 We have a panel consisting of Michael Weinberg from Public Knowledge, Dave Mark from AACSLA, Bruce Turnbull, counsel of DBE CCA, and Matt Williams. Michael Weinberg is the only one who's the first time up for all these panels all day. I feel bad for you guys who've been here for the past three days. Thank you all for this opportunity. Michael Weinberg and I testified today on behalf of Public Knowledge in support of Class 10. Is that good for all you want? By any measure, DVDs have been wildly successful, with billions sold since the introduction in the late 1990s. The hundreds of consumers who wrote to you in support of this invention were a sample of American households, many of which one doesn't or even hundreds of motion pictures on DVDs. These DVD owners make up some of the movie industry's best customers. Those customers are frustrated with tactical protection measures that stop them from making legitimate personal copies of those motion pictures. The customers who wrote to you, who represent millions of similarly situated Americans, simply want you to watch their movies in a way that makes sense for them. They do this every day with the music they own on CD at the click of a button, but DVDs CSS makes what should be a simple task illegal. Fortunately, this proceeding gives you an opportunity to change that. Let there be no mistake, there is nothing illegal about personal space-shifting. In one of the few cases to directly discuss personal space-shifting, the Ninth Circuit, studying the Supreme Court in Sony, described space-shifting music for personal use as, quote, paradigmatic non-commercial personal use. That description is just as applicable to acts of copy and motion pictures from DVDs for use in personal devices, and in the description is widely accepted by the public and industry today. I will not repeat the extensive fair use analysis from our comments in the Museum of Mars. At this time, I will merely remind the Office that personal space-shifting is a non-commercial, potentially transformative use of a work that is to release and sold to the public with no cognizable negative impact on the value of the work. How many of them? Opponents have been unable to point to case law suggesting other laws. The closest case to a male decline, umgvng3.com, considers a business perposing recordings on CD and making them available to the public, not consumers accessing recordings they have purchased themselves on devices they are choosing. In fact, there are very few cases addressing the issue of personal space-shifting. This would be unexpected that there was a legitimate case being made against the practice. After all, personal space-shifting of a variety of media is widespread and has been for over a decade. And, as we all know, large content owners, including those represented here at the table today, have never been shy about enforcing their rights when they feel there has been a violation. However, they have avoided bringing claims against personal space-shifting. In fact, the RAAA, one of the joint creators in copyright undergover then today, told the Supreme Court that personal space-shifting was, quote, perfectly blocking. Similarly, the MTA and the RA have extensive commercial agreements with Apple and iTunes platform, which builds one-click space-shifting functionality directly into its software. The shortage of case law has no barriers to the register granting its exemption. As the register has recognized, the statutory requirements to evaluate exemptions necessarily require a degree of independent examination. The statutory band-interprocess of consulting, determining, weighing the likelihood of future impact, and recommending all require the register to draw conclusions beyond the black-letter of the law, which the register has done in previous proceedings. Furthermore, the registered recommendation does not prevent rights-holders from litigating the issue. If a court were to find non-martial personal space-shifting to be an infringement, the existence of the exemption would offer the infringing party no protection from a copyright infringement judgment. Beyond the question of the underlying legitimacy of the use, the statute presents the register with a number of factors to consider in evaluating the requested exemption. In this case, all relevant factors weigh the fact in the favor of granting the exemption. The first factor, the impact of the exemption on the availability of the copyrighted work, has traditionally been evaluated with three-part tests, considering the actual impact on the availability of the work, the availability of the work in other formats, and alternative means of access. As a register recognized in the previous rulemaking, widespread access to CSS circumvention tools has caused no discernible impact on the willingness of copyright owners to embrace EBD-based distribution. In our current world of one-click CSS circumvention, it strains credibility to imagine that granting this exemption would have any impact on the availability of works on EBD. Additionally, while some motion pictures are available in non-DVD formats, ten years of DVD-first distribution has created a huge number of works which are only available on DVD. In the case of works that have been re-released in formats that might allow some sort of personal space-shifting, it is unreasonable to require consumers to repurchase motion pictures