 The WV made for an established documentarian is not to issue a no action letter, but they're not going to do it for us. And the bottom line here is that remakes, like textual quotation, when the subject of discussion is words, it's an important source of cultural, artistic, and political criticism and commentary. These are exactly the kinds of socially beneficial uses that peer use is designed to promote. They're transformative in meaning and message. They copy only small parts of the original. They often say things that copyright owners don't want to have said. And they're made not in order to achieve commercial success, but to express something about the work. And I want to end on a more theoretical note. It's unwise, as a matter of respect for authors, to say, it's true that these were transformed words. And it's true that you made them to communicate a message rather than for profit. But you nevertheless don't deserve an exemption, because people outside your artistic community believe that you should have made a less beautiful work and that less beautiful work would have worked OK. A core reason copyright has a non-discrimination principle is that it's not a great idea for lawyers to judge the merits of art. The bidding community, as the comments in our submission show, highly values quality footage, which, among other things, allows for more advanced editing techniques that contributes to the meaning of bids. And those artistic judgments are worthy of respect, even if not everyone has the same reaction. We don't tell oil painters that they could get OK results with watercolors. We don't tell sculptors that they could achieve many of the same results with a trowel instead of with a knife. In part, we don't do this because most lawyers aren't particularly expert painters or sculptors. And it's easy to make a mistake about the technical possibilities of a medium compared to someone who actually practices it. But we also don't do that because it's not the law's proper rule. Perhaps an art critic could say, that would have looked fine at a lower frame rate and with more pixelation. But the copyright office shouldn't, once it makes the initial determination of non-commercial reasons, includes a substantial number of non-infringing uses, which is the standard. Everyone agrees that screen capture, when it works, makes a copy that could suffice for casual entertainment purposes. This makes the question of what harm the exemption might do basically irrelevant. Anyone who wants to make a full copy of a work for pure consumption purposes can conceivably do so if they invest in three or four programs. The only question is how an exemption would affect people who are making clips for other purposes. So with an exemption in place, we focus our educational efforts and our assistance to fan artists, as we've been doing, on the crucial question of fair use. And there are numerous transformative non-commercial remits videos put on-line every day. We talked about a video that commented on a widely publicized story about anguish, about engaging experiences. None of these exemptions have been shown to cause any harm. And for anyone who's misunderstood it to suggest that you can distribute entire work. The line between editing remits and creating a new work and copying an entire work is really pretty clear. And that's a message that we can take back. So that's what I suggest you should continue to do. Thank you. Thank you. Thank you. Hi, I'm Francesca Kofa, I'm Professor of English, and I'm the Founding Director of Film Studies at William Brook College. I'm also one of the founders of the OTW, the Organization for Transformative Works. And I'm here to give a bit of a cultural and social picture of remixed video and remixed bidders, particularly the 35 year practice of the span bidding, which is the subject of much of our comment. Bidding, the making of music video by setting mass media images to music predates the digital. In fact, it predates YouTube, the DMCA, and the internet itself. In the 70s, fans made bids using spills. In the 80s, they used footage that they taped on TV before commercial TV was sold, and they used commercial VHS tapes, and then they started using DVDs and the odds. Bidding is an art with a long history. Visors show live at conventions and often reviewed afterwards in critical panels, as well as distributed on the web. Bidders congregate and trade aesthetic on technical tips, on mailing lists, and in other community hubs. Bidders themselves make documentaries celebrating their art and the work of other bidders. Some bidders release DVD commentaries discussing the choices that they made in their own vids. So this is an advanced art form with its own sophisticated, albeit amateur, non-professional, non-commercial community. But bids and other forms of remix video have also received mainstream, and are starting to receive more mainstream critical attention in museum exhibitions, like the currently running Spectacle to Music video, which is on Cincinnati, and is coming to the Museum of the Moving Image on NPR, in mainstream magazines like New York Magazine and in film studies journals, like Cinema Journal and Camera to Secure Out. To make a music video out of mass media footage, out of TV and movies, is to transform it. To distill a two-hour movie or multi-season TV show into three or four minutes of the video is to radically change the story and the emphasis of the image. To edit footage, to emphasize its musicality, rather than to re-narrate or rehash a plot, is to make something very different of it. In my more recent scholarly work, I've been talking about the way in which music video and remix video demonstrates poetic qualities like lyricism, tone, emotion, and density of symbolism and imagery rather than kind of traditional mass media film qualities. I say this to emphasize that I believe that the making of music video is a creative and transformative act even before we get to the content. To turn five seasons of the wire or seven seasons of Buffy or 16 hours of Harry Potter into a three-minute music video is a significant transformation of form before you even get to content and the message of the piece. But the content of remix video and bidding is transformative as well and bids health stories and make arguments that articulate the perspective of bidders who are primarily women and racial and sexual minorities. This makes sense. Bidding is a lot of work and you need an incentive to talk back and rewrite culture. It is overwhelmingly women and sexual and racial minorities that I'm here representing and that's who bid, who feel the need to change the focus and the form of mass culture to make better sense within their reality and to appeal more closely to their tastes. The changes that bidders make range from the more overt kinds of critical readings, making queer feminists other kinds of politically charged readings of the kinds that we discussed in our comment to the more implicit criticism of changing the filmic perspective or the narrative emphasis saying this is the important character, this background moment was a key moment. Saying as artists always do, I'm gonna make you see this material through my eyes, the way I see it. To bid is to therefore be part of a conversation with others who are interested both in making art and in being part of a vibrant, critical community that discusses culture. This is a grassroots art world. The existing exemption has been extremely helpful to artists of the bidding community as well as to me in my work as former ROTW communications chair. The existing exemption for non-commercial remixes is easy to explain and if it's easily, as Rebecca said, within fandom's own internal ethical codes, fans believe in paying creators. And the general feeling is that if you buy the DVDs, you should be able to criticize them and make something new out of them. This, the line that people understand is not particularly between DMCA compliant and non-DMCA compliant technology but between paying for your source, whether it's DVDs or Amazon unbox, and not paying for your source footage. For remixes, mainstream culture is then not just a product to be consumed, but an indication to create more art and to participate in a cultural discussion. What these exemptions mean in practice for us is that we've been able to say to people, look, if you think your vid is a transformative fair use, you should feel free to fight a takedown or a cease and desist notice. That assurance is particularly important in the non-commercial remix community because bidders tend to come from demographics that don't necessarily assume that their voices are wanted or even legitimate. As Gordon said earlier for documentary filmmakers, similarly as with documentary filmmakers, non-commercial remixes felt that they could not stand up and say, my vid is a fair use, my vid is legitimate, it should be restored on YouTube because they were worried that they had broken some law in the making of the thing that they thought was fair. And with that out of the way, we have seen a huge rise in people being able to challenge mainstream increasingly commercially owned broadcast systems and distribution systems to say, no, look, please restore my video, my work is important. So it's important to understand that bidders come from this culture of fear, a culture in which it's assumed their speech is not valuable and this is part of what it means to speak from the margins when it comes to mass media culture. These vulnerable speakers, and in fact, I should say that in my own work, I often speak about the bidders who are the most sophisticated high artists, the people whose work as remixes is contiguous with feminist remixes of appropriation artists like Cindy Sherman with experimental collage, filmmakers of the 60s. But a lot of the bidders are young people. They're 15, 16, 17 year old girls and they don't necessarily have the same sense of entitlement that you might see in more male dominated subcultures. They don't assume that their voices are wanted or defensible and older bidders who are the 20, 30, 40, 60 year old bidders, many of them, pink collar workers who do make the kinds of works that end up in museum exhibitions by and large are differently vulnerable. They're not willing to risk a loss. They're not gonna jeopardize their own finances or their family's finances and so it's easier to go away if you get a take down and not fight it. So it's been very, very important to say to these artists if your work is fair, if it's transformative, you should take a chance to defend it because 95% of the time you're not the victim of a person. It's an algorithm, right? They're not judging your work. They haven't seen your work. And as Rebecca said, when we do tell people this and a person looks at it, we have never had anybody come back and say that this work does not look fair. And we at the OTW have done fairly well in getting that message out, which has been a positive good of this exemption in terms of encouraging diverse kinds of speech. And as others have said, I've heard nothing to suggest that there's been any harm or downside or problem with the exemption whatsoever. Lastly, in film and media studies we've been talking, teachers were saying this morning, we talk more and more about multimedia literacy, teaching students how to read and write in a variety of media. And fan artists and remixers like Vitters are currently being studied in art schools in media departments, in film studies departments because they've been having multimedia conversations longer than the rest of us. They're becoming the model that teachers are using in a recent book called Redistintional Fan. And he suggests that media studies reinvent itself along the lines and using the practices that non-commercial remixers have developed over these last 30 years. So we're in a place where in fact the mainstream is starting to kind of copy the artistic and discursive innovations of the minority community. So it's really important to leave a window that you don't have to be a certain kind of authorized speaker to speak and to allow these kinds of grassroots artistic practices by some of the people whose voices are most fragile to continue and not to sort of set up a situation where you have two classes of speakers, a kind of a high speech and a low speech where professionals get to speak in a particularly glossy kind of language and non-commercial workers have to speak in a kind of degraded vernacular. So thank you very much. Thank you. Oh, please show your mic. Okay, I'm gonna have a visual examples in a minute. So my lovely assistant franchise is gonna get that set up, but I'm gonna go ahead and start. I'm an associate professor of English at the University of Minnesota at Morris and my research focuses on the rhetoric of the remix video, but I'm also a bidder myself and that's the perspective from which I'm gonna be speaking today. Professor Cheshire and Professor Koepa have spoken about the legal and the cultural aspects of remix video. I am going to talk more about the aesthetic and the technical concerns. I am no Jim Morris set. I'm an English manager. I do not have an engineering background, but I'm gonna try to walk you through a little bit of the technical stuff that goes into bidding. So there are two main points that I wanna make. The first is that bidders need high quality source for both rhetorical and aesthetic reasons. The second is that the screen capture solution posed at the Tech Day hearings doesn't work. So let me start by saying that 15 to 20 years ago, we were all accustomed to fuzzy images, right? We watched VHS tapes of, I don't know, LA Law and Twin Peaks recorded on super long play, maybe recorded over two or three times if your family was cheap and didn't wanna buy lots of new tapes. And even now, we're still used to seeing fuzzy images in certain contexts, right? We've all seen streaming video on YouTube that's