 Dr. I'm back at the UCLA law school for the second day of the DMC 1201 hearings and we've just heard a procedure or a hearing on on a possible exemption to expand fair use and and with me are the people who argue for it. I wonder if you can introduce yourselves and maybe one of you can talk about what the exemption you were asking for was. Well I'm Jack Lerner I'm a professor at UC Irvine Law School and I direct the UCI Ultra Property Arts and Technology Clinic and we were here on behalf of documentary and non documentary independent filmmakers as well as multimedia ebook authors. I'm Betsy Rosenblatt I'm a law professor I teach at Whittier Law School and direct the Center for Intellectual Property Law there and I'm also the legal chair for the Organization for Transformative Works and I'd like to say it wasn't a hearing to expand fair use it was a hearing to to decrease restrictions on fair use. That's well said I accept your friendly. These are things that people have a right to do and we're just taking away that technological limitation. Yeah and the way I describe the DMCA there's many parts of the DMCA but this part is section 1201 makes it illegal to rip from DVD or Blu-ray and the issue with that and why we're here today is because it's legal to use the material you can make their use of that material you just can't access it because the act of ripping from DVD or Blu-ray is illegal and for my clients who are documentary filmmakers they have LLCs that can actually be a crime. Makes so much sense to criminalize how you get it but not what you do once you've got it. I'm Tisha Turk I'm a professor of English so I get to be the non-lawyer in the room. At the University of Minnesota at Morris I'm also a member of the organization for transformative works and I am a fan-vitter so I'm here representing video remix artists. Hi I'm Art Neal I'm the executive director of New Media Rights we're actually based at California Western School of Law where I teach a legal clinic all related to cyber law and the exemption that we were here arguing for because there's a couple of good positive exemptions trying to allow more already legal uses and and our exemption was to try to streamline language right now that's about 800 words and where you have to figure out am I making a documentary or not and is what I'm doing non-commercial or not am I the right kind of educator am I talking about film and media studies or am I am I possibly talking about something that is not quite film and media studies and so we were trying to streamline and make the exemption more accessible. So a lot of discussion today turned on whether or not there's a market for clips whether or not if you're just some person who's like in your mom's basement and you're making a cool fan vid you can just call up a lawyer at Disney or Warner and say I need these 30 seconds from this movie from 1975 what's it gonna cost me and the argument from the MPA seemed to be like that's a thing you can do and we do a thousands of times a year do you buy the argument? Not even a little so the truth is there is absolutely a market for licensing clips it exists it's pretty robust but it's not for doing those sorts of things that these exemptions are about the the markets for using clips tend to be for large-scale commercial productions or small-scale commercial productions where somebody isn't making a fair use but the the market for uses for criticism and commentary particularly the uses for criticism commentary by individuals is is minute and in fact most of the form agreements make it a violation of any license that there would be to engage in precisely the thing that these exemptions are about yeah that's the non-desperagement clause yeah yeah you're not allowed to use these clips to make fun of us or criticize us or the industry or the industry so and what about this argument though that if you have enough money they'll sell you a license there's a real estate comparison that I I know drew some gas maybe you want to discuss that the attorney for the motion picture Association said well he was talking about what I thought was a straw man argument in a sense it's not always really arguing this but what he said was there is a market no one's there is really a viable market here it's it's ridiculous to say there's not a viable market you know it's just that some people can't afford it I mean I can't afford to live in Bel Air and you know and but it's still a viable market and to me that was a very interesting comparison because Bel Air is inaccessible to 99.9% of Americans or the world it's it's one of the most exclusive neighborhoods in the country and the licensing market is also inaccessible to a large number of people and the thing is that digital technology has enabled a cornucopia and explosion of creativity by individual creatives the type of people that Professor Turk here works with every day and and we have clients too that are doing this they're not major businesses they're not big production companies based in Santa Monica or Hollywood they might be a professor in Arkansas or or an individual creator and the DMCA is inhibiting that licensing is also not well licensing is not a viable option as a way to stop that average effect that the DMCA is creating and it should be necessary because the uses that they're making are fair uses anyway so when the threshold condition for being eligible for these exemptions is that you're making a fair use if you're not making a fair use there's no exemption at all so to make a fair use it doesn't make a lot of sense to say you're it's absolutely not infringing for you to use this but you have to pay us to get the key to have access to it yeah a lot of the this seemed to turn on what was fair use and when something was fair use and someone from the copyright office said well if if you interfere with the market for the work although that's only one of the four factors that's the one we should be paying attention to and it seemed like the MPA folks were really running with that at one point it seemed sounded to me like they said if you let people break DRM then in the future we might think of things that we could do with DRM but we would think maybe the copyright office would let people break the DRM and we wouldn't bother investing in