they already own simply to make a legal use of the works. As for the third part of the text, we saw in her an earlier testimony that alternative means of access are inadequate substitutes both in output quality and in burden on consumers. Using either camcordering or screen capture to create a high-quality new production, which are by no means exact new production, is a technically complicated process that is timed and computing resource-intensive. When compared to the one-click copy that most consumers use to space-shift music, the technical complexity alone excludes millions of Americans from this perfectly legitimate activity. Even if a consumer overcomes the technical problem, the result is an imperfect, inadequate copy. Image quality matters to average consumers. High-definition televisions are not only sold to media studies departments. Movie studios do not spend hundreds of millions of dollars on sets and special effects in the hopes that a documentarian will include a click in their next film. The PBS Documentary Image Quality Standards described in an earlier technical demonstration are expensive to maintain, but they exist because average viewers can tell the difference. Poor quality images can fundamentally change emotion paper. The second and third statutory factors, which consider non-profit and critical uses, do not directly apply to this requested exemption. However, there is nothing in the language of the statute to suggest that impacting every element is a prerequisite for granting an exemption. The fourth factor considers the impact of the exemption on the value of the work. As mentioned briefly earlier and discussed extensively in our proposal and reply comments, this exemption will have no negative impact on the market for the value of copyrighted work. It will not contribute to piracy. It will not somehow confuse consumers. It will not add the supply of unauthorized copies of works. The register has recognized this in the past, and nothing has occurred to alter the soundness of that conclusion. The fifth statutory factor is simply any other factor that may be relevant to proceeding. In the 2010 recommendation, the register formally recognized what had long been obvious. CSS is being used predominantly for battery production, not controlled access. As a result, socially beneficial, non-encringing uses are being used advert to be inversely affected by the prohibition against circumvention. That was true then, and it is true today. I'd like to conclude with an observation. The register of copyright office would do a disservice to itself and the public if it failed to recognize the true state of affairs with regards to motion pictures released on DVD. This exemption is not about piracy. CSS has been cracked for well over a decade. Movie piracy is widespread. A fact that many of the opponents of this exemption spend a great deal of time and money pointing out in every available forum. There is no latent infringement capacity waiting to be unleashed by the registered recommendation. This exemption is not about confusing the public. People space ship media every day and are capable of understanding the difference between space shipping media they own and a legally downloading media that they do not. This exemption is about restoring the rights of consumers who play by the rules. It simply allows consumers who have awfully acquired motion pictures on DVD to space ship them for personal use. Restoring this type of ability is precisely what this proceeding is designed to do, and I urge you to do so. I look forward to answering your question. Thank you. Thank you. Dean Marks on behalf of AACSLA, the Advanced Access Content System Licensing Authority, and here just to make two very limited and brief points. First, as we have said, with regard to a number of the other requests for exemptions filed to this proceeding, we want to emphasize that requests that do not specifically name new brake discs or the AACS technology cannot be granted with respect to such a technology. And that includes the request filed by public knowledge that is subject to this panel, and also one of the requests filed by an individual. And this was noted in our comments in February, but I wanted to be sure we put that on the record for the testimony here today. Second, with regard to the handful of requests from four individuals who wish to make backup or convenience copies of content, where the request did preferably write discs for AACS technology, AACSLA notes that none of these requests state with any specificity that the AACS technology is impeding and identifying the authorized or acquired use. None actually provide the necessary explanation of why the use is not authorized use, and that such use is not able to be satisfied due to the presence of AACS as an effective technological measure under the law. And none of them state the kind of specific, narrowly tailored class of the register as stated is required for an exemption. Accordingly, we request that each of these individual requests not be granted at least as to AACS technology with the brake discs, and I'm happy to respond to any questions. Thank you. I'm Bruce Turnbull. I'm representing the Copy Control Association. I'll say more intensation than we were yesterday on the record. And here, I'll start out with a proposition that I think that we're going to not have the burden of demonstrating the use as