 
13   regarding 10(b) that would argue against recognizing 
14   that exemption. 
15        So, I’ll conclude my remarks at that point, and 
16   turn the microphone over to Sandra Aistars. 
17        MS. AISTARS:  Okay. Thank you.  I’ll not repeat 
18   the points that Steve has made, but note that Time 
19   Warner agrees with those comments, and agrees with the 
20   legal analysis that Steve has put forth.   
21        What I would like to do is speak a little bit 
22   about our practical experiences using these sorts of 
0033
 1   technologies, and give a sense of where we use them, 
 2   and the sorts of benefits that they do offer consumers.  
 3   And, I would like to start by noting that although Mr. 
 4   Soghoian notes that his main concern is perhaps the 
 5   smaller fish, or however it was termed -- I don’t know 
 6   if that was yours or Steve’s note -- but, if that’s the 
 7   primary focus, unfortunately, the sorts of exemptions 
 8   that have been proposed would, in fact, harm all of the 
 9   players in the eco system, and would, in my experience, 
10   and in my view, looking at the sorts of services that 
11   we offer, harm consumers, in terms of the types of 
12   access to works and functionalities that consumers have 
13   been indicating that they would like.  It would, you 
14   know, harm their ability to continue having such 
15   access. 
16        As we noted in our written testimony, we believe 
17   that the use of authenticating servers to deliver new 
18   and more flexible means of experience our copyrighted 
19   works to consumers is precisely the sort of practice 
20   that Congress intended, in enacting the DMCA, and, as I 
21   said, we believe there would be a far-reaching negative 
22   effect on our ability to deliver content to consumers 
0034
 1   in innovative ways, because of the way that we use this 
 2   -- these servers.  Virtually every digital distribution 
 3   service that we license, at this point, makes use, in 
 4   some form or another, of an authenticating server, and 
 5   most frequently those sorts of servers are used to 
 6   facilitate granting additional privileges to consumers.  
 7   So, as Steve noted, while things may vary from service 
 8   to service, for a pure playback of a permanent download 
 9   on a device that’s already been registered to the 
10   account, typically there is not a check-in function 
11   necessary, but the sorts of functionalities that we 
12   enable by using these servers are, you know, either to 
13   consummate a financial transaction, to begin the 
14   purchase, or to grant an additional set of rights; to 
15   authenticate accounts that allow users to access 
16   contents from remote locations, and not the one to 
17   which they are ordinarily receiving the content; and 
18   also to allow a user to manage the devices associated 
19   with their accounts, if they decide to take one off and 
20   add another one, they can do that by using an 
21   authenticated service.  As I said, we facilitate the 
22   incremental additional of rights.  You know, in my 
0035
 1   written testimony, in talking about the sorts of 
 2   services we are offering now in the marketplace, I 
 3   talked about the kind of try it/like it/buy it model 
 4   that we are offering with a couple of services, and 
 5   that’s a perfect example of granting incremental 
 6   rights; somebody decides to, you know, do a video on 
 7   demand download to, you know, watch the movie, but then 
 8   decides that they really like it and they want to 
 9   upgrade their rights to a permanent download, we would 
10   use an authenticating server to facilitate that.  But, 
11   most interestingly, and I’ll show an example of that in 
12   the demo in a few minutes, we are using these sorts of 
13   services, to enable consumers to take advantage of 
14   special offers, like obtaining access to special 
15   events, or to community screenings of movies, to you 
16   know, facilitate their own commentary on our works, so 
17   they can then distribute around to others, and those 
18   are all things that would be putting, you know, our 
19   content at risk, if the authenticating servers were to 
20   be hacked to, you know, facilitate the sort of research 
21   that Mr. Soghoian is suggesting they would like to do, 
22   and that’s regardless of, you know, whether he directs 
0036
 1   it to purchase works only, or to rental works, and 
 2   other works more broadly, because, you know, the hack 
 3   is the hack, and it applies equally to the technology. 
 4        I will note also that the use of authenticating 
 5   servers is not a new concept.  Even traditional 
 6   services, like cable TV, depend on the use of 
 7   authenticating services, and you know, TV, cable TV 
 8   uses it to establish that a customer has paid the  
 9   bill, or subscribed to the channel that they are trying 
10   to access, and you know, more recently, in order to 
11   determine that the person has sufficient room on their 
12   DVR to make the recording that they are seeking to 
13   make.  So, this is a very -- a very, very wide-reaching 
14   proposal, and a lot of industries would be affected, 
15   not just small kind of mom-and-pop shops that might go 
16   out of business.   
17        Obviously, you know, the viability of all of these 
18   services would have to be reconsidered, if an exemption 
19   such as 10(a) or 10(b) were to be granted. We do a, you 
20   know, market analysis for every new business model that 
21   we roll out, and we balance the risk to the content 
22   with the, you know, price that’s offered for the model, 
0037
 1   and to the extent that our content would be put at 
 2   risk, it would, more than likely, lead to a 
 3   reconsideration of the sorts of flexible uses that we 
 4   are excite about offering now.   
 5        And, I’ll note, and I think Steve mentioned this, 
 6   to some degree, I think it’s very significant that 
 7   there is insufficient record evidence to support that 
 8   there is a need for this exemption, because consumers 
 9   won’t be able to access the titles that they have 
10   acquired through services by other means. Our content, 
11   for example, is licensed to so many different digital 
12   channels of distribution, I find it very hard to 
13   believe that one title would not be available in some 
14   other form.  We license cable, satellite, Internet, 
15   VOD; various subscription services we distribute on DVD 
16   and in Blu-Ray; we license on-line rental services; we 
17   distribute through I-Tunes, through platforms, like X-
18   box and Play Station, and ROCU (ph), and mobile 
19   services, so there is a wide variety of services to go 
20   to, if necessary.  And, I do, you know, share Steve’s 
21   points about the fact that, you know, Mr. Soghoian 
22   raises valid concerns about consumers and their 
0038
 1   continued use of works that they have purchased, 
 2   perhaps because they don’t understand the terms of the 
 3   license or whatever, but I agree with Steve that the 
 4   exemption that we are talking about here, the 
 5   proceeding is not aimed at solving those particular 
 6   concerns, and I an say from experience that the FTC is 
 7   in fact, looking into these sorts of concerns, but from 
 8   a consumer impact perspective.   
 9        I would also like to add that the exemption is 
10   unnecessary because licensors such as we, of content to 
11   services, are taking appropriate steps to ensure that 
12   the services to which we license our works have the 
13   financial wherewithal and the technical wherewithal to 
14   stay in business. It does us no good, as a business, to 
15   license a service that’s, you know, that’s not a viable 
16   service, and it certainly, you know, does us no good to 
17   upset our consumers about the quality of service that 
18   they are receiving through a third-party service.  So, 
19   we are very acutely aware of that, and we have, you 
20   know, due diligence processes in place at our studio, 
21   and at our other divisions, to do, you know, full 
22   technical evaluations; to discuss financial viability, 
0039
 1   and so forth, as we license services, so I think we are 
 2   acting as responsible parties to try and minimize the 
 3   risks that Mr. Soghoian has indicated may exist. 
 4        I think probably the best thing to do is just to 
 5   use the rest of my time to show you a short demo of BD 
 6   live, which is a new functionality that we have 
 7   launched. 
 8        (Discussion off the record). 
 9        MS. AISTARS:  So, what I’ll show you is a demo of 
10   BD live, and what you are seeing, as this opens up, is 
11   what a user would see when they come into the Warner 
12   Brothers’ real live portal; you see the main page, and 
13   it shows a trailer; and then at the bottom it gives you 
14   various navigational choices.  And, from the home page 
15   you can go to the live community screening function, 
16   and here we are demoing a community screening that we 
17   did with Christopher Nolan, who is the Director of “The 
18   Dark Knight”, in December of 2008.  Consumers who lived 
19   in the United States and in Canada had the ability if 
20   they owned the BD copy of the work, to watch the film 
21   with Mr. Nolan, and to submit questions in advance and 
22   during the event, and we got over 45,000 questions that 
0040
 1   were submitted, and the conversation that occurred with 
 2   the Director of the film.  I’ll let you watch it for a 
 3   little bit without speaking, but -- so you see the 
 4   questions popping up at the top of the screen; Mr. 
 5   Nolan answering them.  Interestingly enough, it’s a 
 6   very interactive service.  We actually had a wedding 
 7   proposal, a marriage proposal, happen on this -- on 
 8   this particular screening.  We are not going to show 
 9   you that, but she said yes, so.  So here we have -- we 
10   are just showing a scene that was filmed in IMAX, and 
11   Christopher Nolan is talking about why they chose that 
12   particular way of filming the screen -- or the scene.  
13   I’ll just talk over this while it’s showing, and note 
14   that when you set up a community screening, this is 
15   something that we did for obviously a very large 
16   community -- the entire BD live community -- but this 
17   is something that a user can set up on their own with 
18   friends and family, who may want to watch a movie 
19   together.  I can actually -- we have applications and 
20   other scenarios as well, volumes, and perhaps in an 
21   educational context, for a professor to have an 
22   interaction with the students, as they are watching the 
0041
 1   film.  (Lower the volume a little bit).  But, the 
 2   moderator, who sets up the screening, has the ability 
 3   to pause, and to fast forward, and to, you know, go 
 4   back and forth, as you are watching the film.    
 5        Now the next thing I am going to show you are a 
 6   couple of my WB commentaries, and the first one I am 
 7   showing is of Senator Patrick Leahy, who actually acted 
 8   in “The Dark Knight” movie, and he has recorded a 
 9   commentary, just like any other user would, talking 
10   about his experiences acting in the film.   
11        (Continued playback of presentation). 
12        MS. AISTARS:  So, the way this works is the user 
13   just makes the, you know, the audio video clip that 
14   they want to share with the community in their own 
15   home, and they have the ability to choose whether they 
16   do just an audio narration, or an audio/visual 
17   narration.  If they do an audio/visual narration, it 
18   shows up as a picture in picture, and they can choose 
19   the placement on the screen of where they want it to 
20   show up.  And, the consumer can choose whether they 
21   want to comment on one particular part of the film; 
22   whether they want to comment on the entire film, and 
0042
 1   record it accordingly.  And so when somebody plays back 
 2   a film for which commentary is available from the user 
 3   community, they can, you know, select which commentary 
 4   they want to hear, and that will be delivered to them 
 5   from the server while they are watching the -- while 
 6   they are watching the playback of the movie.  The other 
 7   commentary that we’ll show is just, you know, what the 
 8   typical -- typical users have done, and this is by two 
 9   guys, who are very enthusiastic “Dark Knight” fans. 
10        (Continued playback of presentation). 
11        MS. AISTARS:  In any event, the commentaries that 
12   people record provide sort of a social networking 
13   functionality, so that the fan community for our movies 
14   can interact with each other; you know, comment on the 
15   movies; make jokes about the movies.  There is no 
16   particular -- you know there is no restriction or 
17   betting of what’s done on the site, so it already 
18   provide some social networking functionality, and what 
19   we are looking at and exploring with other social 
20   networking sites is how to further enable this and 
21   allow users to perhaps take something that they have 
22   done as a commentary in this space, and you know, maybe 
0043
 1   move it to a blog, or move it to, you know, their 
 2   homepage, on a social networking site.  We are also 
 3   continuing to evaluate other ways to let consumers 
 4   interact with our content through BD live, and we have 
 5   looked at a couple of things in other format, which 
 6   could potentially be imported into some of the services 
 7   that we offer here.  Example, this is what we have 
 8   done, or like, pick your own scenes sort of function, 
 9   where you can create a playlist of your favorite 
10   scenes, and then exchange them with your buddy list, 
11   and vote on them, and you know, make comments about 
12   them.  Another example of functionality that we have 
13   offered is the magic of editing, which is an 
14   interactive editing suite that enables users to edit a 
15   scene, as if they were the editor of the movie.  And, 
16   with that we have also had director and editor demos 
17   that allow you to show what the difference is between a 
18   good edit and a, you know, less good edit, and what the 
19   decision-making is.   
20        So, in any event, this just gives you the sense of 
21   some of the kind of additional services and additional 
22   functionalities that we offer using authenticating 
0044
 1   services, and something that hopefully adds to the 
 2   Copyright Office’s understanding of the kind of scope 
 3   of use of these sorts of functions.  So, thanks, I’ll 
 4   end there. 
 5        MS. PETERS:  Okay.  Before we begin our questions, 
 6   I want to know if you have any responses that you would 
 7   like to give to what you heard. 
 8        MR. SOGHOIAN:  Fantastic, thank you.  Thank you 
 9   for showing that film.  I like Dark Knight.  I think 
10   it’s quite poetic that, in discussing this problem of 
11   consumers being robbed of works they have paid for that 
12   we see a heist movie beginning with a bank robbery.  I 
13   think it’s quite poetic.   
14        So there are some points that I would like to 
15   address; first, those made by Steve, and then I’ll get 
16   to the other ones.  You know, there is clearly a 
17   disagreement between Steve and myself, which is whether 
18   this is a theoretical threat, or whether this is a real 
19   threat, and I would argue that this is a very real 
20   threat.  Steve would like to say this is a theoretical 
21   threat, and I haven’t shown any real harm yet.  You 
22   know, I think this is real.  I don’t know what else I 
0045
 1   can do -- to say in that area.     
 2        So the first that I guess that I can say is that 
 3   while consumers have the ability to back-up their works 
 4   with regard to music, no -- no services that I am aware 
 5   of, or very few, if any, provide consumers the ability 
 6   to burn a purchased movie to DVD themselves, very few.  
 7   So, you know, while consumers may have the ability to 
 8   back-up works that they get from a failing store in 
 9   music; in movies, they have no option there; in TV, 
10   they have no option there; e-books, they have no option 
11   there, not that we are discussing e-books, but you 
12   know, just an example of media service.  There is no 
13   way to back-up a game; it’s a piece of software that 
14   runs.  At least with a piece of media you could maybe 
15   play it on your stereo, but when a game is taken away 
16   from you, it’s gone.   
17        You know, Steve also argued that while, you know, 
18   many of these services they only require authentication 
19   when consumers switch to new hardware; that’s true.  I 
20   don’t know how many of you own iPods up front, or how 
21   many of your family members own iPods, but their 
22   batteries don’t last very long, but luckily the Apple 
0046
 1   has a warranty program, but after a year that’s up, and 
 2   the price of the battery is about two-thirds, maybe 
 3   three-quarters of the price of a new iPod.  So, myself, 
 4   I have gone through three or four iPods in the last six 
 5   years.  You know, when a new iPod comes out, you know, 
 6   it’s basically cheaper just to buy a new one than it is 
 7   to pay for your year-and-a-half-old iPod to get a new 
 8   battery in.  So that when you buy that new one, if you 
 9   want to import your existing works over to that new 
10   iPod, you need to call home; it means to call the 
11   authentication service.  You know, I run windows on 
12   occasion, because my colleagues use Microsoft Word, I 
13   am forced to use Windows, and it suffers from horrible 
14   virus problems, and so every time I get a virus, I have 
15   to reinstall my computer from scratch, and when that 
16   happens, I need to call home and get permission from 
17   the authentication service.  Now, if Steven and the 
18   people he represents can fix the antivirus problem on 
19   the Internet and we don’t have to reinstall our 
20   computers, then that’s great, but right now consumers 
21   do have to reinstall their computers on a regular 
22   basis; hardware does fail.  People, you know -- and the 
0047
 1   way that Microsoft’s operating system works, you know, 
 2   when you add more -- more than one or two pieces of 
 3   equipment to a new -- to a PC, even if you are just 
 4   getting them fixed, it’s considered a new computer from 
 5   Microsoft’s perspective, and it has to call home.  So, 
 6   I mean, I would argue that, you know, consumers do, in 
 7   the course of their everyday affairs have to replace 
 8   hardware; that’s just the way it works.  You know, we 
 9   live in a society where people are replacing their 
10   computers every two to three years.   
11        Now, the point that I guess is most surprising to 
12   me, and I can’t really get my head around, is this idea 
13   that well, you know, there are no works that are only 
14   available via one service, and so if consumers lose 
15   access to works they have paid for, well then they can 
16   just go to Best Buy and buy the work again.  I mean, I 
17   understand that that’s true.  It seems a little bit 
18   screwed up to expect people to go out and purchase 
19   again something they have already bought in the first 
20   place, and I think, I mean, as I have argued before, 
21   all that is going to do is push people towards piracy.  
22   These are people who have gone out and paid for works 
0048
 1   once, and it’s very true that they can go to another 
 2   on-line media service and yet again take another risk; 
 3   I think it’s completely unreasonable to force consumers 
 4   to purchase something that they have already bought, 
 5   because the service that they bought the first time 
 6   decides that they want to go -- go under. 
 7        Now with regard to the second set of comments, I’m 
 8   -- I’m really confused by this claim that my exemption 
 9   request puts their content at risk, because everything 
10   that you sell already is available on-line, on the 
11   pirate bay, and other sort of document pirate sites.  I 
12   mean, there is no work that you sell via an 
13   authentication server-based system that hasn’t been 
14   pirated and is available with an easy download.  And 
15   so, I am sort of confused as to how allowing consumers 
16   to continue to access works they have paid for puts 
17   your work at risk, given that anyone can download those 
18   works right now without any DRM for free.  I just -- it 
19   just doesn’t make sense to me. 
20        Let’s see what else.  This idea that 
21   authentication servers are already used for cable TV, 
22   and so other industries would be harmed; we are only 
0049
 1   talking about works that people paid for; where they 
 2   buy works.  I don’t know that cable TV sells content.  
 3   They provide content; you know, you pay a monthly fee 
 4   to Comcast, but Comcast doesn’t sell you any works.  
 5   And so, as we have said, we don’t care about rentals; 
 6   we don’t care about leases; you know, we don’t care 
 7   about streaming services; we only care about services 
 8   where people pay for the works.  If the service is 
 9   being advertised, as in buy this song, or buy this 
10   movie, we care.  If they say, rent this song, or rent 
11   the movie for three days, turn the services off; we 
12   don’t care; that’s not our concern.  So, I don’t see 
13   why the cable TV example is valid at all.  This idea of 
14   a try to buy, and then you can unlock the movie after 
15   you have rented for a few days, and then you say, oh, I 
16   really like this, I’m going to keep it, and the idea 
17   that the authentications can enable that model; that’s 
18   true.  Another way of doing that would be after people 
19   rent the movie and they pay you some more money, you 
20   unlock the DRM completely, and give them the work that 
21   they have paid for, and you have chosen to implement 
22   that based on authentication servers, but you could 
0050
 1   just as easily provide consumers that work when they 
 2   switch from the rental to the purchase, you could strip 
 3   off the DRM completely.   
 4        You know, we heard n Friday -- I mean, we heard on 
 5   the MP3s, and we are hearing it again today that DRM 
 6   enables new technologies, and provides new options to 
 7   consumers, right; that it helps consumers out?  No 
 8   consumer is asking for DRM.  No one says, please, take 
 9   away my rights; make technology more difficult for me 
10   to use.  You know, there are -- consumers are not 
11   clamoring and demanding DRM in the marketplace.  This 
12   is something that the technology firms and the license 
13   -- the IP holders would like to push down our throats, 
14   but this is not about an enabling technology; this is a 
15   technology that takes away the ability for consumers to 
16   use their works.  And so, whenever people bump into 
17   DRM, there is always a bit of angst and surprise for 
18   them.   
19        You know, I -- one of the things I forgot to 
20   mention before is that, you know, you all have granted 
21   exemptions for dongles in the past, and dongles are 
22   expensive, right?  They cost $5, $10 each.  You know, 
0051
 1   software companies use dongles for Photoshop, or for, 
 2   you know, software that costs $200, or $300, or $1,000; 
 3   they don’t use dongles for something that costs $.99, 
 4   and authentication server-based DRM schemes are the 
 5   dongles of today, right?  So, dongles are being used 
 6   less and less, because authentication servers provide 
 7   the same functionality, except that you don’t have this 
 8   physical good that you have to ship out to the consumer 
 9   and send it in a box, right, and then support it?  You 
10   have one server that you pay for, and you can provide, 
11   you know, accesses to many, many consumers without 
12   having to deal with these little USB or serial port 
13   dongles, but they are effectively the same thing, 
14   except that when a service goes down, the dongles don’t 
15   stop working.  When an authentication service goes 
16   down, every consumer loses some of their access rights, 
17   right?  But, there is a very, very strong comparison 
18   that can be made between the dongles and the stuff we 
19   are talking about today. 
20        MS. PETERS:  Thank you. 
21        MR. SOGHOIAN:  Mmm-hmm (in the affirmative).  
22   Thank you. 
0052
 1        MS. PETERS:  Are you okay?  Okay.  First off, the 
 2   questioning with David Carson. 
 3        (Discussion off the record). 
 4        MR. KASUNIC:  Well, let me start where you left 
 5   off Chris, in discussing dongles and the relationship 
 6   between -- between those and authentication.  One of 
 7   the differences between -- we have had exemptions for 
 8   dongles in the past, but one of the differences here is 
 9   that, in the case of dongles, we had a significant 
10   record of actual problems occurring in the marketplace, 
11   and here that is a very different situation, because, 
12   as has been pointed out, there is actually absolutely 
13   no evidence of any harm.  We have had -- we have had 
14   authentication servers go down, but they have been 
15   remedied in all cases, so isn’t this a different 
16   situation, in light of that different marketplace 
17   solutions that have been offered? 
18        MR. SOGHOIAN:  So, I guess I would disagree 
19   slightly.  So, we have seen say Google provide refunds; 
20   we have seen Yahoo provide refunds; the remedy provided 
21   by Wal-Mart was to extend the life of the server.  They 
22   could just as easily decide a year later to turn that 
0053
 1   service off.  I mean, they are not selling this system 
 2   anymore.  They clearly have no intention to run that 
 3   server forever, so at some point they are going to turn 
 4   it off.  I think there is a strong likelihood that at 
 5   some point they will turn that service off and will not 
 6   provide consumers with a refund.  So, I would say that, 
 7   in that instance, the remedy is probably not a hundred 
 8   percent.  Now, you are right, in that the harm suffered 
 9   by consumers in the dongle arena is far more documented 
10   than in this instance, but there is a strong parallel 
11   between the two, and I would argue that these services 
12   have failed; it’s just that the companies have been 
13   rich enough to provide remedy, but we have already seen 
14   that there are companies who have decided, you know, 
15   this isn’t a model that we want to pursue anymore. 
16        MR. KASUNIC:  In response to that, if -- you said 
17   that this is likely essentially sometime; we have to 
18   deal with particular and look at the likelihood 
19   regarding three-year, ensuing three-year periods; is 
20   there any evidence to suggest that this is in fact 
21   likely on any kind of -- any kind of significant scale 
22   during the next three-year period? 
0054
 1        MR. SOGHOIAN:  I think given how bad the economy 
 2   is right now, I think that the -- I mean, can I point 
 3   to evidence that a company is about to go bankrupt? No.  
 4   But, clearly, this is the time in the business cycle 
 5   where failing products are going to be shut down.  I 
 6   mean, companies cannot afford to subsidize products 
 7   that lose money anymore.  I think, in the next the 
 8   three years, we will see services shut down with no 
 9   remedy for consumers; with no refunds at all.  I think, 
10   you know, one of the things we are seeing is that, you 
11   know, when the first service got shut down -- I think 
12   Yahoo was the first one; I am not totally sure -- but, 
13   when the first one was shut down this was a new thing, 
14   right?  This was consumers who had purchased works, and 
15   they lost everything.  And suddenly there was outcry in 
16   the blogosphere, and the tech journalists were talking 
17   about it, right?  And, each time this has happened this 
18   has been a little bit less of an outroar, I think, and 
19   I think maybe that’s because at least the journalists 
20   are becoming a bit jaded to it.  I mean, you have to 
21   recognize that a lot of the pressure here doesn’t come 
22   from consumers; it comes from journalist calling up the 
0055
 1   company and saying, consumers are angry, how do you 
 2   respond, right?  And, as companies can continue down 
 3   this road of shutting down these services, and the 
 4   journalists themselves get jaded, and this stops 
 5   becoming a page one story in the tech magazines, I 
 6   think we are going to see less pressure for the 
 7   companies to provide refunds.  Now, the harm is the 
 8   same, but the pressure declines, and so, you know, 
 9   maybe they’ll say, you know, we are going to take the 
10   hit.  Whatever -- you know, we’ll shut the service down 
11   on a Friday afternoon; there will be a story on 
12   Slash.dot (ph) on Sunday, and by then it will be -- it 
13   will be over with.  I think we will see services that 
14   decide that whatever the minor PR hit, it’s worth it, 
15   in terms of not having to provide, you know, a million 
16   dollars worth of refunds. 
17        MR. KASUNIC:  Steve or Sandra, do you have any 
18   responses to the likelihood of this occurring during 
19   the next three-year period? 
20        MS. AISTARS:  I think, in the opening comments 
21   that I made, I pointed both to the long history of the 
22   use of authenticating servers, not including through 
0056
 1   the cable TV services where issues like this have not 
 2   occurred, there are parallels even to the purchase 
 3   context in cable TV, such as making a DVR copy, which a 
 4   consumer expects is going to work on their DVR in their 
 5   home.  So, I think the long history of experience with 
 6   companies standing behind their products should give us 
 7   comfort.  I also mentioned the due diligence that we 
 8   engage in, in terms of evaluating companies to whom we 
 9   license our works, to ensure that they have the 
10   financial backing, and that they have the technical 
11   skills to keep services up and running, so I think both 
12   of those would weigh against granting an exemption 
13   where there is absolutely no evidence in the record 
14   that, you know, companies have failed, and then failed 
15   to stand behind their, you know, relationships with 
16   consumers.  And also, if I could mention, you know, 
17   when Mr. Soghoian was making his rebuttal, I guess 
18   there are two things that I want to mention; one, he 
19   commented on the fact that, you know, consumers are 
20   unwilling to look to other services to replace their 
21   entertainment work when a service goes out of business, 
22   and interestingly, that was in the context of talking 
0057
 1   about how it’s necessary to repeatedly replace 
 2   hardware, because hardware fails, and you know, iPods, 
 3   the iPod isn’t practical to, you know, just get a new 
 4   battery, so you go out and get a brand new $300/$400 
 5   device, so I just found that to be an ironic 
 6   counterpoint.  And, you know, I would also note that, I 
 7   think underlying all of this, all of the comments 
 8   supporting this exemption, I think it really does get 
 9   down to what Mr. Soghoian was suggesting as the 
10   appropriate remedy, just strip off DRM entirely, if 
11   that’s what these exemptions are aiming towards is 
12   just, you know, doing away with the business models 
13   that allow different flexible uses.  I think that’s 
14   something that the Copyright Office should take into 
15   account as well, as you evaluate the evidence in 
16   support of and against granting an exemption, so. 
17        MR. SOGHOIAN:  All right.  Sir, can I just say one 
18   quick -- one quick thing, which is, if their company 
19   does this -- if they make sure that no service that 
20   they license their content to is never in a financial 
21   situation where it wouldn’t be able to provide remedy, 
22   what -- and if these services aren’t even going to go 
0058
 1   bankrupt, you know, where is the harm?  If Time Warner 
 2   only licenses its content to huge companies that will 
 3   keep their services running forever, or will always 
 4   provide remedy, you know, I am even okay with you all 
 5   narrowing down my exemption request and saying, in the 
 6   event, you know, for 10(a), in the event that the 
 7   service doesn’t provide any remedy for consumers, we 
 8   allow the following exemption.  And, you know, that 
 9   would seem like -- that would -- that would mesh well 
10   with Time Warner’s concerns, right?  Like all of the 
11   companies they are licensing their content to are in 
12   great financial shape, and they would be totally able 
13   to provide remedy to consumers, and you know, if the 
14   situation I am talking to is purely hypothetical, 
15   because it is only, you know, small companies and they 
16   don’t license their content to small companies, you 
17   know, let’s narrow this down a little bit.  I am 
18   willing to compromise.  But, you know, I think that 
19   they are licensing their content to companies that 
20   aren’t going to provide remedy, so, you know, let’s 
21   find some way to agree here. 
22        MR. KASUNIC:  Well that’s good, because that’s one 
0059
 1   of the issues -- and that was my next question is that 
 2   there was no limitation in this exemption, as we had in 
 3   the dongle exemption in the past; that there had to 
 4   actually be no kind of remedial efforts undertaken or 
 5   available in the marketplace.  Quite another difference 
 6   though with the dongle situation is that dealt with a 
 7   specific subcategory of copyrightable authorship.  So 
 8   here -- that was computer programs, the subcategory of 
 9   a class of works, a literary -- a class of literary 
10   works -- here, we have an extremely broad statement of 
11   the types of works, and in some ways I think this may 
12   be leading to part of the problems even dealing with 
13   this that we are having is, what are we really talking 
14   about when we are talking about audiovisuals, sound 
15   recordings and software programs?  Is there any kind of 
16   consistency in the way there is authentication used in 
17   all of those different categories of works? 
18        MR. SOGHOIAN:  So, my understanding is say, for 
19   example, with Apple, that the same DRM scheme is used 
20   to protect movies, music and software.  So, in that 
21   instance, I see the similarity in that it’s one system 
22   that’s being used for everything.  Now, with regard to 
0060
 1   the first part of your question, you know, the reason 
 2   the dongle exception is so narrow is because the only 
 3   product that dongles have been used for is software, 
 4   right?  If you bought a CD and had to plug a dongle 
 5   into the side of the stereo, you know maybe people 
 6   would have sought a dongle exemption for music too.  
 7   But, the fact is that because of the ease and the 
 8   process of setting up the DRM authentication server 
 9   scheme, they are using this for more than software; 
10   they are using this for all kinds of works; anything 
11   digital they are using it for, and which is why I feel 
12   that this more broad exemption is necessary. 
13        MR. KASUNIC:  Do either of you see any kind of 
14   problem having this cover those number of classes of 
15   works, in the case of authentication servers? 
16        MR. METALITZ:  Yes.  I mean, we see that as a 
17   problem; that’s one of the breadths of this, is one of 
18   the concerns.  I think the distinction with dongles, we 
19   all -- I think Mr. Soghoian referred to it; that the 
20   availability of alternatives is limited not only 
21   because it is known -- that particular version for 
22   which the dongle is used is no longer supported, but 
0061
 1   because that’s more generally used for very high-priced 
 2   items, and I mean, that was certainly the record in 
 3   this proceeding, and therefore, that’s a different 
 4   situation than here with the kind of stores that we are 
 5   talking about.   
 6        I think the problem with Mr. Soghoian’s proposed 
 7   compromise is that he is not satisfied with any of the 
 8   alternatives that were provided historically by these 
 9   companies.  He has complained in his submission that 
10   the ability to burn the music to -- to an MP3 format, 
11   or to some other format, results in an inferior quality 
12   track than the one that you originally gained access 
13   to, although there are obviously a lot of ways to get 
14   superior quality, in most cases.  He objects to taking 
15   four or five minutes to create a 60-minute audio CD; 
16   that’s not fair; that’s not an alternative, from his 
17   perspective.  So, I think it  would just -- it would 
18   just send us down a -- down a rat hole of trying to 
19   figure out what is an acceptable alternative, and it 
20   seems like a fruitless task when you consider that, as 
21   I think he has conceded, the harm has not been visited 
22   upon anybody yet; there is no record that it’s 
0062
 1   happened.  And, I think his speculations about the 
 2   state of the economy, well, let’s just say it falls 
 3   short of demonstrating that it is more likely than not 
 4   that this will happening the next three years, and that 
 5   no alternative will be provided.  I do need to, you 
 6   know, reserve the point that we made before; that, for 
 7   the purposes of this proceeding, the fact that you 
 8   might have to spend something in order to take 
 9   advantage of the alternative is not a -- is not a bar  
10   -- is not something that gets him over the hump of 
11   demonstrating the likelihood of an impact of the 
12   prohibition on non-infringing cases. 
13        MR. SOGHOIAN:  If I could quickly disagree, which 
14   is that there is one remedy that I am very happy with, 
15   and it’s one that I am not too keen on people having 
16   poor quality CDs of their purchase works.  I am very, 
17   very happy to take refunds for customers; if the 
18   service want to provide a full refund to customers who 
19   have been suckered into using of these stores, they -- 
20   they don’t need to do anything else.  A refund is 
21   totally fine. 
22        MR. KASUNIC:  Leaving aside whether there is proof 
0063
 1   of any problem occurring, just in getting to your 
 2   point, Steve, about this being different from the 
 3   dongles exemption because of the expense of those 
 4   programs compared to these individual works that may be 
 5   available in other format, isn’t one of the issues 
 6   involved here that, in the case of these types of works 
 7   that, for which authentication may be needed at a later 
 8   point, it can typically involve large quantities of 
 9   works, which, when you put those together, actually are 
10   probably -- could be the same amount, we are talking 
11   about the same amount of actual investment in these 
12   works, as was at issue in the dongle situation? 
13        MR. METALITZ:  It could involve large quantities 
14   of works, but the availability -- I mean, the problem 
15   with the dongle is, in some cases, there wasn’t any 
16   support at all.  There was no ability to get back to 
17   the status quo, if you will, and that was, I think, the 
18   basis for the -- for the concern.  But, here, there is 
19   always going to be alternatives.  Up until now there 
20   have been alternatives that require little, if any, 
21   cost to the consumer.  You know, there might be 
22   circumstances in which there would be some cost to the 
0064
 1   consumer. 
 2        MR. KASUNIC:  Well, can you explain that?  I am 
 3   not sure I follow exactly.  I know that there can -- 
 4   these works can be available in other forms for 
 5   purchase, but in one of the considerations -- I don’t 
 6   like to turn this into a dongle discussion, but one of 
 7   the considerations that was made there was that the 
 8   offer was given to some of the purchasers of those 
 9   programs, whose hardware locks malfunctioned or were no 
10   longer operating, was that if they just repurchased the 
11   program, they could use it; they could get a new one, 
12   and that we -- that seemed to be an insufficient remedy 
13   in that situation.  So, here, if someone has a large 
14   library of ITunes songs, or any kind of -- a music 
15   library, a audiovisual library, and that authentication 
16   server fails, is it an adequate remedy to have to 
17   repurchase those works, in order to be able to just 
18   listen to them again? 
19        MR. METALITZ:  Well, I would have to go back and 
20   look at the dongle exemption and the reasons that you 
21   granted it.  My recollection is that the reasons that 
22   you granted it were that there was some evidence that 
0065
 1   there was simple no way other than circumvention, in 
 2   order for people to regain this functionality that they 
 3   had before. 
 4        MR. KASUNIC:  Well, I believe, in some cases, 
 5   there was the opportunity to repurchase the program, so 
 6   we can look at and maybe we’ll address that in some 
 7   kind of forum.  
 8        Ben, did you have something that you wanted to 
 9   just -- 
10        MR. GOLANT:  Sure.  Yes.  I was going to going to 
11   follow-up on your comment about cable, and I just 
12   wanted to get clarification.  What was the intent of 
13   that example, so I can just get it straight? 
14        MS. AISTARS:  Oh, sorry.  In terms of answering 
15   Rob’s question about the likelihood of harm in the next 
16   three years, I was referring to the fact that we have a 
17   long history of, in at least one marketplace, of using 
18   authenticating servers, and so, since there is no 
19   record evidence currently about unremedied harm to 
20   consumers, and we have got a long history by which to, 
21   you know, speculate whether or not there would be harm 
22   in the future that, you know, the cable example is one 
0066
 1   to look to.  The other point that I believe I made with 
 2   respect to cable was more in answer to Mr. Soghoian’s 
 3   kind of rebuttal comments to us, where he said he was, 
 4   you know, not sure how cable was at all relevant here, 
 5   since he was talking primarily about works to which a 
 6   consumer expected to have permanent access and, in that 
 7   instance, I was drawing a parallel to making a 
 8   recording on your DVR, which, similarly to other 
 9   services which are offered on terms of service, you 
10   know, as long as you are a customer, or as long as the 
11   entity survives or, you know, what-have-you, it seemed 
12   like a parallel worth looking to, so. 
13        MR. GOLANT:  Let me ask you this, as a follow-up 
14   to that DVR question, when Time Warner Cable was still 
15   part of Time Warner, and I say hypothetically subscribe 
16   to Home Box Office, for the purpose of recording all 
17   the shows I want to see, but I wasn’t home to see them, 
18   and my DVR is full, and then my set-top box crashes; 
19   what was the remedy that Time Warner would provide to 
20   me as a cable subscribe in case if that happens? 
21        MS. AISTARS:  I would have to confirm with the 
22   Time Warner Cable folks, who are no longer part of the 
0067
 1   company, but I believe the remedy was that you are 
 2   allowed to, you know, re-download content, but I am not 
 3   sure.  I’d have to confirm.  I know that that is a 
 4   remedy that is often offered in other contexts; for 
 5   instance, ITunes, and other services that we license, 
 6   have the ability to allow the, you know, re-downloading 
 7   of downloaded content if there is a hardware failure, 
 8   but I honestly just -- I don’t know what the remedy was 
 9   in the case of Time Warner cable, but I would be happy 
10   to check. 
11        MR. KASUNIC:  Chris, in terms of the discussion of 
12   one of the examples with Circuit City’s DIVX Service, 
13   and that raises an interesting issue just in terms of 
14   what some consumers have purchased were -- they could 
15   purchase these disks for time-limited periods and watch 
16   a show, and then could pay more to get that; are you 
17   focusing your comments, in terms of the people who just 
18   paid for complete access to the works contained on 
19   those disks? 
20        MR. SOGHOIAN:  So, the question is basically 
21   should people be able to circumvent the encryption on 
22   try until you buy and then unlocked works?  
0068
 1        MR. KASUNIC:  Right.  So -- well, for the use 
 2   limited disk -- 
 3        MR. SOGHOIAN: Right. 
 4        MR. KASUNIC:  -- so they owned these disks, but 
 5   they walked into this arrangement knowing that they 
 6   were only going to be able to use it one time, or for a 
 7   limited period of time, should they -- this 
 8   authentication keeps them from using it more times than 
 9   they had agreed to, is there any reason why that should 
10   not -- why they should -- even thought continue to have 
11   he disks after the servers go down, they really -- did 
12   they really lose anything? 
13        MR. SOGHOIAN:  Sorry.  I’m still having trouble.  
14   Let me just clarify again.  So you are talking only -- 
15   not about consumers who paid an additional $15.99 to 
16   unlock the distributor; we are just talking about the 
17   instance where they had the $3.99, played for three 
18   days, you know should -- should those -- are we 
19   discussing just those consumers, is that right?   
20   Just -- 
21        MR. KASUNIC:  How should we handle those 
22   consumers? 