kind of blurry or grainy, right? Cat videos, dancing babies, that kind of thing. Those kinds of videos are essentially home movies and most of us are still pretty forgiving about mediocre quality in home movies. But when it comes to commercial media, our standards have changed. People are starting to lose their tolerance for fuzzy versions. Once they've seen TV shows and movies on DVD or Blu-ray on 46 inch or 55 inch high depth TV or for that matter a good 23 inch computer monitor. Even streaming services like Netflix have improved dramatically in quality in the last few years. And what this means is that when people see bad versions of good source, they hit the back button on their browser, right? Why should they spend any time watching that? So if I want to comment on or critique or even celebrate lost or mad men or true blood or whatever, I need high quality source. I need it in order to communicate to my audience and I need it in order to make something that meets my own artistic standards. So with that in mind, I wanna talk a little bit about why some of the procedures suggested by the opponents of class seven won't work. I would love to be able to talk about their suggestion that I use my smart phone to record DVDs but I can't because I don't have a smart phone to test it with. I was actually kinda disappointed when I heard that smart phones were pretty ubiquitous and I ran and looked in my bag but alas, my cell phone had not magically transformed into a smart phone so I couldn't do that. So let's talk about screen capture software. When I watched Tim Short's demo at the Tech Day hearings, I was really impressed by how easy it made the screen capture process look and I should back up here for a moment to explain for those of you who haven't done it that preparing ripped DVD footage for editing is a pretty complicated process. When I rip a DVD, I get a .vld file which my editing software can't handle directly and in fact most editing software can't handle directly. So I have to feed the VOD file through an indexing program that makes my editing software think it's working with an ABI file. Then I have to de-interlace the file. Do you know what de-interlacing is? Okay, I don't have time to explain that but ask me if you have questions. The short version is that motion pictures are interlaced or tele-seen for showing on a TV and they have to be de-interlaced or inverse tele-seen somehow before they can be edited or you get a disaster. That's the short version. There are several ways you can do this. I do it by writing a little piece of code called script. This is a little bit of a stretch for an English major but I learned how to do it. These days DVDs are usually encoded anamorphically. Do you know what that means? Again, ask me later. The short version is that the image comes out stretched vertically, right? Everyone's really skinny. And so the image has to be resized. Maybe there has to be stretched horizontally but it has to be squished vertically so that it'll look right. Or else everyone looks really interrupted. So in order to get the correct aspect ratio you have to do something to the file. Then the file has to be clipped somehow because you can't just throw a two hour movie or an hour long episode of TV into the Eddingtown line. I mean I guess you could but you would get the blue screen of death really fast so practically to be in you can't do it. And I have to do all of this really boring and complicated prep work for every single disc that I want to use even if I'm only using three seconds from it. So when I saw the screen capture demo I thought that could save me a ton of work. Then I actually tried it. And the problem is that the process is easy but the results are terrible. So when you think about it it makes sense that the results are bad. User programs intended to capture still images or low frame rate tutorial videos right here is how you move your mouse. That's what they're made for. And I think it's telling that the top reviewed capture programs often don't even mention DVD capture in their product descriptions. But Tim Short's tech day demo used replay video capture which I had not heard of but which does bill itself as being able to capture DVDs. So that's what I used in the examples that we're gonna see. It's 40 bucks I will never get back which I'm a little cranky about but okay. So Tim Short talked about the tech and I once talked about the results of the tech what we actually see. So we're gonna start looking at that. Okay so let me tell you what I did. I captured using replay video capture the first 10 minutes of the 2009 Star Trek review movie using replay video capture. I captured it 24 frames a second since that's what I get when I rip a DVD. And then I ripped the same 10 minute scene and I pulled some individual frames and put them side by side so we can compare them. And that's what we're looking at here. The captured footage is on top and the ripped footage is on the bottom. I'm gonna lower the lights a bit so you can see this a little better. Please do. Right thanks there on those two. Okay so let's look at this first image. When we look at these two frames there's not actually much difference here. I would submit. This is from a shot that has minimal motion and relatively low light contrast from one frame to the next. So screen capture actually does a pretty decent job with that kind of shot. Okay so if you think back to Tim Short's example from the May 11th hearings he used a scene from the movie Gadda that's essentially sepia-toned talking heads. That scene may be great for prompting a discussion about ethics in a high school biology class but visually it is about as interesting as a bowl of oatmeal. Once you try to capture scenes where people and objects are moving or where there's high contrast or bright light you start to see problems. Okay so this is another frame. It looks like the same thing but this is from a different point in the scene where we've just had some bright light and you can see now that there's a difference between what we're seeing on the top that's the captured footage and what we're seeing on the bottom that's the ripped footage. That blocky effect that you see in the top example is called pixelation. What happened is that the video data has been reduced by converting color gradations into blocks of solid color and that's what you see especially if you look at his face you see lots of individual little squares. So 16 pixels of very slightly different colors have become a 16 pixel block of a single color. So if you look at the trim on the uniform if you look at the face if you look at any of the diagonal lines they're starting to get a little weird. Now here's the thing about digital copies. We often think of making digital copies as simply duplicating something and sometimes this is true. If you copy an MP3 from your computer to your MP3 player you get an exact copy or if I send all of you guys a PDF you now have the same file on your computer that I had on my computer. But editing video is different. When you edit video, when you add effects to video when you export video when you compress video to make it smaller so you can distribute it on the web you lose quality. It's more like a photocopier, right? So if you make a photocopy of a book what you get is readable. It doesn't really look like the book anymore but it's still okay. But then if you make a photocopy of that and then if you make a photocopy of that and you make a photocopy of that you start to get degrade. In fact it is a lot like what happens in analog if you make a copy of a tape and then you copy the copy because you're not just doing a pristine version of the file anymore you have done something to the file in the intro when you're using lossy compression. You think about what Jim Morissette said at the previous panel about losing frames that's the kind of data loss that we're talking about. So here I'm going to quote directly from the Microsoft website's explanation of digital video compression their recommendation for editing practices. They say, every time you save your file in a lossy file format it discards more of the data even if you're saving it in the same format. A good rule of thumb is to move to a lossy format only as the very final step in your project. So converting video means losing quality. If the original quality is good that's a manageable loss. But if the original quality is not good then every time you do anything to that image things get ugly. So this is the same frame that we just saw but I did an effect to it as I might if I were making a bit if I were going to zoom in on that frame if I wanted to get a close up of this character's expression. So I cropped it down and then I resized it so it would be the same size as all the other frames in the video. This is what we need when we say garbage in, garbage out. As someone who has been using powerful video editing programs for 10 years now there is nothing I can do to fix that top image. I cannot make it look more like the bottom image. Not to get technology, not by sheer force of will. It just, I've lost data. I can't get that nice image on the bottom back. Hey, it's easy to degrade source quality but it's almost impossible to improve it. And so if I start from an image as compromised as that screen capture image I can't say what I want to say either because people won't watch because it looks like that or because they literally won't be able to see what I am trying to do. So the point I want to stress is this. In this movie, in this Star Trek movie and by extension most of the movies that get vetted screen capture will get you acceptable quality but only on a very small fraction of the frames in the movie. I had to actively look for a shot that was not aggressively pixelated, okay? I had 10 minutes of moving and I found two shots. The first one that I showed you and then another, a very tiny ship moving very slowly through space. Another very low contrast, low motion shot. If you take a look at the test suite that the OTW has provided and that we linked in our original proposal you will see that bidders do use some relatively still shots in vids. That's not unusual. But we also use a lot of shots where things are moving or shots where the camera itself is moving or shots where there's high light contrast and bright flashes. And if I am limited to using the clips that screen capture renders well then I can't bid unless apparently I want to bid the most visually boring scene in Gattaco. So the whole point of bidding a show rather than writing an essay about the show is to use the visuals. That's the value of multimedia speech. Not even an English professor. If I want to write an essay about it I could do that but if I want to use the image then I want to use the image. So Cheska is showing some additional examples that I pulled from the first just three minutes of the movie. These images are now all up at the OTW test suite if you want to look at them more carefully which I would really encourage. And we also have a video. I did a side by side of the captured footage and the ripped footage so that you can see. It's kind of funny when characters move through the middle you can see them, they're clear and then suddenly they're pixelated and then they're clear again. So we will not show a ton of this but just to give you a little bit of a sense. See how the green flash goes from clear to blocky. You can also see here what Jim was talking about with the dropped frames. You can see that the two are out of sync. The one on the left is what it's supposed to look like and then on the right we've got, I don't even know what's going on over there. We're just missing some frames. Okay, so after working through this exercise and looking at the captured and the ripped footage side by side I have to tell you I was more confused than ever by the argument that screen capture should be good enough for me. If the quality of screen capture is that great I would think that it would be a terrific technology for piracy. I would argue that the quality is not great or at least it is not good enough for my purposes. I mean maybe as a consumer I could tolerate a screen capped version of that movie although I can't imagine why I would. I personally would rather just buy and watch the DVD. But as an artist I can't work with the quality problems that capture creates. So I wanna conclude by noting that high quality source does not guarantee that I'm gonna communicate successfully or that I'm gonna create great art. Anybody who has seen much art at all knows that there is a lot of professional art that is ineffective or just plain bad. Say nothing of amateur art like non-commercial remix. I will admit that I myself have made some pretty bad bits. There is a reason that I'm an English professor and not a professional artist. But I have also made some good bits. I've made bits that I'm proud of and that my community has responded to really well. So if I fail as an artist I want it to be because I failed not because I was forbidden to use the tools that I need. Thank you. Thank you. Okay. If you're listening to me speak I'm Martin Conant Wright, writing professor at Lansing Community College and I spoke earlier today so I'm not gonna talk at length because a lot of us at earlier is relevant to this discussion. I'm here to support classes seven B and seven C of that that were put forward by EFF. The points I made earlier are that the exception as crafted currently was greatly appreciated. I felt it was an expansion of what was present in 2006. It's appreciated in being used in the educational community. The EFF's proposed class seven B is broad. I mean, you could read that to that it actually could encapsulate the class proposed by the attorneys group. So if you just inserted the word non-commercial or educational videos in there it's broader. So one of the things I mentioned earlier is that I hope that maybe it can be