far back as we can get into that, and I'll write it down a little bit more to say about that. I want to put my time on three points to the UDCCA in particular. First, that the class is not the narrow, refined class that the Copyright Office has stated is essential to the granting of any exemptions. Second, that granting and exemption of this scope and breadth would overwhelm the CSS licensing system to the great detriment not only of the UDCCA, but of the movie industry that has relied on it. The integrity of the licensing system for nearly 15 years and the consuming public would enjoy D&D as the format for that period of time. And I'll have some points to make about how public knowledge I think was construed, points related to that in their responding comments. Third, the ways in which content is now available and will be available in the next few years, satisfied with the desire to have content available on a wide variety of devices. First point, the post-class is precisely the kind that the Copyright Office has considered and rejected in previous rule-making and the kind that the Office warned against in its initiation notice as part of the procedure. To take a couple of points from the initiation notice, Copyright Office said a classic works was intended to be quote narrow and focus on a subset of broad categories of authorship identified in Section 102 that was voted in Congress Committee Report. Second, in the initiation notice, the goal is to fashion the exemption that is needed to be narrow and not too broad to immediately address the evidence of president's life and harm. It shall be an appropriately fashioned exemption to assist users and Copyright owners of a life by temporarily suspending the prohibition of circumvention for appropriately tailored, adversely affected classes while preserving the prohibition on all other classes. And our view is this would effectively not preserve the prohibition on the rest of their classes. From the 2006 rule-making, there are a number of points and this is what we've got up on the screen here. It is a comparison between what the register of the crowd and the librarian found to be an unacceptable class and what is proposed here. In relation to the effect on criticism, comment, views, reporting, teaching, scholarship, research, the proposed class for personal performance is unlikely to have any beneficial effect on reporting, teaching, scholarship, or research. So obviously it does not meet that category. The effective circumvention on the market for or value a particular class of copyrighted work, the rule was found unacceptable with a broad exemption, all motion pictures on DVD, potentially harmful to Copyright owners without any incentive to distribution of digital copies of motion pictures nor on individual work. And that's precisely the category here. In the 2010 rule-making, the office talked about proposals that were narrowly covered with regard to discreet set of users who had demonstrated insufficient need to circumvent DVD access and controls for limited non-improving purposes. And no performance had demonstrated the need to circumvent in order to copy a motion picture in its entirety and no performance has demonstrated the need to use a quantitatively large percentage of motion pictures. And again, we think these are comments that were well taken from the prior proceedings and were reiterated as part of the initiation of this procedure. Furthermore, the kinds of considerations that were discussed in previous battles and various gatekeepers in professional filmmaker context, other limiting factors in the VITR panel made quite a bit of discussion about various factors there, are conditions that are ensured, designed to ensure that exemption does not misuse. There's no suggestion of, and we couldn't come up with any suggestions of, those kinds of limiting factors or gatekeeper roles that would be present when you're talking about circumvention that would be used by the entire population. And here, we believe this is a classic case of the exception that's following the rule. We do not have the kind of narrow tailoring or the copyright office that requires the prior proceedings and is set for the initiation of this. Now, with regard to the licensing regime, we cited particularly the polite escape case in our comment. The assets of the real network cases are also relevant here. In the real network case, the court found that CSS technology is still effectively controls access to DVD content for the average consumer. The, not understanding what the one word had to say about the status of the CSS technology and has been running onto the courts has still been affected. In the polite escape case, the harm to the ACCA was found from the space shipping polite escape product, which is a form of kind of space shipping that's proposed here. The harm was to the integrity of the CSS license agreement, and that harm was sufficient to support an injunction and to distribution of the polite escape product. So not only was there a finding that the polite escape product was a violation of the agreement that the ACCA had with the polite escape, but in addition to the harm to the integrity of the licensing system was sufficient to justify the injunction. And that, again, I think is precisely the kind of space shipping that is proposed here, and we believe the kind of harm that would occur to the DVD-CCA licensing