0069
 1        MR. SOGHOIAN:  That’s a rental, so you know -- 
 2        MR. KASUNIC:  Okay. 
 3        MR. SOGHOIAN:  You know, if the server fails, you 
 4   know that three day period is over, so you know, I 
 5   don’t really care about that. 
 6        MR. KASUNIC:  Okay.  So, it’s just the disks that 
 7   were intended to be completely on-line? 
 8        MR. SOGHOIAN:  Just the purchases.  Yes. 
 9        MR. KASUNIC:  Okay.  And then, in response to some 
10   of the points that Steve made about what is actually 
11   going on in terms of what would has to be done, in 
12   order to conduct research on these systems, can you 
13   explain what your understanding of what would have to 
14   occur? 
15        MR. SOGHOIAN:  Sure, and thank you for bringing 
16   that up, because I forgot to address that point before, 
17   and I am glad that I am going to get a chance to do 
18   this. 
19        So, you know, I have multiple hats, right, so I 
20   care about copyright law, and care about long policy, 
21   but I am also with a background in computer security.  
22   I have a Bachelor’s in computer science; I have a 
0070
 1   Master’s Degree from Hopkins in computer security, and 
 2   I -- I have the skills, and I have looked at DRM, in 
 3   some instances, and you know, I know how this works.  
 4   And, essentially while the first stage is usually to 
 5   monitor what’s happening on the network, you would do 
 6   what’s called sniffing, which is seeing the packets go 
 7   back and forth.  On the computer you would run a 
 8   decompiler of some kind, or you would watch one program 
 9   send data to another program, so that the first stage 
10   is essentially monitoring.  But, then you need to sort 
11   of probe the system by trying information out, and say, 
12   you know, if I get this signal, what will I get in 
13   response, and so you actually -- even just to document 
14   how the system works, you need to be able to send it 
15   signals, or to send it commands and see the responses 
16   you get, and the minute you start getting in that 
17   territory, you are essentially engaging -- you are 
18   definitely engaging in reverse engineering, and when 
19   you start to try and unlock content, to see if the 
20   techniques that you believe you have documented work, 
21   you have circumvented the encryption.  It’s, you know, 
22   the line is not solid, and as you get further and 
0071
 1   further down the road of documenting, the likelihood of 
 2   you crossing that line just for the purpose of making 
 3   sure that you have all the information that you would 
 4   need later is very high. 
 5        MR. KASUNIC:  So, to the extent that this begins, 
 6   once it starts to get to the point of circumvention, it 
 7   begins to get into the realm of reverse engineering, to 
 8   what extent -- is this something that Congress -- would 
 9   another computer program have to be created, in order 
10   to make the works that -- or, copies of the works that 
11   you have purchased work again, so that this fits within 
12   at least the scope of the reverse engineering exemption 
13   in Section 1201(f)? 
14        MR. SOGHOIAN:  So, I believe that it requires more 
15   than reverse engineering. 
16        MR. KASUNIC:  How so? 
17        MR. SOGHOIAN:  So, to reverse engineer a program 
18   that uses DRM, you need to circumvent the DRM, just to 
19   figure out how it’s working.  Now, I am not a lawyer.  
20   I don’t have a J.D.  I have sat in on a couple of 
21   classes.  So, I don’t know the ins and outs of 1201, 
22   but my understanding, from dealing with lawyers in the 
0072
 1   past, is that they don’t view the reverse engineering 
 2   exception to be very wide, and they have always told me 
 3   to be very, very careful in this area.  So, I can’t 
 4   speak to the specifics of that rule. 
 5        MR. KASUNIC:  Well then let’s ask the lawyers. 
 6        MR. SOGHOIAN:  Well, but they have no incentive to 
 7   be nice to me. 
 8        (Laughter) 
 9        MR. KASUNIC:  So what do you think, does it sound 
10   like I -- the lawyers have the problem of not 
11   understanding the technology. 
12        MR. GOLANT:  Right. 
13        MR. KASUNIC:  So we are even.  But, what do you 
14   think of the --  
15        MR. METALITZ:  Well, I think the important thing 
16   for this proceeding is that the proponent has the 
17   burden of showing that they -- that their activity does 
18   not fall within the scope of an exemption that Congress 
19   enacted; whether it’s 1201(f) or 1201(j) for security 
20   testing.  There might be other exemptions that would be 
21   potentially applicable here.  But I think it’s clear, 
22   from the way that this proceeding has been handled over 
0073
 1   the past decade, that obviously in order to show, to 
 2   make your case that you want an exemption, you have to 
 3   show that your activity is prohibited by 1201(a), and 
 4   1201(a)(1), and you can’t show that if it falls within 
 5   an exemption, so you would have to demonstrate that 
 6   your activity does not fall within the exemption, or 
 7   that can’t be brought within the exemption.  So, that’s 
 8   the burden that the proponent would have here, and I 
 9   don’t -- I am learning more each day about what -- what 
10   Chris would need to do, in order to understand the 
11   exemption.  There wasn’t much about it in the 
12   submissions.  There has been a little more today.  I 
13   certainly don’t have enough facts to be able to render 
14   any opinion on it, but I think the question of the 
15   applicability of the statutory exemption is potentially 
16   a relevant one, and the relevance is that unless the 
17   proponent can show that it does not apply, then I think 
18   that pretty much seals the fate of that particular 
19   exemption.  
20        MR. SOGHOIAN:  And, if I can draw a parallel, Rob.  
21   We noted this in our comments. You know, you guys 
22   already gave Alex Halderman, and then Felten an 
0074
 1   exemption three years ago for security testing, or for 
 2   rootkits in CDs, right?  And, the research that they 
 3   were doing to document and discover any security flaws 
 4   in those DRM schemes is the same -- what they were 
 5   going through is the exact same process that people 
 6   would need to go through.  Essentially, documenting and 
 7   discovery how a system works, it’s the same no matter 
 8   what kind of system it is; whether it’s a rootkit; 
 9   whether it’s a DRM; whether it’s a security flaw; 
10   whether it’s an authentication server, you know, from 
11   the perspective as a computer scientist, you go through 
12   the same process, and you all already gave that 
13   exemption to them.  So -- and the reason was, was 
14   because you felt that the reverse engineering rule was 
15   not enough in that instance, I believe. 
16        MR. KASUNIC:  I would have to object to that 
17   characterization of that exemption, but I think the 
18   relevant point there is that that exemption was issued 
19   after a detailed record.  There had already been an 
20   exhaustive investigation by Professors Felten and 
21   Halderman into the rootkit; that was the basis upon 
22   which the exemption was granted.  So, the record there 
0075
 1   showed harm to the satisfaction of the Copyright 
 2   Office, and the record here clearly does not. 
 3        I would like to, if I could, just supplement my 
 4   answer about the dongles exception.  Going back and 
 5   looking at the text of the exception that you 
 6   recognized three years ago, or in 2006, it only applies 
 7   to obsolete dongles, and a dongle shall be considered 
 8   obsolete if it is no longer manufactured, or if a 
 9   replacement or repair is no longer reasonably available 
10   in the commercial marketplace.  So, clearly, the idea 
11   that you -- if you could go out and find a replacement 
12   dongle and get back to the status quo in the commercial 
13   marketplace, if it was reasonably available, it was not 
14   -- if that were the case, then the exemption would not 
15   apply. 
16        And that was the issue, is that the sale of a 
17   reasonable price for replacement of the dongle was 
18   often not available -- that what was requested was the 
19   purchase price of the full program, so that -- the 
20   question of whether that was reasonable and that you 
21   would actually have to buy at a high price. 
22        MR. METALITZ:  Well, there is nothing in your 
0076
 1   discussion of this in the November 17, 2006 
 2   recommendation that even, that I can see, even refers 
 3   to the cost of getting the upgrade, which I think is 
 4   what  you are talking about.  Your conclusion was, 
 5   evidence was presented that damaged or malfunctioning 
 6   dongles can prevent authorized access to the protected 
 7   software, because, in some instances, the software 
 8   vendors may be unresponsive or have gone out of 
 9   business, the evidence painted a compelling picture of 
10   a genuine problem.  So, that was a problem where you 
11   couldn’t get the dongle, for love or money, and 
12   therefore you couldn’t get back to the status quo 
13   without regard to whether you would get the upgrade.  
14   Here, you can get back to the status quo.  Up until now 
15   you have been able to get back to the status quo 
16   without any expense, but even if there were some 
17   expense, I don’t think that would be a distinguishing 
18   difference. 
19        MS. PETERS:  David? 
20        MR. CARSON:  Yes.  Chris, this may be going over 
21   some ground you have already covered, but I just want 
22   to make sure I understand the case you are making here, 
0077
 1   and let’s break it down.  One of the things we need to 
 2   determine is whether persons, who are using the 
 3   copyrighted works, are, in other words, already have 
 4   been, adversely affected by the prohibition on 
 5   circumvention of their ability on non-infringing uses.  
 6   I think what I am hearing from you, but I ant to make 
 7   sure, is that you are not saying that up until now 
 8   people have been adversely affected, because up until 
 9   now you think people have been -- when these services 
10   have gone down, people have been given acceptable, 
11   essentially acceptable substitutes; is that a fair 
12   characterization so far? 
13        MR. SOGHOIAN:  So, in the instances of failed DRM 
14   services that we are aware of, that we noted in our 
15   comments, in all but one instances refunds were given. 
16        MR. CARSON:  Okay. 
17        MR. SOGHOIAN:  And the refund is a totally 
18   appropriate and satisfactory remedy.   
19        MR. CARSON:  Okay.  And the one instance, remind 
20   me again, that was? 
21        MR. SOGHOIAN:  That was Wal-Mart, and Wal-Mart, 
22   under pressure, would be to extend the life of its 
0078
 1   server for another, for an undetermined period of time. 
 2        MR. CARSON:  Okay.  So, so far, so far, no one has 
 3   been adversely affected? 
 4        MR. SOGHOIAN:  So far, no one has been adversely 
 5   affected. 
 6        MR. CARSON:  So basically you are on the second 
 7   problem, which is you are predicting that within the 
 8   next three years it’s going to happen? 
 9        MR. SOGHOIAN:  Well, I am predicting that the 
10   companies will not be in a position to offer those 
11   remedies. 
12        MR. CARSON:  Right.  Right.  Now, you can’t 
13   identify any particular company that you are predicting 
14   is going to be in that position, is that correct? 
15        MR. SOGHOIAN:  I am not telepathic, or I don’t 
16   have a crystal ball, so I am not -- I have no idea 
17   which service will go under, but we have seen enough 
18   services go under in the last few years that I think 
19   there is a good chance that one will go under.  I think 
20   there is a very, very good chance that one will go 
21   under which doesn’t have the means to provide a remedy 
22   to consumers. 
0079
 1        MR. CARSN:  So, to the extent that we are trying 
 2   to predict and determine is it more likely than not 
 3   that this is going to happen, and I think what your 
 4   case is, hard times economically; a number of services 
 5   have already gone out of business; so far they have 
 6   been big enough to be able to cover the problem, but 
 7   chances are that, within the next three years it’s 
 8   going to happen to some service that doesn’t have the 
 9   resources or the will to do the kinds of things that 
10   have been done thus far? 
11        MR. SOGHOIAN:  Right.  And I would like to stress 
12   that if no service goes under, then the exemption won’t 
13   cause anyone any harm. 
14        MR. CARSON:  Okay.  Sandra and Steve, you didn’t 
15   quite put it this way, but I sort of get the impression 
16   that between the lines of what you said, what you are 
17   saying about the kinds of services you have been 
18   talking about is that the consumer may think he or she 
19   has purchased a copy, but he is really just renting a 
20   copy; is that really what it boils down to? 
21        MR. METALITZ:  I don’t think that’s what -- I 
22   don’t think that’s what I’m saying.  I don’t want to 
0080
 1   get into rental versus purchase, but I think that their 
 2   rights are defined in the Terms of Service.  So, when 
 3   Mr. Soghoian refers to the usage rights that they paid 
 4   for, he is really talking about what’s in the Terms of 
 5   Service, and in most cases, those make it clear that 
 6   their access might not be perpetual. 
 7        MR. CARSON:  So, whatever they are paying for, 
 8   it’s -- they are paying for whatever your clients are 
 9   willing and able to give them, and your clients, for 
10   whatever reason, might, at some point, decide, sorry, 
11   whatever you paid for you no longer have, and that’s 
12   just the way the contract is written, so that’s what 
13   they are stuck with; is that basically what it is, to 
14   put it starkly? 
15        MR. METALTIZ:  I wouldn’t put it that starkly, but 
16   --  
17        MR. CARSON:  I am sure you wouldn’t, but is that 
18   what it is? 
19        MR. METALITZ:  No, I think that -- yeah, in terms 
20   of this proceeding whether they are able to make a non-
21   infringing use, the parameters of that are defined by 
22   the agreement that they have entered into. 
0081
 1        MR. CARSON:  Now, I know -- go ahead. 
 2        MR. METALITZ:  They also have other alternative 
 3   ways of making the non-infringing use, but in terms of 
 4   making the non-infringing use with the company that 
 5   they have originally licensed with, yes, it -- now, it 
 6   is limited by what’s in the Terms of Service. 
 7        Now, purchase and rental obviously have a lot of 
 8   other connotation, and you know, it could have tax 
 9   connotations; it could have connotations for other 
10   aspects of the copyright law, so I wouldn’t want to get 
11   into, you know, making pronouncements about how all of 
12   these services operate.  It’s possible that there are 
13   some services that don’t, in their Terms of Service, 
14   spell out that the access might not be perpetual, and 
15   in that case you might have a different situation. 
16        MR. CARSON:  Are any -- is anyone before us, any 
17   of the three of you aware of any such services where 
18   the Terms of Service don’t limit the consumer’s 
19   continued right to continue to use the works?   
20        (No audible response). 
21        MR. CARSON:  I haven’t looked throughout the 
22   entirety, do we have examples at least in the record of 
0082
 1   Terms of Service? 
 2        MR. METALITZ:  Yes.  We have some examples cited 
 3   in our submission. 
 4        MR. CARSON:  Okay.  
 5        MR. SOGHOIAN:  So you -- 
 6        MR. METALITZ:  I don’t think we went to every 
 7   single one. 
 8        MR. CARSON:  So, you are another consumer, who 
 9   apparently hasn’t read the Terms of Service either? 
10        MR. SOGHOIAN:  I wonder whether Steve and Sandra 
11   read the Terms of Service when they sign up for these 
12   things.  No, I don’t. 
13        MR. CARSON:  Right.   
14        MR. SOGHOIAN:  So, as I mentioned before, I am not 
15   a lawyer, but luckily I did bring a law student with 
16   me, and I have been informed that the 1201(f), reverse 
17   engineering exemption, or exception, only applies to 
18   computer programs and not AV content, so it doesn’t 
19   apply to music or movies. 
20        MR. CARSON:  Okay.  And also I think, Steve and 
21   Sandra, it’s your position that it’s really not our 
22   business; it’s the FTC’s business, if these Terms of 
0083
 1   Service don’t really make -- don’t really bring home to 
 2   the consumer what he or she isn’t really getting; 
 3   that’s nothing we should be worried about, right? 
 4        MR. METALITIZ:  I think that’s essentially a 
 5   consumer protection issue and one that, as we have 
 6   noted, they have been taking a look at in terms of the 
 7   disclosures and so forth.  But, you know, I think there 
 8   is a valid agreement that’s entered into legally. 
 9        MR. CARSON:  Okay.  Tell me this then, looking at 
10   the statutory factors we are supposed to look at, if 
11   someone who was subscribing to one of these services, 
12   which suddenly terminated the service, were to 
13   circumvent whatever access controls are on the works 
14   they downloaded, say, in order to be able to continue 
15   to use it; what effect would that have on the market 
16   for or the value of the copyrighted works? 
17        MR. METALITZ:  Well, I think you have to be 
18   concerned about the knock-on affects here and --  
19        MR. CARSON: I am sorry, the what effects? 
20        MR. METALITZ:  Well, the effects going down the 
21   road, it particularly -- it wouldn’t necessarily have 
22   any impact on those copies, but in terms of the 
0084
 1   willingness and interest of copyright owners and 
 2   distributors to initiate these types of authentication 
 3   server-based services, and with all the benefits that 
 4   they bring, I would think it would make a difference -- 
 5   I think this was Sandra’s testimony -- if, in fact, 
 6   these -- there was permission granted by the Copyright 
 7   Office, or rather, by the Librarian, to circumvent 
 8   those access controls, because they related to 
 9   authentication servers which might go out of business; 
10   that would certainly be a discouraging factor, in terms 
11   of the dissemination of the works, and it would 
12   therefore have an effect on the value of the work in 
13   the marketplace.  It could be that the cost to 
14   consumers would go up because we would be back more to 
15   a binary situation, in which you either have access to 
16   it or you don’t; and, in that case, I think the 
17   economists would say that if you are allowing access, 
18   you have to assume that it’s totally unlimited access, 
19   and you have to charge accordingly.  The value of the 
20   authentication server, I think, as Sandra has 
21   indicated, and as we tried to spell out in our 
22   submission is that it allows for more of a spectrum for 
0085
 1   granting some rights, for even expanding the scope of 
 2   those rights during the life of the relationship, and 
 3   that means that people can buy what they want, or what 
 4   they feel they need, rather than having to buy total 
 5   unrestricted access to the materials.  So, I think, in 
 6   the long run, it would probably increase the costs, and 
 7   whether that would hurt the value in the marketplace 
 8   would really depend on how many people were discouraged 
 9   from even entering into the transaction because the 
10   cost were much higher. 
11        MR. CARSON:  Do you think if we -- 
12        MS. AISTARS:  And to -- 
13        MR. CARSON:  Sorry.  Go ahead. 
14        MR. AISTAIRS:  Just to underline what Steve was 
15   saying, I think it’s not also easy to separate the, you 
16   know, so-called permanent download versus the so-called 
17   rental model, in terms of it you have hacked the, or 
18   circumvented the authenticating server technology, you 
19   may very well have circumvented it for all offerings.  
20   So, while you may want to make the point that if 
21   somebody already has purchased, you know, permanent 
22   access to a work in their collection, that collection 
0086
 1   may also contain a number of works for which they have, 
 2   you know, purchased only limited access, and when you 
 3   circumvent the access control method that applies to 
 4   that delivery system, you circumvent it, more than 
 5   likely, for all types of access.  So --  
 6        MR. CARSON:  Well, if that’s true exemption we 
 7   give isn’t it?  I mean, if we say you can only 
 8   circumvent with respect to a particular class of works, 
 9   we are not giving permission to circumvent for other 
10   works as well? 
11        MS. AISTARS:  Well, are you calling the -- 
12        MR. CARSON:  So, it’s somewhat going beyond the 
13   permitted class then that’s not -- it’s not because of 
14   the exemption, and it’s not lawful either, is it? 
15        MS. AISTARS:  I agree; it’s not lawful and it’s 
16   beyond the scope of the exemption.  But, in the real 
17   world, the effect is -- 
18        MR. CARSON:  Well the real world is happening 
19   whether we give the exemption or not, isn’t it? 
20        MR. METALITZ: Well, this is one reason why we have 
21   suggested that, in this, in the environment now where 
22   the office is making more use of descriptions or 
0087
 1   definitions of users o uses, in order to define these 
 2   classes, it’s important, first of all, to emphasize 
 3   that the exemption applies only when the sole purpose 
 4   of it is to carry out the particular non-infringing use 
 5   to, you know, give rise the exception; and also, we 
 6   feel, to exclude the situation in which there is an 
 7   effect, a foreseeable effect that it will sweep more 
 8   broadly.  That’s a more general concern that we have 
 9   about the way the exemptions are fashioned, then that 
10   would -- and if -- if, in the case, if you felt that 
11   there were justification for exemption in this area, we 
12   would certainly want those safeguards. 
13        MS. AISTARS:  And, just to complete what I started 
14   saying, in the real world, the evaluations that we make 
15   when we offer a new business model, and offer a 
16   different -- different functionalities on top of that 
17   business model is a balancing between, you know, 
18   whether your exemption is intended to, granted or not, 
19   is our work going to be put at risk?  And, when we look 
20   at models and the technologies that are presented to 
21   us, there certainly are instances where we have elected 
22   not to license into a particular model, because we feel 
0088
 1   that the work is put at too great of a risk.  So, it 
 2   will, I would argue, diminish the availability of these 
 3   sorts of, you know, additional functionalities that 
 4   consumers have been looking for, and it would diminish 
 5   the, you know, flexibility that we have in offering 
 6   and, you know, pricing works appropriately to 
 7   consumers, so they are paying for just what they want, 
 8   and not having to pay for the full work. 
 9        MR. CARSON:  Let’s say that the only thing that 
10   were on the table was this exemption, but dealing only 
11   with lawfully purchased sound recordings.  Now, we seem 
12   to be at a point in time now where sound recordings are 
13   now offered without DRM; that seems to be, at least at 
14   this point in time, where the industry is.  So, let’s 
15   say you have got a service that has traditionally been 
16   offering sound recordings using these authentication 
17   servers, and you have the scenario that Chris is 
18   worried about; it goes out of business; it doesn’t 
19   offer continued access; you’ve got these encrypted 
20   copies protected by whatever they are on your hard 
21   drive, and there are things that are in fact freely 
22   available -- well, not freely available; you have to 
0089
 1   pay for them -- what’s the harm in letting the person 
 2   who has this copy that is protected audio device, strip 
 3   that protection off of it when it’s being offered to 
 4   the general public without that protection anyway? 
 5        MR. METALITZ:  Well, I think in -- I don’t know 
 6   the details of what Yahoo planned to do, but I do think 
 7   there was some transition that they were offering for 
 8   people who had previously accessed the DRM-dependent 
 9   sound recordings to transition to DRM-free.  So, but, 
10   you are talking about a hypothetical situation in which 
11   they just walk away, and DRM-free versions are 
12   available in the marketplace. 
13        MR. CARSON:  Well, let’s assume we agree with 
14   Chris’ prediction that it’s going to happen in the next 
15   three years; one of these services is just going to go 
16   totally out of business, not offer anything to its 
17   subscribers, and let’s say it’s purely a music service; 
18   that’s the situation we are talking about. 
19        MR. METALITZ:  Right. 
20        MR. CARSON:  What’s the harm in letting people -- 
21        MS. AISTARS:  I would suspect that the pricing has 
22   been different in the offer; that if you have offered a 
0090
 1   download of a non-protected work through iTunes or 
 2   what-have-you, the pricing is higher than it is for a 
 3   DRM-protected work perhaps. 
 4        MR. CARSON:  Well, iTunes was offering DRM-
 5   protected work for quite some time.  Did the prices go 
 6   down when they stopped offering DRM-protected work? 
 7        MS. AISTARS:  I believe the prices went up.  There 
 8   was a -- 
 9        MR. METALITZ:  Yes. 
10        MR. CARSON:  And was there a cause and effect 
11   relationship there? 
12        MS. AISTARS:  You are paying more for an 
13   unprotected work than you do for a DRM-protected work, 
14   so. 
15        MR. METALITZ:  More for it.  Right. 
16        MR. CARSON:  And that’s precisely because -- and 
17   that’s precisely because the protection has been 
18   removed, is that why that happened? 
19        MR. METALITZ:  Right.  I mean, that’s at least, in 
20   theory, we would say so, because you are basically 
21   enabling a lot of other uses that weren’t enabled 
22   before and those are going to displace some of the 
0091
 1   purchases that you might otherwise have had, so you 
 2   would expect the prices to be higher.  Whether the 
 3   marketplace actually works that way, I mean, you know, 
 4   I don’t know, but that’s certainly what you would 
 5   expect in that situation.  But I think if you are -- 
 6   are you asking the question, is it more in accordance 
 7   with what Congress intended that people in that 
 8   situation go out and can buy the DRM-free tracks, or 
 9   whether they would be able to create and use a hacking 
10   tool, in order to get to exactly the same point?  I 
11   think Congress -- I think the intention would be the 
12   former. 
13        MR. CARSON:  Well, I guess my question was where 
14   is the harm; that’s my question; where is the harm? 
15        MR. METALITZ:  Well, I think the harm, as it is 
16   with all of these, you know -- I know you have asked -- 
17   you asked this question in a different form on Friday 
18   as well -- 
19        MR. CARSON:  I’ll probably ask it tomorrow and the 
20   next day too, several times. 
21        MR. MELAITZ:  That’s right.  All I can say is that 
22   there certainly is harm that Congress was sensitive to, 
0092
 1   to encouraging the development and proliferation of a 
 2   market in circumvention tools, and one way to prevent 
 3   that was to have the prohibition on, in effect, use of 
 4   those tools.  I mean, I realize this doesn’t -- doesn’t 
 5   match up exactly symmetrically between the tools 
 6   provisions and the prohibition -- excuse me -- but, the 
 7   idea was to limit the use of circumvention tools to two 
 8   circumstances; one, those circumstances where Congress 
 9   had explored the issue and struck the balance of when 
10   circumvention would be allowed, and that’s, for 
11   example, in the reverse engineering area, and in the 
12   other statutory exemptions; and then, in the 
13   circumstance that brings you here, which is when the 
14   statutory requirements were met for showing that there 
15   actually had been a significant interference with non-
16   infringing use; and, here, I don’t think you would see 
17   that interference with non-infringing use.  So, you 
18   would see, in effect, a proliferation of circumvention 
19   tools, and a -- given that the Government inframantra 
20   (ph) to the use of circumvention tools, in a much 
21   broader range of circumstances; that, I think, would be 
22   harmful to the copyright owners and to the copyright 
0093
 1   system. 
 2        MS. AISTARS:  And, I think the other aspect of 
 3   harm worth considering is that these services hat offer 
 4   unprotected, you know, works for free, or for whatever 
 5   the pricing arrangement is, the model of each such 
 6   offering is kind of negotiated in the whole and 
 7   understood in the whole, so perhaps your offering 
 8   access to a work for free, but you are doing it because 
 9   it’s app-supported, or you are doing it because it’s, 
10   you know, some promotional agreement that you have with 
11   the third-party through which you are making the work 
12   available for free, if the consumer is able to unlock 
13   the work that they have bought through a different 
14   business model, which was intended to be a protected, 
15   you know, protected download, and has no need to go to 
16   the, you know, free legal service that’s app-supported, 
17   or, you know, a promotional effort, or what-have-you, 
18   then I think that is cognizable harm.  There is a 
19   business reason for negotiating that distribution 
20   arrangement, and the copyright owner is deprived of 
21   whether it’s the advertising revenue or the interaction 
22   with the consumer on a new platform, and the ability 
0094
 1   to, you know, expose different of it’s offerings to the 
 2   consumer. 
 3        MR. CARSON:  Chris, you wanted -- 
 4        MR. SOGHOIAN:  Yeah, I wanted to answer your 
 5   question which is that Apple just recently announced 
 6   that they would have songs at different pricing tiers, 
 7   something that the record companies have asked for, for 
 8   some time.  Before that happened there was a period 
 9   where there was DRM-free available -- I’m sorry -- 
10   songs were available in MP3 format with no DR -- or 
11   maybe AC, which is Apple’s system storage -- but, no 
12   DRM at all for $.99.  So, there was a period in time 
13   where some labels had allowed Apple to sell content 
14   with no DRM at all, and the price was the same as it 
15   was the year before when there was DRM, and also, at 
16   the same time, even while Apple was selling DRM-
17   encumbered songs, Amazon was selling stuff for the same 
18   price, or sometimes less, in MP3 format.  So, just to 
19   clarify that question of yours. 
20        MS. AISTARS:  Again, those are negotiations that 
21   occur around a particular business offering, and so I 
22   can’t speak to what, you know, the record labels do, in 
0095
 1   terms of negotiating those deals, but I suspect that if 
 2   they are anything like us, they look at all of the 
 3   parameters of the offering, and they probably have a 
 4   different deal with Amazon that results in a different 
 5   price for that offering than they do, you know, for 
 6   iTunes, or you know, who -- whoever else is in the 
 7   marketplace offering that service.  The fact that the 
 8   copyright owner was actually able to negotiate a higher 
 9   price for the sound recordings that were made available 
10   without DRM protection recently, I think indicates that 
11   there are, you know, there are those sorts of 
12   negotiations going on, and there is a, you know, a 
13   trend in the marketplace, to value protected versus 
14   unprotected works differently.  I think it’s by some 
15   copyright owners. 
16        MR. METALITZ:  I think it’s also indicative of the 
17   fact that the hallmark of this market is 
18   experimentation.  I think a lot of copyright owners are 
19   feeling their way, trying to figure out what is the 
20   best way to deliver this to consumers, in a way that is 
21   profitable and that meets consumer needs.  So, you are 
22   going to see some shifting and back and forth on this.  
0096
 1   To me, that argues for a great deal of caution in 
 2   recognizing exemptions here, because we would be 
 3   basically subjecting -- if you had an exemption that 
 4   allowed circumvention of the authentication server 
 5   model, if you will, you would be freezing that in 
 6   place, at least for a three-year period, and telling -- 
 7   discouraging the experimentation that’s needed. 
 8        MS. AISTARS:  On the topic of harm, and this maybe 
 9   isn’t as directly to the copyright owner, or not -- not 
10   solely to the copyright owner, I should say, if you are 
11   talking about authenticating servers, and particularly 
12   the sorts of functionalities that I was speaking about 
13   in my presentation, oftentimes you may have consumer 
14   financial information, you know, as part of that 
15   transaction with the authenticating server, and so 
16   there is harm to potentially a consumer, if you are 
17   allowing people to circumvent, and circulate tools to 
18   circumvent authenticating servers, you know, if the 
19   server is carrying financial information or other 
20   private data. 
21        MR. SOGHOIAN:  Hang on a second.  So, consumers 
22   are going to suffer harm because they are circumventing 
0097
 1   -- they are getting access to their own financial 
 2   information, because we are talking about a situation 
 3   where the server is no longer functioning anymore, 
 4   right?  So, there is no private information that’s 
 5   floating around on the Internet. 
 6        MS. AISTARS:  I am talking also about an exemption 
 7   where you are requesting the ability to create tools 
 8   and circulate tools that allow you to circumvent the 
 9   authenticating server that is operating, so. 
10        MR. CARSON:  The second proposal, in other words? 
11        MS. AISTARS:  Right.  But, I can imagine a 
12   situation in which you actually would have one 
13   consumer’s financial information being put at risk by 
14   another consumer that is using -- using the tool to 
15   gain access to work within their own home.  For 
16   instance, if you -- one of the things that we do 
17   through X-Box is to allow consumers to access their 
18   content from different locations.  So, I may have 
19   purchased a movie at my home, and now I want to go to 
20   my friend’s home and watch that movie; I can sign on 
21   through an authenticating server, and by use of 
22   whatever private data authenticates me to the server, I 
0098
 1   can get access to the movie that I have purchased and 
 2   watch it at my friend’s home.  Now, if I leave and my 
 3   friend has the ability to use either the tools, or has 
 4   an ability to circumvent the authenticating server to 
 5   gain access to that movie after I have left, they may 
 6   be gaining access both to my -- whether it’s my credit 
 7   card information that verifies me to the company, or my 
 8   private data that otherwise verifies me to the company. 
 9        MR. SOGHOIAN:  So, I do research in data breaches 
10   in privacy as well, and no company would be allowed to 
11   send credit card information back and forth, as part of 
12   an authentication scheme; that would violate the PCR 
13   rules for credit card companies.  I mean, what would 
14   happen would be Microsoft would keep your credit card 
15   details on file; you would pass your user name back and 
16   forth or something like that, but in no instance is any 
17   company ever passing credit card information back and 
18   forth to authenticate some purchased work.  I mean this 
19   is -- this is not happening.  So, I think that’s a 
20   theoretical harm, if even that.  This is -- this is 
21   bogus. 
22        MR. CARSON:  Let’s move on to another topic.  I 
0099
 1   think the answer is probably no better, but I just want 
 2   to make sure we have covered it.  Is there any reason 
 3   to believe that the exemption in 1201(g) for encryption 
 4   research might be relevant to this kind of activity? 
 5        MR. METALITZ:  I would think it would be relevant 
 6   to 10(b). 
 7        MR. CARSON:  And potentially available? 
 8        MR. METALITZ:  Potentially available, and I think 
 9   the issue is whether the proponent can demonstrate that 
10   it’s not available, and they can’t bring their 
11   activities within it and cheat their ball. 
12        MR. CARSON:  Any comments on that, Chris? 
13        MR. SOGHOIAN:  I am not enough of an expert. 
14        MR. CARSON:  Okay.  Are we really talking about 
15   encryption here, or are we talking about something 
16   different? 
17        MR. SOGHOIAN:  We are talking about the encryption 
18   that’s surrounding these services. 
19        MR. CARSON:  Mmm-hmm (in the affirmative). 
20        MR. SOGHOIAN:  But, my  understanding is that 
21   breaking or even documenting the DRM involves more than 
22   just the encryption, in some cases; that would -- but, 
0100
 1   that would still be considered to be DRM, so. 
 2        MR. CARSON:  You might get a follow-up question 
 3   for that. 
 4        MR. SOGHOIAN:  That’s fine.  If you send me a 
 5   follow-up question, I can sit down with lawyers, and 
 6   I‘ll do my technical stuff and they’ll do the legal 
 7   stuff, and we can get you a better answer there. 
 8        MR. CARSON:  Okay.  Good.  All right.  That’s it.  
 9   Thanks. 
10        MR. GOLANT:  Yes.  I just want to ask about 
11   alternatives again.  I apologize for begrudging this 
12   issue, but do you think it’s useful for us to establish 
13   a uniform test for determining potential alternatives, 
14   where we can look at a spectrum where it would be easy 
15   and free, and that would be an alternative versus 
16   difficult and hard for the consumer?  I am just trying 
17   to put this in some way that we can apply it in 
18   practice for not only this, but the other exemptions we 
19   have, and I just want to get your feelings on how to do 
20   that in a standardized way. 
21        MS. AISTARS:  I’m not sure that I understand your 
22   question. 
0101
 1        MR. GOLANT:  Well, I mean, well, talking about 
 2   whether or not you can go to another store and get the 
 3   same merchandise that you purchased before, and then 
 4   you have to go buy it again, or either buy equipment to 
 5   get that done, but some other way that makes it more 
 6   expensive and more cumbersome to get what you had 
 7   already gotten, but for the fact that if you 
 8   circumvented, you don’t have to go through that expense 
 9   and difficulty.  So, I am just trying to prove -- 
10   establish some sort of legal paradigm by which to look 
11   at these alternatives in an objective way. 
12        MR. METALITZ:  May I suggest something on that?  I 
13   think if you go back and look at your previous three 
14   recommendations, you will find that -- you have kind of 
15   developed a common law of this, about what constitutes 
16   an acceptable alternative, in other words, a means of 
17   carrying out the non-infringing use that obviates the 
18   need for circumvention.  It’s not hard and fast, and 
19   it’s dated in terms, in more general terms of some of 
20   the factors you would look at, but I would think 
21   between that and between what’s in the legislative 
22   history that you are given, that it can be a mere 
0102
 1   inconvenience, for example, and that --  
 2        MR. GOLANT:  Because, some of those words are so, 
 3   how you say, squishy, that, you know, I was just trying 
 4   to figure out something a little bit more concrete. 
 5        MS. AISTARS:  I guess I object to the premise of 
 6   the proposal really, because, you know, as we were 
 7   discussing, I find it troubling that consumers are 
 8   willing to buy, you know, new iPods or new PCs, and 
 9   replace that sort of hardware every couple of years 
10   realizing that nothing lasts forever, and that when it 
11   comes to, you know, our efforts to enable new digital 
12   delivery models, we are supposed to ensure that the 
13   third-parties to which we license works are going to 
14   remain in business forever, a service that, you know, 
15   the consumers appropriately forever, and if they don’t, 
16   the remedy is somehow, you know, on us, as the owners 
17   of the copyrighted works to provide.  And, I just find 
18   that troubling.  I said in my testimony that we take 
19   concrete steps to ensure that the people that we 
20   license are actually standing behind the agreements 
21   that they enter into with consumers, but I think it 
22   it’s kind of a misplaced -- a misplaced burden here, 
0103
 1   you know, that the discussion is evolving. 
 2        MR. KASUNIC:  I just have two quick questions; one 
 3   having to do with the fact -- Chris, you are not 
 4   advocating in terms of this particular -- the second 
 5   exemption -- the ability to circumvent tools; this is 
 6   to document the information that would potentially 
 7   enable accomplishment of circumvention, but not 
 8   distributing tools for that purpose, right? 
 9        MR. SOGHOIAN:  That’s correct.  I am not 
10   advocating that anyone should create tools; I am 
11   advocating that they should -- a lot of people, I don’t 
12   you have to give authority to a lot of people to create 
13   tools, or I don’t think you do, at least -- No, this is 
14   solely documenting information so that if the service 
15   fails, consumers are able to then get to the works that 
16   they paid for; just information-getting, for 
17   documentation purposes. 
18        MR. KASUNIC:  So that the information, the 
19   documentation is preserved? 
20        MR. SOGHOIAN:  Exactly. 
21        MR. KASUNIC:  Okay. 
22        MR. SOGHOIAN:  Because it disappears. 
0104
 1        MR. KASUNIC:  Is that -- I was hearing something 
 2   different, I thought, Steve, from -- that this was 
 3   somehow encouraging the creation of tools over what may 
 4   exist without an exemption? 
 5        MR. METALITZ:  Well, I think that’s really what 
 6   Chris was saying up until about 90 seconds ago.  What 
 7   he said in his submission was the reason that he needed 
 8   this exemption 10(b) is because consumers don’t have 
 9   the information or technical skills necessary to 
10   circumvent a failed DRM scheme, so that you have to 
11   study, test and document the schemes, in case they fail 
12   in the future.  There is a bit of a gap there, but I 
13   mean, unless you are -- either you are studying, 
14   testing and documenting these for, for pure research 
15   purposes, or you are doing it so that if this -- if and 
16   when the service fails, or perhaps before the service 
17   fails so that no one will be taken by surprise, there 
18   is a tool available. 
19        MR. KASUNIC:  But documenting something and then 
20   later having that information available to make tools, 
21   for which there would exist an action, an independent 
22   action that could be covered by the exemption, right, 
0105
 1   for 1201(a)(2), there could be an action brought under 
 2   that, if someone were to make a tool, correct? 
 3        MS. AISTARS:  I guess the question is, if the end 
 4   purpose is to create a tool, which is unlawful under 
 5   the DMCA, then why would it be in the Copyright 
 6   Office’s purview to grant an exemption that allows 
 7   someone to prepare to make that tool? 