addressed in this round is there's an ambiguity in the current exemption in that it separates out media studies students as being eligible for the educational use piece and then the three, the little Roman number one, two and three, they're separated by semicolons and then it says it's also okay to use this exemption if you're a documentary filmmaker and it's also okay for non-commercial video maker. So if it was premised on that any of these one or more of these categories would make you eligible to use the exception that would be helpful because now I'm asked, well, what if it's not a media study student but it's a student who's making a non-commercial video? Wouldn't that fall under the exception? And in the lengthy recommendation that was written up in July, 2010, I think a point was made that the expansion wasn't made to include all students and yet the argument is that if a student who's not a media study student is making a documentary film or a non-commercial video that they should be able to fall under the exception somehow. So I'm speaking in support of the EFS proposed classes. Proposed classes, they're broad and they would actually work for the educational community, especially if that was discussed in the recommendation, but if there's a way that in this next round that we could connect the VITR exemption with the educational exemption, I think that that would be really helpful. Obviously, some of the VITRs are also college students. So if it's way more explicit than I and other interested teachers can develop lesson plans and actually feel confident about addressing how to really construct these types of texts in our writing classrooms. And that's all I have to say, thank you. Thank you. Karin, you did testify in Los Angeles and the reason we invited you back is basically because we had some opponents who were here before in LA. So I'm just gonna pose a question to your choice. Does it make sense for you to go after they've gone or do you want to go now? Well, what I have learned to do is do just a couple minutes, sort of sum up and then sort of reserve my time for after they've gone. Is that okay? I was conscious of that very quick. So I promise, just a couple of points. So first point, I think with respect to this exemption, one of the things that we've got, we've had range of paper, we've had hours and hours of testimony. You know what we haven't had? A single shred of evidence of harm. I think many people have pointed this out and then applied equally well to non-commercial videos as to the other exemptions. We just have no reason to think there's been harm. What we've heard in LA is, and what we've heard here, I think, is speculation that there might be harm, that some copyright owners might feel uncomfortable making their works available, but that seems to me as entirely speculative. We've heard that digital distribution methods depend on DRM. No one's arguing that. Of course they do. But this exemption doesn't prevent anyone from using DRM. It just takes away the sort of damocles that hangs over the head of folks who want to break that DRM to engage in lots of thoughtful purposes. We've heard here and in Los Angeles that an exemption might send a message, an unfortunate message that content is DRM-free. But it seems to me that if you're worried about a message that's being sent, the right way to respond to that is more in better education, about 1201, which I think is sorely needed. And I would suggest that it seems to me that the large content owners are in really good position to get that message out. And we, of course, are doing our very best, so you have that and that OTW to do that very thing on very limited budgets. Secondly, and I won't belabor this because I think it's well covered, but I hope that it's been put to bed. The notion that screen capture is an acceptable alternative for me, as an artist, I hope that we've heard enough to be comfortable that that is simply not adequate. And I just want to stress that, and I think Professor Copa really hit on this, is that we certainly don't want to treat remix art as some sort of second-class art form. It's not. It's actually a very important and old art form. And it's just one that's been marginalized until very recently. And on that point, I want to stress that this is what I have heard from folks, from remix artists. The exemption that the existing exemption sent a message to remix artists, that their work actually is legitimate. And that was really important. That was very important in helping people sort of come in from out of the cold and fight back and defend their fair uses and stand on their fair uses. Clip licensing. I think, I feel like this came up, we agreed on this in LA, but I just want to reinforce that it just seems to me that clip licensing is simply not a viable alternative for remix artists. Because of cost, many remixers are working on a limited or no budget whatsoever. So they just simply can't afford even minimal licensing fees. Logistics, not just the logistics of getting all the licenses that you might need in advance, but also even figuring out in advance what you need. In our reply comments, we point to the testimony of Elizabeth Kressinger, who's a remix artist. She said, look, I need the whole alphabet in advance. I can't just pick a few letters in advance and decide what I'm going to need. It doesn't work that way. The creative process doesn't work that way. And then frankly, for remixes as for documentarians and other filmmakers who are engaged in criticism and commentary, the licensing process simply isn't going to work. I don't think that the makers of the Twilight show would have been thrilled to authorize Jonathan McIntosh to use all the clips that he used critiquing the stalking vampire Edward that we saw a couple weeks ago. And much less the kind of feminist critiques that we're talking about here today. Finally, I respectfully actually have to disagree a little bit with my witness, Mark Dean Redby. I actually don't think our exemption is all that broad at all. I would point you to the numerous limits that are built into the exemption. I mean, we heated in crafting it many of the limits that are imposed by the register in 2010. So purely for profit users need not apply. There is an objective limit. The artist must not just believe, but reasonably believe that circumvention is necessary. There's only one authorized purpose, which is the extraction of short clips, right? Which can have no conceivable impact on the market for the work. With respect to 7C, you can only turn to digital distribution methods if the work you need is not available on DVD. Only non-infringing uses. So if you lose under 107, you lose under 1201. Important limit that's in all of these, but I think it's crucial to keep in mind. And finally, I just want to reiterate something that I mentioned in the Los Angeles, which is that we have no particular objection if we also want to build in some language saying for purposes of commentary and criticism. And that's because the works we were talking about are all for purposes of commentary and criticism. So there's no problem with that as far as we're concerned. So to close, these exemptions are just designed to bring the existing exemption up to date, to bring it consistent with technological and practical developments, and also to reflect the actual applicable practices of the communities that we're talking about. Thank you very much. Thank you. I do want to show a couple things. The control association, I did want to, let me just, I mean, it's not on the panel. I've been authorized by Dean to say that with regard to the screen capture software, with regard to his studio, they would endorse and agree with the positions that were taken, have been expressed here with regard to the violation that the games game were lacking their own. We wanted to spend a moment on something that I alluded to this morning, and that is the loss in DVD revenue. Again, as an overall matter, the video entertainment market is in decline. The yellow line on this chart is the DVD part of that. And as you can see, it has gone down dramatically in the last five or six years. And again, well, we don't attribute this, it's cause and effect to the exemptions that were granted first in 2006 and then in 2010. Our view is that you need to take into account, I think the marketplace in which DVD exists, as you look at the range of exemption requests that have been submitted this time, and take into account that it is not in great shape at this point. This is another depiction of much the same point, showing some projections forward, some of them are more in the sand-like over the time. Now, our overall point is that we believe that there has not been the reference of showing a bad versus effect. And again, I wanna go back to the point, the points that I made at the outset this morning in my testimony, the educators' related panel, and points that Steve Kalitz has made at a number of points during the course of the day. And that is that there needs to be a direct linkage between the works distributed on CSS, or protected DVDs, that aren't submitted. The requesters have been unable to make use of it, if they did not enjoy the benefit of the exemptions. I'm gonna, for a moment, about eight down notices. I was, we were perplexed by what we heard about the testimony in LA, and I'm again perplexed by the testimony here today. The take-down notice under section 512, which was another part of the DMCA, does not include 12.01 violations. And we did look on chilling effects that they were displaying here, for copies of and examples of take-down notices that have cease and desist notices that have been filed under this. We couldn't find any that had any reference whatsoever to circumvention or section 12.01. So we think that is actually a unique entity, red herring, proceeding, and not something that needs to be taken into account of. With regard to the alternatives to circumvention, we continually believe that the video capture software, certainly for many uses, is a streaming website. We do think that although, sorry that we just doesn't have a smartphone, there are many, many people who do have smartphones that is ubiquitous and as was indicated in one of the slides this morning, is between smartphones and tablets that are video recording hateful. We're talking about hundreds of millions that are gonna be consumer scams over the next couple of years. Also video editing software, which may enhance the recording that are made, either by video capture or by smartphone, would improve where there may be a quality issue. I'd also note that I appreciate the witnesses' suggestion that the technology that we've demonstrated is probably good enough for biology classes, so we'll apply that to this morning's panel. We also appreciate the fact that, that unlike the panels this morning, the people on the other side of the room this afternoon or late afternoon actually use the technology that we demonstrated and so for their purpose. Now the question is whether in many instances, perhaps not all, but in many instances that technology is good enough for, as an alternative to certain invention, one of the things that we did hear about the demonstration that was made on May 11 was that it did not show action scenes and did not show special effects. That was because, again, we gave this to our teacher and said, okay, how would you use this in your classroom and pick the kinds of things that you would detect in the classroom, and that demonstration reflected what his choices were for that particular use. Now, having heard criticism of that, as I indicated, we've done another use of the video capture, same video capture software, which we can demonstrate. This is a scene from Battles Guard, the Lactica, which has a lot of action, a lot of special effects. So side by side, I'm doing this right, David, on the left-hand side is from the, you wanna look for us to see the video? Yeah, okay, we'll see the video. This is actually, for many purposes, for, you know, it has a lot of action, a lot of special effects, for many purposes. My eye looked like something I'd be perfectly happy to watch on, whatever, for whatever purpose. The, to see what it looks like, sort of side by side, so that it's not- Oh, I can see it, we can't catch it. And what this is, is showing the video capture software to which we've applied, again, the inexpensive video editing earlier. Again, our view is that this is really quite good quality and we made a little better with the video editing software. The, again, video editing, this slide shows that it doesn't really matter whether you're using Mac or a PC, there are video editing, good video editing software programs available. This is from one of the video sites themselves, where we're, the point is that kind of software that we think can enhance the video capture that I thought was pretty good to start out with is available for use by the bidders. So, basically, our view is that the denying the requested exemption will not harm bidders. We also think that the standards have been sort of turned around here, and I wanted to comment on that, that what's happened is that these are all de novo proceedings and so the burden remains on the requesters to show that they would be harmed if there is no exemption and that the balance favors creating the exemption does not fall on us to say that for the past three years there was or wasn't harm caused by the fact of the exemptions previously. We think there are a ray of alternatives and that, as we've heard, a video fitting process is, in fact, something that people spend a lot of hours with and use a lot of time and effort and you're using video editing software as it is and as a consequence, using video editing software to enhance a little bit on some of the alternatives is not a significant burden in terms of the use of the alternative. I will say, if you're going to the