system. The third point I wanted to emphasize, and I think you'll see a little video on this in a minute, but I wanted to emphasize from the DVD-CCA's perspective, the various alternatives that are in the marketplace today that allow consumers to have movie content. You know, a wide variety of devices from a wide variety of sources. Some of them screen, some of them download, some of them copies that they've made. Ultraviolet is probably the preeminent example that's out there in the marketplace and growing today. We saw the tech demo about ultraviolet from Mitch Singer in May 11th. Digital copy is also prominent with many, many movies that are distributed in this form, including Blu-ray. There are array of sources of content available through online distribution mechanisms of a variety of kinds. These are alternatives to the circumvention that the department suggests. By the way, I would note that we are not suggesting that screen capture or video recording your cell phone are alternatives. In this case, we would not recommend those for the purpose of capturing an entire work. Those were demonstrated and indicated in our prior testimony as alternatives for clip copy circumstances. We don't propose them here. Finally, as we discussed yesterday, well, DVD remains king. It has 75% of the physical product, but the distribution is still on DVD. However, the market for DVD and the overall video entertainment market is in decline. Our concern is very much that this kind of broad-based consumer exemption available to every human being in the country would contribute significantly to the further decline and the more rapid decline of the DVD of the marketplace. Thank you. Thank you, and Matt Williams, our representative of the creators and copyright owners. I'll be brief because we're at the end of the day. As Bruce said, the proposals we're here to discuss have been raised and rejected in every cycle, exceeding 60,000, including the last cycle in 2010. Some things have changed since then, and some things have not. First, what hadn't changed, and that's the case law. Public knowledge is not cited in any case of this use since the last cycle. The show of the law has changed since the register previously considered it. Space shifting is clearly distinct, for example, from search engine thumbnail copying as in Perfect 10 or in a Rebisoft that involved publicly available search engines, so it's completely different. I wanted to give some quotes from cases that public knowledge relies on because I don't think the case really supports their position. So in Universal versus Sony, the Supreme Court said the purpose of copyright is to create incentives for creative effort, even copying for non-commercial purposes may impair the copyright holder's ability to retain the rewards that Congress intended him to have. Similarly, in the Perfect 10 case, the public knowledge relies on the Ninth Circuit site of wall data versus LA County share of opinion for the notion that using a copy to save the cost of buying additional copies is not a fair use. So I just don't think the burden can be met on in fact non-infringing. There may be some instances of space shifting out there that I don't think have been identified in the record that you could qualify, but burden has not been met. Second, another thing that hasn't changed is the rules and purpose of this proceeding. First on that, convenience is still not a valid reason for an exemption, yet public knowledge admits it seeks an exemption the primary purpose of which is to avoid inconvenience. The last sentence of their reply comments expressly says they say if the exemption is granted, quote, the only thing that will change is the consumers will be finally able to make use of the motion pictures on DVD the same way they make use of musical works on CD as works they have broadly acquired that are free to move to whatever personal device is most convenient. So very expressly, I think just challenging whether convenience should be grounds for an exemption and I think the ground rules should remain as they always have been on that point. Another thing that hasn't changed is that one of the ground rules is that providing consumers with the most cost-effective, excuse me, cost-effective method of consuming video content, that's not grounds for an exemption. So public knowledge is objections to small payments for different levels of access that should be disregarded. So now importantly, what has changed, I think the factual record on the marketplace availability of movies and television shows has changed significantly. The record shows that much has developed in the marketplace to undermine the position that space shifting should be presumed lawful and that an exemption is needed. Content is available in more formats, pursuant to licenses. And public knowledge acknowledges that this is undeniable in their comments. Copyright owners are exploiting existing markets and developing potential markets without exception. The record includes more testimony from studio executives than ever before on this point in addition to our written comments. The record also contains more testimony that the security of access controls is critically important for licensing these new services. Public knowledge is introduced to no facts without that testimony, despite having a burden of persuasion. This proposed exemption would undermine revenue streams