 8        MR. KASUNIC:  Well, that would be assuming the 
 9   practical inability of consumers to effectuate the 
10   exemption, wouldn’t it?  So, it would mean that the 
11   practical reality is that no one could use the 
12   exemption without the creation of a tool? 
13        MR. SOGHOIAN:  Like, in every other exemption that 
14   has been given. 
15        MR. KASUNIC:  Well, one other question is the 
16   practical effect in the three-year period here; if, in 
17   the absence of any established harm up-to-date, an 
18   exemption, a Register were to recommend an exemption to 
19   the Librarian, how -- wouldn’t this, in effect, be a 
20   perpetual exemption, and would this situation -- could 
21   this situation ever change after this point -- well, 
22   let me leave it at that? 
0106
 1        MR. SOGHOIAN:  Are you saying that essentially 
 2   that because there is a chance that service would 
 3   always fail in the future that this could go forever? 
 4        MR. KASUNIC:  Right. 
 5        MR. SOGHOIAN:  I think that, you know, we are 
 6   going to see more and more -- that the remaining stores 
 7   that are still doing DRM in music are going to finally 
 8   give up, and so I think maybe three or six years down 
 9   the road, you could restrict this solely to maybe 
10   video, or solely to games.  You know, once enough 
11   consumers -- once consumers have completely DRM in 
12   music, maybe they have -- the services have actually 
13   gone bankrupt, and those companies have given some 
14   remedy to consumers, all of the consumers have been 
15   moved away from those old DRM schemes of music, maybe 
16   we wouldn’t need that anymore.  But, you know, if 
17   services are going to go down this path of offering 
18   this model, I think as long as companies are doing 
19   that, and this risk exists to consumers, we should have 
20   this option available, and you know, maybe that -- 
21   maybe that loss for the next 20 years, if companies are 
22   following that business for the next 20 years. 
0107
 1        MR. METALITZ:  Well, we would certainly disagree 
 2   that this proceeding should be in the business of 
 3   discouraging this business model by imposing this 
 4   perpetual or 20-year burden on it.  We think this is 
 5   exactly the kind of business model that Congress 
 6   intended to encourage; it’s given people more access to 
 7   more works, in more ways, with more flexibility than 
 8   certainly anything that existed in 1998.  It’s a big 
 9   step forward for consumers, and we don’t think that 
10   saddling it with this type of perpetual -- or, your 
11   perpetual exemption would be appropriate. 
12        (Discussion off the record). 
13        MS. PETERS:  Okay.  That concludes this morning’s 
14   portion of the hearing, and we will resume at 1:15, one 
15   hour from now. 
16        (Whereupon, at 12:15 p.m., a lunch recess is 
17   taken). 
18        MR. CARSON:  All right.  Good afternoon.  The 
19   Register of Copyrights is not going to be able to join 
20   us.  After this morning’s session she fell ill.  I am 
21   not suggesting a cause and effect relationship, but she 
22   has gone home, hopefully to rest and recuperate and we 
0108
 1   are hoping she will feel better and be with us in the 
 2   morning.  Rather than re-read the opening statement 
 3   that the Register made at the beginning of this 
 4   morning’s hearing, I am just making sure that each of 
 5   the witnesses has a copy of it; it just gives an 
 6   overview of what we are here for, but I imagine the 
 7   majority of the witnesses, at least who are sitting at 
 8   the table, know what they are here for, and we’ll 
 9   proceed. 
10        We are here this afternoon to discuss a series of 
11   related proposed exemptions -- I think it’s eight, in 
12   total -- all variations on a theme, and rather than 
13   read each of the proposals, I think it will come out in 
14   the testimony, I will just read the exemption that was 
15   issued three years ago, because I think each of the 
16   proposed exemptions that we have here are, as I said, 
17   variations on that theme.  That exemption was for 
18   audiovisual works, included in the educational library 
19   of a college or university’s film or media studies 
20   department when circumvention is accomplished for the 
21   purpose of making compilations of portions of those 
22   works for educational use in the classroom by media 
0109
 1   studies or film professors. 
 2        Let me introduce first the Panel.  I am David 
 3   Carson.  I am the Copyright Office General Counsel.  To 
 4   my left is Rob Kasunic, an Assistant General Counsel 
 5   and Principal Legal Advisor; to his left is Ben Golant, 
 6   who is also an Assistant General Counsel and Principal 
 7   Legal Advisor; and to my right is Chris Weston, who is 
 8   an Attorney Advisor, all in the Office of the General 
 9   Counsel.  While the Register is not here, she will have 
10   access to the transcripts, and maybe Chris Soghoian can 
11   point us out to where he found the MP3 tapes of last 
12   Friday’s hearing, and maybe she will be able to listen 
13   to MP3 recordings of today’s hearing too pretty soon, 
14   for all we know.  Okay. 
15        Let me introduce our witnesses, and I believe we 
16   are going to go in the following order -- we’ll start 
17   with Peter DeCherney, of the University of 
18   Pennsylvania; followed by -- all right, Rob, what did 
19   you second one was -- oh, Jonathan Band -- okay -- of 
20   the American Library Association, of speaking for the 
21   American Library Association, an association of 
22   research libraries; followed by Renee Hobbs, at Temple 
0110
 1   University; Jeff Clark, of the Consortium of College 
 2   and University Media Centers; Roger Skalbeck, of the 
 3   American Association of Law Libraries, the Medical 
 4   Library Association, and the Special Library 
 5   Associations; Carleton Jackson, of the University of 
 6   Maryland Film and Film Studies Initiative; Martine 
 7   Courant Rife; Fritz Attaway, the Motion Picture 
 8   Association of America -- and, Fritz, you are 
 9   accompanied by someone whose name I don’t have? 
10        MR. ATTAWAY:  Dan Seymour. 
11        MR. CARSON:  Dan Seymour -- okay -- also with 
12   MPAA, I gather? 
13        MR. ATTAWAY:  Yes. 
14        MR. CARSON:  Okay.  And, is that it, Rob?  Or is 
15   there a number -- oh no, there -- sorry.  I’ve got a 
16   list that’s out of order, and Rob has put numbers next 
17   to them, and I am having a hard following them.  Oh, 
18   Steve Metalitz -- I have heard of him.  He has been at 
19   everyone of our sessions so far as a witness, for the -
20   - what we are calling the Joint Commenters, a number of 
21   copyright owners.  And finally -- no, not finally -- 
22   okay -- Bruce Turnbull, of the DVD Copy control 
0111
 1   Association, Inc.; and at about 8:00 p.m., we’ll get to  
 2   Sandra Aistars, of Time Warner.  So, that is quite a 
 3   line-up.  We do have the whole afternoon, if we need 
 4   it, and heaven forbid, maybe the evening, but let’s 
 5   hope not.  So, let’s get started with Mr. DeCherney. 
 6        PROF. DeCHERNEY:  Members of the Copyright Office, 
 7   let me begin by thanking you for granting the exemption 
 8   for film and media studies professors, in the 2006 
 9   rulemaking.  The exemption has enabled media professors 
10   to teach much more efficiently and effectively with 
11   digital media, and has made a palpable difference in 
12   the education experience of thousands of students.  In 
13   a survey of members of the Society for Cinema and Media 
14   Studies conducted in 2007, 62 percent of faculty 
15   members said that they made quick compilations for use 
16   in classes.  I assume that number is much -- the number 
17   of professors benefitting from the exemption is now 
18   much higher.  It is also significant that the society 
19   for Cinema and Media Studies and the International 
20   Communication Association, the two leading professional 
21   organizations for media professors, have joined as co-
22   petitioners in this rule-making demonstrating both 
0112
 1   broad support with the field, for the renewal and 
 2   expansion of the exemption. 
 3        I was also very happy to read that none of the 
 4   Reply Commenters opposes the renewal of the exemption, 
 5   or even its expansion to include all university copies, 
 6   as opposed to just those copies in departmental 
 7   libraries.   This expansion will allow media 
 8   professors, who have access to university libraries, 
 9   but who do not possess departmental libraries, to take 
10   advantage of the exemption. Yet, this expansion would 
11   still limit the class of works, I think, to media 
12   purchased by university libraries with pedagogical (ph) 
13   or research interests in mind. 
14        I would like to use my time this afternoon to 
15   reiterate briefly why, first, licensing I think is not 
16   a valid option for educational pursuits; to clarify why 
17   students need a similar exemption; and to lend 
18   enthusiastic support to the other category for work 
19   proposals. 
20        So, first, in response to the suggestion of 
21   several of the Reply Commenters, I want to explain why 
22   licensing, of any kind, or any kind of permission 
0113
 1   system, that is, is inappropriate teaching. The Motion 
 2   Picture Association of America has discussed assembling 
 3   a selected clip library, in conjunction with the 
 4   University of Southern California.  There is an 
 5   interesting proposal, but it is one that clearly 
 6   remains at a very speculative stage.  I contacted a 
 7   number of faculty members at the U.S.C. School of 
 8   Cinematic Arts, and none of them have heard about the 
 9   venture.  I also attempted to contact the U.S.C. Deans, 
10   but they did not respond to inquiries about the 
11   proposal from me, or from members of the U.S.C. 
12   faculty.  I look forward to seeing if this project 
13   progresses further, but it is clearly at too tentative 
14   a stage right now, to be a factor in the current 
15   rulemaking. 
16        Time Warner proposes a much more elaborate regime, 
17   in which professors would ask permission every time we  
18   need to use clips in a classroom.  This is a system 
19   that was proposed in the 2006 rulemaking, and discussed 
20   pretty extensively then, and it did not have a bearing 
21   on the final ruling.  I don’t think it should be 
22   considered as an alternative during this rulemaking 
0114
 1   either.  There are many reasons to reject the 
 2   introduction of licensing into the classroom; the most 
 3   important is that such a system could turn into a form 
 4   of censorship.  Time Warner would be placed in the 
 5   position of having to answer to its stockholders about 
 6   why the company either condoned or prohibited the use 
 7   of clips in classes if its stockholders or board 
 8   members found university course descriptions 
 9   confounding, or confusing, or even offensive; they 
10   wouldn’t be the first.  Should Time Warner stockholders 
11   be allowed to decide if a clip, the Batman clip, just 
12   for example, may be used in a course on clear images 
13   and mass media, or a course on the excesses of consumer 
14   culture?  A clip licensing system, I think would be an 
15   unnecessary and potentially dangerous intrusion of 
16   corporate interests into education.  In addition, as 
17   the exhibits submitted by Time Warner demonstrate very 
18   clearly, licensing clips for classroom use is currently 
19   a labyrinth winding and confusing process.  In one 
20   example cited in the Time Warner comment, the company’s 
21   representative correctly told a professor that his use 
22   of an unprotected analog clip from The Wizard of Oz 
0115
 1   most likely fell within the Section 110 classroom 
 2   exception.  He did not need permission.  Yet, the Time 
 3   Warner representative insisted, fallaciously I think, 
 4   that the professor still needed to contact the Screen 
 5   Actors Guild, to obtain permission from all of the 
 6   performers who appeared in the clip.  As an aside, I 
 7   would also mention that one of the performers, of the 
 8   two performers, in the scene in question was never a 
 9   member of SAG.   
10        So, the Joint Commenters, with the support of 
11   others, also suggest limiting the current exemption 
12   further; they recommend limiting exemption only to 
13   DVDs.  Such an exemption would discriminate against 
14   educators, who teach works that are only available in 
15   protected formats other than DVD; television material, 
16   for example, is increasingly available, as protected 
17   on-line streams long before it is available on disk.  
18   Moreover, the goal in many media studies classrooms is 
19   to teach students about the experience and aesthetics 
20   of theatrical projection.  In these cases, even Blu-
21   Ray, which contains only a fraction of the resolution 
22   of projected film, is still only an imperfect 
0116
 1   substitute.  The Joint Commenters also suggest limiting 
 2   the exemption to instances when “All existing digital 
 3   copies of a work contain access controls that prevent 
 4   the creation of clips.”  And, their comment recommends 
 5   hulu.com as a site that allows for clip creation of 
 6   encrypted digital copies.  I would argue that this 
 7   additional condition would place an impossible burden 
 8   on professors, who could never be sure that they had 
 9   searched every possible outlet.  And further, sites 
10   like hulu.com are moving targets, making it virtually 
11   impossible to know if all alternative options have been 
12   exhausted.  Television shows and movies are uploaded 
13   and removed from hulu and other sites regularly.   
14        Not only does the availability of videos expire, 
15   but they can also be casualties of unexpected changes 
16   in licensing deals or network policies.  This is what 
17   happened in January, when the FX channel pulled the, I 
18   can assure you ironically titled, It’s Always Sunny in 
19   Philadelphia, from hulu, right, without warning.  So 
20   again, this decision -- the decision of corporations 
21   and the capriciousness of the market should not be able 
22   to determine the content of education.  This addition 
0117
 1   to the proposed class, I think, would add a giant 
 2   barrier around the use of the exemption. 
 3        Let me turn to the most important element of our 
 4   proposal; the creation of an exemption for student 
 5   work.  As we demonstrated in our two written comments, 
 6   and in our audiovisual submission, use of multimedia 
 7   clips in student assignments is a widespread practice 
 8   in media studies classrooms, and for all of the reasons 
 9   that faculty need access to high-quality images, 
10   students need them as well.  Students need to use clips 
11   in class when they are doing oral presentations, a very 
12   common assignment in the SEMS study that I mentioned 
13   earlier, 63 percent of media studies faculty said that 
14   they assigned in-class presentations that involved the 
15   use of clips.  Like faculty, students need to be able 
16   to use their pedagogical time efficiently; they need to 
17   be able to create transformative works, by mixing clips 
18   with text, still images, and occasionally, additional 
19   clips in the same slide, and of course, students need 
20   to show high quality images, to illustrate the detail 
21   of the clips they are analyzing. 
22        Increasingly, students need to use digital clips 
0118
 1   when assembling video essays; a form of assignment that 
 2   becomes more common every semester.  Not only do 
 3   professors assign video essays to replace some forms of 
 4   writing assignments, but many professional critics have 
 5   moved from print to visual essays, including the former 
 6   New York Times critic, Matt Zoller Seitz.  It is for 
 7   the creation of visual essays, to fulfill course 
 8   assignments, that students have the greatest need for 
 9   high-quality visual clips.  One of my colleagues, for 
10   example, has the students annotate clips in his Mexican 
11   Cinema course.  The students add voiced-over narration 
12   discussing the visual style or performance in a scene.   
13        I was taken aback by another example presented to 
14   me by a different colleague just this week; four 
15   students created a short video essay on media violence 
16   on children.  They used the audio of a decade-old 
17   lecture by media scholar, George Gerbner, and they 
18   illustrated it with clips from recently animated and 
19   live action films, including Family Guy, Saving Private 
20   Ryan, and Kill Bill.  What surprised me is that the 
21   student video essay was ineffective.  It wasn’t 
22   ineffective because it was poorly edited or conceived, 
0119
 1   just the opposite; it wasn’t ineffective because 
 2   Gerbner’s thoughts on violence were outdated, although 
 3   that may very well be true; we couldn’t even get far 
 4   enough to discuss the content; the video essay was 
 5   ineffective because the students used over-the-air 
 6   broadcasts and U-Tube clips as illustrations.  The 
 7   power of blood spewing from a severed arm, and the 
 8   impact of a gun being placed in a young boy’s mouth 
 9   were nullified by the muddy, pixilated images that they 
10   had to use.  It was a clear case, and one that I 
11   wouldn’t have thought of, in which high-quality digital 
12   clips were absolutely necessary.  
13        Another question that came to mind is, how do you 
14   grade a project that’s smart, thoughtful and well-
15   executed, but ultimately ineffective, because students 
16   were not allowed to use the material they needed?  I 
17   would go so far as to say that you cannot be a 21st 
18   Century student in media without being able to use 
19   clips to illustrate classroom presentations, and in 
20   essays.   
21        The only arguments made against this new class 
22   are, I think, unconvincing.  In its comment the MPAA 
0120
 1   suggests that the increased scale of class 
 2   presentations of the class represented by the proposal 
 3   will “pose substantial enforcement problems”.  Yet, in 
 4   the same paragraph, they conclude that “there have been 
 5   few, if any, known abuses of the 2006 media professors 
 6   exemption,” because “faculty member status provides 
 7   strong incentive to act responsibly.”  I would just 
 8   point out that the same responsible faculty members 
 9   would be administering and overseeing the student 
10   assignments, rather than an opportunity to blur the 
11   lines between legal and illegal decryption, as the MPAA 
12   suggests, I think this is exactly the place that 
13   students should be learning about the contours, and 
14   indeed, the boundaries of fair use and the DMCA.   
15        In closing, I’d like to add my support to the 
16   other Category 4 exemption proposals.  I think it made 
17   sense to limit the exemption to media professors in 
18   2006, since we only had evidence of media professors’ 
19   practices and needs, but we now have compelling stories 
20   from educators, who span disciplines, institutions, and 
21   levels of instruction.  It seems clear that language 
22   professors, history professors, and many others need to 
0121
 1   create clips, in order to use the classroom time 
 2   efficiently, and to be able to teach with the detail 
 3   and precision offered by high-quality images.  
 4   Moreover, if professors need to circumvent encryption, 
 5   I can’t see the logic in excluding K-12 teachers.  The 
 6   teaching exemption should clearly be extended across 
 7   disciplines and levels.  So, in conclusion, I would 
 8   urge you to consider expanding the current exemption to 
 9   include media students, as well as professors, and I 
10   hope you’ll be as persuaded, as I have been, by the 
11   other Category 4 proposals.  Thank you. 
12        MR. CARSON:  Thank you.  John? 
13        MR. BAND:  Thank you, very much.  I am Jonathan 
14   Band, and I’m testifying today on behalf of the 
15   American Library Association, The Association of 
16   College and Research Libraries, and the Association of 
17   Research Libraries.   
18        The MPAA and the Joint Commenters’ Reply Comments 
19   concede that they have no objection to the substance of 
20   the existing film clip exemption.  They also concede 
21   that they do not object to the exemption’s application 
22        to DVDs found in any library on campus, not just 
0122
 1   the Film Studies Library.  So, the only remaining 
 2   question is whether the exemption can be used just for 
 3   film and media study classes, or all classes at an 
 4   institution of higher education.  The rights holder’s 
 5   primary objection to extending the exemption to all 
 6   classes is the assertion that only film classes need 
 7   the high quality that results from a digital copy made 
 8   after circumventing the CSS encryption.  In making this 
 9   assertion, the rights holder’s completely ignore our 
10   mission that -- and this is in our opening comments -- 
11   “Sound quality is critical in language classes, to 
12   ensure that students can understand the dialogue and 
13   the technical differences.  Music and theater classes 
14   need high-quality sound to reflect correctly the tone 
15   of musical instruments, or the inflection of the human 
16   voice.  High image quality enable students to see the 
17   nuances of facial expressions and hand gestures.  These 
18   subtle, non-verbal forms of communication may convey 
19   the essential point of a clip used in psychology, 
20   sociology, or literature in classes.”  Further 
21   underscoring the importance of high quality images is 
22   the following statement from Paul Clarke, who teaches 
0123
 1   criminal justice classes at the North Central Technical 
 2   College in Wassau, Wisconsin; “Police officers must 
 3   develop a variety of skills, including observing 
 4   behavior, correctly interpreting it, and recognizing 
 5   its significance, in order to make appropriate 
 6   decisions about actions they take.  There are a variety 
 7   of ways to conduct this type of training, but using 
 8   professionally-developed video (Hollywood feature 
 9   films) yields a cost-effective and time-effective way 
10   to provide groups of students with the same audio and 
11   visual stimulus, as they observe, as they practice 
12   observation and interpretation.  Take the film 
13   Tombstone, for example, the scene leading up to the 
14   shoot-out at the OK Corral is overflowing with body 
15   language and emotion.  One exercise I have students 
16   work on in class is to watch the scene for purpose of 
17   observing facial expressions and body language of the 
18   characters, in order to determine the underlying 
19   emotion.  They then decipher what specific mannerisms 
20   lead them to the conclusions they have drawn.  It’s not 
21   enough for police officers to simply report that a 
22   suspect was nervous; he or she needs to describe the 
0124
 1   specific behaviors observed, as the basis for the 
 2   conclusion.  Most of us are unconsciously competent at 
 3   making these judgments, but an officer must be able to 
 4   describe the observations that give rise to the belief, 
 5   if they are going to use that belief as a proper basis 
 6   of police action.  Because top actors are excellent at 
 7   accurately portraying the non-verbal elements of 
 8   communication, feature films are an excellent tools for 
 9   these exercises.” 
10        In sum, high quality sound and images are 
11   important for classes in all disciplines, not just film 
12   classes.  The rights holders contend that instructors 
13   can create high-quality clips through camcording.  This 
14   argument proves too much.  If camcording can produce 
15   high-quality images, why does the motion picture 
16   industry bother using CSS; why does the industry 
17   support the DMCA; and why are we in this hearing?  We 
18   should all go across the street together and ask 
19   Congress to repeal the DMCA, because it is completely 
20   irrelevant.   
21        It has also been suggested that screen capture 
22   technology, such as SnagIt, can provide an alternative 
0125
 1   to circumvention.  Here too, the quality is not 
 2   comparable to DVD ripping.  Also, I am informed that 
 3   Microsoft’s new operating system, Vista, prevents the 
 4   operation of SnagIt software; thus, screen capture 
 5   technologies do not provide a long-term solution.   
 6        Time Warner stated in its Comments that it will 
 7   give instructors permission to use film clips, however, 
 8   as referred, its permission letter states that the 
 9   permission is contingent on the instructor getting 
10   publicity rights approval from the Screen Actors Guild.  
11   Thus, the Time Warner permissions, by themselves, are 
12   of little value. 
13        Finally, putting aside the question of quality and 
14   alternatives, we have to ask ourselves why the rights 
15   holders are opposing the modest expansion we seek?  Why 
16   are they so reflexively confrontational?  They know 
17   that the uses we seek will not harm their market in any 
18   way.  They also know that whether the exemption is 
19   granted or rejected, it will have absolutely no impact 
20   on the level of infringement out there.  They should 
21   welcome our use of their content in our classrooms.  
22   They should make our legal use as easy as possible.  We 
0126
 1   shouldn’t even have to apply for this exemption.  They 
 2   should proactively declare that they won’t bring DMCA 
 3   actions against higher institutions for assembling film 
 4   clip compilations.  Instead, they insult us by treating 
 5   us as potential infringers, who can’t be trusted to use 
 6   the technology any 12-year-old can download right now 
 7   from the Internet.  The Librarian of Congress should 
 8   disregard the frivolous arguments raised by the rights 
 9   holders, and allow circumvention for film clip 
10   compilations for higher education classes in all 
11   disciplines.  Thank you, very much. 
12        MR. CARSON:  Thank you.  Okay  Next is Ms. Hobbs.  
13   Renee?    
14        PROF. HOBBS:  Good afternoon.  My name is Renee 
15   Hobbs.  I am offering testimony on behalf of the Media 
16   Literacy Educators, who work at all levels of American 
17   education.  I have prepared a slide here that gives you 
18   some background on my experience and credentials. 
19        Since many people in this room are unlikely to be 
20   familiar with media literacy education, I would 
21   actually like to offer a definition, and I’d like to do 
22   that in the form of the media literacy remote control, 
0127
 1   so if I may?  The media literacy remote control is a 
 2   visual metaphor that articulates the idea of thinking 
 3   critically about media and technology messages.  You 
 4   can see from the remote control that you can use it 
 5   with all different kinds of media, including books, 
 6   newspapers, films, magazines; but, but when you use it, 
 7   metaphorically speaking, you get to explore issues, 
 8   like what’s accurate and inaccurate; the true/false 
 9   button.  Who is making money from this message; the 
10   private gain or public good button.  And the values 
11   check button; looking at how media messages depict our 
12   understanding of moral and ethical behavior.  In fact, 
13   over 15 years ago, media literacy educators got 
14   together at the Aspen Institute, and came to a 
15   definition that reflects media literacy as an expanded 
16   conceptualization of literacy.  Just as literacy 
17   includes the ability to participate in speaking and 
18   listening; writing and reading; literacy is the sharing 
19   of meaning through symbolic form, and so media literacy 
20   includes critical viewing and media composition.  In 
21   fact, media literacy offers a powerful conceptual set 
22   of themes for exploring multimedia genres, introducing 
0128
 1   students to how to analyze authors and audiences, 
 2   messages and meanings, representations and realities.  
 3   Media literature practitioners have a discreet set of 
 4   instructional practices; a set of key concepts and core 
 5   principles established by the community that emphasize 
 6   how media and technology can be understood in relation 
 7   to the building of skills involving critical analysis 
 8   and communication. 
 9        Why are we so passionate and dedicated about our 
10   work?  Well, middle school students spend four to six 
11   hours a day in screen activity, and four out of five of 
12   them say no one talks to them about the media messages 
13   they encounter every day.  So, 80 percent of 12 and 13-
14   year-olds are soaking in a rich and complex media 
15   culture without opportunities for critical thinking and 
16   communication skills.  Moreover, we have a strong 
17   movement now toward helping our students develop the 
18   21st Century literacy skills they need to be effective 
19   in a technology economy; those include skills, like 
20   being able to use technology tools; being able to apply 
21   analysis, critical thinking, and ethical judgment; 
22   being able to be creative and expressive with these new 
0129
 1   forms of communication; and being able to engage in 
 2   teamwork and collaboration, and media literacy 
 3   addresses all four of those components of 21st Century 
 4   literacies.  
 5        So, I am here today to ask for a functional, use-
 6   based exemption of CSS circumvention, because it’s 
 7   essential for media literacy education to thrive.  
 8   Media literacy educators must make use of copyrighted 
 9   works, in order to build those critical-thinking and 
10   communication skills, and so I am speaking on behalf of 
11   that large number of teachers and students, who need to 
12   be able to use DVD clips, for teaching and learning 
13   media literacy education. 
14        Now one critique that was offered to us was that 
15   this class of users is too broad.  There are, in fact, 
16   56 million students in K-12 schools.  Based on our best 
17   evidence of interviewing teachers, reviewing state 
18   standards documents, and looking at national 
19   conferences and the topics and issues presented at 
20   national conferences, we estimate that about 85 percent 
21   of middle school students get some kind of media 
22   literacy education, in the context of their health 
0130
 1   class.  This happens mostly as health teachers help 
 2   students to critically analyze the representation of 
 3   alcohol and tobacco in mass media.  Right now we only 
 4   estimate that about 20 percent of secondary students 
 5   get that opportunity in their high school English 
 6   classes, although we think that trend is growing.  Last 
 7   week I was just at the International Reading 
 8   Association in Minneapolis, Minnesota, and there were 
 9   probably 40 presentations that addressed this topic 
10   among the reading and literacy educators.  But I am 
11   here on behalf of the large number of students, who 
12   won’t ever have an opportunity to take a film class in 
13   college.  In urban communities, like Houston, Atlanta, 
14   Detroit, Chicago and Philadelphia, 50 percent of those 
15   students won’t make it to college, and so they need 
16   opportunities to have exposure to media literacy 
17   education during their K-12 years.  Everyone, in fact, 
18   needs media literacy education.  
19        Now another critique that’s been offered to us is 
20   the idea that there are other options besides CSS 
21   circumvention, and other petitioners have talked a 
22   little bit about that.  In fact, it’s quite ironic the 
0131
 1   way in which the shifting technologies have impacted on 
 2   teachers and students in American public schools.  We 
 3   don’t have any VHS machines anymore at home.  We got 
 4   rid of them when we got our flat screens, right?  We 
 5   all -- we teachers all moved to new technologies long 
 6   ago, and our VHS machines are in the basement, or at 
 7   the garage sale.  We haven’t had them.  We haven’t been 
 8   able to tape off the air, in fact, for quite a long 
 9   time.  The VHS machines are not frequently in our 
10   schools.  In January, I was doing a staff development 
11   program in North Carolina, for the North Carolina 
12   Teacher Academy, when I asked for a VCR, because I 
13   hadn’t digitized a particular tape, it took them a day 
14   to find it, right, and when they found it, it didn’t 
15   hook up to the data projector, so we actually couldn’t 
16   show it on the screen.  VHS machines are less available 
17   in schools.  It’s difficult to make effective 
18   educational use of DVDs, for all the reasons that were 
19   presented by Peter DeCherney three years ago.  One most 
20   notably is a high school English teacher, who wanted to 
21   have students look at the suiting of the astronaut 
22   scene in Apollo-13; you may remember, a very moving and 
0132
 1   lyrical moment when the astronaut is suited up, in all 
 2   the complex technology required.  She wanted to do a 
 3   close analysis comparing that scene to the scene in 
 4   “Baowolf” (ph), where Baowolf prepares for his exciting 
 5   battle with Grendall (ph), but, in fact, she had to 
 6   watch, as her students giggled and got distracted, as 
 7   she quickly tried to fast-forward through “Hell Boy”, 
 8   “The Mummy”, and “American Gangster”, really destroying 
 9   the mood of the activity that she was trying to 
10   implement.  Of course, in many schools, in public 
11   schools, teachers can’t access YouTube.  The Internet 
12   software, filter software in schools makes it 
13   impossible to use video sharing websites, in the 
14   context of K-12 education.  I, myself, as head of the 
15   Media Education Lab, put up 56 videos on YouTube, for 
16   educational use by teachers for media literacy 
17   education, materials we have created ourselves at the 
18   lab, teachers can’t access them.  So, we must find 
19   other ways to provide curriculum materials for them to 
20   do media literacy education. 
21        So, I hope I have made clear to you that media 
22   literacy education is not like what you might have 
0133
 1   experienced back in the day; simply using media and 
 2   technology for instructional use.  In fact, it’s just 
 3   beyond viewing and discussion.  We are using media and 
 4   technology to build critical thinking and communication 
 5   skills.  But, I would like to close by offering you an 
 6   example of a real teacher, in a real classroom, in 
 7   Texas, who had a very, very powerful learning 
 8   experience.  She wanted to create an opportunity to 
 9   explore how the depictions of romance in mass media and 
10   literature shape people’s expectations about social 
11   relationships.  Her instructional practice was very 
12   specific; first, students would view and discuss a 
13   teacher-created video, which introduced the formula, 
14   the tropes, and the stereotypes about romance, as it’s 
15   presented in contemporary film and television; then she 
16   would model the practice of critical analysis using a 
17   contemporary film excerpt and an example from 
18   literature; and finally, students would select a 
19   personally meaningful film excerpt that depicts 
20   stereotypes about romance; they compose an analytic 
21   essay; and make an oral presentation that comments on 
22   the film excerpt.  Ms. Scheffler is doing this, in 
0134
 1   part, because, in the state of Texas, media is mandated 
 2   as part of English language instruction; it is 
 3   required; it is part of her curriculum.  But, back in 
 4   the day, she used to use this really interesting video, 
 5   back in the late 1990s and early 2001.  At about 2002, 
 6   she reached out to me and said, Renee, I am really sad 
 7   I can’t do this activity anymore, because the video I 
 8   created to use with students, well it just doesn’t work 
 9   anymore; students are not familiar with the films and 
10   the materials, and I want to be able to update it, but 
11   she can’t update it.  Let’s take a look at the video 
12   that Mrs. Lisa Scheffler developed for her high school 
13   English class, the videotape that she can’t update 
14   anymore -- she can’t update this anymore.  Let’s see if 
15   I can find it. 
16        [Playback of movie]. 
17        All right.  I think you have the idea of what Lisa 
18   Scheffler was trying to accomplish. This tape doesn’t 
19   work anymore, because her 14, 15 and 16-year-old 
20   students are living in a different time, in a different 
21   context, with a different set of mass media references 
22   that tell us about romance and sexuality in 
0135
 1   relationships.  Her students need the chance to reflect 
 2   on how media depictions of romance shape their own 
 3   understanding of social relationships.  But, here is 
 4   the assignment that’s very difficult for Lisa Scheffler 
 5   to do in a 50-minute class period in McKinney, Texas; 
 6   she wants to help students compare and contrast how the 
 7   topic of contraception is addressed in the recent film, 
 8   Juno; how the topic of commitment is addressed; and how 
 9   the topic of consequences are presented.  To do that, 
10   she needs to be able to use three, two-minute excerpts, 
11   side-by-side, to illustrate how media messages work to 
12   shape our understanding of adolescent sexuality and 
13   teen pregnancy. 
14        So, in conclusion, I am here to make the case that 
15   teachers and students need to be able to use DVD clips 
16   for teaching and learning of media literacy education.  
17   Those of us in media literacy education are guided by 
18   an old, old quote from Umberto Eco, who long ago wrote, 
19   “The language of the image must be a stimulus for a 
20   critical reflection, not an invitation to hypnosis.”   
21   Thank you. 
22        MR. CARSON:  Thank you.  Let’s move on to Jeff 
0136
 1   Clark. 
 2        MR. CLARK:  Thank you.  My name is Jeff Clark.  My 
 3   institutional home base is James Madison University, 
 4   but I am here this afternoon to represent the 
 5   Consortium of College and University Media Centers 
 6   (CCUMC).  CCUMC is a higher education professional 
 7   organization that encompasses media and instructional 
 8   technology-related support services, as well as 
 9   companies that provide products to them.  Our members 
10   in colleges and universities provide both library-
11   related collection services, and technical support 
12   services for instructional technology and media 
13   production.  Our service units might be within an 
14   Academic Affairs Division, or within the IT 
15   organizations on our various campuses.  Because of 
16   CCUMC’s membership composition, we expect our testimony 
17   on a proposed DMCA exemption that’s being championed by 
18   library-related organizations and by faculty will both 
19   support and augment their arguments.  CCUMC’s 
20   testimonies and specific sympathy with the proposed 
21   class of exemption here, at this Panel, under 4(a) 
22   through 4(g), all being variations of an enhancement on 
0137
 1   the 2006 exemption that Peter DeCherney and his 
 2   colleagues achieved for audiovisual works in the 
 3   educational library of a college or university’s film 
 4   or media studies department.  We believe the version 
 5   closest -- the version of the proposed class closest to 
 6   our membership is in 4(a); commercially-produced DVDs 
 7   used in face-to-face classroom teaching by college and 
 8   university faculty regardless of the discipline or 
 9   subject taught, as well as by teachers in K-12 
10   classrooms.  The bulk of our testimony will focus on 
11   the nature of the class at work involved in our 
12   proposal, its users and uses, and the expansion of 
13   scopes sought for all three.  
14        CCUMC believes that the enhanced scope of the 
15   original 2006 exemption’s class of works should have at 
16   least these salient characteristics:  (1) DVDs include 
17   -- that are CSS or other access-protected, and/or 
18   commercially available or lawfully made, as it’s often 
19   termed in Title 17, and are subject to a first sale 
20   doctrine or purchased; (2) be eligible from any source, 
21   collection items in a film or media studies library, a 
22   multi-type library representing these and other 
0138
 1   academic disciplines, or a personal resource of the 
 2   faculty member; (3) include any individual work of 
 3   content within the DVD, whether primary or ancillary 
 4   supplemental material; and (4) be subject to non-
 5   infringing educational use in face-to-face teaching 
 6   strategies by faculty in any academic discipline. 
 7        The first of those characteristics; commercial DVD 
 8   subject to sale, a few more comments.  DVDs acquired 
 9   from sale subject to the first sale doctrine, or the 
10   focus of that characteristic, since licensed product, 
11   whether in physical format, or more often made 
12   available for streaming and download, is likely to be 
13   subject to contractual terms beyond copyright law, it’s 
14   excluded from our consideration.  License on-line 
15   content may also be of lesser quality than provided by 
16   DVD digital encoding, a point relevant to the 
17   circumvention proposed here.  All for sale DVDs now 
18   contain content that may no longer be available by 
19   other non-licensable means, analog or digital.  
20   Commercial releases on video cassette, at least of 
21   feature films, ceased in the spring of 2007.  More 
22   recently, JVC, the major manufacturer of stand-alone 
0139
 1   VCRs, ceased production of the equipment in the fall of 
 2   2008.  While what’s termed combo decks, or combination 
 3   VCR and DVD players that are heavily used in our higher 
 4   education campus classrooms, while they continue to be 
 5   made, a dwindling number of models in the market and 
 6   common speculation among professional colleagues leads 
 7   us to conclude it’s mostly a matter of another year or 
 8   two before their availability may cease.  These units 
 9   may or may not be replaced by a combo deck that 
10   incorporates VHS and Blu-Ray playback capability.  
11   Panasonic announced such a player, the DMP-BD70V, in 
12   January of this year, but so far they appear to be 
13   alone in their announcement.  Both developments, the 
14   diminishing access to the software and to the hardware 
15   in analog video format, tend to channel the 
16   availability of content to DVD, Blu-Ray, and on-line 
17   subscription or purchasing services.  The majority of 
18   DVDs, and less from specialized educational publishers, 
19   is access and copy-protected in its content. 
20        To comment on the second point; commercial DVD 
21   content from any source of collection.  Other 
22   testifiers have noted, both on this Panel and in 
0140
 1   earlier posted comments to this rulemaking, the 
 2   limitation on type of institutional users to a film or 
 3   media studies educational library that it does not 
 4   speak to the reality of resource organization in many, 
 5   even most of our institutions.  It’s more common to 
 6   find the multi-type library, as colleague, Gary Handman 
 7   (ph) has termed it, which collects and houses 
 8   subdisciplinary collections on behalf of such 
 9   departments engaged in film and media studies.  Even 
10   this expansion of scope, however, is insufficient.  
11   Faculty often use personal copies or acquire them with 
12   departmental funds for their own instructional use, or 
13   in an informal “departmental collection”, which 
14   doesn’t, in fact, really exist as a facility.  There is 
15   no need to consider these avenues of acquisition any 
16   differently, so long as lawfully-made commercial copies 
17   are involved in teaching uses, which benefit from 
18   extraction and compiling of their content for effective 
19   instruction.  They should all qualify as sources for 
20   the new proposed exemption. 
21        On the third characteristic; DVD’s useful content, 
22   the primary and ancillary work on the format.  It’s 
0141
 1   been observed as early as the 2000 round of exemption 
 2   hearings that ancillary or supplemental content on 
 3   feature film DVDs, along with the primary content, 
 4   tended to be increasingly available, and that the 
 5   encouragement of access and copyright -- excuse me -- 
 6   and copy control technology had a role in this.  Much 
 7   of the ancillary material has been unavailable on VHS 
 8   videocassettes, or even on the now fully obsolete laser 
 9   disc releases of the same feature films.  Since that 
10   time, even documentary film releases have tended to 
11   augment their primary work with additional material not 
12   incorporated into the film or expanding the perspective 
13   on it through background context on the subject, or the 
14   production process in the real world.  All of this 
15   material is useful to film studies faculty and courses; 
16   however, ancillary material can also be useful to 
17   faculty and subjects outside of that discipline.  