it that seems pretty expensive to me can you think of like any use that you could make that would be fair if that were the test I think they're their concern is that or one concern at least is they say they don't want to make ripping and decrypting so it's something that people do casually they want it to be something that people only do when they feel they need to do it but the idea that they should own not only every market for the works that they've made and the derivative works that they might make from those but that they should also own the market for these technologies that surround those works seems are actually really consistent inconsistent with the way that technology is developed historically I was interested in the MPA representative when when asked about this plain language proposal that you had he said well we're never going to get something as complicated as copyright law simple enough for the average user to understand it that felt to me like a pretty frank admission that everybody who engages in what might be fair use will never know whether they're on the side of the right I mean maybe like that the people you work with the bidders you work with do you think that there's much of an overlap with your ability to make an important expressive bid and you're important to understand abstract areas of technical entertainment law that that Venn diagram is too independent maybe not too independent it's got a sphincter tiny tiny tiny bit of overlap I mean I was saying in there like I'm an English professor I work with complicated language all the time but not this complicated language not this kind of complicated language and so to me personally as a non-lawyer a lot of the a lot of the exemptions are I don't want to say needlessly complex but overly complex more complex than then then it's easy to parse and I don't know if you want me to get into the screen capture sure yeah tell us about screen captures fascinating subject oh my gosh so the argument that some of the opponents to these exemptions keep making and have been making since 2009 when they said we should all set up camcorders in our living room and make our living rooms perfectly dark and and use our phones or camcorders to shoot the screen which I mean let's run down the number of things that that requires right a living room you can make perfectly dark a camcorder that can do that kind of work a really big screen TV I mean who's ridiculous but they've been making this claim again and again and it keeps coming up and it's just absurd right I mean nobody is saying you can't screen capture if you want it if it works for you sure but for what we have been trying over and over to point out is that there are plenty of uses for which it won't work there are circumstances under which it won't work and so saying that that always has to be the first thing that you try is silly it's impractical and it just doesn't make any sense aesthetically or from my point of view legally I mean the point is to get video onto your computer so you can take tiny snippets of it and and make a video right a lot of tiny clips I mean back to the licensing thing for a second if I use a hundred clips in a three minute vid and I make five vids a year that's an awful lot of clips that I would have to license so the the distinction between screen capture and ripping is not intuitive right the result is the same you get the video from some other form into a form that you can try to edit it so why is this why the complication like why not just say if the use is fair if you're using a small portion for criticism or commentary if you're making an argument about the source you're adding something to it and it's not interfering with the market done it's it's hard to understand why it needs to be more complex and the thing about that comment that I found surprising was that fair use over time statements of best practices and scholars communities of practice you know whether it's choreographers poets documentary filmmakers and others have basically been able to say let's take the case law distillate talk about what's appropriate and then come up with best practices that can be used by anyone you don't have to have a law degree to do it you can do it safely right and then you have some people like Michael Donaldson Sam Samson and others who have said let's look at the case law together and actually it's pretty simple and you can do it and in a simple three step test right and Peter Yaza another example is come up with a very simple two part test that really gets to the heart of fair use so it's not necessary and it's certainly not a given that you have to have such simple that you have to have such complex language that only lawyers can access and I have to confess that after the 2009 exemption excuse me the 2000 there's so many 15 well at one point at one point there there was there was an exemption that even I had difficulty who's done this for many years had difficulty understanding. Now you mentioned clearing a hundred clips for five videos a year and the studio's argument was well just if you if you need clips just ask us for licenses do you think they would welcome thousands of filmmakers sending them thousands of hundreds of millions of requests? I think they don't understand how many people make remix video right or how or how many clips are in a video or how much simpler it is for us to just say I have you know I have possibly the DVD the Blu-ray and some other format let me just let me just make the clips which I can because it's fair use. We did hear today that there's a phone number with a name person maybe we could distribute the phone numbers to all of your constituencies and they could call the whenever they need a license. Could we turn that into performance art in some way? Well it would certainly be an interesting thing to enter into the inventory record in 2021. I will say though it's possible that they do know how many people are making remix video and they do know how many people are engaged in this kind of creativity because at least for some portion of it they're getting for example a content ID revenues. It's possible that they know how many people are doing this they don't want those people to call what they want to be able to do is selectively enforce against the ones