for new services. These services are enabling the very means of access public knowledge payments to champions. This is not about people paying twice for the same access, but about paying for different levels of access. Copyright owners can offer different levels of access at different price points because the DMCA enables them to do so. It's benefit consumers who prefer limited access at reduced prices without depriving other consumers who want enhanced access that are willing to pay increased prices. Buying one copy of a work simply does not transfer a license. Copy the work as many times as one chooses. This is the foundation of copyright law in all sectors. I want to read a few more quotes and cases just to underscore that. In the Napster opinion, the Ninth Circuit said, impact in one market, here the audio CD market, does not deprive the copyright holder of the rights to develop identified alternative markets, here the digital download form. In the opinion of Mr. Weinberg, noted we cited UMG versus mp3.com, granted the case is distinguishable in some respects and I wouldn't say that it's dead on point, but there are relevant statements in the opinion. And for example, the court said defendant argues its activities can only enhance plaintiff's sales since subscribers cannot gain access. Particular recordings made available by mp3.com unless they have already purchased or agreed to purchase their own CD copies of those recordings. Any allegedly positive impact of defendant's activities on the plaintiff's prior market, in no way freeze-dependent to a sort of a further market that directly derives from reproduction of the plaintiff's copyrighted works. Finally, in the Sonia's pin and long opinion, which is an opinion that generally I would not endorse as having my favorite articulation of certain points of law, but I think on this point is relevant. There the judge said defendant claims the copyright law does not protect what he labels an outdated business model and that the plaintiffs have other means of profiting from these works. What he seems to be arguing is that even in the era of file sharing, the plaintiffs still make enough money from their copyrights. The sufficiency of the plaintiff's profit is not the measure of fair use, nor is the defendant's view of what amounts of profits are enough in all of this period. Congress has not tapped the revenue that the copyright holder may derive from this monopoly, and that is indeed a quintessential legislative judgment. Now, public knowledge claims that some titles available on DVD are not available in other digital formats, but I don't think they point to one single such title in the record. So this failure forecloses the lines on that argument in my view. And finally, although I think there's absolutely no grounds for creating this proposed exemption, I do want to point out that the proposal itself lacks contours. The proposal does not define space shifting. It does not properly limit the proposal that owners have opposed to lawful possessors of copies, for example, renters of a copy. And again, although public knowledge said at times that this is about titles that are not available in any format from but DVD, it's not limited, it's preferable to such titles, and there's no evidence to support such titles or quality consumers being conserved. Importantly, I want to emphasize that my clients recognize that their customers seek to access content on multiple devices. They are striving to provide such access through licensed and secure methods working with technology partners to create new services that benefit consumers. The register should not undermine these activities by recommending the proposed exemption to the library. And we want to play a very brief video that describes some of these new services so that the record has a sense of what's out there. It's true, we do want to play it. We can do audio description. It wasn't working earlier than it was, and we don't know why it's not working now. When I swapped out the laptop, some plugged-in URF top. This is our computer. Do you have it on your computer? Try it on your computer, see if that works. Our tech support is gone, so it's just up to us because we're in trouble. In terms of some of the things that we may be seeing you some more about, is we, at the tech demonstration, we have one example of the Walmart conversion. This was the licensing agreement, and is that something that... I guess it's a question for both. How does that fulfill this need? No, it shortens this, and it does provide, and I was not at the tech demonstration. I apologize, but I'm fairly familiar with that offer. It charges consumers a second time for something they already own. I think that is one of the core issues here, is that it creates a completely unnecessary burden, both logistically, just because you have to go to Walmart, and also, hey, I believe it's $2 or $3 per disk to make this copy, but it's essentially paying for a license for something that you do not need a license to do. And so, while it is true that you could have a business model that charges consumers to make that copy, I don't know that the business model or that the copyright office should get behind the copyright law and start a support. Similarly, I think if consumers were charged every time they wanted to make a copy of a CD they own or a iPod or something like that, you certainly could