18   Documentary supplements often include contextual 
19   material that reflects historical realities of the time 
20   period, rather than focusing on the feature film, or 
21   the non-fiction film release itself.  Any of this 
22   material, given its variety, can be useful to faculty 
0142
 1   and other humanity social sciences and physical science 
 2   disciplines, even when the primary film on the DVD 
 3   release is not.  This is especially true when dealing 
 4   with vintage feature films, whose ancillary materials 
 5   are not newly produced and retrospective about the 
 6   film, but also documents of the period during which the 
 7   film was made.  Despite reasonable arguments that DVD 
 8   access and copy protection has encouraged the 
 9   availability of ancillary materials, we don’t believe 
10   that it has much cogency any longer, as the years have 
11   passed, especially for archival materials that are 
12   assembled for older film releases that are not newly 
13   produced for them.  The importance of ancillary, as 
14   time and observation can show us in social experience, 
15   has more to do with marketing factors other than 
16   protection of content. Such materials enhance the 
17   desirability of film releases that don’t themselves 
18   automatically command a widespread must own status, 
19   because of overwhelming audience popularity.  A glance 
20   at random comments by Amazon.com users focused on movie 
21   releases having little or not supplementary materials 
22   on their DVDs confirms this impression.  Supplements 
0143
 1   are the expected norm, not the exception, and 
 2   disappointment ensues when they are absent.  The value 
 3   of ancillary material of the general consumer can be 
 4   seen not in its intrinsic value, but in the value added 
 5   novelty and the bargain it offers as part of the 
 6   purchase transaction.  But, for the educator, the 
 7   equation is more likely to be reversed; the supplements 
 8   can be valuable as new content to meet teaching 
 9   strategies, and as a bonus, in that the content can be 
10   both useful and relevant, even when the primary film it 
11   accompanies is not; thus, in the case of the educator, 
12   quality not quantity is the governing force in the 
13   desirability of ancillary materials. 
14        The fourth characteristic; educational uses by 
15   faculty in all of the academic disciplines.  Other 
16   testimony and earlier comments during the rulemaking 
17   have amply demonstrated and cited specific teaching 
18   examples for multiple disciplines beyond media studies, 
19   for which an enhanced DMCA exemption would be useful.  
20   In reviewing communications among CCUMC members over 
21   the past three years, both in person at our annual 
22   conferences and across our list serve, we do not find 
0144
 1   any other novel examples to add to the inventory you 
 2   have already got.  However, I would like to recast the 
 3   examples already given into a kind of quasi 
 4   classification scheme of teaching uses that span across 
 5   disciplinary applications of AV works on DVDs.  
 6        First, there would be the medium-specific 
 7   aesthetic; film and media, other communication studies, 
 8   and even music are most directly involved here.  The 
 9   form and technique of the medium for creating affect 
10   and meaning are as, or sometimes more, important than 
11   the subject content considered for itself. 
12        Two, artistic dramatic; adaption of any other form 
13   literary work to the film or video medium, which are of 
14   interest of media, literary and performing arts 
15   disciplines in the humanities. 
16        Third kind of use; subject content-specific.  Use 
17   of the subject content for its anticipated cultural 
18   value was information or knowledge.  The feature film I 
19   would offer useful awareness of current events or of 
20   history however popularized.  Non-fiction films for 
21   general audiences do the same, and discipline-specific 
22   instructional film and video are obviously targeted to 
0145
 1   mastery of subject and skills. 
 2        Four, the medium’s material content selectively 
 3   and pedagogically repurposed.  Incidental aspects of 
 4   the feature film or other audiovisual work-specific 
 5   audio and video content can be used outside of the 
 6   purposes in one, two and three just mentioned.  A 
 7   feature film could be used to generate ideas for 
 8   theatrical set design, or to illustrate concepts or 
 9   styles for architectural studies.  In general, 
10   educational or specific instructions though no longer 
11   relevant to current teaching of a discipline may still 
12   be useful for historical study.  For example, 
13   (inaudible) nursing practice (inaudible). 
14        (Technical difficulty). 
15        MR. CARSON:  We have had an indication that this 
16   may be caused by cell phones, so if folks would turn 
17   their cell phones off -- I am probably guilty -- that 
18   would perhaps get rid of that problem? 
19        MR. CLARK:  Mine is off now, I know. 
20        MR. CARSON:  Blackberries are included, yes. 
21        MR. CLARK:  Okay.  Number five type of use; the 
22   medium’s intellectual content selectively and 
0146
 1   pedagogically repurposed.  Intellectual here comprises 
 2   the cultural meaning and expression that are both 
 3   inherent in and a viewer response to the material 
 4   content seen as a product of its time in society.  This 
 5   is an enormous category of usage for teaching faculty, 
 6   as comments and testimonies have been verified.  Mining 
 7   feature films especially for their expression, 
 8   provocative or formulate coherent or confused of social 
 9   issues is in widespread teaching use in higher 
10   education.  Cultural images of roles and the 
11   understanding of processes is not the exclusive domain 
12   of media studies either.  A biology professor teaching 
13   a general education course on science for non-majors 
14   may excerpt American B science fiction films from the 
15   1950s, to illustrate popular conceptions of the 
16   scientist’s role in society and of how science works.  
17   That specific example occurred to me a few years back.  
18   He may be using 1960s films by now.   
19        And finally, six; the transformative use of medium 
20   material in remixing and digital writing.  We have had 
21   comments and are having testimony on both of those 
22   variants of remixing and their importance to student 
0147
 1   learning.  We should affirm that the activity is 
 2   important for a student’s mastery and analysis of a 
 3   subject and of creative expression, as it is for 
 4   citizens engaged in a conversation with their own 
 5   culture.  CCUMC notes that faculties should be included 
 6   as well.  They may use remixing the stimulator-inspired 
 7   student efforts.  Even the clip collection activity 
 8   sought to be enabled by the proposed circumvention 
 9   exemption may be engineered into a presentation in 
10   software context for class that is hardly 
11   distinguishable from an instructionally-oriented remix. 
12        On the need for the circumvention exemption rather 
13   than an alternative work-around; at this hearing panel 
14   of the Motion Picture Association of America is going 
15   to demonstration an alternative software and hardware 
16   system, to enable screen capture of video segments 
17   without circumvention or access controls, and without 
18   resort to the point a camcorder at a monitor display 
19   solution that we have had in several years back.  We 
20   look forward to this demonstration with an eye to its 
21   effectiveness in terms of quality results and 
22   efficiency of implementation.  Barring a non-
0148
 1   circumvention solution that’s fully effective, however, 
 2   CCUMC would argue, along with our library and other 
 3   educational colleagues, that the quality of a film or 
 4   other audiovisual works presentation is as important to 
 5   other teaching faculty as it is to those involved in 
 6   media studies.  The best quality that can be achieved 
 7   from a DVD transfer importing of the clips from the 
 8   digital software files themselves is crucial to 
 9   fidelity of visuals and clarity of details and other 
10   disciplines as well.  All visual arts in the humanities 
11   obviously benefit from image fidelity and clarity, and 
12   the experience of service support staff confirm that 
13   faculty everywhere are demanding on this count.  Other 
14   disciplines benefit likewise when the detail and the 
15   image is expressed unambiguously in guiding the 
16   learning of a critical technique, as in nursing or 
17   other applied in physical sciences.  In addition, 
18   because of the nature of CCUMC, as a professional 
19   organization for technology support in higher 
20   education, we know the realities of dealing with 
21   solutions to faculty teaching support that are staff-
22   intensive.  New materials solutions that assist staff 
0149
 1   in meeting the needs of faculty are easier to affect 
 2   from material operating budgets than from staff 
 3   resources; that is service solutions that can’t be 
 4   scaled into existing and viable service structures, but 
 5   become time-intensive special service niches, or a 
 6   concern for our organization’s members.  If meeting a 
 7   faculty’s teaching needs for clip collection via 
 8   circumvention of access controls is more efficient in 
 9   the use of staff time, as well as of higher resultant 
10   quality, our concern over the negative practicing --  
11   negative practical impact of the a less efficient and 
12   less effective alternative solution is obvious. 
13        Finally, in closing, CCUMC wishes to restate our 
14   support for faculty in higher education and their 
15   mission, which compels us to testify on behalf of an 
16   anti-circumvention exemption assisting their efforts in 
17   general.  The proper domain of education is the 
18   transmission of culture and cultural skills; the 
19   empowering of fully independent thinking and acting 
20   citizens; and the creation of new knowledge in the 
21   process of fulfilling the first two functions.  Because 
22   of this expansive domain of activity, every culture 
0150
 1   artifact of our global society is a potential object of 
 2   instruction and learning; a text, as Gary Handman’s 
 3   testimony put it at the Palo Alto hearing, a focus of 
 4   study and use in one of the classifying ways I have 
 5   outlined above, so we commend the Register the 
 6   Copyrights to consider favorably an exemption of any 
 7   enhanced character that would effectively empower 
 8   faculty beyond those privileged by the 2006 exemption.  
 9   Thank you. 
10        MR. CARSON:  Thank you.  Now we turn to Roger 
11   Skalbeck, and I think we need to do some audiovisual 
12   setup, is that right? 
13        MR. SKALBECK: Yeah.  I mean, I have it all on a 
14   statement, but I have one or two clips that I would 
15   like to play. 
16        MR. CARSON:  All right.  Do you want to do 
17   whatever you need, to get ready for that? 
18        MR. SKALBECK:  Please.  Wherever. 
19        (Discussion off the record). 
20        MR. SKALBECK:  Okay.  Thank you, everybody, the 
21   Copyright Office, for the opportunity to speak in 
22   today’s hearing.  I will read a brief statement, and 
0151
 1   then I will turn to playing some of the clips that I 
 2   have prepared here, but not all of them; they are more 
 3   illustration. 
 4        My name Roger Skalbeck.  I am the Chair Elect of 
 5   the Copyright Committee of the American Association of 
 6   Law Libraries, and I am also an Associate Law Librarian 
 7   here, in Washington, D.C., at Georgetown’s Law Library.  
 8        Pursuant to the Notice of Inquiry published by the 
 9   Copyright Office on October 6, 2008, in the Federal 
10   Register, the American Association of Law Libraries, 
11   the Medical Library Association, and the Special 
12   Libraries Association submit the following comments to 
13   exemptions that should be granted, pursuant to 17 
14   U.S.C. Section 120(1)(1)(c).   
15        Our three associations collectively represent more 
16   than 20,000 members, both here, in the United States, 
17   and worldwide.  Our associations work together to 
18   address copyright issues that affect our members, and 
19   we are particularly concerned today with the needs of 
20   faculty and students in the many educational 
21   institutions we serve.  Our request for an exemption is 
22   specifically aimed at literary and audiovisual works, 
0152
 1   usually commercially-produced and lawfully-acquired 
 2   DVDs, when circumvention is used to make compilations 
 3   of brief portions of works for educational use by 
 4   faculty members in a classroom setting.  Specifically, 
 5   we request that the exemption granted to faculty and 
 6   media in film studies programs, after the 2006 
 7   rulemaking proceeding, be broadened, to include faculty 
 8   of the law and health sciences areas, and that 
 9   exemption be extended to include lawfully-acquired 
10   copies from any source permitted 17 U.S.C. Section 
11   110(7)(1).   
12        As a little background, Section 1201 to Copyright 
13   Act prohibits circumvention of technological acts -- 
14   technological measures or access controls employed by 
15   or on behalf of copyright owners to protect their 
16   works.  To ensure that the public can engage in non-
17   infringing uses of copyrighted works, the prohibition 
18   is limited.  Non-infringing uses of any particular 
19   class of works are exempt from the prohibition when 
20   users are currently, or in the next three years, are 
21   likely to be adversely affected in their ability to 
22   make non-infringing uses of that class of works.  Six 
0153
 1   classes were exempted when the file rule was published 
 2   after the 2006 rulemaking proceeding; the first of 
 3   these exemptions, of course, was for audiovisual works 
 4   included in the educational library of a college or 
 5   university’s film or media studies department, and we 
 6   know the rest, how that goes.  The final rule noted 
 7   that the concern of copyright owners that the proposed 
 8   class be as narrow as possible to prevent an overbroad 
 9   range of uses.  We hope to show through our examples 
10   that the exception made for media and film studies 
11   faculty should also be broadened to include law and 
12   health sciences faculty.   
13        Educational programs in law and health sciences 
14   increasingly include role playing, and other real life 
15   exercises that help students gain a better 
16   understanding of professional practices.  For instance, 
17   how to counsel clients; how to diagnose an illness; and 
18   how to ensure patient safety.  The best way to prepare 
19   students for such exercises is to show short clips that 
20   include illustrations of the right and the wrong way to 
21   handle various situations that present themselves in 
22   the everyday practice of law and medicine.  Such 
0154
 1   scenarios are present in a wide variety of films and 
 2   television series that are concerned with the practice 
 3   of law and medicine.  There are many examples of full-
 4   length law and motion-related motion pictures that are 
 5   available for classroom use through the fair use and 
 6   educational exemptions in Sections 107 and Sections 110 
 7   of the Copyright Act, and Title 17 of the U.S. Code.  
 8   Unfortunately, there are no equivalent provisions 
 9   available that cover situations when a faculty member 
10   in a law or medical program simply wants to compile a 
11   set of very brief clips from longer works, to 
12   introduce, for instance, role playing exercises in an 
13   ethics or patient safety class, or to provide a spur to 
14   facilitated discussion about client services.   
15        There are also many situations particularly in 
16   intellectual property classes where a faculty member 
17   may need to show examples of multiple works, in order 
18   to clarify a point of law that no amount of verbal 
19   communication can provide.  For purposes of argument, 
20   we assert that the encryption method known as the 
21   content scramble system, or CSS, which is embedded 
22   within DVDs and prevents most manipulations of them, is 
0155
 1   an access control measure that prevents efficient use 
 2   of portions of the work.  For educators who want to use 
 3   short clips from audiovisual works, if one cannot 
 4   circumvent CSS, one is left with the options of 
 5   foregoing use of the clips in the classroom, or 
 6   creating poor replicas of the higher quality originals 
 7   from their inferior versions of the films, if 
 8   available.  The CSS makes the contents of the DVD 
 9   inaccessible to all users, including those who would 
10   use a small portion for educational purposes.  Without 
11   the ability to circumvent CSS in these circumstances, 
12   the small portion of the work needed requires a time-
13   consuming set-up that actually works against the 
14   purpose of enhancing the student’s education 
15   experience. 
16        One can argue that the various factors of Section 
17   107 of the Copyright Act are relevant to an argument 
18   favoring the educational use of short film clips.  Fair 
19   use, of course, is determined by weighing the purpose 
20   and character of the use, including whether such use is 
21   commercial or non-profit educational use purposes; the 
22   nature of the work; the amount and substantiality of 
0156
 1   the portion used in relation to the work as a whole; 
 2   and the effect of the use upon the potential market or 
 3   value of the copyrighted work.   
 4        We are seeking the exemption for literary and 
 5   audiovisual works that are of importance to a program 
 6   of study, in which the work is used only for non-
 7   profit, educational purposes, and only in a classroom 
 8   setting.  This mitigates against the potential harm 
 9   caused by unauthorized commercial use, or by widespread 
10   copying and distribution of a protected work.  In the 
11   examples we have gathered, the portion to be clipped 
12   from a work is invariably short in relation to the work 
13   as a whole.  The works themselves are legally-acquired.  
14   In most cases, the DVD is in the collection of the 
15   educational institution’s library, which exists to 
16   support the teaching program, and occasionally, a work 
17   is owned by a faculty member, who has purchased it 
18   specifically for classroom use.   
19        We hope that the following examples will help 
20   illustrate both the importance of these clips to the 
21   educational experience, and the lack of a suitable 
22   alternative absent the ability to take shot clips from 
0157
 1   the films.  These film clips have been used in law 
 2   school and health sciences classes, to illustrate 
 3   specific, focused, topical discussions of often complex 
 4   issues.  In addition, we provide hypothetical uses that 
 5   could be made if the exemption is granted.  As we show, 
 6   the curriculum of a law or health sciences class can be 
 7   greatly enhanced by the inclusion of short clips, 
 8   together with traditional classroom materials.  Our 
 9   examples demonstrate that clips from popular media can 
10   be used to discuss legal battles over media usage; 
11   fictional portrayal of real-life situations; as well as 
12   matters relating to patient care, ethics and 
13   professional practice in law and medicine. 
14        Turning specifically now to the clips, material 
15   included in television programs and films can often 
16   form the basis of legal battles in court.  For law 
17   students to better understand the nature of these 
18   cases, there is no substitute for seeing the specific 
19   material that is under dispute.  There have been 
20   several lawsuits in the area of copyright and trademark 
21   law, typically with the person suing the movie company 
22   over how a product or original work appears in that 
0158
 1   work.  By illustration, an intellectual property 
 2   professor at Georgetown Law Center has used clips from 
 3   movies, to show students divergent treatment courts, to 
 4   give to increasing -- to give to seemingly incidental 
 5   appearance of objects in specific scenes.  For example, 
 6   in an episode from the HBO series, Rock, a poster 
 7   version of a folk art quilt appears in the background 
 8   of a short scene.  The quilt creator objected to having 
 9   her work of art appear in the episode arguing that she 
10   was not compensated for this use.  The Court held that 
11   this was not a de minimis use, which is a legal concept 
12   meaning that it was not trivial.  Contrasting this, the 
13   professor plans to show a scene from the Mel Gibson 
14   movie, What Women Want, where a pinball machine appears 
15   in the background of a scene lasting less than five 
16   minutes.  In this instance, the Court held that the use 
17   was de minimis, and was therefore not infringing.  By 
18   seeing the specific subject matter of two cases 
19   involving a nuance legal issue, law students have a 
20   better basis for discussion.  A written description of 
21   the facts in each case would be far less effective than 
22   allowing students to see the short clips together.  In 
0159
 1   fact, it might be pedagogically unsound to do so. 
 2        Following are additional films where material 
 3   appearing a short segment has been the basis of a legal 
 4   dispute that I will describe just briefly.  The movie 
 5   12 Monkeys; in this movie a distinctive chair appears 
 6   in four separate segments.  The chair was based on a 
 7   drawing by the artist Lebbeus Woods.  The District 
 8   Court found that the movie studio Chair clearly 
 9   infringed the artist’s work.  The film Batman Forever 
10   features a building used by Warner Brothers, in an 
11   agreement they had with the building’s owner.  An 
12   artist created part of the building’s exterior 
13   decoration, and sued the studio for unauthorized use.    
14   In a segment of the film The Devil’s Advocate, a 
15   distinctive sculpture in the office of a lawyer played 
16   by Al Pacino comes to life portraying the figures in 
17   the sculpture making provocative and erotic gestures.  
18   This sculpture was similar to something found I a 
19   fresco at the National Cathedral in Washington, D.C., 
20   and although no case was decided on point, showing the 
21   clip of the movie together with the actual sculpture or 
22   picture of it would be very effective.  Two final 
0160
 1   examples from this area, in “Seven”, 10 reproductions 
 2   of copyrighted photographs appear in a scene lasting 
 3   less than 40 seconds.  The photographer sued the studio 
 4   and less in a decision from the Second Circuit.  And 
 5   finally, in the film, “The Long Kiss Good Night”, a 
 6   segment of the Three Stooges’ film, “Disorder in the 
 7   Court”, appears for less than 30 seconds.  Owners of 
 8   the Three Stooges’ material sued the studio for 
 9   trademark infringement, and they lost. 
10        Another area where we would argue that film clips 
11   and use of them would be very effective in the subject 
12   area is as follows.  One area where they have been used 
13   effectively in legal instruction is in a seminar called 
14   The Law of 24, and I am submitting the syllabus for 
15   this together with my statement at the end of this 
16   hearing.  This was taught at Georgetown Law Center by a 
17   senior attorney in an Intelligence Division of the 
18   Department of Defense.  This course provides a serious 
19   examination of United States domestic and international 
20   legal issues concerning counter-terrorism in the 
21   context of the utilitarian and sometimes desperate 
22   responses to terrorism raised by the plot of the Fox 
0161
 1   Television drama, 24.  Integrated with a syllabus 
 2   covering a broad range of complex issues, the professor 
 3   played short clips from 24 as a catalyst for classroom 
 4   discussion.  Students were also assigned a traditional 
 5   textbook, and each participant completed a 25-page 
 6   paper for the course.  If the requested exemption is 
 7   granted, instructors will be able to offer similar 
 8   substantive courses, perhaps in the form of a medical 
 9   ethics course related to the series’ house, or a trial 
10   advocacy seminar based on or related to the legal 
11   drama, “Boston Legal”.   
12        By permitting to extract specific short clips to 
13   integrate with an otherwise traditional class format, a 
14   health science or law school professor could very 
15   effectively teach complex subject matter while keeping 
16   students engaged.  Through the use of very specific 
17   clips, an instructor can keep classroom discussion 
18   focused and on point.  This also makes it possible to 
19   portray focused examples that may not be from the same 
20   season or movie.  Absent this exemption, an instructor 
21   teaching this kind of class would risk having the 
22   students in the class -- would risk having the class 
0162
 1   become more of about entertaining rather than educating 
 2   their students. 
 3        A few last examples that have been used in 
 4   classes.  Now, additional examples showing how law and 
 5   health sciences faculty have used clips from film or 
 6   television programs to spur substantive discussions, a 
 7   professor from the University of North Carolina used 
 8   short clips from the Verdict and Anatomy of a Murder as 
 9   examples in a course entitled Ethics for Litigators.  
10   At Elon University School of Law, an IP professor -- 
11   intellectual property professor -- sorry -- showed a 
12   segment from American Gangster to emphasize a concept 
13   from trademark law.  In the film, the main character is 
14   a heroin dealer, who sells high-quality heroin under a 
15   specific brand; other drug dealers began using the same 
16   brand with lower quality in heroin, and conflict 
17   ensues.  Very interesting.  
18        A criminal law professor at the University of 
19   North Carolina uses several short clips from The 
20   Simpsons, Pulp Fiction and Cape Fear, to illustrate 
21   elements of criminal law relating to concepts discussed 
22   in class. 
0163
 1        At Georgetown Law Center, an intellectual property 
 2   professor shows a clip from the TV show, Homicide, 
 3   where the Baltimore detectives discuss the differences 
 4   between the Baltimore Colts and the Baltimore CFL Colts 
 5   illustrating the important concepts from trademark law. 
 6        In a first-year property course at Elon 
 7   University, a professor uses a clip from the film, 
 8   “Braveheart”, to introduce the concept of futile 
 9   estates.   
10        Additional examples from the health sciences 
11   courses illustrate the range and usefulness of short 
12   film clips to illustrate various medical conditions.  A 
13   clip from the movie, “Tom and Viv”, is shown in a 
14   psychiatric nursing class, to help illustrate the 
15   rights that Viv will lose, as a result of being 
16   committed to an institution.  A short segment of “Good 
17   Will Hunting” is used to illustrate the main 
18   character’s coming to grips with the abuse he suffered 
19   as a child.  A brief clip from “As Good As It Gets” 
20   shows a character with obsessive compulsive disorder, 
21   and in “A Beautiful Mind”, the main character checks 
22   with others, to determine whether the young girl he 
0164
 1   sees is a real person or is a hallucination.   
 2        We have shown a range of examples where the use of 
 3   brief film clips greatly enhances the educational 
 4   experience of the students we serve, and we hope that 
 5   this testimony has helped to shed light on the problem 
 6   that access control devices cause in making film clips 
 7   available for educational uses. 
 8        Our associations are very grateful for this 
 9   opportunity to testify at this rulemaking hearing, and 
10   we appreciate the kind assistance of the Copyright 
11   Office, and I respectfully submit my hearing testimony.    
12        What I would like to do now is just play -- there 
13   are a series of nine -- eight clips here.  I won’t go 
14   through all of them.  They are all very short.  I think 
15   the longest one is three minutes, and all of the rest 
16   of them are less than two minutes long.  What I would 
17   like to do is play two clips from infringement cases 
18   where they have specifically -- where they specifically 
19   show elements that have been litigated in decided law 
20   cases.  And the thing I will point out here is these 
21   were prepared, so they are available to be played in 
22   any DVD player.  This doesn’t rely on any particular 
0165
 1   classroom technology other than standard DVD players.  
 2   The first one that I’ll show here is a scene from -- 
 3   oh, thank you -- the first one that I will show here is 
 4   a scene from the “12 Monkeys”, and it’s a very short 
 5   scene -- let’s see if we can get it here --  
 6        (Discussion off the record). 
 7        (Video playback). 
 8        MR. CARSON:  Thank you, Brad. 
 9        (Video playback). 
10        MR. SKALECK:  And I’ll leave it at that. What I 
11   would like to point out here with these couple of short 
12   clips -- what I would like to point out with these two 
13   particular things here are a couple of things that may 
14   respond to some concerns that would be addressed, or 
15   sort of counter-arguments to them.  First of all, if 
16   these were low-quality clips, the difficulty with these 
17   is that, in the first clip, what we have here is the 
18   “12 Monkeys”.  The issue here is an issue of 
19   substantial similarity between a two-dimensional 
20   drawing, and it’s also an issue of derivative work, and 
21   some other things.  The issue at hand in the case was 
22   somebody had a drawing of a chair that the movie 
0166
 1   producers in the “12 Monkeys” then made a version of 
 2   and used in the work; it turned out to be infringing.  
 3   And so, the issue there we have a substantial 
 4   similarity, and we also have an issue of a derivative 
 5   work nature, where you need to really see what the 
 6   nature of the work is that you are looking at, to 
 7   understand how it comes into play taking from a two-
 8   dimensional to a three-dimensional, but also seeing 
 9   what is the difference between these clips here, 
10   between these two works of art, or works at issue.   
11        And, in the second clip that I showed here with 
12   “Seven”, the issue is whether this is de minimis use.  
13   It’s a very poorly lit scene.  It’s very dark.  It’s 
14   very short.  It’s very difficult for me to even cue 
15   this up, to find it.  I had to fast-forward through the 
16   movie a couple of times to figure out where it is.  At 
17   issue in this clip is the use of the black and white 
18   photographs that are along the wall to the right, as 
19   the two -- as the two men walk in the room, and then, 
20   on the left, we find right underneath the receipt from 
21   the store there.  So, the fact, if this was a low-
22   quality clip, it would be really difficult to 
0167
 1   understand the nature of the use that was complained 
 2   about here.   
 3        I will very briefly describe the purpose that the 
 4   rest of the clips would be used for, but in the 
 5   interest of time, I will not show the rest of them. 
 6        In “Anatomy of a Murder”, this would be a perfect 
 7   example of a clip to be played.  The one that is cued 
 8   up here is an example of research being done in a law 
 9   library where they are using the American Law Reports.  
10   This would be a clip that would be relevant in a legal 
11   instruction class.  They are using the American Law 
12   Reports and they find a case that’s cited in there.  It 
13   talks about it could be used to illustrate the 
14   importance of secondary materials over just going to 
15   the law cases themselves, and it also would show the 
16   fact that some of these types of materials have been 
17   used over a series of a number of years. 
18        “The Devil’s Advocate” clip; this is one of the 
19   clips from a litigated case.  The difficult -- or, the 
20   issue that would be shown here is the sculpture that’s 
21   sitting behind Al Pacino’s desk where it then 
22   transforms into a series of scenes and a series of sort 
0168
 1   of provocative things that was not looked upon nicely 
 2   by the sculptor that created this at the National 
 3   Cathedral.  Of course, this is the Devil, and you know, 
 4   God is at the other end of the spectrum, in a sense.  
 5   One reason why editing them is important versus cuing 
 6   them up is that in “The Devil’s Advocate” scene I have 
 7   edited it specifically to end before there is a sex 
 8   scene afterwards, and it involves some other things.  
 9   It distracts from the particular issue at hand, and if 
10   we are unable to excerpt them specifically, then this 
11   would be a difficult problem. 
12        Very quickly, running through the rest of them.  
13   The issue in House here, this could be used in the 
14   medical instruction for research; basically the doctor 
15   in “House” is saying, well you need to research this 
16   particular issue.  Well, you start with A and you go to 
17   Z, and it’s more of an advocacy piece saying, well you 
18   should turn to libraries, and you should rely on these 
19   types of materials to get the point across. 
20        The next one, “The Long Kiss Goodnight”; this is 
21   about a 35-second clip.  There is a version -- there is 
22   a clip from the Three Stooges’ movie, Disorder in the 
0169
 1   Court, that’s being played in the background of a 
 2   particular scene, and that is a thing where it is 
 3   interesting.  They sued over that being a trademark 
 4   infringement and not a copyright infringement, so it’s 
 5   a different case, but it’s another type of thing, like 
 6   showing multiple things together, is this de minimis or 
 7   not would be very useful and very pedagogically sound 
 8   to do it that way. 
 9        The “Pelican Brief” is a brief segment where it 
10   describes -- there is a research scene there where 
11   there are touches on -- this would be a great clip to 
12   show for issue spotting in a legal research class you 
13   can show, to touch on issues of ethics, issues on 
14   access to materials, issues on, you know, expediency, 
15   things like, you know, ethics for journalists and 
16   things like that, and there are a couple of other 
17   things in terms of student records and privacy issues 
18   that come up there. 
19        “Seven”, we saw briefly.  
20        And finally, in my statement here, “What Women 
21   Want”, we do discuss that in our statement, and in that 
22   scene, in the background, there is a Gottlieb pinball 
0170
 1   machine that’s included very incidentally, and it’s 
 2   found by the Court not to be -- or, to be a de minimis 
 3   use, so it is not trivial -- it is trivial, and not 
 4   infringing. 
 5        So, those are the clips that I am submitting.  I 
 6   am not going to play any additional things from that.  
 7   Thank you, very much. 
 8        MR. CARSON:  Thank you, very much.  Let’s move on 
 9   now to Carleton Jackson. 
10        MR. JACKSON:  Okay.  From the specific back to the 
11   general, thank you for providing me with the 
12   opportunity to speak here today.  I am Carleton 
13   Jackson, and I’m a media librarian at the University of 
14   Maryland, in College Park.  I am one of two librarians 
15   within a 10-person staff, of one of the few academic 
16   libraries devoted exclusively to audiovisual media, and 
17   it serves as the central audiovisual research facility 
18   for the University, the campus, and the system of the 
19   Universities of Maryland.   
20        I serve as an acquisitions, reference and 
21   curricular instruction librarian.  In the latter role I 
22   work with faculty of all subjects, disciplines and 
0171
 1   interests, in curricular planning and the use of 
 2   audiovisual content.   
 3        I am listed on the Panel today as the 
 4   representative of our University Film and Film Studies 
 5   Initiative Working Group.  The Group, again, is an ad 
 6   hoc group of media, visual, history and culture-
 7   oriented faculty staff and librarians, who promote 
 8   information exchange about teaching film, and teaching 
 9   with film.  Members of this Group are somewhere here 
10   today and available for testimony or questions later, 
11   as needed. So, from that point of view, I am 
12   representing them, and we are here to testify in 
13   support of the proposed educational exemptions of the 
14   works from the DMCA prohibition. 
15        Now, first, in the interest of full disclosure, I 
16   am also a member of other groups supporting the 
17   exemptions today, and are represented by the Panel.  I 
18   am also on the Board of Directors of the Consortium of 
19   College and University Media Centers, and we, and our 
20   group is supporting their testimony.  I am also the 
21   Chair of CCUMC’s Government Regulations and Public 
22   Policy Committee.  I am also a member of the American 
0172
 1   Library Association, and a founder and past president 
 2   of ALA’s Video Roundtable, of which you heard the 
 3   testimony of Gary Handman in California, and we are co-
 4   signors of that document that he presented.  I am also 
 5   on the VRT Executive Committee, and I am also a member 
 6   of ALA’s Office of Information Technology Policy Video 
 7   Roundtable Working Group on Best Practices in Fair Use 
 8   for Librarians.  So, just giving you that perspective 
 9   that I am working with these faculties, and the 
10   faculties wanted to have a voice here today, to talk 
11   about what their perspective is.   
12        So, again, a little bit of background again, I 
13   offer as evidence the fact that our library is one of 
14   the oldest and largest video resource centers in 
15   academic libraries.  It opened in 1973, primarily as an 
16   audiovisual learning and curriculum environment for 
17   undergraduates.  The use of media by our faculty has 
18   never waned in these years.  There has been an 
19   exponential growth since video became easily accessible 
20   and procurable.  As students from the 1970s, 1980s, and 
21   1990s grew up and became teachers, media collections 
22   became a preferred text for many, many classes.  Our 
0173
 1   collection comprises document and educational works, 
 2   primary source materials, news and televisions 
 3   programs, as well as research level collections of 
 4   international feature films.  As we serve a research 
 5   function, we continue to maintain access to all our 
 6   obsolete and legacy format collections, unless they 
 7   have been replaced by new formats, and at the same time 
 8   we acquire these new commercially available materials 
 9   in the best available, most useable format, which of 
10   course, is today, the DVD. 
11        Our Film and Film Studies Initiative Working Group 
12   members represent diverse nationalities, ages, genders, 
13   orientations perspectives.  We -- and I’m part of this 
14   Group -- we use media from a variety of disciplines, 
15   backgrounds and countries.  We teach in our support 
16   classes with the words film, cinema, movies, and the 
17   like in the title and in the course description, but we 
18   teach even more classes without these words in the 
19   title.  And, as learners of media, we have used all 
20   forms of media.  As teachers and librarians, we use all 
21   formats, to connect our current teaching to our 
22   students, to use all forms of educational technology 
0174
 1   with it, to enhance this teaching. 
 2        So which departments and programs are the biggest 
 3   users of our collection?  Well, the University of 
 4   Maryland is the largest university system in the 
 5   Baltimore-Washington area, and the College Park campus 
 6   is one of the largest in the immediate Washington, D.C. 
 7   area, but the University does not have a film studies 
 8   program, and that is unlike most of the other area 
 9   universities; yet we teach or support many classes with 
10   the words, film, cinema, movies, and the like, and we 
11   teach even more classes without them.  We teach classes 
12   with the words, images and movements, and sounds, and 
13   speeches, and colors, and emotions, representations in 
14   the content of the class, and for our students, and for 
15   our students, the realities inherent in teaching this 
16   context exists for hours and minutes and seconds.  The 
17   learning exists in reel time, as in film reel, and real 
18   time, as in time, and the persistence of vision for 
19   days, months, years, and a lifetime in our classes.   
20        So I refer you again to all the classes of 
21   Category 4 documents that have been submitted.  I even 
22   received the Twitter, a Tweet, before I turned off the 
0175
 1   phone from our other viewers in the background saying 
 2   they agreed with everything that everyone said, up to 
 3   me, and I am sure after this, and wish to point to 
 4   that.   
 5        I have a handout floating, I guess with the folks 
 6   up there, that lists our departments and our classes 
 7   that use media; both the ones that have film, or 
 8   something like that in the title, and the ones that do 
 9   not. In the list of departments, you will see just 
10   about every department in our University uses some -- 
11   has a class, or two or three that uses some sort of 
12   film.  And, when I say film I don’t mean film/film, I 
13   mean, it can be video; it can be any of the formats 
14   before, but of course the majority is DVD at this 
15   particular time.  You will also see, or the people who 
16   have this document, that there are some classes that 
17   are core classes that are not film classes, but they 
18   rely so much on film that it’s become an integral part 
19   of every class session.  These classes are core 
20   classes.  They have 200-plus students.  They meet, 
21   unfortunately, only 50 or 75-minute lectures two or 
22   three times a week, and none of these classes feature a 
0176
 1   face-to-face showing of an entire work, but multiple 
 2   clips are needed for each and every media, just as an 
 3   aside.  Films, documentaries -- we have not really 
 4   talked about the documentary film, but obviously that 
 5   is the majority of the things that our people show, and 
 6   the same rules, as far as the exemptions, apply to 
 7   those as the dramatic works that were existing for most 
 8   materials.   
 9        As noted I prior testimony, teaching with a 
10   pedagogical perspective requires the ability to compare 
11   sequences or scenes in same or multiple works, to zero 
12   in on a sequence that addresses a specific point being 
13   made in class, to incorporate clips into the context of 
14   PowerPoint presentations, educational learning systems, 
15   such as Blackboard, this technique has become central 
16   to teaching, and it is exactly the same as the strong 
17   pedagogical arguments offered last year, which lead to 
18   the expansion of circumvention allowances for film 
19   studies and media studies.  Before DVDs arrived on the 
20   scene, our Group knew how to appropriately and 
21   reasonably use video in the classroom teaching, and how 
22   to exercise fair use, to accept a limited a number of 
0177
 1   short clips.  Current prohibitions have, in a sense, 
 2   trumped these fair use rights, and have created a 
 3   roadblock for our media literate faculty and other 
 4   academic users.  None of our Group wants to violate a 
 5   law.  DMCA has basically prevented faculty and 
 6   librarians from our jobs effectively and legally, in 
 7   taking full advantage of educational technologies.  We 
 8   do not believe that there are any workable technical 
 9   alternatives to circumvention.  It’s clear to any 
10   teacher who has stood behind a lectern that’s shuffling 
11   multiple DVDs, in order to show various clips, or using 
12   a remote in the dark, to find clips on a single disk 
13   does not work.  Inserting a disk in an open tray and 
14   arriving at the menu takes an average of 50 seconds; to 
15   find a chapter five takes an additional 15 to 20 
16   seconds; this is time lost for teaching in class and 
17   after class.  DVD and Blu-Ray are likely to be the 
18   first of a long list of incompatible digital video 
19   formats that librarians and educators will need to deal 
20   with in the future.  No rule written today should be 
21   allowed to tie the hands of tomorrow’s educators. 
22        In summary, we believe that we will continue to 
0178
 1   need access to discreet portions of legally-acquired 
 2   video information, in all formats, even if exemptions 
 3   are not allowed.  The current prohibitions have the 
 4   unfortunate effect of criminalizing proven pedagogical 
 5   practice.  Moving images are the texts of the world’s 
 6   culture, and limiting circumvention allowances to the 
 7   formal academic programs, as film and media studies, 
 8   and limiting the exemption to the use of materials in 
 9   departmental or campus libraries is completely 
10   unrealistic in light of current teaching practice, 
11   current institutional resources, and evolving trends in 
12   education and scholarship.  In the 21st Century, a 
13   literate population is a democratic requirement.  