they don't like and allow the ones they do like to flow free and possibly even benefit them directly commercially and probably definitely indirectly commercially as people are exposed to their works. So I think the desire for selective enforcement while I think I don't think you're going to hear that out loud and it's not nefarious but I think it's a natural desire and I think that's probably what we're seeing. I remember when the compulsory license for internet streaming radio was being raised to the point where it's no longer viable someone from the Recording Industry Association at a hearing saying very frankly we don't like the idea that there's 10,000 people making uses and we have to we don't know who to call if we don't like them. Once we raise the statutory royalty to the point where there's only five companies that can do it we'll know who to call when we have a problem. Well even when they provide sources that you're supposed to be able to use as an educator or as a creator when they throw those in the record they mention their own site Fandango's movie clips they mentioned Fandango's YouTube page you have all sorts of contractual reasons why none of those are viable options for our folks they say things like well you can't use it for personal use you can't use it for anything but non-commercial use and those were the sources they said you know if you didn't go and get us explicit license from them and have a hundred thousand people call them that you supposedly were supposed to be able to use those sources but those aren't even viable. I wanted to ask one last question before lunch and this is a kind of a both a technical and a kind of real politic question one of the things that kept coming up is whether when and how and how hard it is to break DRM. There's the sense from the DRM proponents that it should be a solemn occasion when you break DRM like like breaking open the nuclear football but the reality I think that I the sense that I got from you guys from my own experience and certainly from my DRM standardization work where people from the studios are pretty frank about the fact that they break DRM all the time is that it's just not hard. Do you think that they understand in their heart of hearts that DRM is just like the minimum viable law technology to invoke the law and that as a technical matter it's a kind of a nonsense? I'm not sure I agree with that I mean I think they spend a lot of time trying to make these these work and some of the later ones are more difficult but I think the greater point is this is not about piracy it's or counterfeiting or that kind of that kind of thing it's simply not because there's never been any allegation any any connection between that kind of copyright infringement and what's at issue here these are people trying to do the right thing that have prevented from doing it and unfortunately it is true that if you're worried about break whether a few people more would be breaking encryption on Blu-ray for example unfortunately that ship has sailed when it comes to I think what they're what they ought to be most concerned about which would be that kind of thing. And what's interesting in most these cases the folks that we work with have obtained lawful access to the work to begin with they often have purchased the DVD or Blu-ray so as far as you know how they're affecting markets to begin with they're usually you know that's sort of a prerequisite to be be using this is that you access the work lawful. And if you look at Congress's intent Congress has said it's actually if it's a if it's a copy control you can you can break that it's an access control that you're not allowed to break. Access controls would be like a password a copy control would be like the idea to make a backup. The law says you can you can rip that but what we have with encryption and DVD encryption Blu-ray encryption is access and use merge together but Congress basically said if you if you if you buy it and you can access that work by buying a lawful DVD player and a lawful DVD then you know if you want to make a copy go ahead right but the fact is the technical way that that that these dealing technologies actually work conflates the two and so you have one use over here that's supposed to be permitted by Congress and one use that's supposed to be not permitted but essentially the way that the technology works is that they're both prevented and it's very unfortunate. And I do think that when when you describe circumventing DRM as easy I think it's true that for every new DRM there's going to be a new 16-year-old in Norway who figures out how to get around it but I also think that it's harder to make good art than it is to circumvent DRM. So using handbrake takes practice using screen capture technology takes practice but we what we shouldn't be thinking about is making the is is placing technological barriers between here and good art right that's not what the copyright act is supposed to do. And so to me whether or not it's easy or commonplace to break DRM isn't the question the question is what's the law doing standing between here and legal art? And as advocates it seems like that is a way that we really have to deal with which is a challenge because just in preparation for this hearing even just the few first months of 2018 there was a lot there's a lot that's been written about the accessibility and ability to screen capture take video of things that are on that are coming through your device and there's you know certainly there are folks who are capable right of breaking those but there's a lot of folks who who would just give up right and so a lot of everyday uses really look what I saw this crazy you know and uses that might clearly be fair use where and it's interesting because a lot of these distributors let's say a Netflix or an Amazon there's a number pieces of content now that are solely licensed through those affinities so both by the technical restrictions as well as a contractual restrictions in a lot of ways what the joint creators be you know the film studios were saying on the record about there being so much more accessibility that's not really true well thank you all very much and thank you for your great advocacy for fair use and for for a fair deal for the public and copyright