extreme of sort of blowing up the pictures, as we saw before, there may be certain circumstances where perhaps the video capture software is not ideal. On the other hand, if you're using it, there are many purposes for which it would be a perfectly acceptable as you've demonstrated. Thank you, good afternoon. I'm Steve Metallitz, here on behalf of seven national organizations of copyright owners and creators. I appreciate the chance to comment on these proposed exemptions and I want to thank all the owners for having done an excellent job of presenting the case for these exemptions. I also want to thank the office for structuring this hearing in a way that it should be exemptions separately. I have to disagree with Professor Wright who said the problem was this isn't linked up enough with the educational exemption. Like our concerns we've expressed earlier, this is probably the boundaries between these exemptions or the links to this are totally unclear. It's just that there's a lot of regal overlap and we think these are all very different situations. The education, the documentary and the digital filmmaking, they differ in a lot of different ways. I think it makes sense, I think they should be different components to be talking to each other. I thought it was interesting that Professor Turfield was saying that it's easy to do screen capture even though she thinks the results are terrible and maybe she needs to give a tutorial to Mr. Bowles who thought it was very difficult to do screen capture, much easier to do simply. But in any case, I think each really are different cases and they differ both in terms of how viable the alternatives are and more importantly, to what extent can the proponents bear the burden of showing that the uses that they wish to make of the material that they access to circumvention is in fact non-encringing, which is the test that the office sets up. And I mean, I hear the concern about a two-tier system and professionals being held to one standard and amateurs to another. I think that's a legitimate concern and one that should be addressed in the definitions. But the fact is that we really are talking about two very different types of animals here when we interest the documentary film that we're discussing in the last panel and the vids that are discussed here. We're just for one, just to highlight one difference of the vids that I look at in the test suite, there is virtually no material that is original to the maker of the vid. The authorship there consists, if there is authorship, it consists of selection, coordination, or arrangement of material that's appropriated from someone else that's used, that's created by someone else and is used by the artist here. That doesn't mean it's not fair use, but it does mean that it's, I think, in a somewhat different category than the documentaries that we were talking about in the last panel, where the vast, I think in most cases, a lot of the material that you would see on the screen is original to the documentary. Obviously, they use a lot of clips from a lot of different sources, but I don't think there would be, there would be few of any that would approach 100%, which I think is the case of most of the vids that were cited by the proponents. Again, this is not, anyway, conclusive on fair use, but I think it stands to reason that it may affect the likelihood that the uses are, in fact, non original. Let me say two things about the existing exemption and then a couple of concerns about the proposed experience. First, Bruce already mentioned this issue that we're sometimes calling the DMCA issue, which is kind of confusing. We're really talking about the interplay between section 1201 and section 512 of the Copyright Act, both of which were part of the additional letting of Copyright Act. And I heard the previous witnesses saying that now, with this exemption exists on 1201, their clients are feel free to fight a takedown. They can take a chance to defend their work as fair use. And to me, this is just a non sequitur as Bruce pointed out, you can't send somebody to takedown notice under section 512 regarding an alleged violation of section 1201. And it's only about infringement, only about infringement of Copyright. And your counter notification isn't about 1201, it's only to say that mistake or you believe your material is misidentified, mistake or misidentification has occurred. So counter notifications are very rare. If you look in the overall scheme of, I don't know what the figures are now, what we looked at it several years ago, it was thousands of a percent, perhaps of all notices which is a state-of-the-art counter notification. I suspect that's probably true before or after this exemption. I don't think there's any evidence that it's changed. And then once counter notifications are made, the only option that the Copyright owner has under section 512, all they can do is if they don't like counter notification, they can file a lawsuit and file it within a certain time limit or else the material is automatically reinstated by the service provider. I don't think we've had any, I don't think that, I don't think there's any evidence that this exemption has affected that one way or another, it just doesn't seem credible that Copyright owners think that use is not a fair use somehow only if there's the add-on of section 1201 would they then bring a claim against the view as an improper counter notification and claims it was infringement and that it was not fair use. So I, there's a lot of talk about what message the different exemptions send. This message is pretty garbled in my view. I don't like anything to do with a notice to take down. Second point about the existing exemption is that it talks about reasonable grounds or believing that circumvention is necessary. And I think the thrust of what Professor Tushnick talked about and others is that in the approaches taken by the beneficiaries of this exemption, that's just a totally irrelevant question. They're not, they don't know what circumvention is. They don't know what circumvention isn't. It's just not a factor in there determining how they're going to proceed. They're after the best quality material. They're going to use a circumvention tool if that gives them the best quality material. So it seems to me that this is a kind of a meaningless limitation, appears to be a limitation that actually has no practical effect. I think based on the worldview that I think has been well presented by the advocates for the, by the proponents here. So I think I would encourage the office to take that into account. Let me just mention three concerns about the proposed expanded exemption. First, the move to primarily, so this would cover primarily non-commercial videos rather than non-commercial videos. And that's clearly expressed in the EFF submission as meaning any video that does more than propose a commercial transaction. So we're way, way beyond the kinds of examples that are shown in the test suite, for example. We're into infomercials. We're into really anything that isn't simply a commercial. And to me, again, that means we're getting very close to saying for any type of use whatsoever. The second point is that I think both of these proposed exemptions, no one, the existing exemptions speak in terms of motion pictures. Both of these exemptions speak in terms of audio-visual works. That's obviously a broader category and we had some testimony this morning about video games and turned out that no sort of invention was involved in that testimony. So again, I don't think we've seen any indication that anything other than motion pictures is related to play here. So I would very much question the expansion of this to cover audio-visual works. And finally, with regard to, I guess, 7C, when the working question are not readily available on the deed and the circumvention to take the form of packing online streaming services. I think this is an exceptionally risky approach for the office to endorse and talk about the message that would be said. The message that would be said to the producers of much of this content. As you heard in Los Angeles, at Los Angeles they are constantly seeking new channels and new methods for disseminating this material to as broad as the audience is possible. A lot of that has to do with the online, but sometimes in these charter groups it's digital, that's obviously a misnomer, it's a DVD, it's digital also. The online means of streaming as well as downloading, this is a critical part of the future means by which the public will access these works. And to say that even if it's a streaming only service, you can then hack that in order to make just about any kind of video other than a commercial and even take your chances as far as the fair use is concerned. I think that sends very much the wrong message that we heard from the studios in Los Angeles that this is really an essential for the expansion of the online distribution news that they are increasingly using. So I think the office needs to be extremely cautious about that and really, again, as we come back to where Bruce started to insist that the proponents bear their burden of showing that they can't make the non, that the views that they wanna make is in that non infringement that they just can't make it without being able to do an engage in that type of circumvention. So I thank you for your patience. I know I've gone over some issues that were raised earlier in the day as well, but I... Okay, first, are you any of the people on the, sorry, she was here with me. Yeah, I heard you, there's some time. Why don't I just start by responding? I think you're going to go ahead and... Anyone else who has anything? And again, when we're talking about response directly in response to what was said, this is not an excuse to start talking about something else. Understood, thank you. Okay, let's see. Let me start with the concerns about, I'll say market harm, which I realize is important a little bit from an understanding, but let's just talk about a potential harm that an exemption might cause. First, with respect to DVDs, I think that Bruce concedes that there may be some losses in DVD revenue, but they can't attribute them to the exemptions and I think they probably have a lot more to do with the rise of alternative services. And also, I can submit some supplemental materials, but the MPAA has been touting its record profits in movies for years now. So I'm a little surprised to hear that the sky might be falling, particularly with respect to... And the notion that bidding community might be contributing to that is fundamentally wrong because one thing we know for sure is bidders are fans. They will buy every version of Twilight or Buffy or whatever, pick your show, pick your movie that's available, extra features and so on. These are people who buy DVDs. These aren't people who occur to others not to. And with respect to the streaming services, I realize that these are emerging services, although I would say they're pretty well entrenched at this point and growing rapidly. And I don't wanna repeat what I said in LA, but I would encourage the committee to treat this a little bit like a court. Let's look at circumstantial evidence. 12 years ago, we had DVDs and CSS, and we heard that if an exemption were applied, DVDs would never take hold. And so we waited, DVDs flourished, even though there was also a record that the CSS had been long since hacked. And that didn't cause the end of DVDs and it didn't ruin the emergence of DVDs as a viable business model. All it did was make it harder for legitimate fair users to rip from DVDs. And I think it was really important that we finally came to the conclusion that that was not appropriate. I would encourage the copyright office not to wait another 10 years with respect to these new services where again, we know that there are already tools available to rip from these services and manipulate the video from these services. With respect to the, I think I need to clarify the 1201 512 content ID interplay. There's no one who's claiming that you can send a takedown notice based on 1201. That's not what the takedown notice does. What we are seeing is that when people get a takedown based on their video, they, if they consult a lawyer, their lawyer is gonna look at the video and say, slam dunk their use. Absolutely no problem, but how did you make it? And depending on the answer to that question, the lawyer has to say very different things to that person about whether they wanna fight back or not and what the legal risks of fighting back or not are. That's what we're talking about here. We're not talking about 1201 takedowns. We're talking about standard takedowns under 512 or effective takedowns under the content ID system. If something's posted on YouTube, things just get taken down and you have to decide whether you're gonna dispute that. Again, if you talk to a lawyer, and it's probably the first time you are talking to a lawyer or you're talking to the good people at OTW, they're gonna have to have the same conversation. So that's what we're talking about. And I think that we've heard testimony from the witnesses who have explained that thanks to the exemption that was granted in 2010, they can now give really different advice. And that's a really wonderful thing. So that is what we're talking about. Now, adverse effect. I'm not quite sure how I'm supposed to show adverse effect with respect to the exemption that's already in place because the exemption's in place. So I think rather pointing out that we're able to do this positive thing and that actually is occurring, which means that people are consulting and there's enough phenomenon happening, I think it's a better way of showing that. But with respect to 7C, what we have is a situation where we have a lot of people who are incurring legal risk or likely to incur legal risk and they likely don't even know it. And