14   Audiovisual content is at least secondary and often 
15   primary information sources of most people, and this 
16   means that studies for all disciplines, all subjects, 
17   if media is involved in any way, are, in effect, like 
18   film studies, and at its broadest point, it is media 
19   studies and media literacy.  Our faculty needs access 
20   to media sources in whole, and in part, and in the best 
21   available format to teach with clarity and depth, and I 
22   urge the Librarian of Congress and his advisors to 
0179
 1   expand current exemptions, in order to support the 
 2   legitimate teaching, learning and research needs of 
 3   faculty and students for today and tomorrow.  Thank  
 4   you. 
 5        MR. CARSON:  Thank you.  We’ll now move on to 
 6   Martine Courant Rife.  Do you have something to show 
 7   us? 
 8        MS. RIFE:  Yes.  For the entire presentation, I 
 9   wanted to be able to show this. 
10        MR. CARSON:  Sure okay.  Do you want to give us 
11   your presentation first and then do that? 
12        MS. RIFE:  Yeah. Well, I have a hand-out too. 
13        MR. CARSON:  Oh, great, great.  Oh, and by the way 
14   -- 
15        (Discussion off the record). 
16        MR. CARSON:  Carleton Jackson, you said you had a 
17   -- Mr. Jackson, you said you had a hand-out of some 
18   sort?  It hasn’t made its way to us yet. 
19        MR. JACKSON:  Hmm?  Oh, okay. 
20        MR. CARSON:  So, please make sure we do get it. 
21        MR. JACKSON:  I will -- and the testimony. 
22        MR. CARSON:  Thank you. 
0180
 1        MS. RIFE:  Thank you very much for having me here 
 2   today.  My name is Martine Courant Rife, and I am -- my 
 3   institutional affiliations are Lancing Community 
 4   College and Michigan State University.   
 5        I have been studying, for the last three or four 
 6   year, the impact of copyright law on the chilling of 
 7   digital speech.  My study, which I completed, which was 
 8   part of my dissertation, was called, “Is there a 
 9   Chilling of Digital Communication”, and it was an 
10   empirical  mixed method study that included a digital 
11   survey taken by a randomly-selected population of 
12   professional writers, in interviews with digital 
13   student writers working at educational sites.  My study 
14   was approved by the Michigan State University 
15   Institutional Review Board for the Ethical Treatment of 
16   Human Subjects.  I explored knowledge levels about 
17   copyright law, and also levels of chilled digital 
18   speech, i.e., is copyright law chilling speech?  The 
19   study was written into my dissertation, “Rhetorical 
20   Invention of Copyright Imbued Environments”.  My 
21   research is funded, in part, by a grant from the 
22   College of Arts and Letters at the Michigan State 
0181
 1   University, and supported by the Writing and Digital 
 2   Environments Research Center at Michigan State 
 3   University.  And, my appearance here as well has been 
 4   supported by both Lansing Community College and 
 5   Michigan State University, and I have been helped and 
 6   counseled by many colleagues prior to my appearance 
 7   here, including the Co-Directors of the WIDE Research 
 8   Center, Dr. Jeff Grabill and William Hart Davidson, 
 9   whose support I have here today. 
10        I also have the almost 400 participants of my 
11   study supporting my appearance here, as I have a very 
12   overwhelming responsibility to them, to push some of 
13   the issues that arose in my study forward.  These 
14   people donated about 30 minutes of their time without 
15   being paid, to do my study, so that I could get a 
16   Ph.D., so I have -- I am indebted to them. 
17        I teach composition at both the university and the 
18   community college level.  Most of my teaching 
19   experience has been at the community college, where 
20   latest statistics show that almost half of all students 
21   will attend, particularly for the first year writing 
22   requirement.  I just finished teaching my first 
0182
 1   graduate course at Michigan State; Composition Studies, 
 2   Issues, Theories and Research, and I have Ph.D. 
 3   students and MA students in my class.  I tell you this 
 4   to indicate my level of expertise with the literature 
 5   in research and writing studies, as we have some 
 6   research that might inform your decision today, in 
 7   addition to my study. 
 8        I am also a licensed attorney with an active 
 9   license to practice in Michigan, and an inactive 
10   license in Colorado.  I was admitted to practice law in 
11   1985.   
12        I want to be clear here that I am defining writing 
13   broadly throughout my testimony, to include multimedia 
14   texts, including audiovisual composition, and of 
15   course, alphabetic texts.  And, what I have at the end, 
16   I hope, is to be able to show you an example of student 
17   writing that would be legal, because it’s fair use, but 
18   for the DMCA.   
19        My hand-out I have passed out.  I only made 30 
20   copies, so this is in the hands of the Copyright 
21   Office, and I am also happy to give anyone copies who 
22   didn’t get one, if you just let me know.  I am not 
0183
 1   going to read from hand-out; I’ll let you read it on 
 2   your own time, but what I want you to extract from that 
 3   is that digital writers, teachers and students in 
 4   professional writing programs are people who will act 
 5   ethical and legally when given a reasonable opportunity 
 6   to do so, but like most educated people, will evaluate 
 7   any given situation, in order to assess how reasonable 
 8   the law is.  We understand about civil rights and free 
 9   speech in the Academy, and we care about these things.  
10   We also care about copyright law.  We want to learn 
11   more, and we think fair use is very important.  We want 
12   to do the legal thing and the right thing, but these 
13   are responsible, smart people that I am arguing for 
14   here; these are the people I am representing.  And, my 
15   hand-out also shows evidence, empirical evidence, that 
16   copyright law is chilling speech. 
17        I understand, by reading the 2006 Recommendation 
18   written by Marybeth Peters, that you are looking for 
19   ways to limit the exemption; I understand that.  So 
20   what I am going to do is offer some language that cuts 
21   across all of the fours, and then I am going to justify 
22   that.  And my argument -- and tomorrow, I am arguing 
0184
 1   for something broader, so this is my argument, in the 
 2   alternative.  The exemption that I am arguing for is 
 3   motion picture and audiovisual works released on DVD, 
 4   housed in a U.S. library collection, where the student 
 5   attends, or where the teacher is employed, or legally 
 6   obtained and owned by the teacher/student, where 
 7   circumvention is undertaken solely for the purpose of 
 8   extracted clips, for the inclusion in videos or 
 9   multimedia texts that do not infringe copyright, and 
10   that are composed either as part of student course 
11   work, or as part of course curriculum.  This exemption 
12   shall apply even for works that are gifted from 
13   students/teachers to community groups/non-profits, as 
14   part of service learning or community outreach.  In 
15   justification of that last part of this class that I 
16   kind of -- is part of my testimony, as trying to 
17   synthesize everyone’s wish from the educational 
18   community, service learning and community literacy are 
19   -- we have a literature of that in composition rhetoric 
20   -- I am asking the copyright -- the Register of 
21   Copyrights to see the writing classroom not just as 
22   something that takes place in four walls.  We are 
0185
 1   working very hard, and we have literature to 
 2   professionalize undergraduates, so I am frequently 
 3   asked to be a guest speaker in first-year writing 
 4   classes, where students are doing work for community 
 5   members, doing writing for community members, and they 
 6   want to be sure that the works they create aren’t 
 7   creating liability for non-profits that they are 
 8   working with.  So, there is an active effort with 
 9   community outreach, so I am asking for the exemption 
10   not to be limited to classrooms, and for there to be 
11   some way to see that through. 
12        I am also asking for the exemption not to be 
13   limited to face-to-face environments.  During this last 
14   academic year I taught eight virtual classes.  I would 
15   have had no use for this exemption.  On-line teaching 
16   environments are increasing exponentially, and not only 
17   that, but Angel and Blackboard course management 
18   systems are used in face-to-face teaching environments.  
19   I always use them when I teach face-to-face.  Students 
20   are uploading assignments there.  And there is also a 
21   hybrid; we also have hybrid classes now, which are half 
22   on-line and half face-to-face, or how -- different 
0186
 1   institutions configure them differently.  So, to limit 
 2   the exemption to face-to-face is to harm, 
 3   disenfranchise students and teachers working in on-line 
 4   spaces, spaces which are also leveraged now at face-to-
 5   face environments.   
 6        I am also asking you not to limit the exemption to 
 7   library use, and let me tell you why.  At Lansing 
 8   Community College, our holdings are so much less than 
 9   at Michigan State University; so the students at 
10   Lansing Community College, they have less fair use than 
11   the students at Michigan State when you do that.  We 
12   have -- at Lansing Community College, we have two 
13   percent of the amount of books that Michigan State 
14   does.  We have 25 percent -- they have 75 percent more 
15   digital materials than we do at Lansing Community 
16   College.  Also, in the student example -- in the 
17   student writing I am going to show you, these are 
18   popular movies, and I checked at Lansing Community 
19   College and Michigan State University Library, neither 
20   library has any of these clips.  I looked at the top 
21   movies that are available in DVD; “The Dark Knight”, 
22   “Hancock”, “Indiana Jones and the Kingdom of Crystal 
0187
 1   Skull”, “Ironman”, “National Treasure”, “Into the 
 2   Wild”, “Three-Ten to Yuma”; none of these popular 
 3   movies are owned by either Michigan State University or 
 4   Lansing Community College Library.  So, if I was to 
 5   give a writing prompt, which would be typical, 
 6   examining images of men, women, Asians, African-
 7   Americans, et cetera, in the most recent movies, i.e., 
 8   popular culture, create a multimodal argument 
 9   incorporating texts, visuals and sounds about how these 
10   people are represented in the media, the exemption, the 
11   way you have it crafted it now, limited to libraries, 
12   my students would not be able to complete this 
13   assignment realistically; so there is chilled speech. 
14        I am asking that students be able to DVDs like 
15   they use books.  I would -- if they could, I would 
16   encourage them to purchase DVDs, like they purchase 
17   books.  I don’t understand why the motion picture 
18   industry would want to tie this into the library rather 
19   than encourage individuals to buy these.  I don’t buy 
20   DVDs, because I can’t use them in the way that I need 
21   to use them.  I would use Camptasia (ph), or I would be 
22   making film clips in my classes; I would be making film 
0188
 1   compilations, but I don’t do that, because I am 
 2   considered an expert on copyright law, so people look 
 3   to me as a role model, so I can’t be actively 
 4   infringing or inducing my students potentially to 
 5   infringe; I can don’t that and sleep at night.  So, 
 6   please try to imagine students and teachers as active 
 7   producers of texts and not just consumers, because 
 8   that’s how motion picture industry is contextualizing 
 9   us, as consumers. 
10        VHS -- I think we have heard enough testimony 
11   about that; it’s basically a collector’s item at this 
12   point.  I don’t have any VHS players in my house 
13   anymore because you can’t rent that, and I have no use 
14   for them.  I would have no -- I wouldn’t have a clue of 
15   how to get something from VHS into digital format, 
16   which is what is going to be required for delivery at 
17   this point.   
18        Why permissions don’t work; I have something to 
19   add to the arguments.  I think it’s Time Warner that 
20   argued last year, and also this year, that permissions 
21   just aren’t stopped, but should be.  Since no one has 
22   ever appeared from my field, writing studies, I can 
0189
 1   explain that permissions, the idea of permissions or 
 2   asking permissions to be, to use or be sent movie clips 
 3   three to five days ahead depends on something false, 
 4   which is a linear model of writing process.  Writing is 
 5   not -- we have research in our field going back 30 
 6   years that clearly demonstrates writing is not linear, 
 7   but it’s recursive, and the writer revisits and revises 
 8   decisions multiple times continuously synthesizing 
 9   information and changing things around, and here I cite 
10   the work by Flower and Hayes, Janet Emig (ph), Sandra 
11   Pearl, Lee O’Dell, in my study that examined digital 
12   composing process.  Some digital texts that arose in my 
13   study took over 150 hours and many months to complete; 
14   some took years to create; some were created by 
15   multiple authors over a period of many years, where one 
16   author wrote for a while and then another one took 
17   over.  Time Warner’s view of writing is this; you know 
18   exactly what movie clips you need; you ask for them; 
19   you receive them; you place them in your text in 
20   specific places; and voila, you are finished.  Would 
21   that writing were that simple, it would make my job so 
22   much easier; however, writing is complicated and it’s 
0190
 1   recursive.  And also, realistically, does the motion 
 2   picture industry want a thousand requests per academic 
 3   year just from my students.  I worked with almost 100 
 4   students this year; there are five writing assignments 
 5   in each class; realistically, that would be 1,000 
 6   requests just from me alone.  I also ask you, although 
 7   this isn’t exactly relevant, Section 1202(c)(8), 
 8   specifically in the context of copyright management 
 9   information, it specifically tells the Register not to 
10   require any personal identifying information about a 
11   user of a work or of a copy, et cetera, and that 
12   appears in two places of the statute; in (c) and in 
13   subsection 8, and I think that gives a spirit that a 
14   user shouldn’t have to identify themselves.  They have 
15   to identify the copyright information, but there is a 
16   reason for that language being in this other section of 
17   Title 17, along -- read that in context with Section 
18   107. 
19        Marybeth Peters, in her prior Recommendation, said 
20   that she would only grant the exemption if:  (1) it’s  
21   not a matter of mere convenience; (2) there is no 
22   alternative format; (3) the use would be non-
0191
 1   infringing.  For number three I want to show the 
 2   student work, which I am arguing is a fair use, and my 
 3   legal citations on that are Campbell vs. Acuff Rose, 
 4   1994 Supreme Court Opinion, as well the Second Circuit 
 5   case of Graham Archives vs. Doralene Kindersley (ph), 
 6   2006.  It’s not a matter of mere convenience, and this 
 7   is my writing studies perspective; there is a stark 
 8   difference between convenience and normalcy.  If I buy 
 9   a book, it’s not merely convenient for me to be able to 
10   lay it open on the table next to me and type a quote 
11   directly in my computer, or in E-book format, to cut 
12   and paste the text into my composition.  This whole 
13   idea of having writers move away from their computers, 
14   to use expensive and complicated VHS conversion 
15   equipment, or to purchase expensive camcorders and 
16   record the screens of other media devices, and then 
17   import this into their compositions, even they own the 
18   DVD, which they can easily view on the computer -- the 
19   computer is the tool we write with now -- this is like 
20   requiring me to first handwrite the alphabetic quote I 
21   want to take from the book I own laying open on the 
22   table next to my computer, and then go outside and 
0192
 1   hand-chisel that quote in a rock, take a picture of it 
 2   with my digital camera, bring it back into the house 
 3   and download the digital picture of the chiseled rock 
 4   back into my computer, so that I can obtain the quote 
 5   from the book laying there on the table next to me.  
 6   It’s not mere convenience at this point; it’s normalcy.  
 7   Please don’t craft an exemption such that writing 
 8   teachers are forced to teach students bizarre, abnormal 
 9   and unseemly work-arounds to what is occurring 
10   naturally I digital composing environments.  The 
11   computer is the tool we write with now. 
12        On the issue of there is no alternative formats; 
13   we have already had testimony today about how the VHS 
14   is an antique, so I am not going to argue anymore on 
15   that.  I want to give an example -- I discuss this in 
16   the hand-out, of my student writing, or some student 
17   writing that I collected during the empirical study -- 
18   this is the kind of work that the DMCA prohibits.  It 
19   hasn’t -- it was performed both in the Academic  
20   Conference -- it was performed in a classroom setting, 
21   and it was turned -- it was submitted for credit 
22   towards a degree -- and again, none of the movies, 
0193
 1   except for the 1997 version of Men in Black is 
 2   available at either library that I am associated with, 
 3   so I was going to show it real quick.  It’s not very 
 4   long.  Is that -- 
 5        (Discussion off the record). 
 6        MS. RIFE:  Okay.  I want to also inform you about 
 7   the idea of writing and composition; this is not -- 
 8   this is like 25 percent of the composition, what I am 
 9   showing you, because -- and this is relevant to the 
10   Graham Archives case that I cited; one of the factors 
11   that Court said to look at was how much of the 
12   creator’s new ideas are appearing in the composition, 
13   and in this case, the student would have been standing 
14   up in front of the audience at an academic conference 
15   talking about how she was going to show how African-
16   Americans are represented in popular movies, citing 
17   literature within the field, contextualizing, 
18   explaining -- the whole conference presentation amounts 
19   to 15 minutes -- that is showing one example of how 
20   violence against African-American women are offered up 
21   for the public’s entertainment, and then stop this 
22   composition and give some more information, and then 
0194
 1   show a montage about how African-Americans are 
 2   stereotyped in three different ways, and her -- she -- 
 3   she had different categories she put them in.  I’ll 
 4   just show one example of a montage that I am talking 
 5   about.  Okay.  So this would be playing in the 
 6   background. 
 7        (Discussion off the record). 
 8        (Video playback). 
 9        (Discussion off the record). 
10        MS. RIFE:  Okay.  Well, I’m not going to waste 
11   everyone’s time some more, but the other -- that’s just 
12   an example of the montage; there were three sections to 
13   that contextualized with academic writing.  The first 
14   clip was a single clip of a -- I think it was from 
15   Scary Movie, and it’s basically an African-American 
16   woman being stabbed to death in a movie theater while 
17   everybody cheers the other people on, and it’s really 
18   quite disturbing.  But anyway that was -- this is an 
19   example that is definitely fair use onto the forefactor 
20   analysis, and something that we would like our students 
21   to be able to do, not just in face-to-face classroom 
22   settings.  And so, that’s the end of my talk.  Thank 
0195
 1   you. 
 2        MR. CARSON:  Thank you.  All right.  I believe we 
 3   are going to move on to Fritz Attaway, who I assume 
 4   will express his gratitude to the -- 
 5        MR. METALITZ:  Do you think it’s possible -- could 
 6   we reorder our -- 
 7        MR. CARSON:  Okay. 
 8        MR. METALITZ:  If I could just briefly -- and I’ll 
 9   introduce it. 
10        MR. CARSON:  Okay. 
11        MR. METALIZ:  Well, thank you.  I appreciate the 
12   chance to be here again representing the nine copyright 
13   industry organizations, the Joint Creators and 
14   Copyright Owners.  
15        I spoke about the exemption four issue in some 
16   detail at the Palo Alto hearings, so I am not going to 
17   repeat all of that, especially in the interest of time.  
18   Let me just say, in an attempt to kind of frame what 
19   you are going to be hearing from the next few 
20   witnesses, we have seen in the submissions there are 
21   many, many examples given of educational uses of 
22   commercial audiovisual material, and we have seen a lot 
0196
 1   more examples today and heard a lot more talked about, 
 2   and we look forward to actually reviewing this 
 3   testimony and the submissions, and seeing, getting a 
 4   little bit more detail on some of the proposals that 
 5   were brought forward today for the first time.  But, I 
 6   think I can say that with -- almost without exception  
 7   -- I hate to say absolutely no exception, but virtually 
 8   everything we saw, we have no objection to; we think 
 9   these are perfectly legitimate uses and valuable 
10   educational uses of this material.  So, we don’t object 
11   to virtually any of the uses we have been shown of 
12   these works.  We do object to the Copyright Office and 
13   the Librarian, under the Section 1201(a) rulemaking, 
14   granting permission to circumvent access controls, in 
15   order to make these uses, when there are a host of 
16   other alternatives that are available that would not 
17   put our valuable intellectual property in the clear and 
18   at risk, and I think what you are going to hear mainly, 
19   if not exclusively from the next few witnesses, is 
20   about the alternatives.  So, let’s put that issue of 
21   whether these are good uses or bad uses aside; we 
22   support these uses, and the question is how -- how do 
0197
 1   you make these uses; how do you get from point A to 
 2   point B?  We want Mrs. Scheffler to be able to show her 
 3   three two-minute clips in the English class in Texas; 
 4   we want the Police Academy to see those scenes that are 
 5   overflowing with body language and emotion; we even 
 6   want people to learn about the trademark rights of 
 7   heroin dealers.  So, let’s just put all of that aside 
 8   and start talking about the alternatives.  Before we 
 9   turn to the alternatives, I do just want to make the 
10   comment about our proposals or our suggestions for 
11   narrowing the existing exemption, and Professor 
12   DeCherney is right; we did no oppose -- if the Office 
13   finds that the burden of persuasion has been met, we 
14   wouldn’t oppose an exemption similar to what currently 
15   exists.  We did have several suggestions for narrowing.  
16   Professor DeCherney referred to a few of them, and I 
17   will just briefly mention, first, we think that the 
18   evidence still, with a lot more evidence today -- we 
19   may miss something -- but overwhelmingly this evidence 
20   is about audiovisual works that are on DVD protected by 
21   CSS.  There may be a few stray examples that don’t fit 
22   that categorization, but virtually everything does, and 
0198
 1   we think that any exemption you recognized should be 
 2   conformed to the evidence that’s presented to you. 
 3        Second, we think it should only -- the exemption 
 4   should only apply when it’s truly necessary to 
 5   circumvent, in order to create a clip compilation.  
 6   Specifically, we think that a consensual path or a 
 7   permissions path, obviously that is a non-infringing 
 8   use, and if that is available, and obviously that’s a 
 9   contested issue, but if the -- unless the proponents 
10   can show that it is not available, and we think that 
11   there will be evidence to the contrary in just a few 
12   minutes, then the exemption should not apply.  The 
13   truly -- the necessary language is something you have 
14   used before.  You have also used before, in other 
15   exemptions, the limitation that all existing digital 
16   copies of a work must contain the access controls that 
17   prevent the use that’s in question.  This is not an 
18   unworkable standard, and it can certainly be applied in 
19   a practical way, but there are many more alternatives 
20   available now, some of which you will hear about in the 
21   testimony, and it’s not unreasonable to say you can’t 
22   circumvent, if you can find -- if there is a reasonably 
0199
 1   available alternative means that doesn’t require 
 2   circumvention.  Again, you have used this in the E-book 
 3   exemption for the last two rulemaking proceedings, I 
 4   believe.   
 5        We believe that any exemption should be limited to 
 6   what’s necessarily solely for the purpose of creating 
 7   the clip compilations for educational use; again, 
 8   phrasing that you have used in other exemptions. 
 9        And finally, we think it is important to specify 
10   who is able to engage in this circumvention; who is 
11   able to exercise this, and now that the Office has 
12   moved down the path of defining exemptions by 
13   particularly categories of uses and users, I think it’s 
14   important to give as much clarity as possible on who is 
15   entitled to exercise the exemption.  We disagree with 
16   the proposal that this should be extended to students, 
17   and we can certainly talk about that.  That’s obviously 
18   an exponential increase in the universe of people, by 
19   any standard, who are able to exercise the exemption, 
20   and as circumvention -- it’s a big step on the path 
21   towards circumvention the normative behavior, and 
22   that’s certainly not something we would like to see.  
0200
 1   So, in any event, we think it’s important that the 
 2   exemption, if you grant any exemption in this area, it 
 3   should specify clearly who is entitled to exercise it 
 4   and who is not. 
 5        Finally, I would like to, because of an issue that 
 6   came up in the last hearing, I just wanted to briefly 
 7   state something for the record on this question of 
 8   SnagIt.  At the hearing in Palo Alto on May 1st, Rob 
 9   Kasunic played clips from feature films and trailers 
10   that he stated that he had excerpted from a commercial 
11   DVD protected by the Content Scramble System using a 
12   software tool called SnagIt.  This demonstration was a 
13   subject of questions from the Copyright Office to 
14   panelists appearing at the hearing, including questions 
15   to me, as counsel to the Joint Creators and Copyright 
16   Owners.  This is the first time that the nine 
17   organizations we represent have been asked to take a 
18   position on the use of this software tool; in fact, as 
19   far as we know, it’s the first time it’s ever been 
20   mentioned in this rulemaking proceeding.  The next 
21   business day after the May 1st meeting we convened a 
22   meeting of our organizations to discuss the questions 
0201
 1   posed, at least as to the best of my recollection, 
 2   since no transcript is available yet -- of course, we 
 3   were also discussing many other issues, in preparation 
 4   for the three days of public hearings that have begun 
 5   today here, on many other topics.  Clearly, a response 
 6   to the questions posed, again as I recollect them, will 
 7   require a full understanding of how the SnagIt tool 
 8   works in its various applications; how, if at all, it 
 9   interacts with the various technological protection 
10   measures employed in CSS and many other technical 
11   issues; and would then seem to call for a legal 
12   analysis and opinion about whether use of this tool 
13   constitutes a violation of Section 1201(a)(1), and if 
14   so, whether uses in a particular setting would fall 
15   within one of eight proposed exemptions that are 
16   contained in the Notice of Proposed Rulemaking.  Our 
17   organizations don’t have enough familiarity with this 
18   particular application to provide that analysis today, 
19   especially considering that only two business days have 
20   elapsed since we were first asked to do so.  
21        As we stated in our previous submission, as we 
22   repeated on May 1st, as we are reiterating today, we 
0202
 1   strongly believe that the proponents of the proposed 
 2   exemptions 4(a) through 4(d) and 4(f) through 4(h), 
 3   have not satisfied their burden of demonstrating that 
 4   the prohibition contained in Section 1201(a)(1) is 
 5   having a sufficient adverse impact on the non-
 6   infringing uses they wish to make of the audiovisual 
 7   works at issue, to justify an exemption.  In part, this 
 8   is because alternative means not requiring 
 9   circumvention are available to them, and would satisfy 
10   their legitimate pedagogical needs.  One recent -- one 
11   important such means is the camcording of excerpts of 
12   the works from a TV screen or monitor.  This means will 
13   be demonstrated at this hearing, and you can judge for 
14   yourself how it compares with the example that 
15   Professor DeCherney provided of circumvention under the 
16   current exemption. There will be discussion of the 
17   availability of uses with permission or consent, as I 
18   mentioned, or if those are non-infringing uses, there 
19   may well be other means discussed as well.  For the 
20   reasons I have stated, we are not in a position today 
21   to give our views on the technical and legal issues 
22   surrounding use of the SnagIt tool in this context; of 
0203
 1   course, we would do our best to respond to any written 
 2   questions or any questions that appear in the hearing 
 3   transcript, after we have had a reasonable opportunity 
 4   to undertake the analysis summarized above. 
 5        So, I would like to turn it over at this point to 
 6   Fritz Attaway for the next presentation. 
 7        MR. CARSON:  Okay. 
 8        MR. ATTAWAY:  I was so certain that you were going 
 9   to give us a break. 
10        MR. CARSON:  We thought we would give you guys a 
11   break when we reached the end of the testimony before 
12   we go into questions. 
13        MR. ATTAWAY:  You’re tough.  Particularly, for a 
14   guy my age, I will necessarily be brief. 
15        MR. CARSON:  If you are telling us you are not up 
16   to it without a break, Fritz, we’ll break now, but. 
17        MR. ATTAWAY:  No, I can hold out.  Thank you.   
18        As Steve pointed out, a great deal of the 
19   testimony that we have heard so far goes to the fact 
20   that movie clips are an effective educational tool, and 
21   of course, we have no issue with that.  We agree with 
22   it; they are an effective educational tool, and we have 
0204
 1   no problem with them being used for that purpose.   The 
 2   issue here is whether movie clips are readily available 
 3   without having to engage in circumvention of a 
 4   technical protection measure.  Jonathan Band pointed 
 5   out in his testimony that the circumvention utility for 
 6   CSS, which protects DVDs from copying, is readily 
 7   available; that, we all understand that.  Nonetheless, 
 8   CSS has been an extremely effective protection measure, 
 9   because it’s inconvenient, and the copies it produces 
10   are not always of optimum quality.  That is what keeps 
11   most people from illegally using the circumvention 
12   utility, and it’s what makes CSS effective and useful 
13   in protecting the integrity of our copyrighted movies.  
14   Now, if you accept in this proceeding inconvenience or 
15   lack of optimal quality as justification for 
16   circumvention, you have basically voided the anti-
17   circumvention provisions of the DMCA, and frustrated 
18   the intent of Congress.  That should not be the 
19   standard here; convenience or optimal quality.  The 
20   standard here should be whether film clips are 
21   reasonably available without having to circumvent, and 
22   the essence of our testimony here is that they are.  
0205
 1   Now, just -- you know this, but just for the record, 
 2   you know that the Second Circuit has said that, “We 
 3   know of no authority for the proposition that fair use, 
 4   as protected by the Copyright Act, much less the 
 5   Constitution, guarantees copying by the optimum method, 
 6   or in the ideal format of the original.”  The Copyright 
 7   Office has said repeatedly -- I’ll quote from the 2003 
 8   review proceeding -- “Existing caselaw is clear that 
 9   fair use does not guarantee copying by the optimum 
10   method, or in the identical format of the original.” 
11   So, I think it’s pretty clear that convenience and 
12   optimal quality are not the standard here.  The vast 
13   majority of audiovisual works are available in some 
14   form in the clear; on VHS; on broadcast television; on 
15   cable channels; on satellite channels; and frequently, 
16   on the Internet.  Clearly, for that material, there is 
17   no justification, there is no need for a DMCA exemption 
18   of technical measures that may be applied to that same 
19   material in other formats.  For the material that is 
20   not available in the clear, or when it’s not convenient 
21   to access that material, there is yet another way to 
22   exercise non-infringing uses, and that is by taking 
0206
 1   screen shots off of a television or computer monitor.  
 2   Again, the Second Circuit Court of Appeals and the 
 3   Copyright Office has both mentioned this opportunity as 
 4   a legitimate alternative or an effective alternative to 
 5   circumvention.  The Second Circuit said, “The DMCA does 
 6   not impose even an arguable limitation on the 
 7   opportunity to make a variety of traditional fair uses 
 8   of DVD movies, such as recording portions of the video 
 9   images and sounds on film or tape, by pointing a camera 
10   or camcorder or a microphone at a monitor, as it 
11   displays the TV -- the DVD movie.”  The Copyright 
12   Office has made similar statements in its DMCA review 
13   decisions. 
14        Having said that, my colleague, Dan Seymour, is 
15   going to demonstrate how taking shots off of a 
16   television monitor or a computer monitor produces a -- 
17   can produce clips of movies easily using equipment that 
18   is readily available and affordable, and producing a 
19   result that is certainly comparable to the clips that 
20   we have seen here this morning, and that have been 
21   offered as a reason why circumvention is necessary.  I 
22   think our demonstration will show you that, in fact, 
0207
 1   circumvention is not necessary to produce the kind and 
 2   quality of film clips that the educators that we have 
 3   heard today would like to use.  And with that, Dan, 
 4   it’s all yours. 
 5        MR. SEYMOUR:  Thank you, Fritz.  Instead of trying 
 6   to do a live camcorder video, we actually recorded a 
 7   camcord of a TV screen, so I would like to play that 
 8   first, and then after that I will play the result of 
 9   that camcording.  So, here is the set-up, which is -- 
10   we use a tripod, to obviously minimize shake.  There is 
11   a camcord, which gets mounted.  For this particular 
12   session, we captured the audio directly from the DVD 
13   player.  You can see the image that we are recording is 
14   in the upper right.  And incidentally, using this 
15   method, you can -- once you have the set-up, you can 
16   find a clip, record it, stop the recording, change your 
17   disk, find another clip, start the recording, record 
18   your clip -- so you can get multiple clips from 
19   multiple disks one right after another.  And now she is 
20   just adjusting the zoom.  The issue here is to get the 
21   frame so that there is no external -- no parts of the 
22   TV itself in the image, and we have found that it’s 
0208
 1   best to do these recordings in the dark.  So, this is 
 2   the actual session, and I won’t go through the entire 
 3   clip, because I want to show you the result.  Now, this 
 4   is the resulting camcorded clip. 
 5        (Playback of video). 
 6        MR. SEYMOUR:  Now that was recorded off of a TV 
 7   monitor.  What I would like to do very, very quickly is 
 8   our 18-second clips, is show you a camcord of a clip 
 9   off of a computer monitor, and then the DCSS version of 
10   the same clip. 
11        MR. ATTAWAY:  That we obtained from the Copyright 
12   Office website that was submitted by Professor 
13   DeCherney. 
14        MR. SEYMOUR:  Thank you. 
15        MR. CARSON:  Was this a Blu-Ray that you took it 
16   of?  What’s the -- 
17        MR. SEYMOUR:  No, that was standard DVD. 
18        MR. CARSON:  Okay. 
19        (Playback of video). 
20        MR. SEYMOUR:  This again is the camcord. 
21        (Playback of video). 
22        MR. SEYMOUR:  And this is Professor DeCherney’s. 
0209
 1        (Playback of video). 
 2        MR. ATTAWAY:  One caveat, it was submitted on DVD, 
 3   but then recoded and then uploaded to the Internet, so 
 4   there is a number of transitions before it got there, 
 5   so. 
 6        UNIDENTIFIED FEMALE:  Mmm-hmm, mmm-hmm (in the 
 7   affirmative). 
 8        MR. SEYMOUR:  The camcorder that we used was a 
 9   standard consumer-grade Sony.  It’s about a $900 HD 
10   camera.  You don’t need to use an HD, if you are just 
11   recording off of standard DVD.  The monitor was $300.  
12   And again, what we did is we looked to see if there was 
13   comparable equipment at universities, and in fact, 
14   there is much better equipment at universities, which I 
15   wish we had access to. 
16        (Discussion off the record). 
17        MR. ATTAWAY:  What you saw, particularly the set-
18   up, you saw how long it took to set up the camera and 
19   make the recording.  It’s not anywhere near equivalent 
20   to having to get up from your book and go out into the 
21   back yard and chisel the phrase in stone, and then come 
22   back and take a picture of it for use in your classroom 
0210
 1   presentation.  It’s pretty easy; maybe not as easy as 
 2   using a circumvention tool, but pretty easy.  And 
 3   again, I just can’t emphasize, over-emphasize the fact 
 4   that convenience simply cannot be the standard that you 
 5   use in this proceeding.  It’s got to be more than mere 
 6   inconvenience, and I submit to you that for virtually 
 7   any audiovisual work, the ability to make a camcorded 
 8   clip for non-infringing use is readily available, 
 9   affordable, and not all that inconvenient.  Thank you. 
10        MR. CARSON:  Okay.  Could somebody hit the lights 
11   for us, please?  Thank you.  Okay.  The next up is 
12   Bruce Turnball -- 
13        MR. TURNBALL:  Yep. 
14        MR. CARSON:  -- from the DVD Copy Control 
15   Association. 
16        MR. TURNBALL:  Yes.  I am Bruce Turnball, of the 
17   Law Firm Weil Gotshal and Manges, LLP.  I am pleased to 
18   be here, as you just said, representing the DVD Copy 
19   Control Association.  We appreciate the opportunity to 
20   present our views on the various issues set forth in 
21   the Hearing Notice.  I believe the panelists and the 
22   Copyright Office, in general, is familiar with DVD 
0211
 1   CCAs, so I won’t go into all of our background and 
 2   particulars.  We are the licensor of the Content 
 3   Scramble System, and I also wanted to note that we 
 4   would be happy to respond to questions on other issues 
 5   that we presented written testimony on, if you had any 
 6   beyond those that are at the hearing today. 
 7        As the licensor, the owner and the licensor of the 
 8   Technological Protection Measure that’s the subject of 
 9   this afternoon’s hearing, I wanted to make a particular 
10   point; that our interest is in the preservation of the 
11   commercial viability of that technology.  Now obviously 
12   we have a great interest in preserving the copyright 
13   owners’ interests as well, but our interest is 
14   particular to the preservation of the viability of that 
15   technology, and we believe, in fact, that’s what 
16   Section 1201 was aimed at principally.  Now obviously 
17   the technological protection measure has to be for the 
18   purpose of protecting copyrighted material, but 1201 
19   was aimed at protecting the viability of the 
20   technological protection measure.   And so when you 
21   consider these exemption requests, we ask that you 
22   start with that proposition in mind, and also recall, 
0212
 1   as you have each time this proceeding has come around, 
 2   that this proceeding is intended to be a fail-safe 
 3   mechanism, not the ordinary course, oh yes, we’ll 
 4   grant, you know, a long list of exemptions.  The 
 5   purpose here is to provide a fail-safe, not -- and, at 
 6   the same time, to be able to preserve the viability of 
 7   the technologies that are accomplishing the protections 
 8   here. 
 9        As an overall matter, I do want to emphasize that 
10   DVD CCA believes that the change that was made in the 
11   2006 decision, to define class of works, at least, in 
12   part, based on the nature of the use or of the user was 
13   a mistake, and that you ought to go back to the 
14   previous understanding of the law, and thereby actually 
15   avoid a large can of worms.   
16        Having said that, moving to the various 
17   educational exemptions at issue this afternoon, to the 
18   extent that the 2006 interpretation is maintained, as 
19   has been indicated, we do not generally oppose the 
20   renewal of the film and media studies professor 
21   exemption, nor do we oppose the inclusion of DVDs that 
22   are held by the library of the institutions where the  
0213
 1   professors teach, although we would agree with the 
 2   Joint Commenters and others, who request that exemption 
 3   be limited to circumstances in which other means of 
 4   achieving the professors’ goals are not available, and 
 5   we think there are, as has been demonstrated and 
 6   discussed, a number of other such means. 
 7        We do oppose the expansion of the exemption to the 
 8   other purposes for a number of reasons.  These proposed 
 9   expansion -- and let me start with the educators in 
10   general at this point -- I’ll get to the students in a 
11   moment -- as Steve said, the proposed exemptions would 
12   exponentially increase the current exemption that’s 
13   limited to film and media studies professors.  And, in 
14   the context again of focusing on the preservation of 
15   the technology as a viable matter, exponentially 
16   increasing the exemption is a very serious concern for 
17   us.  As the decision in 2006 specifically stated, 
18   educators at large do not have the same pedagogical 
19   needs as film and media studies professors, whose areas 
20   of instruction are uniquely concerned with film and 
21   television qua visual mediums.  And, regardless of the 
22   qualitant level that might be desired, there are 
0214
 1   alternatives available to achieve such results without 
 2   requiring the circumvention of CSS.  Users can employ 
 3   the camcorder method, which I think was very well 
 4   demonstrated just before.  The viability of such 
 5   alternatives was acknowledged by the Register in 2006 
 6   as well.  As a second alternative, for a number of the 
 7   requesting professors -- and I went through in some 
 8   detail in preparation for the hearing today of the list 
 9   of uses that we have heard a number of today -- the 
10   Pioneer player would be a perfectly adequate 
11   alternative to circumvention; that was something we 
12   demonstrated in the 2006 hearing.  We chose not to take 
13   your time again today, but that player remains on the 
14   market, in different forms, at very affordable prices.  
15   It allows the cuing of the DVD to several different 
16   places in a particular disk, so that you can start at 
17   one place, and then go in an order that you have 
18   created, or in a random order based on the computer 
19   programming that you have done in advance, to various 
20   places in the disk.  And, where a single disk is at 
21   issue and can serve the purposes for a particular 
22   teaching purpose, that player is, I think, a perfectly 
0215
 1   good substitute.  And again, if we are talking about 
 2   the variety of proposals that have been made for how to 
 3   use DVDs in the classroom, I think a reasonable 
 4   percentage -- I didn’t count all of them -- but a 
 5   reasonable percentage of them talked about uses that 
 6   would be specific to a single disk. 