imagine a business model like that. You probably would make a figure of money into this model like that, but it doesn't make it a business model that should be seen as legitimate, especially in the proceeding. Of course, with respect to music, we've got a particular statutory provision which gives consumers permission to do that, which was enacted sometime after section 107, which suggests Congress seem to have seen a necessity to enact a statute which suggests perhaps Congress didn't see section 107 as providing that, right? So why should we assume that Congress didn't know what it was doing or should we assume that Congress had some other purpose in mind? I think what you have to look at, fundamentally, is the understanding of where the power of police and what is allowed and what is not allowed. And although there are a number of cases dealing with the sort of secondarily deal with these issues in commercial agreements and you were talking about the limiting the CSS license in terms of being a licensed player and things like that, implies they've been real. And of course, you still have a situation where there are people who want to make personal copies of media that they own and the little amount of PSL that we have suggests it's completely legitimate and the lack of PSL, I don't even also suggest it's completely legitimate activity and to not limit to music. Music is the most obvious, but most people actually haven't understanding that it is currently legal to make personal copies of movies they don't have DVD right now. What's the relevance of most people's understanding to the question of whether it is in fact legal? So, obviously this is not a media democracy. We don't go around the law as by a lot of us wouldn't be able to. So, it is not directly relevant to the legality. Legality is starting to be a deal with by walking through the phase analysis in our proposal. But it does go to the question of undermining the validity or the power of CSS. And we're confusing consumers which is something that was raised in some of the comments on the proposal. And there's simply no threat that consumers will be confused by this exemption because it actually restores the world the way that they think it is right now. Well, I'm going to let this handle all the CSS stuff. I wanted to make one point on the various of the personal copy which is just to remind the panel. Anyway, but the one case that really dealt with this in the context of the audio-visual or the Sony Vegas case it was very clear and the court made clear in one of its footnotes that the premise was for time-shifting where the copy of the work was made for later viewing and then erased and not a space-shifting copy which presumably is kept permanently for curfewing on alternative devices. I think that there's a dramatic difference between the two. Okay, let's give Michael a chance to respond to that. Yeah, I think there's certainly a difference between time-shifting and space-shifting. So what I'm going to expect fundamentally is to do the question the panel here is that the lack of case law specifically endorsing space-shifting does not suggest to me that space-shifting is not or cannot be a carry-on. And furthermore, I think of as I mentioned in my testimony the reason that there is no case law is because it is an activity that is so far from objectionable that rights-holders have not seen fit to bring cases against people working. I think we may be ready to go into the video. The reason there is not a reason there is not a case law on this is because of the fundamental difference in the product market. The video around the product market has been based on the licensing regimes, CSS, AACS, the regimes that are set up for access from various distribution networks that would be capable of online distribution where the machine that receives the product has to obey certain rules in the same way you can see CSS and AACS. That's been very different from the music market where the music was distributed on uninterrupted open so you didn't need a license in order to get access to it but the devices developed in a very different way and the computer programs developed in a very different way. In the video market where the devices have strayed from the license terms, polite, safe, real they have been sued and it has not gone on a fair use analysis because the issue had to do with the contract and the violation of the EMCA but the case law is fundamentally because the device and product makers have made their products in accordance with the license agreements and the distribution terms that have been put out there. You can't go into Best Buy and buy a device that allows you to make a copy of the DVD they don't sell you could get them off the internet on websites that various people are downloading from. I'm not disputing that although the reason you can do that is because of the way the internet operates and although the cases were brought and both from a trade secret standpoint and from the DMCA standpoint cases were that those should not exist under the DMCA or the contract but I think the case law has not developed because of the way the devices have and studios have chosen for whatever reason for good reason watching their brethren in the recording industry not suit individuals who have perhaps made copies of the book movements. So what do we know about the practice or non-practice in the marketplace