if that's not an adverse effect, I don't know what it is. Let's see, I don't want to hit every single thing. With respect to whether these videos are not infringing or not. So what we're hearing is that, well, remixing doesn't involve original material so therefore maybe it's not fair use, which I think there's no court in the United States who's going to agree with that proposition. And I would urge you once again, as I did in LA, look at the videos that we submitted in the record, look at which there are many. Look at the videos of the test week. And I know that you guys do this last time and I imagine it takes a lot of time and I'm sorry for that. But if you look at them, you will see. These are all fair uses and there are lots of value. Okay, so, and I think again it is telling that none of those examples have been picked apart by the opponents of this exemption. Seems to be that if they could do that, they certainly would, I would if I were them. And then I'm able to. And it's not just that they're not infringing. I want to point out, this is something that the register found last time and I really want to stress it. They're not just not infringing, they're really socially beneficial. Okay, these are people who are participating and sparking further cultural conversation. That's important, that's valuable. That is core, that sort of reflects our core first amendment values. We are supporting socially beneficial fair uses. That strikes me as crucial. Last thing, I'm sure there's more of that. I'm sure you don't want to hear any more from me. The question of whether the reasonable grounds for believing language has any meaning or not. I think there's no question that remakes artists want the best quality available. You ask them, would you like the best quality, the highest quality you can get? They will say, well of course I would like the highest quality, no, I don't want crappy video. I'm an artist, I'm trying to do good work. But that's not the end of the story. They have to believe it, but they also have to have reasonable grounds to believe it. And that means if you ever go to a court, we ever fight about this. They're gonna have to show that they had a reasonable grounds for that belief. So it's not a silly limit. It's not an irrelevant limit. It's a limit that sets up, should a fight ever need to happen, an actual objective limit on the exception. So I will stop there and let the other folks talk about quality and other questions. Okay, anyone else on this side have anything directly to respond to? Four quick things. So I hear the puns saying that bitter should be making different art without cropping and without effects because it does look really terrible that way. That's not really what we as lawyers should be doing. It's not the role of a fair use determination to say make different art. It's to look at the art we have. Also, I think there's a little bit of a story not being straight on whether DVDs are in decline or going strong. And of course, more importantly, there's still no length between short clips made for remit purposes and full copy, which is a keenly understandable dividing line that bidders are fully internalized. Third, your ability to see shouldn't depend on your ability to navigate technical hurdles unrelated to the content of your expression, which is for the extra hours, I guess you're supposed to put in fixing up the unfixable footage. And it also shouldn't depend on your position as one of the one third of Americans who can afford smartphones. And of course, I should say, smartphone footage is no better for all these other things, right? They drop frames, right? Kids don't have a frame rate, so you can take smartphone video of your kids and it will look fine. But if you take, you know, the frame rate will differ if you hold it up to a screen. So all the things we've been saying about screen capture are completely true of smartphone footage. Finally, just a point. Mr. Turnbull's quote from the fan video site about your awesome options if you're Mac and PC, those options are Handbrake and Mac the Ripper. That is, that video site is talking about how circumvention. Just add a couple of things. One, Mr. Metallitz seemed unsure as to whether vids are authored. And all I can say is that the nature of remixed video is exactly what he said. We don't shoot things ourselves. We take existing sourcing, we mix it. Hence, we, the second, I would simply echo what Professor Tushman said, the fact that smartphones are available does not mean that they're affordable or usable, I live in Minnesota, which is one of the big states in the middle in a very rural area and cell phone service is not always as reliable as one would like. The other thing about effect, I mean again, if you look at the vids in the test suite, you will see that the kind of extreme cropping or zooming that one of my examples was intended to illustrate is in a lot of cases, the norm, not necessarily that effect in particular, although yes, we've done a lot, but other kinds of effects as well. So changing speed, right? Altering color. Imagine putting a filter or changing the color of a clip with that kind of blocky pixelation, right? So the image is already looking a little peculiar. If all the blocks of color change in sort of unpredictable ways when we change the color, you know, so if you imagine layering a color effect on top of a zoom effect, on top of a speed effect, on top of, you know, so effects are not a choose one and choose one only. They're often used in conjunction with each other. And I confess that I did not take the time because it is very time consuming to show an example of a clip that has, you know, 10 or 12 different effects. But if you look at the test suite videos, you will see a number of fids that do have that kind of layering of effect. And if those are not immediately obvious, which I understand that they might not be to someone who's not familiar with the original source, but that is the kind of thing that we are happy to provide a sort of walkthrough of. If you want, you know, a sort of rundown of here are the effects that are used at particular moments and then we can contact the bidders and provide that sort of, here's what you're actually seeing when you see this bid. That you may not be aware of because the whole point is that they're seamless, right? Those effects can be made invisible if the quality of the source is good enough. You can think, well, didn't it just always look like that? No, it didn't always look like that. But because, you know, someone who's able to rip the source, you can produce extremely sophisticated combinations of effects. Okay, I have a couple of questions before I turn over Steve. First of all, I'm not sure I've heard you two clearly and maybe just a time of day and a long day, but I didn't get a sense that you're, well, I'm not going to characterize my group. Let me start by just asking a question. The two of you looked at at least some of the examples that the proponents have given of various bids that they say are very useful. Yes, I looked at some of the bids in the test. Okay, Bruce, I'm going to use this. No. Okay. Bruce, you're welcome to pitch in and I encourage you to because I want to hear your point of view, but to expect you Steve, I'm not sure I heard clearly from you whether you think most some or all of those new constitute fair use or do not. I didn't look at them very much with that in mind. So I want to look at it more thoroughly to before giving you any opinion. I'm happy to say that many of the bids that are talking about here probably are fair use. I don't talk about some of the specific ones, but this exemption is extremely broad and it doesn't just cover the people who are active in the organization for transformative works and who are benefiting from the advice and counsel that the professor of judgment and the others are giving. And especially if it's expanded as proposed here, I just don't think that you can make the, I'm indulging the assumption that this use is in fact not infringing, which is the test. And I think this is an area where there is a meaningful difference between professionals and amateurs. It doesn't, to me, denigrate the amateurs at all to observe that they are probably less knowledgeable about the legal issues involved than are the professionals. So, if they're ignorant of it, then undoubtedly they're not going to be conforming their conduct as if they're less likely to be conforming their conduct of those standards. So it just seems to me that you need to draw some distinction between the two groups and perhaps treatment differently, which is not the case in their existence. And the two groups are professionals and amateurs? Well, the documentarians and the fictional filmmakers that we talked about in the last panel, I think are probably different. Okay, so let's assume we've concluded that an appreciable number of the bids that we've seen to constitute non-affringing uses. And let's assume, we'll get into this, I think, time left to us. Let's assume that we've been persuaded that there's no real way to get the quality you need to make the point of making without circumventing. They've put in a position where we seem to be enroute to an exemption, although you may say there's a lot of things we have to decide, but we seem to be going in that direction. How do we cabinet to address your concerns while still permitting the non-affringing uses that these people want to be able to make that take place? Are there ways we can narrow this that sort of takes care of those who need to do it, but doesn't allow the other kinds, circumventing other cases where it's not necessary? I don't think I have a very good answer for that. We did it three years ago, which is why we ended up where we were. Because first of all, I guess I have to question the premise, but you know, we're going through that as far as the extent to which these uses are in fact non-affringing. In the previous panel, there was a lot of discussion about various factors that could be looked at to help increase the likelihood that these would be in fact non-affringing. And I don't think that the proponents have. I'm not sure there's much in the record that you could grab onto here to narrow that. I don't know what that means that you throw up your hands and say, well, we'll just let anybody who make primarily non-commercial video take advantage of these actions. One of the things that I would call correctly, we knew that through the history of these hearings, is that the focus is supposed to be on the class of work. That's one of the reasons why I admire the way that the EFF has fashioned these two classes because they are distinguishing between types of human beings. They aren't distinguishing types of users, which isn't what the exemption's supposed to be. It's supposed to be focused on the class of work. So the limitations that are present should focus on the work. And that's why the exemption is now, they're not parallel because with the educational use, that is focused on the type of user, but the other two uses are as they are supposed to be focused on the class of work. So in crafting the limitations, because I remember from last time that the panel was asking, how can we limit this? How can we limit this as much as possible? I would ask that everything possible is done not to make categories of users, but to focus on the work itself that comes out of it. We've got two people. Bruce, you have a moving answer, you go first. We're gonna go back to that, then we'll go back to the 2003 basis for the decision. And you folks might agree with her, by the way. For a very long reason, I would quite agree because I think that leads to no exemptions at all. But I mean, I think you've taken a fork in that road six years ago. And we think you took the wrong fork in the sense that we think Congress was concerned about the class of works and did not want you to define this in terms of users and uses, but some water over the dam, on that question. But even then, the focus was not on the work that was produced, the focus of the statute is on the work as to which access controls are being circumvented. And we now have an extremely broad category. We have motion pictures, any kind of motion picture. And it's proposed that we have audio-visual works. Any kind of audio-visual work that's subject to an access control. So I think we have an extremely broad and not well-defined class of works. The only thing we have is some use and user-type limitations. So my copyright proposer hat impels me to say that, as of course you know, the statute is not crystalline on audio-visual works versus motion pictures. I think that's a bit of a tempest and a teapot and the uses we're talking about are gonna be the same either way. So getting hung up on that is probably not the best helpful. The limitations that we propose are remixed that is primarily non-commercial, that is done as speech rather than proper seeking. And by the way, that in itself is a big thumb on the fair use scale. It's one of the big factors. Non-commercial uses are favored. They receive special presumptions as per Sony. And that in itself is in its hands limitation. And of course second, being non-infringing is part of the definition of the proposed class. So to the extent we're worried about that, we believe we propose the definition that incorporates that. I think we begin, this is a field that's been well-clouded in LA and elsewhere, but just simply to define out the infringing uses and say, everybody else is fine. It simply would say, because my definition is only one. Rebecca, you'd actually don't use the word remixes in your first class. I was gonna suggest that that might be helpful. That is true. So I actually think, so I think we can define it as a new work of authorship, for example, which has a background that's quite consistent. If we want a definition, right? It's quite consistent. Selection, coordination, and