 7        The -- and there were a number of the proposals 
 8   also that clearly contemplated that some educators can 
 9   and do plan their courses in advance, and for them, 
10   seeking permission from the movie studios to use 
11   certain clips is a full solution to their situation. 
12        Also, the movie server that some of the studios 
13   are in the process of setting up, when that’s up and 
14   available is also a viable alternative, even if you 
15   don’t have advance, because it would be available, as I 
16   understand it, simply on demand, you know, in the 
17   middle of the night and without asking in advance. 
18        In short, there are a number of reasonable -- 
19   reasonably available alternatives that should be 
20   sufficient to satisfy the needs of the non-film studies 
21   educators, and also a number of these should also 
22   inform the Copyright Office in relation to even the 
0216
 1   film studies professor exemption, as to narrowing it to 
 2   those circumstances where it is actually necessary. 
 3        With regard to students and the proposal to allow 
 4   them to circumvent access controls, the proposed 
 5   exemptions, if granted, would actually -- would really 
 6   confound efforts to administer and police 
 7   circumvention.  Students would have a green light to 
 8   hack CSS or use available hacks of CSS under the guise 
 9   of class assignments.  It would not -- it would be 
10   difficult, if not possible, for DVD CCA and the owners 
11   of the content to distinguish between activity that 
12   falls under the exemption and that which does not.  The 
13   difficulty of administering this exception is actually 
14   exemplified by Professor Hobbs’ comments, which assert 
15   that professors can be gatekeepers of such an 
16   exemption.  While the Professor and others may have the 
17   best of intentions, I sincerely doubt that professors 
18   can realistically monitor such an expansive exemption. 
19        Additionally, the proponents of the exemption 
20   articulate that, in part, the exemption is needed so 
21   that students can become familiar with basic aspects of 
22   manipulating visual media, and to move students toward 
0217
 1   an audiovisual form of academic presentation.  Students 
 2   can certainly achieve such skills in the absence of the 
 3   proposed exemption, as there is original material 
 4   available from sources other than CSS-encrypted movies, 
 5   and there are the alternatives mentioned before, to 
 6   gain access to content protected by CSS, perhaps 
 7   particularly the camcorder example. 
 8        An expansion of the current film and media studies 
 9   exemption would undermine the technological and legal 
10   underpinning of the Content Protection System that is 
11   the basis for the DVD movie business.  Once widespread 
12   legal circumvention of CSS is permitted, the ability to 
13   limit the scope of the use of the circumvention may 
14   well be impossible, thereby undermining the whole 
15   system.  The key to that system has been to keep 
16   legitimate retailers and users from adopting the 
17   circumvention technologies that are, admittedly, 
18   available.   
19        As indicated at the outset, we are happy to 
20   respond to questions about the demonstrations made 
21   today; about our views on the issues that were in the 
22   Hearing Notice; and about our views on the exemption 
0218
 1   request.  Thanks. 
 2        MR. CARSON:  Thank you.  Finally, we hear from 
 3   Sandra Aistars. 
 4        MS. AISTARS:  Thanks.  Since we are coming on 4:00 
 5   o’clock, instead of actually making any, you know, 
 6   prepared statements, I’ll just try and respond to a 
 7   couple of points that were made during the earlier 
 8   testimony and add my, you knowledge, of what’s going on 
 9   with respect to the USC film server project, and also 
10   talk a little bit about the non-objections letters that 
11   we, at Warner Brothers, issue on a regular basis. 
12        I would note, and I think Fritz noted similarly, 
13   and Bruce as well, that attention need to be paid to 
14   the, you know, purpose of the proceeding and to the 
15   standard of the proceeding, and while, you know, I am 
16   sympathetic to the educational uses that are being 
17   suggested, and in fact, Warner Brothers actively works 
18   to enable such uses, I would encourage the Copyright 
19   Office to be careful not to fall into the sort of 
20   rhetorical technique that I think is being employed of 
21   suggesting that if a technical protection measure 
22   causes any sort of difficulty to anybody, anywhere, at 
0219
 1   any time, then it should be circumventable.  That’s 
 2   just not the standard in the proceeding, and not the 
 3   purpose of the underlying law. 
 4        Let me just say a few words about the USC film 
 5   server project.  We, at Warner Brothers, -- and I’m 
 6   speaking on behalf of Warner Brothers, not for any of 
 7   the other studios, or for the MPAA here -- Warner 
 8   Brothers has been working very diligently, along with 
 9   other members of the MPAA, to figure out a means to 
10   facilitate educational uses of film clips by film 
11   professors, and we have been talking about this, you 
12   know, for a couple of years now, in part, due to the 
13   issues raised by Professor DeCherney the last time 
14   around.  The proposal that we are looking at would 
15   allow film professors to register and create an account 
16   for themselves.  They could then go on and browse 
17   through a full copy of each film title that’s available 
18   on the service on-line, and then use a custom player 
19   application to select the exact clips that they are 
20   interested in, and submit automatically on-line a 
21   request for those clips to be delivered, and those 
22   clips would then be either made automatically 
0220
 1   accessible to them, either by way of a download, or on 
 2   a secure URL, and there is no charge contemplated for 
 3   the clips, and there is also no requirement that the 
 4   film professor or the associated school, in any way, 
 5   established that they have a copy of the film title for 
 6   which the clips were requested.  It would be simply a 
 7   matter of the clips -- the motion pictures that appear 
 8   on the server.  In terms of where we are, we are 
 9   currently working with the USC to develop a list of 
10   films and TV titles that are most critical to have 
11   available via the service once the service launches, 
12   and our anticipation would that additional titles would 
13   be added over time, and the goal, at the moment, we are 
14   working to identify a service provider that could 
15   operate the service.  We have had an RFP out.  We have 
16   interviewed numerous candidates that have made 
17   proposals, and the goal ultimately would be to try and 
18   beta-test the service sometime later in the year.  
19   Admittedly it’s not up and running, and not all of the 
20   issues, you know, have been fully addressed and bedded, 
21   but I point to this only as an example of, you know, 
22   good faith efforts by the studios to try and 
0221
 1   accommodate educational uses that have been brought to 
 2   our attention, and also to support some of the comments 
 3   that Steve made earlier; that, to the extent an 
 4   exemption is granted, it should be limited to instances 
 5   where it’s actually necessary to the exemption rather 
 6   than, for instance, go on the film server to get access 
 7   to clips. 
 8        The other thing that I wanted to mention and, you 
 9   know, in the interim while the film server project is 
10   going forward, you know, Warner Brothers continues to 
11   work with educators, to try and enable their uses 
12   within a classroom of our motion pictures, and of clips 
13   from our motion pictures.  Our -- the requests that we 
14   get for permission to use clips are relatively 
15   infrequent and declining when it comes to educational 
16   users. I cited in my written testimony that in 2007 we 
17   only received 99 such requests, and in 2008, only 34 
18   such requests, so we don’t have evidence of the demand 
19   for these clips, you know, from our own personal 
20   experiences that we can point to.  There is one 
21   instance in which we were asked -- actually, this was 
22   in January of this year -- where we were asked to 
0222
 1   supply a clip for a user to show in class.  The 
 2   professor had pointed to the difficulty of shuffling 
 3   disks around and so forth, and we met that request, and 
 4   we were able to provide the requested film by return  
 5   e-mail, and we absorbed the lab fees for that. 
 6        Professor DeCherney has raised some questions 
 7   about our work with educational users, and has termed 
 8   this a licensing scheme of some sort - I think he 
 9   called it labyrinthian -- but, let me just answer a 
10   couple of the points that he raised; the first being 
11   that it’s not a new licensing scheme that we are 
12   offering.  We are merely noting that it’s possible to 
13   work cooperatively with us to get clips if you need 
14   them, and that we are, you know, doing our best to 
15   accommodate uses that are brought to our attention.  As 
16   our -- as copyright owners in our films and in TV 
17   programs, we have the ability to, and we regularly do 
18   grant no objection letters to users concerning bonafide 
19   educational uses of our works.  Given the nature of the 
20   uses at issue, those no objection letters tend to be 
21   based on Section 110 of the Copyright Act, so they 
22   don’t -- the letters aren’t intended, in any way, to 
0223
 1   represent a new alternative licensing scheme; they are 
 2   simply explanations to educators that they don’t need a 
 3   license from us for certain uses.  When we issue our 
 4   non-objection letters, we waive the rights that we have 
 5   to the use of the work, as described by the educator, 
 6   to the fullest extent that we can; namely, we waive 
 7   them with respect to the copyright in the film or the 
 8   television program that we own, from which the educator 
 9   seeks to take the clip.  Obviously, there are others 
10   who potentially have an interest in those clips.  The 
11   Guilds were mentioned, and actors represented by the 
12   Guilds have been mentioned, and so we direct educators 
13   to appropriate contacts, to facilitate waiving those 
14   rights should that be necessary, and we have had no 
15   feedback from any educator to indicate that such 
16   permissions have not been forthcoming in instances 
17   where we have waived or rights. 
18        Another point that I think -- I don’t recall if it 
19   was  Professor DeCherney or if it was Jonathan Band 
20   that raised it -- was the question about whether 
21   studios will engage in censorship or fail to approve 
22   uses that present their works in a negative light, and 
0224
 1   I note the proponents have not submitted any evidence 
 2   to support this assertion, and in fact, to the extent 
 3   this is a concern, while not directly on point with 
 4   regard to educational uses, our testimony actually did 
 5   include a letter from a documentarian, who wished to 
 6   use various clips from Warner Brothers’ owned movies, 
 7   to critique the depiction of African civilization in 
 8   popular media in the 1930s.  In this instance the clips 
 9   that they were looking for were clips from “Tarzan:  
10   The Ape Man” and from “Bosco: Shipwrecked”, to movies 
11   that we own the rights to.  The particular clips that 
12   they suggested they wanted to use included features of 
13   Tarzan swinging from a vine used to demonstrate 
14   representations of African culture in popular media in 
15   the 1930s.  They similarly wanted to use explorers in 
16   battle with African natives, to demonstrate the 
17   introduction of white civilization in Africa.  They 
18   wanted to use cannibals dancing around a fire, in order 
19   to demonstrate representations of African civilization 
20   in popular media in the 1930s.  And the last clip that 
21   they described was a feature of cannibals running, used 
22   to demonstrate, again, the representations of African 
0225
 1   civilization in popular media in the 1930s.  The 
 2   documentarians who were engaged in preparing this show 
 3   contacted us and said that they -- they believed that 
 4   these uses were fair use, but they were contacting us 
 5   in good faith, to see whether we agreed.  We issued a 
 6   letter saying that, you know, while we weren’t going to 
 7   opine whether it was fair use or not, irrespective of 
 8   whether it is or is not fair use, our letter said that, 
 9   you know, the -- we have no objection to the use 
10   described, and the production was able to go forward.  
11   So, to the extent that there is any evidence in the 
12   record as to whether studios are likely to restrict 
13   uses of their clips because they negatively portray 
14   either the media or media culture, I would point to 
15   this as at least an example, to show that that’s not 
16   necessarily the case. 
17        I think the last point to mention, and it doesn’t 
18   fully address all of the uses that the educators have 
19   proposed, but again I offer it as a suggestion that the 
20   studios are, in fact, looking to be creative in 
21   enabling the sorts of functionalities and features that 
22   people have brought to our attention, and, in that 
0226
 1   regard, I’ll mention the BD live demonstration that I 
 2   did this morning.  I think it definitely has 
 3   applications in an educational context, in particular, 
 4   for those who weren’t present this morning, the demo 
 5   shows ways in which you can add narration, either 
 6   audiovisual or purely audio, and then have that 
 7   narration played back while you are playing back a copy 
 8   of the movie, and that’s a feature that can be used, 
 9   both while you are in your classroom, or you know, 
10   through a community screening function that can be set 
11   up with other BD live users.  There are other examples 
12   that I mentioned this morning of features that we have 
13   -- that we have used in other formats and are 
14   contemplating here, some of which involve editing 
15   suites and the like.  So, those are just examples of 
16   ways we are trying to accommodate the interest of the 
17   educational community, and I will end there. 
18        MR. CARSON:  Thank you, very much.  We have been 
19   going on for well over two-and-a-half hours.  It’s 
20   probably time for a break.  Shall we say we’ll start up 
21   again at 4:15? 
22        (Whereupon, at 3:53 p.m., a brief recess is 
0227
 1   taken). 
 2        (Discussion off the record). 
 3        MR. CARSON:  Okay.  Good.  Everyone -- all the 
 4   witnesses are in the room, so let’s get started.  We 
 5   would like to leave at a reasonable hour.  So, we’ll 
 6   start our questioning with Rob Kasunic.  Rob? 
 7        MR. KASUNIC: Okay.  I think, first of all, I 
 8   wanted to get some idea from the proponents of the 
 9   exemptions, and those in support of it, if there is any 
10   way of distinguishing between some of the different 
11   types of uses that we have seen and been shown here in 
12   the proceedings, that the last exemption for film 
13   professors was fairly narrowly tailored because of the 
14   particular pedagogical needs of film professors, and 
15   there was a lot of discussion in the testimony and the 
16   comments about the needs of film professors, and that 
17   those educational purposes for being able to show 
18   minute differences in aspect ratio, various angles that 
19   were only available on DVDs, and from many of the 
20   demonstrations we saw today, I was not seeing that same 
21   level of necessity.  Now, I heard necessity mentioned 
22   many times by most of the proponents of, and supporters 
0228
 1   of the exemption, but I am wondering, are we seeing 
 2   different levels of necessity now from what we were 
 3   thinking about and talking about three years ago?  
 4   Peter, maybe you can be a good place to start. 
 5        PROF. DeCHERNEY:  I am convinced by so many of 
 6   these examples that there really is a need beyond media 
 7   studies, and I know we have talked about them, but the 
 8   example of facial recognition by policemen or by 
 9   medical staff thinking about patients -- what were some 
10   of the others -- the example of sound; looking at body 
11   language; the question of legal, intellectual property 
12   scholars thinking about substantial similarity; the 
13   question of the, you know, de minimis use in “Seven”; 
14   these all seem like cases where it was very clear that 
15   you needed a very high level of image, but is there one 
16   catch-all that would separate these issues, other than 
17   disciplinary status?  I actually can’t think of one.  
18   Maybe other people have ideas.  Is there a way of 
19   separating the sort of necessary uses?  And, I would 
20   say, a few people have mentioned eliminating the film 
21   professor -- the media professor exemption to times 
22   when it’s necessary, and I just think that’s too 
0229
 1   abstract a concept to apply; who would then determine 
 2   when something was necessary?  As far as I know, there 
 3   is no standard of necessity that would be relevant 
 4   here. 
 5        MR. KASUNIC:  But, if necessity was formed a part 
 6   of the basis of the last exemption, and then now we are 
 7   discarding that particular feature which formed that 
 8   basis, aren’t we in a different, a very different 
 9   environment this time?  Haven’t we -- aren’t we getting 
10   more towards a basically a class-use exemption, an 
11   educational use exemption for -- on a particular type 
12   of work, which is something that had come up early in 
13   the rulemakings, in relation to educational uses; 
14   having an exemption that did not come out the same way, 
15   at least, as the film professor’s exemption?  Jonathan, 
16   you mentioned necessity. 
17        MR. BAND:  Well, again, I think the point is, is 
18   that, you know, the aspect ratio and so forth, those 
19   were examples of the kind of sharpness of image that 
20   you would need, or the reason why you need a certain 
21   level of quality to make effective use in the 
22   classroom.  Now, I am sure that there will be some 
0230
 1   cases where, you know, if you are simply talking about 
 2   general plot and it’s a little less important to have 
 3   the high quality, but I think there are an awful lot of 
 4   situations where the high quality is important, or 
 5   also, as we have heard, where the lack of quality is 
 6   frankly simply distracting from the ability to really 
 7   understand what’s going on or really pay attention, 
 8   because we, you know, in -- you know, the -- we have 
 9   now -- again, things change, and so we are used to 
10   seeing high-quality images.  A lot of do have, as Fritz 
11   has pointed out, we do have, you know, these HD TVs in 
12   our basement, and that makes Bruce’s clients very 
13   happy, because his clients make them, and so we have 
14   bought them, because they told us that they were good 
15   to have, and so, we are used to high-quality images.  
16   And so if we then go to a situation where it’s blurry, 
17   it frankly distracts from the whole impact, and it 
18   distracts from the educational message and the use, so, 
19   I think, to some extent, again, in certain cases the 
20   necessity is greater than others, but I would submit 
21   that largely from what the folks on the other side have 
22   done and how they have changed our expectations, that 
0231
 1   we need that quality across that board, because if we 
 2   don’t have that quality, it just doesn’t work in the 
 3   classroom. 
 4        MR. KASUNIC:  But I still saw the use of a number 
 5   of clips that were of older films or VHS, you know, 
 6   quality films that were being shown in some of these 
 7   works, so if what you say is true, why were those 
 8   included in those montages? 
 9        MR. BAND:  Well, first of all, I mean, you know, 
10   partly it was because they were legacy items, and 
11   partly also, it was pretty distracting.  I mean, the 
12   first thing that strikes you when you see an old black-
13   and-white thing is you say, boy, that’s kind of fuzzy.  
14   I mean, it’s distracting.  It doesn’t -- it doesn’t 
15   have the same impact.  You are not focusing as much on 
16   what you are supposed to see, because it’s -- 
17        PROF. DeCHERNEY:  And actually, just before we go 
18   too far down the road of thinking about quality as the 
19   main determinant in crafting the exemption, there are a 
20   number of other factors that we wouldn’t want to lose.  
21   So, what about works that are only available in 
22   protected digital formats?  What about this question of 
0232
 1   disk-shifting and use of classroom time efficiently, 
 2   which I think was a major part of the 2006 exemption?  
 3   So, you know, if you did sort of move the exemption so 
 4   it was primarily about the quality, we would lose a 
 5   number of other important reasons, and actually a lot 
 6   of uses that are enabled by the 2006 exemption. 
 7        MR. KASUNIC:  But that does not get to the point 
 8   of what type of -- of how you get that work; whether 
 9   you need to get that through decryption of the CSS; or 
10   whether you can get that through some other version. 
11        PROF. DeCHERNEY: Yes.  You are right. 
12        MR. KASUNIC:  Okay.   
13        MR. BAND:  Then -- and maybe one thing I can do, 
14   because I am not sure -- there was a small clip shown 
15   before getting to the other issue of just showing of 
16   what is in the record for Professor DeCherney’s that we 
17   have on the website, they are playing those full clips, 
18   at least the one clip of the educational use.  Not, for 
19   now, leaving this at the student use.  I’m going to put 
20   that up on the --  
21        PROF. DeCHERNEY:  This is an excerpt from a 
22   lecture that I submitted?  Okay. 
0233
 1        MR. KASUNIC:  This is from a lecture that you -- 
 2   that is part of your Reply Comment. 
 3        MR. BAND:  And I will again just remind people 
 4   that this was submitted as a DVD, in DVD quality, and 
 5   then it was re-encrypted, you know, recopied and then 
 6   posted up on the Web. 
 7        MR. KASUNIC:  Why don’t we keep asking questions 
 8   while it’s downloading? 
 9        MR. BAND:  So obviously, significantly, diminished 
10   resolution you can already see, but. 
11        MR. KASUNIC:  Okay.  Okay. 
12        (Video playback). 
13        MR. BAND:  Mr. Scarpini, and myself, in the 2009 
14   DMCA exemption rulemaking.  I will be modeling a 
15   typical undergraduate lecture.  Really, this is a short 
16   excerpt from a lecture on computer graphics, or CG, 
17   that I used in a History of Hollywood course.  More 
18   specifically, I will be discussing the rise of digital 
19   characters, and the more specific technique of 
20   morphing.  So, with the availability of laser scanning, 
21   the computer graphics work of George Lucas’ industrial 
22   light magic (ILM), with their Pixar computer, digital 
0234
 1   characters began to take off in the 1980s.  Morphing is 
 2   really the first step towards digital characters.  In 
 3   1988, in “Willow”, Ron Howard’s “Willow”, there is a 
 4   character who changes a few times throughout the film.  
 5   In “Inner Space” the year before, morphing is used to 
 6   have characters shrink in size.  The film “Indiana 
 7   Jones and the Last Crusade”, from 1989, had a much more 
 8   extended morphic sequence, and this was called 
 9   Donovan’s destruction scene that you are seeing right 
10   now.  As with many new technologies, the big studios 
11   were not the first to exploit computer graphics.  The 
12   Independent Productions Company, Carolco, was really 
13   the first company to take chances on using CG on a 
14   large scale throughout an entire feature film.  In 
15   1990’s “Total Recall” Carolco used CG in a few stunning 
16   scenes, but the use of CG was restricted to scenes that 
17   simulated futuristic computer graphics.  “Terminator 
18   II”, at the bottom of the screen, released the 
19   following year, used CG on a much more ambitious scale.  
20   The film was directed by James Cameron, who had used 
21   some CG to create a character in “The Abyss”, from 
22   1998.  ILM created “The Abyss” character, which only 
0235
 1   took up 900 megabytes on a computer drive, on a hard 
 2   drive, which indicates, I think, both a lack of 
 3   complexity of the graphics at the time, and also the 
 4   short amount of screen time that that particular 
 5   character received.  For “Terminator II”, ILM created 
 6   the T-1000 robot.  The character was dependent on 
 7   morphing throughout the film.  He also interacted 
 8   smoothly in his environment and with other characters.  
 9   Surprisingly, there were only 47 CG shots in the 
10   “Terminator II”.  The production team used a number of 
11   tricks to make it look like many more.  One technique 
12   that you can see in this clip is the use of a man in a 
13   silver suit, intercut with composite CG shots.  See if 
14   you can note the man in the silver suit?  So there we 
15   see a simple CG shot, and here, a much, much more 
16   complex CG shot.  And, for Hernan (ph), it’s mostly a 
17   man in a silver suit. 
18        PROF. DeCHERNEY:  This is a great example -- 
19        (Continued playback of video). 
20        MR. BAND:  Now there is one more CG shot coming in 
21   this clip, but it’s interesting to note the economical 
22   use of CG for the film that proved to Hollywood that 
0236
 1   digital characters were a real possibility. 
 2        After the release of “Terminator II”, morphing 
 3   started to appear everywhere.  In 1992, home computer 
 4   software, where morphing was released for the McIntosh.  
 5   Through many feature films, like “Lawnmower Man”, at 
 6   the bottom right here, started to have scenes of 
 7   morphing, and then you start to see morphing on 
 8   television in “Babylon 5”, above; “Reboot”, in the 
 9   bottom left-hand corner there, a Saturday morning 
10   cartoon.  The explosion of CG and digital characters 
11   led to the inevitable discussion of digital actors 
12   replacing real actors.  I want to show you a quick clip 
13   from a documentary included in the DVD of “Star Wars, 
14   Episode 2:  Attack of the Clones”.  In this clip George 
15   Lucas and his animation team confront this very 
16   question. 
17        (Continued playback of video). 
18        PROF. DeCHERNEY:  So, are you going to suggest 
19   that a camcorder version would have worked in this 
20   scene where -- I have to remind you though, we are 
21   talking about Yoda’s ears here; that’s something 
22   important? 
0237
 1        MR. METALITZ:  Is that a question, in general, to 
 2   the witnesses in general? 
 3        PROF. DeCHERNEY:  Go for it. 
 4        MR. METALITZ:  I think that’s a perfect example of 
 5   one where camcorder version would work --  
 6        UNIDENTIFIED MALE:  Ye. 
 7        MR. METALITZ: -- because basically, in terms of 
 8   quality, you have a bunch of people sitting around 
 9   looking at a computer screen. 
10        PROF. DeCHERNEY:  Yeah, but what were they talking 
11   about though? 
12        MR. METALITZ:  They were talking about what’s on 
13   the computer screen, but I -- but, as I watched the 
14   clip, you were stressing the interaction and the 
15   decision they had to make about whether to use a, you 
16   know, a real actor versus the CGI.  I mean, you -- I 
17   don’t want to oversimplify it, but that’s my 
18   recollection from having looked at the clip, and I 
19   think that’s a good example of one where I would think 
20   it would be very hard to maintain that the highest 
21   possible quality would be necessary to achieve your 
22   pedagogical purposes. 
0238
 1        PROF. DeCHERNEY:  Yeah.  Actually, I might have 
 2   agreed until we saw it here at the much lower 
 3   resolution than the one I had originally submitted, but 
 4   Yoda’s ears are important to the scene, and you 
 5   couldn’t see them at all at a much lower resolution.  
 6   It’s not just the interaction between people, but they 
 7   are talking about how to create a new form of art, and 
 8   it’s hard to see them talking about that without 
 9   actually seeing the artwork itself, which is on the 
10   screen. 
11        PROF. HOBBS:  And one topic that hasn’t come up 
12   yet in the issue of image quality is how important it 
13   is for us to consider the varying contexts in which the 
14   screening takes place.  When you -- when you work, as 
15   Professor DeCherney does, in an environment where with 
16   one touch of a button you can lower the lights to the 
17   optimal level, right?  That’s one kind of environment.  
18   But, when you are working in an urban public school, in 
19   a high school, where the blinds are broken, for 
20   instance, you can’t really darken the room 
21   appropriately.  It’s different showing it on a data 
22   projector than it is on a 32-inch monitor to 35 kids in 
0239
 1   a room where you can’t control the light levels.  So, 
 2   quality matters differently in different kinds of 
 3   contexts, and I think one of the things we want to 
 4   realize is that we don’t all experience context in the 
 5   optimal settings; that’s why we have to make -- that’s 
 6   why we want image quality to be superior, to account 
 7   for those differences that are part of different 
 8   classroom environments. 
 9        MR. KASUNIC:  Well, I guess a point about that, 
10   how much should we be taking into consideration?  How 
11   much can we take into consideration, in terms of what 
12   is needed for a particular purpose; what conditions are 
13   in the particular school?  For instance, I was kind of 
14   surprised in your testimony that -- that the schools 
15   who want to get access to content that’s protected also 
16   can disallow access in a media studies program, to 
17   YouTube, which is a -- would seem to be an important 
18   component of the media studies environment.  So, how -- 
19   given the variables that may exist in particular school 
20   systems, how can that become attributable to the 
21   quality that is necessarily provided, or the demands 
22   that you are going to make of that particular content? 
0240
 1        PROF. HOBBS:  Well, I don’t -- I think that 
 2   educators want to be able to make non-infringing uses 
 3   of copyrighted materials.  To do step number two on 
 4   this list of critical questions; what techniques are 
 5   used to attract your attention, you have to be able to 
 6   look pretty carefully at the screen.  You have to be 
 7   able to pause, and you have to be able to rewind.  You 
 8   have to be able to see a clear image in that context, 
 9   to be able to do a careful visual analysis.  We want to 
10   do that with students in Grade 4, right?  In grade 7; 
11   in grade 10.  Now, the reality of it is, Internet 
12   filtering is used in schools for lots of really good 
13   reasons since 90 percent of what’s on YouTube is dreck, 
14   right?  And, in fact, seeing YouTube, I think we have 
15   clearly established this highly compressed little image 
16   doesn’t work in a classroom that doesn’t have a data 
17   projector, when you have to use a 32-inch monitor.  You 
18   can’t make -- you can’t use image displays the same way 
19   in those contexts.  In those contexts, where a 32-inch 
20   monitor is the standard in the corner of the room -- we 
21   have seen it in every high school in America, right -- 
22   the only presentation format that works is DVD. 
0241
 1        MR. KASUNIC:  Okay.  A question about that 
 2   particular clip and the -- now, you have made a point 
 3   about the -- Yoda’s ears. 
 4        PROF. DeCHERNEY:  Yoda’s ears, yes. 
 5        MR. KASUNIC:  So, this is the additional content 
 6   that was contained only on the DVD, and some question -
 7   - I guess one thing would be, in terms of the quality 
 8   that can be captured from alternative means, for 
 9   instance, the demonstration with the video camera, do 
10   you -- is that kind of quality -- leaving aside for a 
11   second the impediments to making that picture -- is 
12   that quality something that would be acceptable, and in 
13   fact, does that quality perhaps exceed what we were 
14   just watching here, from that last clip, which is, as 
15   you said, degraded quality, from what you would have 
16   shown? 
17        PROF. DeCHERNEY:  Yeah.  No, I have to say, the 
18   MPA has much better interns than they did three years 
19   ago.  This -- it was a much -- this clip looked much 
20   better. 
21        (Laughter). 
22        PROF. DeCHERNEY:  I still -- I mean, I still noted 
0242
 1   a lot of issues that disturbed me about the quality; 
 2   one, is just that they were using a telephoto lens, and 
 3   there was noticeable distortion, and there just always 
 4   will be; but there was discoloration; there was a 
 5   reddish cast to the images; they were still a little 
 6   muddy and blurred, and you can see bleed-through in the 
 7   lines; but also, there was a -- especially because they 
 8   were showing dark scenes, there is actually a lot of 
 9   detail that was lost, that apparently wasn’t captured 
10   by the camcorder.  I would still concede that obviously 
11   every time I show a clip in class I don’t need the 
12   absolute highest quality.  I think most of the time I 
13   do, but I don’t know how you would put that into a 
14   craft -- how you would craft that into the exemption, 
15   other than saying -- other than saying only when it’s 
16   necessary, when again, I just don’t think that is -- I 
17   think it’s just too abstract a standard to introduce. 
18        MR. KASUNIC:  Well, in terms of the particular 
19   piece of evidence that you submitted then for that, in 
20   terms of the CG, to what extent was any higher quality 
21   necessary?  It seems like there were -- you mentioned 
22   that there were 47 different instances within that 
0243
 1   movie; you showed three of them, and they were moving 
 2   by pretty quickly.  I mean, there was not any 
 3   particular real focus on any aspect of that.  It was -- 
 4   it seemed to me, at least, to be somewhat in passing 
 5   with a much longer generalized discussion of CG. 
 6        PROF. DeCHERNEY:  You see what I was hoping -- it 
 7   was -- actually, this was a problem with my lecture -- 
 8   what I was hoping to show was that there were two kinds 
 9   of images used there.  They were supposed to look 
10   similar, but at a high-quality -- if it’s a high-
11   quality image you can actually discern them.  Actually, 
12   with this one, you couldn’t.  So, one, were CG images, 
13   and we saw, two, three CG images in that shot; the 
14   other was when they had a man in a silver suit, who 
15   looked like -- he was supposed to look like he was, you 
16   know, a CG image, and if you are looking at it in high 
17   quality, you actually can tell the difference. 
18        MR. KASUNIC:  I saw the difference. 
19        PROF. DeCHERNEY:  You saw difference here? 
20        MR. KASUNIC:  Yeah. 
21        PROF. DeCHERNEY:  Okay. 
22        MR. KASUNIC:  Well, okay.  I guess that’s -- I 
0244
 1   guess let’s turn to one other issue that -- and maybe 
 2   this -- I’ll use my other demonstration now, because we 
 3   haven’t reached any particular further development in 
 4   understanding of how other alternatives -- I gather 
 5   that, from many of the comments that the impediments to 
 6   capturing from a screen, in terms of setting up a -- a 
 7   camcorder, having all of that set-up to capture those 
 8   clips, although it seems like, in many cases it will 
 9   contain sufficient quality for many of the uses that 
10   many educators would want to make, that if we took away 
11   -- if there was a way to take away some of those 
12   impediments by using actually a computer as opposed to 
13   -- as opposed to capturing from a camera, a separate 
14   camera, the question is, would that be something 
15   sufficient?  And, I would just like to get a reaction.  
16   I know Steve saw this in California, but let me just 
17   show a short clip. 
18        This was -- and this technology was just something 
19   that I had used for screen captures in the past and 
20   tried it prior to the hearing just to see whether it 
21   would capture a DVD. 
22        (Playback of video). 
0245
 1        PROF. DeCHERNEY:  That’s probably good.  This was 
 2   not a pre-selected movie.  It happened to just be 
 3   sitting around from NetFlix, and I haven’t even watched 
 4   it yet, but the -- I note and I am sure all of you 
 5   could see that there was pixilation issues with that, 
 6   but the question I think is, again, going back to my 
 7   first question, in terms of that first concept of 
 8   necessity that was, at least part of the basis three 
 9   years ago for the exemption, is that, how do we 
10   categorize, for many of the uses that would be required 
11   or desired in the academic setting, in how many cases 
12   would something of that quality, and particularly if we 
13   don’t have an answer to whether this is circumvention 
14   or not -- there may be some issues -- I am looking 
15   forward to hearing more on that -- but, to what extent 
16   would this be sufficient for many of the purposes that 
17   -- that educators desire?   
18        MR. METALITZ:  Can I --  
19        MR. KASUNIC:  Let me start with the film 
20   professors and then we can move on. 
21        MR. METALITZ:  Sure. 
22        PROF. DeCHERNEY:  Yeah, I think this would be 
0246
 1   acceptable in a tiny, tiny percentage of uses that 
 2   media professors would have.  I mean, it’s really so  
 3   distorted, not so much by the pixilation, but even more 
 4   by the reduced frame rate, that it has a look like a 
 5   slow -- like in a silent film being played at the wrong 
 6   speed, that I think that’s so distracting, it would be 
 7   hard to talk about other issues beyond that.  Also, I  
 8   -- you know, it’s a potentially infringing technology, 
 9   and I think a likely infringing technology, but I know 
10   that’s not the issue. 
11        MR. KASUNIC:  I guess, just to address film 
12   professors first and foremost, are film professors not 
13   more likely to have the kind of equipment that is -- 
14   that the motion picture industry is talking about?  I 
15   mean, having -- do not film students film things in the 
16   --  
17        UNIDENTIFIED MALE:  I’m a film professor -- 
18        MR. KASUNIC:  I’m sorry.  You are not a witness.   
19        MR. CARSON:  You’re not a witness. 
20        MR. KASUNIC:  Okay. 
21        PROF. DeCHERNEY:  Yeah.  No, no, no, I mean, 
22   anyone is just as likely to have it on, and have 
0247
 1   Handbrake, or DVD River, or Bank the River on their 
 2   computer, I think, as -- yeah. 
 3        MR. KASUNIC:  But, I just -- going back, is this 
 4   just -- so this is not a part of most -- I’m asking the 
 5   question -- I just don’t know -- is that filming is not 
 6   part of any aspects of film studies? 
 7        PROF. DeCHERNEY:  No, it wasn’t me.  It would 
 8   depend on the institution.  In our institution we offer 
 9   production, film production courses, and so that 
10   equipment is available.  Many of the people who teach 
11   film studies, critical studies, don’t have access to 
12   that equipment, don’t use it, and don’t know how to use 
13   it.  I’m not sure -- well, actually, I’m not sure why 
14   that’s relevant, but. 
15        MR. JACKSON:  Yeah.  If it’s a question of who has 
16   equipment, and I know that one of our other people said 
17   they checked with colleges -- again, I am the 
18   University, the big one that doesn’t have a film 
19   program, but we do have journalism, but we don’t have a 
20   film production one, but we are in the process of 
21   creating a film studies department, which only be some 
22   of these people that I represent.  But, the separation 
0248
 1   of production and the content of film studies happens, 
 2   I think, on a lot of campuses.  The people who are 
 3   doing film studies and the people who are teaching 
 4   film, who are not in that department, are often in the 
 5   Arts and Humanities, and you talk about a digital 
 6   divide out there for the students, there is often a 
 7   digital divide on campus between the people who are in 
 8   arts and humanities and the people who have the big 
 9   money.  We have no professors who officially have their 
10   own equipment, or that would be bought.  Our language 
11   department has a language media lab.  They try the 
12   best, to help folks out.  There is a center for 
13   teaching excellence that helps people with the concept 
14   of how to do all these things, but a central facility 
15   that actually can do this type of capturing for people 
16   for classes would be impossible; too many professors; 
17   too many thoughts and ways to do things; and too many 
18   possibilities, to have one place and one person doing 
19   it all for people. 
20        MS. RIFE:  I also wanted to add that, as a writing 
21   teacher, or as someone who was in graduate school, 
22   about four years ago I took Advanced Multimedia 
0249
 1   Writing, and you would receive a lower grade if you had 
 2   pixilated images in a montage.  So, as a writing 
 3   teacher, my inclination would be to give a higher 
 4   teacher -- a higher grade to someone who had higher-
 5   quality images, but see the reverse is -- I am in a 
 6   dilemma -- you are going to place me in a dilemma, 
 7   because I actually flunk the ones with the higher 
 8   pixilated images, because they did something illegal 
 9   potentially.  You are going to -- there is going to be 
10   this whole regime that develops, like with plagiarism, 
11   where I am going to have a responsibility to evaluate; 
12   did this student hack and that didn’t hack?  I mean, 
13   that’s really scary to me. 
14        MR. KASUNIC:  But, wouldn’t the higher quality 
15   then that is being expected by some professors be 
16   necessarily the circumvented technology? 
17        MS. RIFE:  Yeah.  Right. 
18        MR. KASUNIC:  Okay.  So the school itself is 
19   imposing the necessity on other students to circumvent, 
20   in order to get a -- I’m seeing -- I’m hearing a number 
21   of different academic institution issues that are 
22   actually contributing to some of the problems, in terms 
0250
 1   of having different departments that aren’t --  
 2        MS. RIFE:  Well --  
 3        MR. KASUNIC:  -- and teacher, who are imposing 
 4   perhaps undue restrictions on students given the law. 
 5        MS. RIFE:  But it’s not a -- I mean, writing 
 6   teachers care about the quality of writing.  I am just 
 7   asking you not to go down a road where you say film 
 8   studies teachers, they need quality, but writing 
 9   studies teachers, they don’t need quality as much, and 
10   that student writing a montage of African-American 
11   stereotypes, that person shouldn’t really care about 
12   quality, it’s not that important, but this person over 
13   here, who is a professor at a university, needs 
14   quality.  I mean, that’s just very unjust.  I’m just 
15   asking you not to do that. 
16        MR. CARSON:  Can I just get some clarification?  
17   This has been bothering me for a while since you 
18   started talking. 
19        MS. RIFE:  Yes. 
20        MR. CARSON:  It’s been a few decades since I went 
21   to college.  When I went to college writing had a 
22   particular meaning that I don’t think is the meaning 
0251
 1   you are using.  Can you explain to me what you are 
 2   talking about when you talking about writing studies?  