arrangement are classic forms of authorship. Again, there's plenty of law on that. So if we're concerned about that, a new work of authorship seems to me a fine way, and that would also, and we would then segregate out educational uses where you might want the standalone clip, and again, that standard case that they's teaching. But I would perfectly support something. It's not a standard that was creating a new work. Is that a step in the right direction of how small it might be, or does that not help you guys at all? Well, it doesn't actually, if you could create a new work, it could be an infringing work. So it doesn't tell you whether it's... It could create a new non-infrared. Yes. Yes, yes. Yes. Corinne, did you have your hand up on the question? I did. I wanted to just call your attention to, I just came across a submit, otherwise I would have submitted it with our original proposition, but I noticed as I was looking around for definitions of non-commercial, and thinking about this primarily non-commercial point, which I understand is troubling. And I looked at how creative comments defines non-commercial, with respect to their non-commercial licensing. And they struggle with this a bit too, as you can imagine, if people wanna understand what they mean when they do a non-commercial license. And the way they define it, I think is actually kind of useful, which are uses that are not primarily intended for or directed towards commercial advantage or private monetary compensation. And I think that's really what we're trying to get at here. When we propose that, what I'm thinking about is folks that I think arguably are engaging in non-commercial uses, but we wanna remove any ambiguity. So someone like Jonathan McIntosh, who has a new project that he's launched a Kickstarter campaign for, to keep the lights on while he makes his video. He's a professional remittance, this is what he does, but he's not in it for the money, and he makes his videos available completely non-commercially, not for profit. That's the kind of use that we are trying to create a space for. Yeah, but you know, PBS is non-commercial, except that they take donations. So is that really an issue? Well, actually, I think if you're making a remix video for PBS, it might be. Well, I guess my point being, if that's the only reason, maybe it isn't, that you have primarily non-commercial, except the situation where someone might take donations to fund it, then we've got plenty of real-world situations where actors, which everyone understands to be non-commercial, take donations to fund what they do. So do you really have a problem? Well, I think both with this and with the AV works, I fear that we have introduced this language in order to actually try to clarify the exemption and sort of bring it more along with the statute and the case law. I fear that we might have muddy the waters a bit, but it certainly was the intention. And I do think that, I don't know that a court would find that a video funded by a Kickstarter campaign was commercial, I think you probably wouldn't. But this way, remix artists don't have to worry about that, they should be comfortable, that they aren't losing the exemption simply because of how they funded this work. So I'm sorry, so here's who we're concerned about. We're concerned about, say, somebody like Joe Savia who is commissioned to do the court for core political speech, but he got paid, right? So we wanna make clear that since the result is this freely distributed piece of cultural expression. So maybe we wanna focus on the output. I think we could easily do that. We just wanna make clear that he's with him. Why isn't what he did a documentary film? So one could define a documentary as anything that has a video component that is integrated and that is factual and has a video component. But if you look at primetime terror and if you look at some of the other examples like in the cut that we talk about, which is this online journal where they show a clip and do a shot by shot analysis in text, they're really multi-media works. Now if you wanna go ahead and perhaps the multi-media exemption that covers this, I would also say that would be awesome too. But in some sense we're sort of pushing the definitional questions around and I agree they ought to be answered and there are a variety of ways one could answer them. If you want an expansive definition of documentary, that could deal with it absolutely. Or primarily non-commercial and say what we mean is, people who produce stuff that is disseminated for free, even if they're ad supported or commissioned. Even if they're ad supported? So everything that's on broadcast television is non-commercial? So here's the thing, you said this in the brief to the Supreme Court in the video games case and you're totally right. So that movies are non-commercial speech. They're entirely protected by the First Amendment. Now that's why we put in primarily non-commercial. Because we do want to have some flexibility to recognize, right? There might be places where at some point the court's gonna call it commercial. But we wanna talk about those instances like in the cut, right? By the way, it has advertising from variety in the major Hollywood studios because that's where their audience is. And Joe Savia are covered by this because they're doing exactly the kind of work that we want people to do in terms of engaging in critical commentary. I think maybe the muddying of the water that has occurred here is commercial speech obviously has a definition in First Amendment terms and then we also have a body of law about commercial works in an obviously relevant tool and not determinative of unfair use and so forth. But those standards are different. We would certainly agree that for purposes of First Amendment protections, Hollywood films are non-commercial speech. But it's also clear that if you are using something in a Hollywood film, you're probably not going to do too well with the argument that it's a non-commercial use Okay, let's move on to another topic. Put yourselves in our shoes and we'll note it to that. I wouldn't ask that. We're confronted here with a couple of examples that seem to point us in two very different directions and maybe you can help us out in figuring out how to reconcile them. We've got the example you showed on May 11 of the screen capture software and how it replicated something in what you characterize as being very, very good quality for just not anyone's purposes. We've got what you did Tisha today and showed which I think everyone in the room could see the pixelation. So I guess for you I'd say do you accept that at least in the case where Tisha was using the software that it didn't do the job or is it just that she didn't know how to use it. In your case, do you accept that in the one case where they actually showed an example on May 11, it was perfectly fine for any conceivable purpose one would have in that particular case? Let's start with that, just to get a baseline and see if people aren't gonna agree on anything or at least in some cases it works in some cases it doesn't. Bruce? Yeah, I'd say that I wouldn't defend the image that was presented here as being acceptable for the use that they were putting it down. So for that in that particular case, the screen capture software was not usable for the purpose. I do think that that doesn't mean it's not usable in a variety, I think it is usable in a variety of other instances including when we showed on May 11 including what we showed today, the example that we showed today. But not good to defend the image that we saw. Okay, so before we get to you folks then, what do we do with that? I mean, one might have walked out on May 11 and said, okay, problem solved, we don't need an exemption screen capture software does the job. I just heard an acknowledgement that it doesn't always do the job. So there are cases where it doesn't do the job. We just say, well, too bad about those cases we're not gonna have an exemption or do we narrow the class, deal with that? How do we do? I did two things, one is that I, I mean on my previous statement I wasn't gonna defend the image that we saw. Whether the software was used to its greatest effect or not, I mean we don't know. I mean there are ways to adjust it and that sort of thing, so I don't know. I think at a minimum we would say that where it is usable, useful for the purpose, it ought to be used as opposed to purpose. And if in a suite of alternatives you sort of line up the various alternatives and you say, okay, among the alternatives there should be something there that would be useful for the vast majority or a large majority of cases. The fact that a handful of cases, a small number of cases might fall out would not be the basis for an exemption. Realize if you throw, but then you're filling up with what at the end of the day is a rather mushy standard. It's gonna sort of be an eye on the holder situation. Well, I said two minutes. And the second one, let me make sure you got the second one, which was that if you look at the range of alternatives that we put on the table here and other contexts and say, well, okay, there are a number of alternatives for some reasonable percentage of the cases of the use. Those would be acceptable. Then the fact that a handful of cases they might not be acceptable would not form the basis for an exemption. That's a good point. Even if you get and say, well, there are enough cases that are outside that form the basis for, we think necessarily there should be an exception because of the cases that don't fit any of the alternatives. But I do think that while it's a mushy standard, I would encourage you to put in, because I think it's something that says you need to look to the alternatives as your first resort and circumvention only if it's necessary. Okay, so, okay, we got at least two hands over here. So three hands, four hands. Okay, whoever wants to talk first, talk first. I'll just say one sentence. That sounds like we need to reasonably believe that the circumvention is necessary. That occurred to me. Okay, that's it, I'm done. I'll let Tisha talk because she's there for us. So I'm thinking out loud here and I will turn it up to Ramble. I'm thinking about the two examples that we had before. So the Gattaca example from A11 and the scene that I captured and ripped. I guess what I would say about the Gattaca example is that I would not capture it in the first place because it was an incredibly boring scene. And so as a remix artist, that is not the kind of thing I'm looking for. Now, I don't want to say that no one would. I mean, maybe there's someone who wants to make an incredibly visually boring thing. That person is not me and so perhaps I am not the best person to speak to that. Thinking about the Star Trek example, I guess part of my concern is that you can't know going in what the screen capture is gonna do. You do know going in what DVD work is gonna do, which is that it is going to give you exactly what was on the DVD. You're going to have all the frames. You're going to have all the visual information that you can possibly have. And also all the audio information but I don't deal with the audio so I cannot speak to that. If I had taken that 10 minute scene and I had wanted some clips from that to make a bit, I would have to capture the entire thing and then scrum through it. And perhaps one of those two usable moments would be something that I wanted to use in a bit. And perhaps there were three other moments that turned out to be unusable. And so having captured that scene, I would then have to go back and rip that chapter of the DVD to get the stuff that I had decided could not reasonably be used for my purposes. And perhaps legally there's a super reason for doing that. I don't know, but practically it seems I'm looking for a synonym, a more diplomatic synonym for stupid and I'm not finding one. It just seems really counterintuitive to me that I would have to capture it, scrum through it frame by frame, and then rip it. So I just got to say, again, an artist is being asked here to master a skill orthogonal to her art despite her testimony that it won't work her. And we're told she must have been doing it wrong despite the fact that she spent more time with video editing than the rest of us at these tables put together. And this fits into a message that unfortunately women and minority artists often get. Your concerns don't matter, your priorities don't count. And I just think that's not, if we hold out for the hypothetical screen capture that works and we'll just hope it works on the next DVD because it turns out, sometimes it works, sometimes it doesn't. Each one of those that doesn't get made because it doesn't work is a loss, right? Each black screen is a piece of speech that didn't happen because these are new works. And so it's not as if we make it up on the back swing, right? You were starting to- I just wanted to point out that to the extent to which we're focused on transformative works and we're looking at video as the building block for other works, we're looking at footage that the first capture or rip is really the starting point of an artistic process, right? And so they need a higher quality to remember that you're making something out of it. You're gonna bend it and stretch it. And that that is overwhelmingly consistent in a group of non-commercial videos that we're talking about that these are things that you don't accidentally make a remix video, it's an active artistic process of doing something and making something out of a thing. And so consequently, the group of videos that we're talking about are very likely that you need the high quality because you're about to kind of bang on them with tools in a way that may not be the case with other. And you can speak more to this, but it is part of what, it's a transformative work. I mean, the OTW is for transformative works. I mean, the works that people have made things with. The other thing I would say is that that is only becoming more true. I mean, 10 years ago when I started knitting, there was a limit, there was more of a limit to the number of effects that you could practically put on a piece of footage because at some point, your computer would start to choke, right? This was when we had like a 20 gig hard drive was riches unimaginable. And a gig of RAM, just how could it be? It was the promised land, right? And so as computers have gotten more powerful, I mean, iMovie can do things now that my computer, the programs that I was using when I first started could barely handle. And so especially when you think about the younger users, people who are not using the kind of equipment that I'm using, you know, they're using whatever came standard with the laptop that their parents got them for their 16th birthday or whatever, they really want to use a lot of these effects and more and more of those effects are coming standard on the sort of entry level software that comes packaged with new computers. And so we see more and more people who it's just their default to make things glow, to adjust the color, to fool around with the contrast, to stylize the footage in various ways. I am kind of old school. I mean, I don't do merely as much of that as some of the younger people for whom that is sort of the standard to fool around with the footage in that way. I mean, I do quite a bit of it but I would certainly not describe myself as one of the most advanced users of those kinds of effects and often those advanced users are some of our youngest users, interestingly. Yeah, and most talented. I mean, I wish I could do that but they're not going to grow up and be like professors. They're going to film school, I mean they are. The young generation of women who can do these sorts of things that, you know, we're working to keep up, they do go to film school. They've been through high school and then they go to film school and they go to arts programs, which is wonderful. The room is slightly jealous. Yeah, a little. Can I offer two comments on this for first? I don't think that what we've been talking about is the same thing as having a reasonable belief that you have a certain event. Because I mean, how in a court, let's assume you never get in a court. How in a court resolve that? They would say, what would the reasonable bidder do? We're just hearing that every bidder would do the same thing they would grip. So it just would never occur. What you're talking about is a little different. It's saying what you need to make sure of there. Yeah, you're only eligible. I mean, I would say user-defined and use-defined aspect of this. But if you have to try using capture first and see if it's suitable for your needs. So that might be one way to approach it. The other point I just want to make is, you know, if you talk about what your authorship is, is taking all the most interesting parts of a motion picture and remixing it. We have case law on taking the most interesting parts of a motion picture. We have it in the trailer situation. We're presuming the idea is to get the parts that get people's attention the most, as video pipeline case, and that wasn't fair use. I don't think that's how much they characterize what they do as taking the most interesting parts. Well, I just heard Professor Turk saying, the most visually boring parts, he would never use the shot that Tim Short used in his classroom. If he was not trying to make a remixing, he was trying to do something different. He would only use the most visually interesting parts. Again, I just don't think that this is conclusively fair use, or even necessarily in fact, non-engringing, which is your standard, and if you look at the way this is played out in other contexts, when you take the most interesting parts and condense them, that's not, sometimes that's not fair use. I just want to point you to our discussion of D&D at KISS's Der Commissar, which we've seen ultimate readings of in our materials. The VITR provides an explanation for community understood, what you're trying to do. The fact that, not everybody gets all pieces of art, that's not what work is about, but if people are perceiving separate messages, which is not the case in the video pipeline case, then that's transformative. And we invite you to look at Der Commissar in fact, even though we didn't submit it, or it depends on what you pay, which we did submit. And see, it's not a trailer. Rebecca, would you have any objection to reinserving the cultural criticism requirement? What our community does, I don't think it makes, I think non-engringing is probably better since there's a body of case law about it, but I don't think it's inherently objectionable. I have a couple of questions for you. Do you have any evidence of people actually leaving low quality videos and hitting the back button? That was something that you mentioned, but is there any evidence of people actually turning away from material that is produced in a way that produces lower quality? Is using lower quality original material? Sure, I mean, so I will say that my examples are several years old, so they are not perhaps the most recent examples. I've been busy doing things like getting tenure, so I have not been spending as much time with the community as I would like, but on a couple of vidder discussion lists or bidding discussion lists and live journal communities, there have been examples of someone recommending a particular vid and other people saying, I found that unwatchable, right? You know, I clicked through to it and it just looks terrible and I looked away, so I don't think that every single person, I mean, people have different standards, right? And I think it's possible that a particular person might find a vid interesting enough that they would watch it despite low quality. I would never want to say that no one would ever look at something pixelated. I don't know that, I can't control that. But there are instances, yes, where people look at the quality of something and say, one of the things that you have to remember is that there are thousands and thousands and thousands of vids. If you have a favorite character or favorite TV show, I guarantee you there are vids for it and so if someone sees a low quality vid, why should they lose that three minutes of their life when they can go find a shiny one somewhere? I was just, I'm very specific, I think you answered that. The comments seem to be the closest thing in terms of evidence of people actually turning away. Is that accurate or not? We also, in our submission, we actually do have some quotes about that. Similar type of comments, not a statistic of some sort of view of people turning away from each other. Most research in the community is qualitative for a variety of reasons, including the difficulty of doing what is basically internet-based research. So essentially any research is gonna be qualitative, I mean, other than Michael Wesh's, who just has raw numbers. Can I add also that there's a practice in the community of video remastering where fans will go, and for instance, as I said, there were vids made with VHS footage which looks really terrible now. But people love these vids so much but find them so unwatchable that later fans will take later DVDs and remaster matching shot for shot so that the bid now becomes watchable to a community that can't tolerate the older, uglier footage. And so sometimes it's the bidder themselves who will remaster their own work. It's that I did a great bid and I'm gonna redo here the 2010 with the shinier, clean footage where sometimes fans will remaster another fan's work as a tribute because they love this piece of work so much and they want it to look good. Is that their use of the word? I think so. It's taken in our community as a gift and as a critical, as a celebration of the thing, right? And usually, but yeah, I mean, I think that shows you that people are willing to actually put in work. It's seen as a labor. I mean, you don't claim it as your own. You say this is so-and-so's bid done with clean, beautiful footage. Back to Ms. Ture. Talked about moving to lossy format as a last step. Is that possible in what you're doing in making a bid? Can you just put that only moving to the lossy format as a last step so you don't lose any of the steps? Yeah, I mean, that's the ideal, right? So if I rip a DVD and so I do the necessary pre-processing and I load that into, which does involve some loss of quality. I mean, like the stretching or squishing, something that was encoded anamorphically involves losing some data, but that's a necessary trade-off, right? I can either lose a little bit of visual data and have people that don't look like people. You know, or have people that look right or the other way around. I'm sorry, it's the end of the day. I apologize. I think that's what I'm saying. Then I do all the editing, which the point of that kind of nonlinear editing is that it doesn't change the original files, right? So I have the original clips from the DVD that are on my hard drive. And whatever I do to them in Premiere does not change those original files. I'm manipulating sort of phantom versions of them. So what I'm getting is if the intermediate steps using that original material don't degrade that, is this consangely set for if you acquired the original material through screen capture or smartphone capture? At that point, are those, is the editing also lost? What's the difference? Why would steps in editing the rigged material, not lose data, but editing with the captured material lose data? It loses quality on export. So as soon as I have taken... But only the screen capture app? No, they both do. But if you remember the, okay, so the example that I showed where I had taken the pixelated captured version and the not pixelated rigged version. The difference between, then when I zoomed in, cropped and zoomed in, the difference between the capped and the ripped footage when you do the crop in the zoom, the difference between the frames was much more exaggerated for the captured footage than for the ripped footage. Because if you're starting from lower quality, then the hill that you're rolling down is much steeper. Does that make sense? It makes sense, and I thought I was hearing that each step involved necessarily had degradation, just each step, no matter what you were doing with the editing, I'm not clear if that's only the case for one format. I understand when you're actually the capture of a larger screen, and then you're only seeking one the upper right-hand corner and you're backing out the, yes, the son on the screen, perfect slate. It was whether each, any kind of editing step also degrades the shot. Taking away the notion of just taking a portion of the screen. Right. What it effect does is it manipulates a particular, it manipulates every pixel in the frame, right? It makes it lighter or it makes it darker or it changes its color or whatever. And when your clip has a lot of visual information to begin with, then each of those pixels gets manipulated individually and the result is pretty seamless. When you're starting with source that has quality problems, you can't do that as well because you're missing frames, because pixels have gone from being individual pixels to being blocks, and so weird things can happen. I mean, you start to get really unpredictable results when you do things like try to blur something or change the color of something or do any of the other effects that you might do. You know, change the speed or whatever. So what you get then when you do the final export may look quite dramatically different. And here again, I have to admit that I did not actually try to lid with the screen cap footage. I mean, I sort of recoiled from it as from a poisonous snake and did not want to even go there. But you just get potentially really different results. Because again, you've lost visual, you've lost information in the form of those pixels that you cannot get back. One of the examples, in fact, they have been social studies teacher, I believe, when he screen captured originally, he only wanted the upper right-hand screen, so we have an example. And that's what he screen captured. So therefore, there wasn't the need to just then take that portion. So you're getting that as original source, or screen capturing the original source of just what you're needing. I think the same might be able to be done with regard to speed manipulation, where you're manipulating the speed at the outset of the playing of the original source material. And I realize, as you just said, you probably didn't, you recoiled from the screen capture, but at our best. Do you have any reaction as to whether that's possible and would be sufficient? So the thing about capturing just a piece of the frame is that then, if I'm gonna use that in the context of a larger video, either I have to resize it, I have to blow it up, or else I have lots of shots that are filling the entire frame, and then suddenly I have a little piece up here. So sure, you can capture just this piece, and your frame is like this, and you capture just this piece, but then make it this size again, you have to resize it. And that's exact, and you saw what happened with my example when I cropped something, and then resized it. I thought it was your example, I agree, and I understand, I'm just getting to alternatives, we're talking about alternatives, and using this screen capture, trying to take into account, talk about advances, 10 years ago, computing power, I think we're trying to take into account the potential for advances in other technology that might limit the areas in which an exemption is necessary. But resizing the capture window doesn't change the number of pixels it takes in. So you could make it smaller, but you could never make it better. No, but I think the