 3   I don’t think you are talking about writing in the 
 4   conventional way. 
 5        PROF. HOBBS:  I did clarify, in my opening 
 6   statement, that I am defining writing broadly.  This is 
 7   a report put out by the National Council of the 
 8   Teachers of English, authored by Kathleen Yancey, and 
 9   basically writing is -- we don’t consider alphabetic 
10   writing to be our sole domain anymore due to the advent 
11   of digital writing.  So, by writing, I’m a -- I 
12   consider a montage to be a composition, a piece of 
13   writing; it could have text or not.  So, I am defining 
14   writing broadly, and this is how people in writing 
15   studies see it.  So -- I am from -- I am from 
16   humanities.  I think I am the only one here from the 
17   humanities discipline though, but we think that -- 
18   maybe not, but yeah -- do you have any further 
19   questions about clarification about how I am defining 
20   writing? 
21        MR. CARSON:  I think I followed that. 
22        PROF. HOBBS:  Okay.  Thank you. 
0252
 1        MR. KASUNIC:  Well, I guess just to get a little 
 2   broader sense of that, Roger, you have a number of 
 3   different examples dealing with particular instances in 
 4   legal, and I’m certainly familiar with some of these 
 5   uses in legal institutions. 
 6        MR. SKALBECK:  Right.  Can I -- before we get to 
 7   that, can I comment on the SnagIt examples 
 8   specifically? I don’t know if you are going to -- 
 9        MR. KASUNIC:  Sure. 
10        MR. SKALBECK:  Just briefly, not addressing the 
11   question of quality -- I am actually pretty surprised 
12   by this -- I had heard, from the Palo Alto hearing, 
13   that this was shown as an example of hey, what do you 
14   think?  I, in my office, downloaded a trial copy of 
15   SnagIt and tried with three different DVD playback 
16   technologies to duplicate specifically this; try to -- 
17   to try to get one of the examples from the movie 
18   “Seven”, for instance, to do this.  I ended up getting 
19   a blanks screen on each one of them.  There could be 
20   technical reasons.  May it was -- 
21        MR. KASUNIC:  It’s hardware acceleration -- 
22        MR. SKALBECK:  Hardware acceleration -- right.  
0253
 1        MR. KASUNIC:  -- that you right-click and just 
 2   move the slider down. 
 3        MR. SKALBECK:  When I -- I removed it from the 
 4   playback technology that’s embedded in this, the 
 5   interactual -- the player that automatically plays with 
 6   this, but so it could be just a matter of settings with 
 7   that.  But, what I would like to know, or what I would 
 8   like to hear once there has been a better analysis of 
 9   it or whatever is, is I would like to raise the address 
10   -- the issue that once you have changed this hardware 
11   acceleration setting, or once you have figured out the 
12   right configuration, are we then going to be guaranteed 
13   that this is available under new operating systems, 
14   such as Windows Vista, where they are trying to do a 
15   little bit more, in terms of locking down the delivery 
16   of information on there, and I also had tried it with a 
17   higher end caption -- a higher end desktop caption 
18   software called Adobe Captivate, which should be 
19   greater technology, but the difficulty with that is 
20   though I was able to capture actually a lower 
21   resolution version than this, it does not allow me to 
22   contemporaneously capture the sound.  I can have the 
0254
 1   sound coming from a line in source, so I would have to 
 2   figure out a way to snake it around without feedback, 
 3   or I can have a microphone coming in.  So, just very 
 4   briefly, I just want to go on record saying, I tried 
 5   it.  You’re right, it’s probably the settings; clearly 
 6   it can be done with SnagIt, but I had difficulty, and I 
 7   am not convinced that the DVD playback software or the 
 8   operating system that it runs on would be guaranteed to 
 9   allow me to use that as something.  So, I would be a 
10   little cautious to accept that as the technological 
11   alternative to CSS circumvention for the next three 
12   years, just knowing that there is some tenuous sort of 
13   status to this. 
14        MR. KASUNIC:  But, of course, there is no 
15   necessity to move to operating systems that restrict 
16   what you want to do, so that there is a certain amount 
17   of choice that would be involved in some of these 
18   things.  But, some of the questions that I want to -- I 
19   wasn’t trying to, as I said, I did not buy stock in 
20   this company, and I am not trying to push this; this 
21   just happened to be something I use.  I am sure there 
22   are many more, that many of them may work in many 
0255
 1   different ways.  And, I think in testimony in, and I 
 2   believe Fred von Lohmann mentioned in California that 
 3   there was some mention in the 104 Report that we had 
 4   raised questions about whether certain types of 
 5   technology, and then, in particular, I think that had 
 6   to so with music, and the particular knowledge we were 
 7   dealing with at the time was Total Recorder, which 
 8   actually replaced a driver in -- as a consequence, in 
 9   order to do what it’s doing.  My understanding of some 
10   of the capture technologies is that there is no actual 
11   driver replacement.  It’s essentially doing, on a 
12   software basis, what is being done by the video camera; 
13   getting the analog output and converting it to a 
14   digital -- a digital file.  So, my question for you, in 
15   general, without regard to that particular technology, 
16   if there is any thought about that is, do you have any 
17   opinions of if this technology was doing effectively 
18   what the video camera is doing, but obviously removing 
19   some of the obstacles that I could see some people say 
20   would be conveniences or doing this more conveniently, 
21   but if this did the same thing that the video camera 
22   was doing, would there be any problem with that? 
0256
 1        MR. CARSON:  Just to clarify, Rob, I think what 
 2   you are saying is, but I want to make sure the question 
 3   is clear, you are saying that if this technology, this 
 4   technology actually captures the analog signal, on its 
 5   way to the screen, would that be something that you 
 6   would consider circumventing; is that what you are 
 7   saying? 
 8        MR. SKALBECK:  Or the analog output, what is just 
 9   being portrayed to the eyes essentially, as it’s coming 
10   off of the screen. 
11        MR. METALITZ:  You have asked questions that we’ll 
12   be glad to answer, after we have analyzed the 
13   technology and wind it up against the legal 
14   obligations. 
15        MR KASUNIC:  And this is not just -- I mean, the 
16   question didn’t specifically have any, in terms of -- I 
17   just want to clarify, in terms of raising the SnagIt 
18   technology that this isn’t specifically about SnagIt, 
19   but we are trying to get some understanding, in 
20   general, about if there are certain types of capture 
21   technology other than a video camera that may be able 
22   to alleviate some of the educational concerns, so we 
0257
 1   will try and ask that.  John? 
 2        MR. BAND:  If I may?  And, with all due respect, 
 3   Rob, you know, there is a very surreal quality to this 
 4   line of questioning, but also to this entire proceeding 
 5   in a lot of the testimony we just heard.  I mean, 
 6   obviously -- and this is going back to the point I made 
 7   in my testimony -- you know, either the quality is 
 8   equivalent or it isn’t.  Now, it seems pretty clear to 
 9   me that the quality isn’t equivalent, but if it is 
10   equivalent then, of course, this entire -- the DMCA is 
11   a waste of time, and all of this stuff about a speed 
12   bump and all those kinds of things obviously makes no 
13   sense, because if there are all these other 
14   alternatives available that really are good enough for 
15   the vast majority of uses, you know, then Bruce’s Board 
16   members will not be able to sustain their technological  
17   protection system. 
18        But, that leads to another question.  Okay.  Let’s 
19   assume that there, you know, putting that fundamental 
20   paradox aside, I just can’t understand, you know, to 
21   the extent that we are saying, okay, we are really 
22   concerned with normative behavior, and we don’t want to 
0258
 1   encourage circumvention, because that would somehow be 
 2   a bad thing, you know, again that sort of -- ignoring 
 3   the fact that we live in this -- I think it was jack 
 4   Valenti who always talked about, we live in this sea of 
 5   infringement.  So, here we have this little island in 
 6   the sea of infringement where people are trying to do 
 7   the right thing.  And so, instead what they are saying 
 8   is, okay, well there might be this slippery slope if we 
 9   allow circumvention, so instead, what we want to do is 
10   to encourage camcording?  I mean, that seems to be the 
11   absolutely most bizarre argument that I have heard.  
12   And again, it was surreal when Fritz made that argument 
13   three years ago, and fortunately the Copyright Office 
14   rejected it at that point.  You know, talk about 
15   normative behavior, you know, the MPA has been going 
16   around the country getting states to pass laws against 
17   camcording, and it including ratcheting up of the 
18   federal copyright law to prevent camcording, and so to 
19   sort of say well what we want to do is somehow 
20   encourage camcording and have this wonderful demo -- we 
21   should put that on YouTube, about how, you know, 
22   especially, you know, hooking up the analog outputs -- 
0259
 1   I mean, why would you want to do that?  Why do you want 
 2   to make this difficult?  This is an easy problem.  
 3   There is an easy solution to the problem.  Why are we 
 4   going through all of these convolutions, you know, 
 5   again ignoring the fact that all of that infringement 
 6   is going on out there.  It’s going to go on out there 
 7   no matter what we do here, and so why -- why put the -- 
 8   why either encourage camcording, or encourage 
 9   instructors to break that law?  That seems to make no 
10   sense. If we want to encourage, you know, good 
11   normative behavior, just say, yeah, of course you 
12   should circumvent for this purpose; the quality is so 
13   much better; it’s so much easier and more efficient.  
14   Why make things difficult for people?  I just -- I must 
15   say, this is a totally bizarre situation. 
16        MR. CARSON:  anyone on that side want to respond? 
17        MR. TURNBULL:  Yeah, respond briefly.  I -- the 
18   fundamental point, from the technology proprietor’s 
19   perspective, is that you don’t want to have the 
20   circumvention tool become something that is available 
21   and out there as in the legitimate marketplace.  Now, 
22   we tried to prevent the circumvention tool from being 
0260
 1   available at all; that failed, but the notion that the 
 2   tool itself is something that becomes ubiquitous and 
 3   accepted as part of the legitimate marketplace is 
 4   something that is a significant threat to the viability 
 5   of the technology going forward.  The use of the 
 6   camcorder for the limited purpose to make what is 
 7   stipulated to be a fair use of the image does not 
 8   threaten the technology; it allows the kind of fair use 
 9   that has been discussed here, but does not threaten the 
10   technology.  And the limited, while we were concerned 
11   about the film studies exemption three years ago, the 
12   limited nature of that exemption and the understanding 
13   of the pedagogical needs of the film studies professors 
14   was something that we have been able to get our minds 
15   around and understand and accept, and have found that 
16   it has not actually had, you know, the kinds of 
17   concerns that, you know, has not -- has not resulted in 
18   the kinds of concerns that we might otherwise have.  
19   But, to expand it exponentially, I think is the 
20   concern, is the viability of the technology. 
21        PROF. HOBBS:  Can I make a point to that? 
22        MR. CARSON:  Let’s -- you know, let’s -- let’s -- 
0261
 1        MR TURNBALL:  And that’s - and that’s -- and that 
 2   is what Section 1201 is about.  And so, this -- to have 
 3   this proceeding become something that effective 
 4   eviscerates the protection that’s available under 1201, 
 5   and was available, you know, in the development of this 
 6   technology, it seems to me is not what this proceeding 
 7   should be about. 
 8        MR. CARSON:  Fritz, then Renee. 
 9        MR. ATTAWAY:  As I said earlier, convenience 
10   simply cannot be the standard of this proceeding.  If 
11   you make convenience the standard, then there is no 
12   more prohibition against circumvention, because it’s 
13   not just educators and film professors that have the 
14   ability, under our copyright law, to engage in fair use 
15   or other non-infringing uses; you can, I can, everybody 
16   can.  So, if inconvenience or convenience is the 
17   standard, then everybody should be able to circumvent, 
18   because everybody is entitled, under or copyright law, 
19   to engage in fair uses.  So, there is no prohibition 
20   against circumvention.  You basically eliminated, 
21   voided the circumvention prohibition. 
22        MR. KASUNIC:  It would make Jonathan very happy. 
0262
 1        MR. ATTAWAY:  Yeah, it would make Jonathan very  
 2   happy. 
 3        MR. BAND:  We’re not -- it’s not -- it’s not just 
 4   convenience. 
 5        MR. ATTAWAY:  And while I have the microphone, 
 6   Jonathan, just responding to Rob’s question, even if 
 7   this utility did nothing more than what a camcorder 
 8   does, I would point that under 1201, if it is marketed 
 9   to avoid bypass, remove, deactivate or impair a 
10   technological measure, it’s still a circumvention 
11   device, and prohibited by Section 1201. 
12        MR. CARSON:  I think one thing we are trying to 
13   get out of you folks is an evaluation, and granted, you 
14   are not going to be able to do it overnight, but an 
15   evaluation of whether it is, in fact, just that, or 
16   whether you think it’s something that does, in fact, 
17   permit people to engage in uses that don’t violate 
18   Section 1201, and in fact, this being a violation of 
19   1201(b).  We don’t know, at this point; maybe you don’t 
20   know at this point, but that’s something we would be 
21   interested in hearing from you. 
22        PROF. HOBBS:  I just want to make a point in 
0263
 1   response to Bruce’s idea, because he says basically the 
 2   tool shouldn’t be available in the legitimate 
 3   marketplace.  Earlier in his testimony he said teachers 
 4   can’t be gatekeepers.  I just spent the last two years 
 5   working with K-12 teachers all across the country 
 6   working on the Code of Best Practices for Fair Use in 
 7   Media Literacy Education, and what we found over and 
 8   over again is teachers want to make lawful, non-
 9   infringing uses, and they want to help their students 
10   understand their rights and their responsibilities 
11   under copyright law.  They want to help students make 
12   the distinction between the fair use of copyrighted 
13   materials and pirating.  But -- and, in fact, I think 
14   we are like on your side, because we actually think 
15   that if we enable unlocking CSS for fair use purposes, 
16   it provides the perfect teachable moment, to help 
17   students understand the distinction between fair use 
18   and pirating.  Right now we have a situation where 
19   teachers and students are ignorant, or they are fed 
20   some propaganda essentially misinforming them about the 
21   nature of copyright.  If students want to pirate, they 
22   don’t need to go through all the trouble of going to 
0264
 1   get the encryption code.  There are plenty of 
 2   technologies readily available for students who want to 
 3   pirate, but what we have going on right now in American 
 4   society is an erosion of respect for the law.  And we 
 5   educators are here, right -- we are here because we are 
 6   deeply concerned that without being able to enable 
 7   students and teachers to make legitimate, non-
 8   infringing uses of copyrighted material, erosion of the 
 9   law will continue.  And, in fact, we believe that 
10   teachers and students both deeply respect copyright 
11   owners, and respect the rights of owners to make 
12   technology so that their materials can’t be easily 
13   copyrighted.  But, at the same time we respect that, we 
14   also respect the rights that we have under fair use.  
15   So we actually think we are kind of on your side here, 
16   and that’s why we don’t really understand.  You say you 
17   don’t mind fair uses, but you think the -- you think 
18   that access to this technology is going to destroy your 
19   market, but we think actually quite the opposite; that 
20   by helping all Americans understand the distinction 
21   between a pirated use and a fair use, it’s going to 
22   strengthen respect for the law, and it’s going to 
0265
 1   strengthen the future of copyright protection in the 
 2   United States. 
 3        MR. KASUNIC:  Okay. Just a couple more quick 
 4   questions, to get a couple things on the record.  One, 
 5   with -- Roger, I don’t think you ever got back to the 
 6   question I was going to ask you, which was about, for a 
 7   legal and -- use in legal and medical education, and in 
 8   particular, the legal clips that were shown -- 
 9        MR. SKALBECK:  Yes. 
10        MR. KASUNIC:  To what extent is that -- is 
11   variance in quality sufficient for pedagogical 
12   purposes, and I’m bringing something to this, in having 
13   used many film clips, in order to make particular 
14   points in class, to what extent is that, and to what 
15   extent have you considered, or do you consider whether 
16   there are alternative means available, because, for 
17   instance, in a couple of the clips that you showed I 
18   know that they are available on Benedict.com, which is 
19   a website that I use quite frequently for some 
20   resources? 
21        MR. SKALBECK:  Mmm-hmm (in the affirmative).  
22   Well, a couple of brief things to say about that.  I 
0266
 1   don’t know all of the sources available for these 
 2   different things.  When I made them, what I did is, we 
 3   bought the DVDs and we made clips from them.  I think 
 4   that quality is going to be particularly important in 
 5   the area where the question of law is substantial 
 6   similarity, so you need to see what does the chair look 
 7   like that Bruce Willis is sitting in, and you can see 
 8   kind of the three-dimensional aspects of it and how it 
 9   appears in context of things.  It’s also going to be -- 
10   quality is going to be important in a movie like 
11   “Seven”, where the  lighting of that particular scene 
12   is really dark, and it’s really hard to understand the 
13   way that these black and white photographs appear in 
14   the backdrop of things.  So, there are specific 
15   examples.  I don’t know if they are the exceptions, or 
16   if they are sort of the defining rules, but there are 
17   specific examples, in my opinion, where quality is of 
18   utmost importance for the legal context of particularly 
19   these focused issues of substantial similarity, and 
20   other types of things where it’s, you know, the type of 
21   use that’s involved. 
22        So, that said, I think that you could still get 
0267
 1   across some of the points -- for instance, one of the 
 2   clips that I prepared but didn’t show was from “Anatomy 
 3   of a Murder”; any copy of that is going to be 
 4   necessarily sort of grainy based on the fact that it is 
 5   old and that it’s a black and white film.  We did get 
 6   it from the DVD version of it, so we did get the best 
 7   quality version that we had available, but it’s still 
 8   going to be a little grainy.  The purpose of showing 
 9   that would be more for the subject matter of the 
10   material that was there, rather than focusing on how 
11   particular objects were used.  So I think that, in that 
12   sense, having a clip that was not 100 percent pristine 
13   digital quality might still get the message across. 
14        MR. KASUNIC:  A question for opponents of the 
15   exemption, how -- there was some question about 
16   limiting any potential scope of an exemption to not 
17   otherwise available from other sources -- how is one to 
18   go about being able to identify that, I mean, in terms 
19   of, if things are being put up occasionally on various 
20   sites, like hulu and others, but, to what extent would 
21   someone have to -- if an exemption was limited to, if 
22   it wasn’t otherwise available, how do we sort of figure 
0268
 1   out what that universe is? 
 2        MR. METALITZ:  Well, the reason we suggested that 
 3   is because you have used that before in the past, in 
 4   the E-Book exemption, at least twice; it’s all other 
 5   digital addition -- all the -- I’m looking for the 
 6   exact wording of it here, but it’s all existing E-Book 
 7   editions of the work, including digital text additions 
 8   contain access control -- so this is really the same -- 
 9   the same type of thing.  I mean, yeah, it’s a -- 
10   obviously there is a certain question of reasonableness 
11   here about how far you have to look.  There are a lot 
12   of examples of that in other exemptions; you put that 
13   in the dongles exemption, where you said it’s not 
14   reasonably commercially available, or something like 
15   that.  But, you know, when I saw all of the examples 
16   that we were given here, a lot of them are on DVD; the 
17   main -- at least the main digital source is going to be 
18   on DVD protected by CSS -- there are some -- I think 
19   there was some comment that there is some recent 
20   television shows and so forth that haven’t made it to 
21   DVD yet, so there would be other means there, if they 
22   are -- are they protected?  A lot of those are in the 
0269
 1   clear, so you wouldn’t need to circumvent in order to 
 2   get access to a digital version.  But, you know -- and 
 3   hulu is a source of many current -- and not just hulu, 
 4   but also the various network websites and so forth.  I 
 5   think people that are reasonably savvy to this would 
 6   know at least the sources that they would look for, to 
 7   try to find whether there is an unencrypted digital 
 8   version, and I don’t think that you would -- you 
 9   couldn’t probably take an absolutist position about it; 
10   that if you -- if somewhere in south Slovenia you could 
11   find an unencrypted digital version, then the exemption 
12   wouldn’t be available, but I think some requirement 
13   that you show that in order to make the use you want to 
14   make, you have to decrypt.  I think it necessarily 
15   implies that if there is some reasonably available 
16   unencrypted digital version, you can use that. 
17        MR. KASUNIC:  Do we have a reasonable search 
18   requirement with best practices? 
19        MR. BAND:  -- and others. 
20        MR. CARSON:  Not to get into that.  One question 
21   about Blu-Ray that came up -- a lot of the discussion 
22   has been focusing on CSS -- there were some discussion 
0270
 1   and comments about Blu-Ray.  I’m just trying to get 
 2   some sense of, to what extent are there works that are 
 3   available only in Blu-Ray format, and not available in 
 4   any other media, in any other format? 
 5        PROF. DeCHERNEY:  Fritz actually might be better  
 6   -- 
 7        MR. CARSON:  He’s on the wrong side of the room. 
 8        MR. KASUNIC:  Well, I think you are the one who 
 9   raised Blu-Ray, so that’s why I was looking to anyone  
10   --  
11        MR. METALITZ:  We haven’t identified any titles 
12   that meet that description, but I’m not saying there 
13   couldn’t be, but we are not aware of any. 
14        MR. KASUNIC:  Okay. 
15        PROF. DeCHERNEY:  Yeah.  Not to seem unreasonable, 
16   but the question was to whether or not the DVD -- 
17   whether or not the exemption could be restricted only 
18   to DVDs, and clearly there are many cases when DVDs are 
19   good enough; there are other cases when Blu-Ray would 
20   be much better, much more effective; there are other 
21   cases when someone is teaching a media studies class 
22   and uses -- is teaching a video game, and might want to 
0271
 1   take a clip from a video game, and you know, or from 
 2   other source, and we wouldn’t want to discriminate 
 3   against people who need even higher quality.  There are 
 4   actually cases when -- when Blu-Ray wouldn’t be good 
 5   enough.  You know, it’s as good as if something is 
 6   available, but obviously if there is something of a 
 7   higher quality, that would be even better.  So, there 
 8   is obviously this range of material that’s out there.  
 9   There is a range of quality that’s available, and there 
10   is also a range of media that is taught in media 
11   studies classes. 
12        MR. ATTAWAY:  Well, that points out the slippery 
13   slope that you get on when you start talking about the 
14   best quality that’s available.  The best quality 
15   available is going to be the computer disk in the 
16   digital theater that is much higher quality than even 
17   Blue-Ray.  Does that mean that there should be an 
18   exemption in the law to allow Professor DeCherney to 
19   enter a theater and make clips from the computer disk 
20   in the digital theater?  I don’t think so.  The 
21   question is not optimal quality; the question is 
22   reasonableness and good enough quality to meet the 
0272
 1   legitimate pedagogical needs of educators, and I think 
 2   we have demonstrated quite clearly that camcording 
 3   meets those needs. 
 4        PROF. DeCHERNEY:  Right, but -- 
 5        MR. CARSON:  But last time around -- the last time 
 6   around, whether you think we did it right or wrong, we 
 7   came to a conclusion that, for certain uses, and it was 
 8   precisely the kinds of uses that Professor DeCherney 
 9   and his colleagues in film studies, the need that they 
10   have, sometimes best quality or even really, really 
11   good quality is what you need, and I don’t know whether 
12   I could say you conceded that, but certainly we at 
13   least concluded that he had made a case three years ago 
14   that he needed to be able to get that kind of quality 
15   for his particular needs.  So, let’s assume that 
16   nothing has changed with respect to that analysis.  I 
17   would be curious to know, hear from both sides, whether 
18   -- fine, the last time around we were only dealing with 
19   DVDs protected by CSS; that’s what was out there.  Now, 
20   Blu-Ray is out there.  It’s protected by a different 
21   kind of access control.  I would imagine Mr. DeCherney 
22   would say, but I will give him the opportunity to tell 
0273
 1   me whether he would say that, that for his pedagogical 
 2   needs, when Blu-Ray is available, he really needed Blu-
 3   Ray, because that gives him the image in a much better 
 4   form, that, for his pedagogical purposes, at least in 
 5   very many cases, makes for a much better teaching 
 6   experience that -- one that we could probably all 
 7   understand at that point.  If that’s position, I would 
 8   be curious then -- and I will give him the opportunity 
 9   to speak first -- I would be curious then to hear what 
10   the folks on this side of the aisle have to say about 
11   whether the case has been made for permitting 
12   circumvention under those circumstances, because I 
13   believe your submissions have said this should be 
14   limited to DVDs protected by CSS.  So, I detect at 
15   least a potential difference of views even if we are 
16   sticking essentially to the same exemption that we had 
17   three years ago, but updating it now to look at the 
18   marketplace now.  So, let’s start with you, Mr. 
19   DeCherney. 
20        PROF. DeCHERNEY:  So, first of all, as far as I 
21   remember, the 2006 exemption was not only for DVDs. 
22        MR. CARSON:  I don’t -- I -- 
0274
 1        MR. METALITZ:  It wasn’t. 
 2        PROF. DeCHERNEY:  So --  
 3        MR. METALITZ:  -- visual works. 
 4        MR. CARSON:  Okay. 
 5        PROF. DeCHERNEY:  So we are not going down a 
 6   slippery slope. 
 7        MR. CARSON:  Okay. 
 8        MR. METALITZ:  It says audiovisual works. 
 9        PROF. DeCHERNEY:  Audiovisual works.  Yeah. 
10        MR. KASUNIC:  It actually wasn’t.  You are right. 
11        MR. CARSON:  It was much broader, so -- 
12        PROF. DeCHERNEY:  Yeah.  So, I just wanted to 
13   remind you, we are not going off -- starting down a 
14   slippery slope.  We went off the cliff three year ago, 
15   and -- 
16        MR. CARSON:  Well, we didn’t know where the cliff 
17   was or that it was there, but okay. 
18        PROF. DeCHERNEY:  Yeah, and I don’t -- I mean, DVD 
19   -- Blu-Ray and HD DVD has been around in the market for 
20   at least several years, while the exemption has been 
21   around and, as far as I know, it hasn’t, you know, 
22   destroyed the market for Blu-Ray, or had a significant 
0275
 1   impact on it.  So, I can’t imagine that extending it 
 2   another three years would cause a significant change. 
 3        MR. CARSON:  Could I just interrupt? 
 4        PROF. DeCHERNEY:  Yeah. 
 5        MR. CARSON:  Do you know whether there have been 
 6   instances where a film professors -- not you certainly 
 7   -- well, no, actually into this, maybe you could -- 
 8   have actually used Blu-Ray and circumvented with the 
 9   access controls on it, in order to make clips? 
10        PROF. DeCHERNEY:  Yeah, actually I haven’t.  I 
11   don’t know if it has been done. 
12        MR. CARSON:  Okay.  But, go on.  I just wanted to 
13   -- I was curious, because it came up. 
14        PROF. DeCHERNEY:  Yes.  No.  So, I have used Blu-
15   Ray in teaching.  I actually haven’t -- but I haven’t 
16   circumvented, in order to do that.  I would like to.  
17   It would be interesting.  I don’t know how to do that.   
18        MR. CARSON:  All right.  So -- 
19        PROF. DeCHERNEY:  Yeah. 
20        MR. CARSON:  Let’s hear a reaction. 
21        MR. METALITZ:  Well, you know, the longer we go on 
22   this afternoon, and as we proceed through this 
0276
 1   proceeding, we continue down this slippery slope, and 
 2   we hear more and more uses.  You know, 10 minutes ago, 
 3   Professor DeCherney, or five minutes ago, for the first 
 4   time, said he wants to be able to circumvent video 
 5   games; that was not -- had  not been said previously in 
 6   this proceeding.  I don’t believe it was said at all in 
 7   2006, but now we suddenly -- now we have that on the 
 8   table.  We have had literally hundreds of examples 
 9   given today, and in these proceedings so far about 
10   circumvention of CSS on DVD; every single one of them, 
11   as far as I know was a circumvention of CSS on DVD.  
12   That was also the case three years ago.  The Copyright 
13   Office, in its wisdom, didn’t see fit to include that 
14   limitation; in other words, it didn’t conform the 
15   exemption to the evidence that was before it then, but, 
16   I would suggest that the overwhelming majority of the 
17   evidence before it now is limited to DVDs protected by 
18   CSS.  Yes, in theory, there might be some -- and we 
19   just heard also that, as far as anybody knows, there 
20   are no works that exist only in the Blu-Ray format that 
21   aren’t also available in, at least of the commercially-
22   released works, that aren’t also available in DVD 
0277
 1   protected by CSS.  So, our concern here really is to 
 2   conform the -- any exemption that you recognize to the 
 3   scope of the evidence, and I think that’s what the 
 4   statute requires you to do, because you have to find 
 5   that people are now being impeded in their ability to 
 6   make non-infringing uses because of the prohibition, or 
 7   that they are likely to be more likely than not in the 
 8   next three years.  And I simply don’t think the record 
 9   here would support that finding even in the case of the 
10   film professors for anything other than DVD on CSS.  I 
11   think Professor DeCherney is correct, we are -- and you 
12   are correct; that we are seeking a narrowing of the 
13   existing exemption in that regard.  We think it should 
14   have been narrowed three years ago; it wasn’t, but we 
15   are asking again that you -- that you be faithful to 
16   the statute, and only allow the exemption to the extent 
17   that there is evidence in the record that people are 
18   now being impeded in their non-infringing uses, or that 
19   they are more likely than not to be impeded in the next 
20   three years. 
21        MR. CARSON:  I think I hijacked your question, 
22   Rob, so -- 
0278
 1        MR. KASUNIC:  Go ahead, Fritz. 
 2        MR. ATTAWAY:  If I may just respond to Mr. 
 3   Carson’s reference to our demonstration three years 
 4   ago, and the evidence before you then caused you to 
 5   conclude that an exemption for media studies professors 
 6   was justified, and I would just like to point out that 
 7   Mr. -- Professor DeCherney is absolutely correct; that 
 8   the confidence of the person doing the demo has 
 9   improved markedly.  But, aside from that, it is a fact 
10   that technology has improved markedly, at least 
11   affordable technology, has improved markedly, in those 
12   three years, and I think that you need to take another 
13   look at the exemption that you allowed three years ago, 
14   to determine if it is still justified, in light of 
15   today’s technology, because there has been a dramatic 
16   change. 
17        MR. KASUNIC:  Two more quick points about -- that 
18   I just want to clarify is, with the film clip service 
19   center that Warner is working on, you said that was 
20   hopefully going to go into beta towards the end of this 
21   year? 
22        MS. AISTARS:  That’s our goal. 
0279
 1        MR. KASUNIC:  That’s a goal.  And, that would be 
 2   initially at the time beta anyway -- is this just a 
 3   Warner Brothers project, or this is a -- 
 4        MS. AISTARS:  It’s not a Warner Brothers project, 
 5   but since I can only speak for Warner Brothers, that’s 
 6   who I was speaking for, in talking about sales, and for 
 7   the project, and the work that we have done on it, but 
 8   it’s a goal that’s shared by all of the studios, and 
 9   the work is being done under the auspices of the MPAA. 
10        MR. CARSON:  Okay.   One clarification, just in 
11   terms of the permissions, one thing that was raised 
12   earlier, and I was kind of surprised by when I came 
13   across it, you had mentioned the request in the -- for 
14   the Tarzan letter that was appended to your Reply 
15   Comments, responsive comments, and -- but, there was 
16   one before.  It seemed like the three letters, film 
17   requests and responses in there began to change in 
18   terms of tone, but the first one included a statement 
19   that there were, in order to give permission, that 
20   there were to follow -- that there were a number of 
21   different conditions that had to be satisfied; one of 
22   them being exception is available only to non-profit 
0280
 1   educational institutions; a copy of the motion picture 
 2   was lawful, purchased or rented; exception applies only 
 3   to performances rendered in the course of face-to-face 
 4   teaching; and then there was that last point that was 
 5   mentioned about screen actors that, in addition to the 
 6   above criteria, our objection -- our lack of objection 
 7   to your use is conditioned upon your obtaining a 
 8   permission letter from the person or persons appearing 
 9   in the clip.  You may be able to do this by contacting 
10   the Screen Actors’ Guild, and giving the address there.  
11   To what extent is -- later on, it seemed that this was 
12   -- that Warner Brothers was -- it said that it makes no 
13   representations, warranties or indemnities should any 
14   claim by any other party be raised, but initially it 
15   looked like there was -- there was a conditioning of 
16   permission on getting a subsequent permission from the 
17   other individuals contained on there, and I just wonder 
18   why that was necessary, and isn’t this imposing sort of 
19   additional hurdles on the permissions process that 
20   perhaps could be a -- if that could be a solution?   
21        MS. AISTARS:  I’m not the author of the letter, 
22   but as we were submitting our testimony, we were 
0281
 1   providing the only examples that had come in.  The 
 2   first letter that you referred to, the criteria that 
 3   are contained in that letter are intended to inform the 
 4   requestor of the requirements to qualify for the 
 5   classroom exception.  The statements that we, you know, 
 6   don’t necessarily control all the -- all the other 
 7   rights associated with the use of the clips is, you 
 8   know, simply a statement of fact, and -- 
 9        MR. CARSON:  Well that got better at the end.  The 
10   first one was, “our lack of objection to your use is 
11   conditioned upon,” so it was -- it was going beyond 
12   that. 
13        MS. AISTARS:  Right.  I can say that I have had 
14   conversations with the people who had drafted the 
15   letters, and I understand that our current practice is 
16   now not to condition the permission on that -- on that 
17   point, but rather, to simply make the requestor aware 
18   that there may be others that have claims on the use of 
19   the clips, and that we are giving them a waiver of our 
20   rights, but they may need to contact others. 
21        MR. CARSON:  Okay.  Thank.  All right. Let’s 
22   continue on the permissions thing for a moment, and I 
0282
 1   guess this will be addressed initially to Sandra, but 
 2   since you can only speak for one company, I don’t know 
 3   whether Fritz or Steve might be in a position to give 
 4   us more general information.  So, a professor gets in 
 5   touch with a studio asking for permission to use a clip 
 6   in the kind of context we have been talking about here; 
 7   how -- how quickly can one ordinarily anticipate it 
 8   would take to get a response? 
 9        MS. AISTARS:  As I noted in our testimony, we very 
10   rarely get those requests, and typically we send out 
11   the -- it’s a standard letter that basically says, you 
12   know, these are the requirements to meet the classroom 
13   exception, for instance, and you know, the letter that 
14   you saw that we, you know, waive our rights to the 
15   extent they are ours to waive.  And, you know, 
16   depending on whether the person that sends the letter 
17   out is in the office or not, it’s usually, you know, 
18   done within three to five days, at the -- you know, on 
19   average, but actually when I went through the records 
20   in preparing both this time and the last time that we 
21   testified three years ago, most of the letters were 
22   actually issued the same day that they came in or the 
0283
 1   next business day. 
 2        MR. CARSON:  Fritz, any idea whether the practice 
 3   at other studios is any different?  No?  Okay. 
 4        MR. ATTAWAY:  -- 
 5        MR. CARSON:  All right. Let’s assume, and it’s not 
 6   necessarily a solid assumption, but let’s assume that 
 7   if you were to write to a studio asking for permission 
 8   to use clips that you identify in your classroom, 
 9   within three to five days you would get a response.  Is 
10   that an insuperable obstacle for you?  How big a deal 
11   would it be if you had to do that, any of you? 
12        PROF. HOBBS:  It would be a huge obstacle for me, 
13   because, in the course of a single, day-long staff 
14   development program, say, for instance, like the one I 
15   did in January for teachers in North Carolina, in a 
16   single day, I might use 30 clips.  So, that would be 30 
17   letters, and that would be 30 paper work, filing and 
18   organizing.  So, for me, that would be a big burden, 
19   because I am multi-tasking already, by teaching college 
20   and teaching K-12 teachers, and consulting, so for me 
21   it would be a substantial burden.  I think for K-12 
22   teachers the burden is more substantial.  What they 
0284
 1   tell me when they have explored that option or modeled 
 2   that option with their students is that just finding 
 3   where to write, just finding the right address and the 
 4   right contact person, just getting the name of the 
 5   person to write to is a challenge. 
 6        MR. CARSON:  Peter, how about you? 
 7        PROF. DeCHERNEY:  I mean, I would agree with that; 
 8   finding and figuring out who to ask permission is a 
 9   significant issue.  I am sure everyone has seen films 
10   in which there is title after title of a production 
11   company. 
12        MR. CARSON:  But there aren’t that many studios 
13   around, so after four or five times you will probably 
14   figure out who they all are.  So, once you’ve got -- 
15   once you’ve homework? 
16        PROF. DeCHERNEY:  Actually, that’s -- that’s 
17   actually probably not true.  If you looked at media 
18   studies generally, the major studios, the films they 
19   produced probably make up a very tiny percentage of the 
20   films that are actually taught at universities and at 
21   colleges.  So, yeah, there are hundreds, probably 
22   thousands of studios and production companies you have 
0285
 1   to write to, and descendents of rights holders, and 
 2   that sort of thing. 
 3        MR. CARSON:  Okay.   
 4        MR. KASUNIC:  And you also -- a lot of them, a lot 
 5   of the movies that people want to make use of foreign, 
 6   and so you have that, and they are still, even though 
 7   they are foreign, they still have the U.S. copyright, 
 8   and so there is that whole added layer.  But -- and we 
 9   need to remember that -- that again the statute says, 
10   you know, is this going to adversely affect fair use?  
11   I’ve got to say -- or a lawful use -- and so, if the 
12   status quo before and the status quo anti-DMCA was that 
13   you just used it, then having to write even a single 
14   letter is a, I think, by definition, an adverse effect. 
15        MR. CARSON:  I understand that point.  I certainly 
16   understand that. 
17        MR. KASUNIC:  But we are just saying, you know, 
18   it’s multiplied -- again, using the word exponentially, 
19   it’s multiplied exponentially when we are talking about 
20   all of these companies and production -- layers of 
21   production companies and the international dimension, 
22   which is a very important part of what we are talking 
0286
 1   about. 
 2        MS. AISTARS:  I would suggest that if you are 
 3   working in the United States and seeking to use a film 
 4   in the United States, somebody has the rights to that 
 5   film in the United States, and it, you know, typically 
 6   appears with the logo at the beginning of the film, and 
 7   you could contact that studio, and they -- you 
 8   typically do not have to contact five layers of 
 9   production companies; one studio owns the rights for 
10   the territory in which you are seeking to use it. 