point was that if you originally take only the upper corner of the picture, you will be getting a higher percentage of the pixels from that upper corner of the picture than if you take the entire screen. That's the point, so you would be starting with a better original. The problem is that that's not actually true. I mean, the number of pixels is the number of pixels. You can't just sort of say, I wish this were more, I mean, if I could say, I wish there were more pixels. Believe me, I would, but that's just, I mean, if you could, but your point was that the screen capture, I'm not, I can't believe it, I'm not an expert on this, but I'm trying to replay in my mind logically what you've said. And my point is that if you are capturing an entire image, it has however many pixels, you know. And you're going to lose some percentage of those. So you're losing some of those, but if you're taking a, or you're only gonna capture a certain number of them, if you're taking only a smaller portion, then it seems to me you're going to get a better image of that smaller portion than you would of the whole. No, you're not, because it is the number of pixels that it is. I mean, so if the original frame, as it would be on a ripped DVD, is 720 by 480, that is 720 by 480 is the number of pixels. If you capture over here, you're gonna get something like, say, 350 by 200. And so you can either make a video that is 350 by 200 pixels, or you can resize it to be 720 by 480. And so you have stretched the pixels out. So something that was one pixel is now gonna be a block of, say, nine or 16 or some other square of, of pixels. And that's what pixelation is. That is a speed issue, is you're often speeding up clips in order to make them in sync with other clips. So you wouldn't necessarily know at what speed you would need to speed, I mean, I just kind of following your example. You see what I'm saying? If you play the original faster, you often don't know what you're matching to, because the idea of the remix is it's, it's like trying to get one piece of the cake without the rest of the cake. It's back to the, you need all the letters. You need the letters first. You just decide. I will speed that. You might be trying to match five movies and you want a character of the Columns girl revolution and there's five shots in a row where a woman is running left to right across the screen and actually it's five different women, but they're matched up so that you have an effect of one woman running across the screen. How would you know how woman number three? How fast does a woman number three need to go? I mean, if you see what I'm saying, so what the video editor is going to do is have the five women run in such a way as the effect is one woman running across the screen, but you couldn't do that in advance. Like no, nobody would do that. Because here is the other thing that I would say because I appreciate the sort of attempt to look ahead and anticipate what uncharted wonders are going to be dealing with. We had three years ago demonstrations of screen capture technology. I would say that the improvements in screen capture technology have rather decidedly not kept pace with other kinds of improvements. So screen capture was bad three years ago. It may be marginally less bad now, but I guess I personally haven't seen, and I will freely admit I'm not an expert on screen capture software. I have not seen enough of an upswing to suggest that we are headed towards some magical promised land where in screen capture is fabulous for things other than what it is designed for. Screen capture software is great for what it's designed to do, but capturing video is not what it is meant for. I think it's a little bit unfair to ask that of it to the elements. Thank you. I have one more question for Kory and that is, tell me why shouldn't any limitation, any exemption for online distribution, why shouldn't there be limits specifically cited to TPMs? I'm sorry. Why should any exemption for online distributed content be limited to the exemption of circumvention methods that are cited to in the record? There are only handful that are specifically cited yet the requested exemption is for as broadly stated. Fair question. We bring you to the examples that we could gather based on our research. A lot of the access controls are proprietary. We don't know the details of how they work. So we've provided the examples that were readily available to us. And I think if we're looking at something that's going forward for the next three years, the technology is going to change, it may change quite rapidly. So if we want an exemption that actually really does protect non-infringing uses, we need one that's flexible enough to take advantage of those examples in technology. I guess it shouldn't just be directed to friends. Does anyone else have anything to add on why that, why we shouldn't limit it to just the items that are mentioned in the record? It's the same thing. We actually don't know. Like we have some guesses. There's some public reporting about what Unbox uses, right? But a lot of that is trade secret. So if you're asking us to identify what the DRM is, we don't know, and probably couldn't find out with that extensive discovery, which I don't think anyone wants us to take. Well, yeah, actually they want to share. Amplify the record. Why? No, but I realized the other thing that I would just reiterate that was Bob last time and it's certainly true in LA is that with respect to cell phone unlocking, there's different modes of unlocking your cell phone and that wasn't considered a really serious problem. And I think that here it's the same kind of thing. You need to give people a flexibility so that this exemption is actually stable for three years or works for three years until we can all come back again. I think if I could just, and I think the consequence of that is that you would be saying to content owners, no matter what technological protection measure you use, it is, in order to distribute your material online, it can be hacked with this exemption. But it doesn't matter what you do, it doesn't matter whether you use a different one or the same one that you're using. Again, I think you might want to test it. Three words, like screen capture. Sorry? Like screen capture, no matter what you use, you can, everyone has apparently, you can see this now, except it did not entirely do it. But you can see that some things are legal. So, we have to explain what the criteria are that make it legal. So, although just to clarify that, neither of these exemptions address Blu-ray or AACS. That is true, we have, this does not ask Mark that. One more question. In a sense, you're a version of what question I asked Tiber, you're on. I haven't read every fair use case, but I probably read both of them. I can't think of a single one in which a court has actually held that someone who simply took a bunch of pre-existing material and rearranged it was engaging in a fair use. Are we on totally unplowed turf here or are there cases, is there a case law on that front? So, well, the most obvious one of course is are the Google cases. So, they are not the same because what's created there is actually a new reference work. And of course, there's underlying code that is created, much like there's an underlying structure and selection coordination and arrangement. But part of this is, this is a form of art that felt like it had to be underground for a long time. And you did have some examples. There's actually somewhat famous for the art room thing about Wonder Woman from the 70s, where an artist actually did this with Wonder Woman, clips from Wonder Woman. But part of this is, we've seen courts find transformation where artists like Jeff Koons are engaging in transformative recontextualization. So, we've seen the large-scale database uses, which again, are repurposing works. And we're actually ready to do this. The problem is that without an exemption, we have to tell a client, no, there's a, or here's the risk. The risk is, if you counter-notify, there's a slam dunk 12-1 case against you. Why would a copyright owner ever litigate the fair use under those circumstances? So, that's actually, if we want the evolution of fair use to continue, especially in non-commercial uses, where there's a lot of value there, we need an exemption. If you want the evolution of fair use to continue, right? Absolutely, I don't think so. The herring has gotten redder and redder. I think the advice, I mean, I've advised clients of this situation. So, if I'm confident it's a fair use, and then you get to the question of how did you make the work? You would tell someone, no one has ever been sued for a violation of 12-0-1-a-1, certainly not without a claim of the infringement. So, if the copyright owner thing is not persuaded by your counter-notification and decides they wanna pursue it, yeah, they may well throw in a 12-0-1-a-1 claim as well. By that logic, we shouldn't issue any exemptions then. Well, the idea that somehow this has changed the dynamic of the notice of takedown process, it really, I think this has crossed the line from a nice to agenda to be perfectly one about it, and I think the copyright owners have very little incentive to bring a standalone 12-0-1-a-1 case when they don't think there's an infringement matter, and that's why there haven't been any. So, okay, so you've described the complaints, and I actually agree. The problem is the summary judgment motion, right? So, let's have summary judgment on whether this is a fair use of the 12-0-1 violation. Well, the 12-0-1, on the 12-0-1 violation, summary judgment for the plaintiff, right? Because without an exemption, you violated the law. So, it is absolutely true. I agree that it is unlikely for the average copyright owner to bring a standalone claim. The problem is they don't have to. Just two things. One is, I would also submit that Steve's clients are probably not the same kind of people as the remix artists that we're talking to, by which I mean that they are not in the same position to take on legal risk, I suspect, as the remix artists that we're talking about. And secondly, I want to circle back to the point of, has there been a fair use case, specifically on point? And if there's not, where does that leave us? And I think we had this fight last time, and I think it came out the right way, which is that can't be the rule. Because then, one thing, Fair Use Case Law doesn't evolve, but also it sort of suggests that you guys aren't able to make fair use evaluations, which of course, you're perfectly capable and more capable than many of making fair use evaluations and making evaluations as to whether a group of works and uses are likely to be fair uses. You don't need to wait for the Supreme Court to tell you that this use is specifically fair use. This is probably not an issue you want to inaugurate at 5.45 p.m., but I think our view is that you should be guided by what the case law is, and you should be extremely cautious about issuing pronouncements about Fair Use X Cathedral. And I think you asked a very good question, and it just, I mean, as I said an hour or so ago, the fact that these works do not contain one iota of the original majority. They do contain, or they may contain, selection coordination arrangement of other people's material, material created by other people. But I think that is a factor to take into account. It distinguishes them from your previous panel, and it doesn't mean that they're never fair use. I would never say that, but I think it's a factor that you should take into account in applying the standard that Congress wants you to apply, which is, are these uses in that kind? I'm sorry, I can't really resist. I'm not a lawyer here, so a lot of this is over my head, but in an art gallery in the last century, collage, appropriation, particularly in feminist art and the history of that, you know, whether it's Duchamp Sands alone or putting a mustache on Mona Lisa, I, as an arts professor, I find the conversation a little baffling. The idea that the standard is a sort of requirement of originality when I can cite reams and reams of kind of feminist art criticism that talks about appropriation collage as legitimate artistic techniques, which is not to say that every single copied thing is fair, but there's a big scholarly history in my side of the field that, so I don't understand this conversation. Again, I've never gone to a school that will only depress you. I would also never say that these works have no artistic merit. I'm not, I wanted to gauge that. I'm really looking at a body of law which does depend on originality. Originality is a touchstone of copyright protection. So I just think, I think it's a factor that, and again, I'm not saying that all of these uses are unfair, but I think it's a factor that you're legitimately taking to account. And again, you know, we've got this whole category, selection, coordination, and arrangement where you guys issue registrations every day. Right, we're trying to cut back on that. So I've heard. Keep your eyes open. But that's original and, you know, there are a variety of editors. There are a variety of artists, producers who would actually be surprised to hear that selection, coordination, and arrangement are not original. I believe, you know, Congress would be surprised to hear that it's not explicitly in the act. And the question then is, what is the original selection, coordination, and arrangement? And we've given you many examples of selection, coordination, and arrangement that combine to have a powerful communicative effect that is distinct from the original, which is why it was made in the first place. Okay, very good. I think we can call it a day. Everyone will agree with that. I have nothing else to say today. And we will see from maybe many of you tomorrow across the street. Eight o'clock, huh? Nine o'clock. I'm scared, I'm scared, I'm scared.