11        MR. JACKSON:  Well then, all right, so I agree 
12   with what’s been said before; it is a difficult 
13   proposition, just one answer to the question there.  A 
14   lot of us have to do this other layer of things, which 
15   has some connection here, which is the performances of 
16   media folk groups, and classes, and festivals on 
17   campus, and we do use the, you know, the traditional 
18   SWANK (ph)swank and all of those guys to, you know, to 
19   find the appropriate rights.  But, time after time, 
20   after time, for various festivals, international film 
21   festivals and things like that, we end up with poles 
22   (ph), people we just can’t find the ranks -- or rights 
0287
 1   for, or we talk to SWANK.  They don’t know the rights 
 2   for, or who we talk to experts at KENO (ph) or New 
 3   Yorker before they died, or something like that.  We go 
 4   direct to various sources who are in the film industry, 
 5   and they are often the best film for the best purpose 
 6   often is not -- there I nobody to find the rights for.  
 7   Or, we’ll find the company that is the last rights 
 8   holder, and we address -- we send a letter, and we may 
 9   or may not ever get response back, because we can’t 
10   find the key person for that.  So, we always have to 
11   have five and six back-ups for everything, for every 
12   festival, just in case we can’t find the rights holder 
13   for the best one, and it happens more frequently for 
14   the important serious films that we need than the ones 
15   you are going to go down to your local video place and 
16   rent, so.  And the fact is, and I have on my flash 
17   drive, a list of all those classes.  And I don’t want 
18   to drop -- because you asked one question earlier and 
19   then we didn’t get to it, which was the non-film 
20   studies people, their -- those people who are non-film 
21   studies people and who are not used to having to 
22   negotiate rights, or to find clips -- you know they do 
0288
 1   pictures and stuff for their books and their research 
 2   and all that, and it’s a similar process, in a way, but 
 3   true teaching in a lot of these things is so 
 4   serendipitous that no matter how much planning they do 
 5   in a week, or in a two-week period, there is always 
 6   going to be something else that would have been great, 
 7   to be able to add based on discussion or something like 
 8   that, and we are not -- I don’t think any of those 
 9   people are set up to constantly be looking for rights, 
10   to getting the rights week after week after week, just 
11   in case.  And, if I did it with all of the companies -- 
12   all the classes that I have on my flash drive that I 
13   just wanted to show in this example, then each class 
14   would probably have someone getting, as you said, let’s 
15   say 10 to 12 clips a week for a semester for the 
16   hundred classes that I have here, and none of them are 
17   film people, but they are all visual culture people. 
18        MR. TURNBULL:  I am not in the rights granting 
19   business, but just in looking at, and again looking at 
20   the examples that were provided by the people who 
21   submitted comments in the proceeding, there are clearly 
22   a number of instances where the time, a three to five-
0289
 1   day turnaround, wouldn’t be an issue.  And there was a 
 2   group from New Mexico who filed, where they were 
 3   preparing commercial -- in effect, commercial, but 
 4   within the academic context, materials that were used 
 5   over and over, and over and over again, and that they 
 6   were providing to people -- this is something they were 
 7   doing long in advance of the actual use of the work -- 
 8   and so I think, again, you know, part of my point is 
 9   that there may be a number of different solutions to 
10   the issue that needs to be, people need to be told to 
11   use those solutions that fit their circumstance, and 
12   only if they don’t, then you have -- you get down to 
13   the question of is it necessary to authorize 
14   circumvention, and again, I think the presentation of 
15   the camcording probably, from my standpoint, says, 
16   even, you know, even at the end where you can’t get the 
17   permission or whatever, there is -- there is another 
18   alternative. 
19        MR. CARSON:  So, if I am hearing you correctly, 
20   Bruce, at least you are suggesting that there will be 
21   many, many cases where you should have to get 
22   permission.  There may be some cases where, because of 
0290
 1   the circumstances, you just don’t have the time and you 
 2   should be excused from that, if that’s the case, how do 
 3   we write that into an exemption?  Are we going to 
 4   forefactor tests or something?   
 5        MS. AISTARS:  Well -- 
 6        MR. CARSON:  I  mean, it gets to the point where 
 7   this becomes impossible to administer, impossible to 
 8   write an exemption that’s not seven paragraphs long. 
 9        MS. AISTARS:  Okay.  If I can weigh in?  I -- at 
10   least, I am not suggesting that first step to every use 
11   would be seeking permission of the copyright owner.  I 
12   think there are uses, such as Fritz’s example with the 
13   camcorder, which you are not circumventing; it’s a 
14   perfectly useable clip; it can be used to illustrate 
15   many of the points that were talked about here; it can 
16   be used and edited with other clips together, and for 
17   that sort of use where you are not circumventing, and 
18   if you are making a fair use, and you are, you know, 
19   relying on your fair use analysis that your, you know, 
20   school has done, why contact us? 
21        MR. CARSON:  Okay.  Steve? 
22        MR. METALITZ:  Just to point out, we did provide, 
0291
 1   on page 30 of our submission, a proposed revised 
 2   exemption, if you determine that the film professors 
 3   have made their case this time, given the technological 
 4   advances that Fritz was talking about in the improved 
 5   quality of the camcorded version, so it’s not seven 
 6   paragraphs long; it is a little bit longer than the 
 7   existing one, but not much.  So, that would be our 
 8   proposal, at least as a starting point. 
 9        MR. TURNBULL:  Okay.  And I think that what I was 
10   trying to say was fitting in with what Steve was saying 
11   earlier in terms of the reasonableness of, under the 
12   particular circumstances, and again, that’s not, you 
13   know, an unusual kind of a legal standard. 
14        PROF. DeCHERNEY:  All right.  May I respond as 
15   well? 
16        MR. CARSON:  Yeah, please. 
17        PROF. DeCHERNEY:  Here is where I will just 
18   reiterate Carleton’s point about the spontaneity of 
19   teaching and the importance of having to reshape 
20   lecture even, and especially discussion material, a day 
21   or the same day as the class happens all the time.  
22   Even courses I have been teaching for years, I -- the 
0292
 1   day I give the lecture I change it. 
 2        I would also just remind you that students are 
 3   also on the table, and so when we think about a 
 4   permission system, we want to think about the impact 
 5   that would have on students, if there was an exemption 
 6   created for students as well, who had to -- who were 
 7   doing course work, you know, often without much lead 
 8   time; whether or not they would be able to make use of 
 9   an exemption. 
10        And then finally, don’t take this question of 
11   censorship too lightly.  Ms. Aistars was -- very 
12   interestingly she brought up the analogy of documentary 
13   film-makers, and I think it’s a good analogy; 
14   documentary film-makers are often engaging in 
15   educational projects, and they are often turned down 
16   for the use of clips for all kinds of films.  I can 
17   give you two quickly; a film about Enron -- or 
18   actually, anyone who has ever wanted to use a clip from 
19   “The Simpsons”, they always get two letters; one, from 
20   Matt Groening, which is absolutely use it; one from 
21   Fox, which says Matt Groening doesn’t own the 
22   copyright, you absolutely cannot use it.  I had a 
0293
 1   student -- I had students to make this incredible film 
 2   about -- about Philadelphia and the curse on its sports 
 3   teams, which existed until this year, and I asked ESPN 
 4   for the right to use the material in their film, and 
 5   ESPN actually wrote that since it wasn’t historical and 
 6   they couldn’t prove their theory, they refused the use 
 7   ESPN material.  (Laughter).  And so, the fact -- and so 
 8   this is an analogy, and it’s one of the few that we 
 9   have, a place where there is educational licensing, 
10   true censorship really exists. 
11        MR. CARSON:  Let’s -- go ahead. 
12        MR. BAND:  And I just want to add again, to try to 
13   inject a level of reality here, we are talking about 
14   big decentralized institutions with, you know -- how 
15   many faculty members to you have at the University of 
16   Maryland?  I mean, you must have --  
17        PROF. DeCHERNEY:  2000. 
18        MR. BAND:  -- 2000 just at that one campus, and 
19   you know, a lot of them are using this kind of content, 
20   and more want to use this kind of content.  And, to 
21   come up with this, you know -- and again, it might 
22   shock people on this side, they are not all lawyers.  I 
0294
 1   mean, they are teachers.  They might have PhDs, most of 
 2   them, but they are not lawyers, and they don’t 
 3   understand all of the nuances of copyright law, let 
 4   alone the paracopy right of the Digital Millennium 
 5   Copyright Act.  They -- they -- and so, to try to have 
 6   a workable solution that’s practical, on a big campus, 
 7   with lots of different people, who are making a lot of 
 8   spontaneous decisions, and to have, you know, not only 
 9   two sets of rules, which is one set for the film 
10   studies, whatever that is -- okay, given that we have 
11   no idea what that means, especially on the Maryland 
12   campus where there isn’t even a department -- one set 
13   of rules for them, and another set of rules for 
14   everyone else, but now we are talking about all of 
15   these other layers of complexity, of nuance, of trying 
16   to say, well, did you do -- did you search enough 
17   websites to see if it was available somewhere else?  Is 
18   the kind of use you want to make of sufficient quality?  
19   I mean, come on, what’s going to happen, given the 
20   availability, the easy availability of DECESS (ph), and 
21   that, you know, let’s try to be realistic; let’s come 
22   up with a rule that everyone can live with, instead of 
0295
 1   sort of doing all this legal jujitsu, and end up I a 
 2   situation that we know is not workable.  I mean, we 
 3   want to -- we want to comply with the law, so instead 
 4   of -- you know, make the law workable, make an 
 5   exemption that is usable, as opposed to coming up with 
 6   all these contortions that will mean that inevitably 
 7   you are just, you know, pushing people into illegal 
 8   conduct, because the bottom line is, they are going to 
 9   use this content in their classes; that is going to 
10   happen, you know, with an absolute certainty.  So, why 
11   not make it work, as opposed to make it difficult?  I  
12   -- again, it’s just, you know, there is this unreality 
13   to this whole discussion. 
14        MR. CARSON:  Steve? 
15        MS. AISTARS:  I think the equal unreality is that 
16   we are suggesting that the solution to a legal problem 
17   presented is to push people to use an illegal 
18   circumvention tool; we should somehow legitimize that 
19   here, and I think that’s the concern that underlies all 
20   of our testimony here -- 
21        MR. BAND:  We are here to -- 
22        MS. AISTARS:  -- and, particularly when it comes 
0296
 1   to, you know, next generation formats, like BD and 
 2   Blue-Ray. 
 3        MR. BAND:  But we are here to get an exemption.  
 4   We want to do it legally, but if you -- you know, you 
 5   are basically giving us two choices; --  
 6        MS. AISTARS:  The tool is --  
 7        MR. BAND:  -- either do it illegally, or to 
 8   camcord.  I mean, those are the real, as a practice 
 9   matter, those are the choices that you are giving us, 
10   and  you know, we have said, we don’t think the quality 
11   of the camcording is good enough, but again, even if it 
12   were, hypothetically, why is that a desirable result?  
13   Why is it good? 
14        MS. AISTARS:  But the Copyright Office doesn’t 
15   have the power to grant an exemption to the delivery 
16   and marketing of those tools. 
17        MR. BAND:  But that, of course, you know, that 
18   highlights a bigger problem which we have talked about 
19   before; how, arguably again, this whole -- this whole 
20   proceeding is a farce and a sham, because you can only 
21   give an exemption to the active circumvention -- 
22        MR. CARSON:  If it’s a farce, then what are we 
0297
 1   doing here, and what can we do about it? 
 2        MR. BAND:  Right.  Right. 
 3        MR. CARSON:  So, let’s stick to the topic. 
 4        MR. BAND:  Right.  I would love to know about -- 
 5        MR. METALITZ:  I was just going to say that, you 
 6   know, after many years of these proceedings, I would 
 7   always be concerned with the record in which we are 
 8   relaying on my friend, Jonathan Band, for doses of 
 9   reality; let’s just pit it that way.  He has a finely 
10   honed sense of the bizarre where he has already 
11   expressed that this afternoon.  But, when you look at  
12   -- let us look at the submissions in the record, in 
13   terms of the reality, in terms of this issue of 
14   censorship.  There is no evidence about the issue of 
15   censorship in this context. The proponents have an 
16   ideological aversion to requesting permission.  If you 
17   look on page nine, they say literature professors do 
18   not need to license the quotations that they read in 
19   class; chemistry professors do not need permission to 
20   use a particular compound in class -- I am still 
21   working on the copyright implications of that one -- 
22   requiring media professors to license clips for use in 
0298
 1   class would endanger academic freedom and diminish the 
 2   educational experience for students.  For these reasons 
 3   -- reasons -- licensing cannot constitute an alterative 
 4   to circumvention when the circumvention is completed 
 5   for the purposes of teaching scholarship and research.  
 6   Well, I understand the point of view.  I think -- I 
 7   mean, I think it’s a legitimate point of view, but it’s  
 8   not the point of view of someone who has read and 
 9   understood this statute.  This statute says, 
10   availability for non-infringing use.  A permitted use 
11   is a non-infringing use.  And, if that is available, 
12   then that vitiates any need for the exemption.  To the 
13   extent it is available, it vitiates that need.  So, 
14   after two rounds of submissions, three hours of live 
15   testimony, now again, five minutes ago, Professor 
16   DeCherney gives us three anecdotes involving 
17   censorship, none of which involve classroom use.  There 
18   is no record that censorship is a problem here.  If 
19   there were a record, if he had asked -- if any of the 
20   hundreds of people who have signed onto his -- or 
21   organizations that have signed onto his submission, had 
22   asked and been turned down on censorship grounds, I 
0299
 1   think we would have heard about it, but there is no 
 2   record of that.  The only record here, and admittedly 
 3   it’s a limited one, is from Warner Brothers, which 
 4   shows that even though these works might be presented 
 5   in an unflattering matter, they have been granting 
 6   permission.  So, I just don’t think that’s an issue. 
 7        MR. CARSON:  Fritz, do you have something to add? 
 8        MR. ATTAWAY:  Well, just -- I really don’t 
 9   understand the concept of using -- not being able to 
10   repeat or copy someone else’s speech as being 
11   censorship.  I don’t think that’s how most courts have 
12   interpreted the First Amendment.  We are talking about 
13   other people’s speech here, so I just don’t think it 
14   falls within censorship.  I think the whole censorship 
15   argument is not relevant to this discussion. 
16        MR. CARSON:  Okay.  It’s 10 to 6:00, so I am going 
17   ask people to try to -- I don’t want to take too much 
18   more time, if we can avoid it.  So, I am going to ask 
19   people to try to actually focus on the questions asked, 
20   and to try to be very responsive to the questions, and 
21   hopefully not use them as an opportunity to go off in 
22   some other direction which, three hours ago, we might 
0300
 1   have been more happy to explore, but right now let’s 
 2   see if we can try to get down the home stretch. 
 3        Steve, one of the first things you said in this 
 4   session was -- and I may be slightly overstating what 
 5   you said -- that essentially all the kinds of uses that 
 6   all the witnesses on this side of the room were talking 
 7   about were uses that you certainly agree they should be 
 8   able to do.  They are -- I don’t know if you said they 
 9   are non-infringing, but that was the flavor of what I 
10   heard from you.  Now, I gather that includes uses by 
11   students that we have been hearing about? 
12        MR. METALITZ:  I am not sure we were shown very 
13   many uses by students, but in fact, yes, I think -- I 
14   mean, the kinds of uses that were -- that were -- the 
15   general types of uses that we are talking about here 
16   without saying every single one of them that was listed 
17   anywhere, but yeah, in general, these are non-
18   infringing uses. 
19        MR. CARSON:  Okay.  Let’s assume that we are where 
20   we were three years ago with respect to our state of 
21   mind about the exemption that was given at the 
22   instigation of -- at the request of Professor 
0301
 1   DeCherney, and let’s assume based on that that we now 
 2   look at a request for students, and at least some of 
 3   those students are going to be Professor DeCherney’s 
 4   students, at least some of them are going to be doing 
 5   projects that are going to be on exactly the same kind 
 6   of topics that he is lecturing on, and that he 
 7   persuaded us he needed to be able to circumvent CSS, in 
 8   order to get that pristine or near pristine copy, to 
 9   make the point he is trying to make; I would imagine 
10   that his -- that at least some of these students, on 
11   some of their projects, would have exactly the same 
12   need.  Is that the -- maybe first I should ask 
13   Professor DeCherney to tell me whether I am right about 
14   that, because if I am not, then we can just stop right 
15   here, so. 
16        PROF. DeCHERNEY:  You are absolutely right. 
17        (Laughter). 
18        MR. CARSON:  All right, confirmation.  Wow.  Well, 
19   assume that’s the case, what do we do about the request 
20   that’s on the table; to have an exemption for students 
21   who are engaging in projects like this? 
22        MR. METALITZ:  We have two main concerns about it; 
0302
 1   one is --  
 2        MR. CARSON:  It’s about students. 
 3        MR. METALITZ:  Well, I don’t want to use the word 
 4   exponential, because I guess it’s -- Jonathan thought 
 5   it was bizarre -- but, in fact, I don’t know the 
 6   average class size of Professor DeCherney’s sessions, 
 7   but let’s say it’s 20, so suddenly 20 times as many 
 8   people have the ability to make this -- to circumvent 
 9   under the exemption than had it three years ago.  I 
10   think this really gets to Bruce’s point; it starts to 
11   normalize the behavior, and in particular, I don’t 
12   think it’s -- I don’t think anybody -- I am sure -- I 
13   know Professor DeCherney is respected and admired by 
14   his students, but I don’t think that he can control 
15   their activities, particularly outside his class, so 
16   that when they have -- if they had exercised the 
17   exemption to make a copy in the clear of an entire 
18   movie, because that’s how this tool works, they then 
19   use the clips -- make clips -- they compile clips and 
20   use them in the class in a non-infringing way; that’s 
21   great, and they still have the copy in the clear on 
22   their computer.  You know, I think it just blinks 
0303
 1   reality to say that it’s the same difference; that it’s 
 2   the same situation as Professor DeCherney having it on 
 3   his computer, if 20 times Professor DeCherney have it 
 4   on their computer -- have it on the student computer.  
 5   So, it just strikes us as a further undermining of the 
 6   exemption, and -- excuse me -- of the prohibition, and 
 7   one that I think the Office needs to be extremely 
 8   cautious about moving to, again, in light of the 
 9   alternatives that are available. 
10        MR. CARSON:  Fritz? 
11        MR. ATTAWAY:  If you extend the exemption to 
12   students, why stop there; why just students?  Why not 
13   anybody? 
14        MR. CARSON:  Do you want to go over there? 
15        (Laughter). 
16        MR. ATTAWAY:  Well, that was a rhetorical, I 
17   didn’t want an answer to that. 
18        MR. CARSON:  Oh, I’m sorry. 
19        (Laughter). 
20        MR. ATTAWAY:  Because then you have a standard 
21   that you can circumvent anytime you are making a fair 
22   use, and Congress could have -- 
0304
 1        MR. CARSON:  Well, come on, that’s not really -- 
 2   we are trying to find people, in particular 
 3   circumstances, who have shown a particular need.  We 
 4   are not saying, open it up to everybody. 
 5        MR. ATTAWAY:  But, I think you are.  When you 
 6   extend it to students, you have drawn a line so far 
 7   down the path that you are going to have a very hard 
 8   time in three years saying, why did you stop at 
 9   students; why not anybody else that’s engaging in fair 
10   -- that wants to engage in fair use?  And then you have 
11   a standard that circumvention is okay if you are 
12   engaging in fair use, and that clearly was an issue in 
13   1996 -- or 1998, when this statute was being debated.  
14   A lot of people thought that should be the standard, 
15   and some people still do, by the way, but it isn’t; 
16   that’s not the law; that cannot be the standard upon 
17   which you make your decision in this proceeding. 
18        MR. GOLANT:  Can I ask a follow-up, in terms of 
19   the scope?  I mean, what do you feel then -- I am 
20   guessing you might know -- and this is based on my 
21   experience with my son in high school -- what do you 
22   think of the exemption extending to high school media 
0305
 1   studies as a class, or as a subject for this exemption?  
 2   What’s your feelings about that? 
 3        MR. ATTAWAY:  I think you just made my point. 
 4        MR. GOLANT:  Well, that’s what I was trying to 
 5   figure out, because, you know, certain high schools 
 6   have advanced classes -- 
 7        PROF. DeCHERNEY:  Absolutely. 
 8        MR. GOLANT:  -- so, I just wanted to know what you 
 9   felt about that? 
10        MR. ATTAWAY:  I think you just heard. 
11        MR. GOLANT:  I did. 
12        PROF. DeCHERNEY:  Can I just say, from my 
13   experience, students don’t seem to have anymore 
14   unethical or prone to illegal behavior than faculty? 
15        MR. CARSON:  Should we encourage or be upset about 
16   that? 
17        (Laughter). 
18        PROF. DeCHERNEY:  And, by the admission of the 
19   Reply Commenters -- I think it was the Joint Reply 
20   Commenters -- it may have actually been the MPAA -- you 
21   know, there are no known abuses of the exemption in the 
22   past three years.  You know, you can multiply that by 
0306
 1   any number that you want.  I don’t see why there should 
 2   be more abuses by students.  Talking about the size?  I 
 3   mean, there is still a very limited size.  I’d like to 
 4   say all the students at my university are majoring in 
 5   cinema studies, my field, unfortunately, it’s actually  
 6   a very small percentage, all right?  It’s not even a 
 7   large percentage engaged or enrolled in any university.  
 8   If you go to the University of Maryland, many of those 
 9   universities don’t even have the appropriate department 
10   for them to major in. 
11        And finally, this has come up a number of times, 
12   but it’s something that’s important to keep stating is 
13   that a 1201 exemption is not a license to violate 
14   copyright law, or any other law.  And so, if a student 
15   has a full copy of a Hollywood film on their computer; 
16   they are not using it for any particular reason, they 
17   shouldn’t have it there; they are clearly in violation 
18   of copyright law, and the same laws that would have 
19   kept them from doing it before, you know, would still 
20   apply. 
21        MR. KASUNIC:  Just one point about the -- 
22   extending this to students would necessarily extend it 
0307
 1   to anyone; one of the things that I think we have to 
 2   focus on is the particular factors that the Librarian 
 3   has to consider, and one of those being that we focus 
 4   specifically non-profit archival presentation for 
 5   educational purposes, and that the effect of the 
 6   prohibition on creativism, comment, news reporting, 
 7   teaching, scholarship or research, so at least when we 
 8   are keeping within the realm of students and 
 9   professors, and it’s one of the sort of more highly 
10   considered areas, does this -- don’t these factors 
11   place some kind of limitation on, you know, where you 
12   give heavier weight to the consequences of the 
13   prohibition? 
14        MR. ATTAWAY:  It could, but the question still is, 
15   where do you draw the line?  High school students have 
16   a legitimate need for -- to engage in commentary, and 
17   of all of these other fair use purposes.  And, in fact, 
18   individuals do, whether they are in school or not, may 
19   have occasion to do that.  I think what Professor 
20   DeCherney just said is very telling.  Why don’t we just 
21   rely on the copyright law?  And I think really that is 
22   the issue here; that they would like the world or the 
0308
 1   law to be that we rely on copyright law, and 
 2   circumvention should not be prohibited by anyone, but 
 3   that is not what Congress did in 1998.  Congress 
 4   enacted a law said circumvention should be prohibited, 
 5   and that’s the law.  So, whether people like it or not, 
 6   that’s the law, and I would hope that your decision in 
 7   this review does not totally undermine that law, 
 8   because if it does, you are certainly not following the 
 9   will of the Congress. 
10        MR. KASUNIC:  But, even going to the specifics of 
11   the law, if we go to Section 110(1), it doesn’t just 
12   address educators or faculty; it’s a performance 
13   display of a work by instructors or pupils.  So, we -- 
14   in going with just basic copyright law and non-
15   infringing uses, there seems to be many of these uses  
16   are dealing with in-class use by either/or, so doesn’t 
17   that give us a basis of putting, or perhaps extending 
18   that emphasis to students in 110(1)? 
19        MR. CARSON:  Yeah. 
20        MR. METALITZ:  Well, again, we are not necessarily 
21   contesting that these are not -- that the uses -- these 
22   could be non-infringing uses, if made by student.  
0309
 1   That’s -- I don’t think that’s the issue.  The issue 
 2   is, what does it do to the integrity of the 
 3   prohibition, to go from a relatively small number of 
 4   film and media professors -- to look at Ms. Hobbs’ 
 5   PowerPoint -- 73,000 communication film majors -- 
 6   that’s just the majors.  I assume not everybody who 
 7   takes one of Professor DeCherney’s courses is majoring 
 8   in it, and of course, you can’t major in it at the 
 9   University of Maryland, I am told, but obviously there 
10   are courses about it, in fact, there are hundreds of 
11   courses about it.  You know, hundreds of thousands of 
12   other college students; three-and-a-half million high 
13   school drop-outs; but, I guess before they drop out 
14   they would be able to take advantage of this exception.  
15   You know, I -- at some point this does start to add up, 
16   and we would just encourage you to be extremely careful 
17   about moving to broaden substantially the universe of 
18   people entitled to take advantage of this exemption. 
19        PROF. HOBBS:  Now, you see, from our point of 
20   view, we see it just exactly the other paradox.  Say 
21   you choose not to broaden it to students; say you say 
22   only film professors, or only some group of professors; 
0310
 1   then we’re placed in a very unusual situation, which 
 2   says, do as I say and not as I do.  I’m going to show 
 3   you my -- I have received a special exemption, but you 
 4   can’t do this.  You are not entitled to the same 
 5   privilege.  Now, that continues to erode confidence in 
 6   copyright law; that continues to perpetuate that grab 
 7   anything and go mentality, and that’s the very reason 
 8   why we are here.  We want to help students make the 
 9   distinction between pirating and fair use, and only by 
10   letting students, in their own hands, with their own 
11   minds, and their own energy understand that 
12   distinction, can we expect to have law-abiding citizens 
13   in the 21st Century. 
14        MR. METALITZ:  Well, this isn’t the only area of 
15   the law where some things are allowed to teachers, and 
16   not allowed to students. 
17        MR. CARSON:  Okay.  Understood.  Carleton? 
18        MR. JACKSON:  And, just part of the student 
19   consideration, as you think about it is there are all 
20   sorts of different types of students, and let’s not 
21   leave out the graduate students, and the teaching 
22   assistant, and the research assistant, and the Ph.D. 
0311
 1   student, who, and sometimes at a big university, is 
 2   that person that appears to be the professor to the 
 3   students in their class, because they are doing the 
 4   teaching.  And, they are also younger, more creative, 
 5   more into the technology, and they know how to do a lot 
 6   of the things that should be done for teaching, and 
 7   they assist the professors, and they tell them about 
 8   it, but they may be stuck in what to do about it once 
 9   in that situation. 
10        MR. CARSON:  Peter, and then we are going to move 
11   on. 
12        PROF. DeCHERNEY:  I would just say, I think it’s 
13   possible to stay within the confines of 1201 and still 
14   open up a class that includes many disciplines and also 
15   students.  You know, we are not saying that it’s all 
16   fair use.  We have all conceded that there is a lot of 
17   fair use out there; a lot of it being interrupted by 
18   circumvention, or by the inability to circumvent, but I 
19   think limiting both the class and the use and users 
20   really is a way of staying within the confines of fair 
21   use, and clearly not opening up to everyone.  The idea 
22   of using a library collection, I think, was very useful 
0312
 1   in defining the class; these are DVDs and other forms 
 2   of material that have been collected by universities 
 3   presumably because they have some value to the 
 4   university for educational, critical reasons.  By 
 5   confining it to institutions, like universities, like 
 6   schools, you know, you are also defining the use and 
 7   the users, and even though that may sound like 
 8   everyone, if you are sitting on that side of the room, 
 9   you know it’s really -- it’s people that are engaged in 
10   very specific tasks, and they are working towards 
11   education, you know, I think they are on the side of 
12   right, and on the side of good, and it would be 
13   valuable for them to have this kind of exemption. 
14        MR. CARSON:  Okay.  We are going to move on to 
15   what would be my last question.  I have two colleagues 
16   here, who may still have some.  But -- and this is to 
17   you, Steve -- you pointed to your submission on page 
18   30, where you suggested a number of conditions, one of 
19   them having to do with all existing digital editions or 
20   copies containing access controls that prevent making 
21   such compilations, and in your submission -- your oral 
22   submission -- you also made the point that essentially 
0313
 1   if there is a digital copy that’s not controlled -- 
 2   that doesn’t have access controls on it, then you 
 3   shouldn’t be able to circumvent CSS on some other 
 4   digital copy.  Well, that assumes something that I am 
 5   not sure I am willing to assume, but I am willing to be 
 6   educated; that assumes that all digital copies are 
 7   created equal, and is that really the case?  I mean, we 
 8   heard about YouTube.  I think those copies on YouTube 
 9   are digital copies, and yet, I at least heard Renee 
10   assert something that makes sense to me, but I don’t 
11   know; that you try to use one of those YouTube clips 
12   and put it up on a big screen, you are just not going 
13   to see something very good.  So, don’t we have to be 
14   just a little bit more nuanced than just to say, if 
15   there is any digital copy out there that’s in the clear 
16   then you can’t circumvent?  
17        MR. METALITZ:  You are right that not digital 
18   copies are created equal, and there are quality 
19   differences.  So, you have to -- I think it does get 
20   back to the question of whether you are drawing a line 
21   on quality, or how clearly you are drawing the line on 
22   quality, and how many of the uses that you would be 
0314
 1   covering can be made?  In other words, the pedagogical 
 2   purposes can be met without circumventing CSS on the 
 3   DVD.  I think that’s the test that you used last time, 
 4   if I’m not mistaken.  I think you said that -- the 
 5   question was, are there alternative formats or methods 
 6   -- are the alternatives wholly insufficient for 
 7   pedagogical purposes; does the professor or faculty 
 8   member demonstrate what may only be revealed through 
 9   use of the DVD version?  I think that’s an extremely 
10   small category, and I think, for the vast majority of 
11   the uses that we are talking about, and that we have 
12   been presented with, and that we have seen demonstrated 
13   here, that quality is, while obviously preferable from 
14   the perspective of the faculty member, it is not 
15   essential; it is not wholly insufficient for their 
16   pedagogical purposes to use something that may be of 
17   lower quality. 
18        MR. CARSON:  But, if Professor DeCherney needs to 
19   show Yoda’s ears, but only has the YouTube version, and 
20   that YouTube version is in the clear, as I read your 
21   proposal, he wouldn’t be able -- he wouldn’t -- he 
22   would have to use the YouTube version?  Is that really 
0315
 1   where you want that to go? 
 2        MR. METALITZ:  He can certainly do the camcorded 
 3   version of the DVD of Yoda’s ears.  I think we have 
 4   hopefully demonstrated that.  Or, you’ll look at the 
 5   DVDs yourself.  But, no, I -- there certainly are 
 6   things that may need to be fine-tuned in this 
 7   definition.  We propose it as a starting point though, 
 8   to try to emphasize what you have emphasized in other 
 9   exemptions, which is, are there other comparable 
10   versions available that aren’t -- don’t require 
11   circumvention; use those.  I agree that at some point, 
12   one digital version may not be comparable to another 
13   digital version. 
14        MR. CARSON:  Okay.  Well it’s --yeah, Carleton? 
15        MR. JACKSON:  Just to answer that question about 
16   that, not only are all DVDs created equal; not all 
17   distributors and rights holders created equal as well; 
18   and, in the university world, obviously we buy a lot of 
19   things from what our educational distributors in DVD 
20   format, and generally speaking with educational 
21   distributors, who have someone to talk to, and their 
22   rights are pretty clear on their pages, their web pages 
0316
 1   and their instructions on what type of rights you get, 
 2   even though most of them are not exactly the same, what 
 3   they are granting you.  What they do do often though 
 4   is, for some extra price, maybe grant you other rights 
 5   you need or don’t need, generally in the realm of 
 6   performance or digital rights, if you want to mount a 
 7   video onto your server, they will grant that.  Very 
 8   rarely do any of their rights address the issue of this 
 9   whole thing we are talking about today; the individual 
10   person doing clips.  Most of the time, if you get to 
11   talk to somebody about it, you have people that say, no 
12   problem; you have people that say, eh, I can’t do that; 
13   and it becomes a question of discussion and permission 
14   on that level.  But, I mean, as an educational 
15   distributor, you do have a realm to talk to, even if 
16   you don’t have a realm to work with it, but coming here 
17   today some of those distributors were in support of the 
18   possibility of this type of exemption, but not all. 
19        MR. CARSON:  Okay.  It is 8 after 6:00.  I will 
20   turn to Ben and Chris, with the caveat that it’s 8 
21   after 6:00. 
22        (Laughter). 
0317
 1        UNIDENTIFIED MALE:  And they work for you? 
 2        MR. CARSON:  By all means, take all the time you 
 3   need. 
 4        MR. GOLANT:  I have an eight-part question.  No.  
 5   I just wanted to state for the record what, if any, and 
 6   I know you might have said this in your comments, what 
 7   harm has come to copyright owners with the exemption in 
 8   place for the last three years?  Anything at all? 
 9        MS. AISTARS:  I think it’s very hard to judge.  I 
10   mean, we have no way of telling how many people are 
11   using the clips, and in what way they are using them, 
12   and whether they are using them consistent with the 
13   exemption actually, but, Steve, you may have more to 
14   say? 
15        MR. METALITZ:  No.  I think that’s well put.  It’s 
16   rather opaque to us, but we don’t have any documented 
17   cases of abuse to bring forward. 
18        MR. GOLANT:  I think that -- 
19        MR. BAND:  Nor, do we. 
20        MR. GOLANT:  Okay.   
21        MS. AISTARS:  But you will let us know. 
22        MR. ATTAWAY:  Our concern is erosion of the 
0318
 1   principle that circumventing a technological measure is 
 2   against the law, and if erosion occurs, it’s going to 
 3   take place probably slowly.  And, no matter what you 
 4   do, we could probably never empirically prove harm, but 
 5   over time, we would be harmed, as more and more people 
 6   feel that they have a right to circumvent, and it’s not 
 7   against the law; that’s what we are concerned about 
 8   here.  And, at the end of the day, technological 
 9   measures are what has enabled us to make our movies and 
10   television shows available to tens, hundreds of 
11   millions of people, who never had them available 
12   before, in the forms, and with the convenience they now 
13   have.  Maintaining the integrity of DRM is absolutely 
14   essential to our business, and in the interest of 
15   consumers, in having access to what we create; that’s 
16   what we are trying to protect here. 
17        MR. GOLANT:  Great. 
18        MR. WESTON:  I just had a brief, clarifying 
19   question about permissions, and I know that, Ms. 
20   Aistars, you talked about the -- the business -- you 
21   know, the studios are working with the U.S.C., where 
22   the requestor would be given a download or a URL, a 
0319
 1   secure URL; what I am curious about is when we are 
 2   talking about circumvention, we are talking about 
 3   permissions.  Are we also in envisioning a situation 
 4   where someone would write to a movie studio and say, 
 5   hi, I’d like to circumvent your DVD; can I have 
 6   permission for that?  Or, would it be, I’d like you to 
 7   send me a DVD-quality clip from this time code to this 
 8   time code?  I’m just kind of curious of how that would 
 9   work in practice, and I understand you haven’t had many 
10   requests of this sort, or any, but -- 
11        MS. AISTARS:  On the U.S.C. film server project, 
12   the way that the service is contemplated is that the 
13   film professor would actually go on and browse the 
14   film, and mark the clips with a player that he or she 
15   used -- wished to use -- 
16        MR. WESTON:  Mmm-hmm (in the affirmative). 
17        MS. AISTARS:  -- and the service would 
18   automatically provide the professor with those clips, 
19   either by downloading them, or giving them on a secure 
20   URL.  So, I mean, you can call it a permission system, 
21   because we are facilitating it, but there is no 
22   interaction with the studio, and everything is done 
0320
 1   directly by the professor on the server. 
 2        With respect to our experience, in terms of 
 3   letters, again, it’s not something that we often get; 
 4   you know, a request for a use in an educational 
 5   context, and you know, as I said earlier, and others 
 6   from the education community probably know better, I 
 7   suspect it’s, you know, because there are -- people are 
 8   getting access to those clips in other ways, and  
 9   making use of them in ways where they feel they don’t 
10   need to contact us.  The sorts of requests that we get 
11   are typically from people who say, we think it’s a fair 
12   use; do you agree?  And, in those instances, our 
13   response is generally, you know, we don’t opine on 
14   whether it’s a fair use or not, but we have no 
15   objection, so.  The one instance that I did submit 
16   where we were asked for a clip, we were told, you know, 
17   this is the -- this is the scene that we want, starting 
18   here, ending there, and our film lab was able to get 
19   that clip and attach it to an e-mail, and send it back 
20   to the -- to the professor who was requesting it, so. 
21        MR. CARSON:  Okay.  If you had even a dozen such 
22   requests a week, I suspect you wouldn’t be able to 
0321
 1   offer that kind of a service could you? 
 2        MS. AISTARS:  I suspect that it would become 
 3   burdensome at some point, yes, but that’s why I pointed 
 4   to the fact that I really don’t think that people 
 5   should think of these no objection letters as some sort 
 6   of new licensing scheme; they are what they are; they 
 7   are a no objection letter.  We are saying you’ve got 
 8   either a classroom exemption that you can take 
 9   advantage of; you have a fair use -- a fair use defense 
10   that you can take advantage of.  And, you know, 
11   typically the person contacting us has use of the clip 
12   you know, from -- in some other manner.  I haven’t 
13   inquired how.  So -- 
14        MR. CARSON:  Actually, and maybe you have already 
15   pointed this out and I just wasn’t focusing on it, but 
16   when you send a no objection letter, is that also a 
17   sense of saying we have  no objection to your 
18   circumventing CSS, in order to use -- to make this 
19   clip? 
20        MS. AISTARS:  No, we don’t say that, and we 
21   haven’t been asked that.  We have never gotten a 
22   request to actually circumvent.  And, you know, taking 
0322
 1   into account the demonstration that Fritz made of the, 
 2   you know, camcording service, even if -- you know, if 
 3   you want to set aside the need to circumvent, I mean 
 4   there are ways to get a clip that’s of a useable 
 5   quality, at least for certain educator purposes, you 
 6   know, by using the camcorder solution that Fritz 
 7   demonstrated, and so, in that case, I would anticipate 
 8   that the educator would simply make their own 
 9   evaluation as to whether it’s a fair use or not; use -- 
10   you know, use the camcorder to make the clip, use it in 
11   their lecture, and we would never hear from them, so. 
12        MR. CARSON:  Okay.  Good.  Sounds like we’re done.  
13   Thank you very much for your patience and your help.  
14   For those of you who have the misfortune to have 
15   business before us tomorrow, we will see you at 10:00 
16   o’clock in the morning. 
17        (Discussion off the record). 
18        MR. CARSON:  I’m told it’s 10:00.  Yep. 
19        (Whereupon, at 6:12 p.m., the hearing was 
20   concluded). 
21   
22   
0323
 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