of individuals making personal copies of DVDs? Is that a widespread practice? Anything in the record that tells us one thing or another about it? I can certainly say that there were two points to make one point in the just-to-digital service that has recently launched a Walmart that Michael referred to and that was referred to in the testing on May 17 we've gotten a lot of positive feedback from that there on YouTube just testimonials that have been referred to of a consumer saying that this was very easy and was very convenient and we have not heard testimonials from people saying I'm doing this anyway why would I ever bother? Well it certainly wouldn't be testimonial when the announcement for the Walmart service was made I put up a blog post that was probably one of our most viewed blog posts not surprisingly it was not as positive as some of the YouTube testimonials but it was syndicated variation widely with outrage about forcing people to pay and have the service and again we're basically now stacking up some number of YouTube videos versus some number of angry blog posts going in their way my point isn't that one is larger than the other but I would say that there in many quarters of the public there has been a very negative reaction to this as a service but back to my question do we know anything about the general practice of the public with respect to making personal copies of DVDs? Well I think there are two points I don't have to just two things are relevant one is that for many many people watching a movie once is just fine and so as compared to music where you're likely to want to listen to it over and over the internet is called Tildredy well there are some messages I didn't see any deal but you can watch it over and over and over again if you have the DVD but being able to make a copy of it for lots of purposes I mean if you read it you have to care about making a copy the second thing is that until relatively recently I don't mean about six months but relatively recently the file size of the movie if you were going to try to make a copy of the DVD you were making you were going to take a considerable amount of space on whatever storage medium you had and so the proposition of doing that was something that consumers wouldn't bother paying so I think that the recent phenomenon of all kinds of different devices of having lots of storage space is something that the market is reacting to that's where the ultraviolet comes in that's where the availability of a variety of different services comes in and so the market is responding to what may be an increased or relatively new demand for availability of movies on different kinds of devices because up to now the devices didn't exist and the file size was such that you didn't want to clog up your system the reason I came asking this question was made a point that I don't necessarily accept it but I at least want to tell you that there's a perception among the public and a practice among the public of making personal copies and while I don't know this evidence of the record about this I think we all probably understand that with respect to music that's probably true so I guess I'd like to know what Michael knows about the practice or not you probably won't surprise me that I don't have extensive stats on the practice that is now and what I can tell you is in part of our reply comments we included hundreds of comments from people talking about how they want to be able to use this Palestine and they want to be able to do and some of them is, yes they have children who love a sub-site of movies and they want to go put the movies on iPads and they travel they can hand it out to their kids people who do traveling between there's some one person here who said as they described it DVDs and that they travel to a summer house and they prefer to be able to have their their movies on a car driver too instead of buying boxes in the back of their their car, people who have all sorts of, I encourage you to look at the record and see all this strange personally I don't expect the specific pieces we have a one of my colleagues has a nephew who's a autistic who loves this very small part of movies and so they want to be able to load them on an iPad so they can give the nephew the iPad just sort of can be comfortable and calm now having to keep switching things in and out in terms of the public perception it's funny, I have again I've read a very short data point for their anecdotes the one is of course the niche single one that was included in our comments talking about how comfortable he was with the idea of being able to have movies on his PC presumably without authorization maybe he did I don't know, the other one is when we actually we sent out an email to we sent an email asking people to tell you that they wanted to be able to do this and we actually got an email back from someone taking me to task and I was trying to read sentences I rarely complain about these articles but in this case it is not illegal to break a watch on these DVDs this is someone who was solidly said and was so mad about it they decided to write us in anger and the last thing is representative Darrell Issa did not ask me anything on Reddit which Reddit is an online community and so asking anything is when you go on there and the community can ask you anything and it's a better or worse idea for various public officials and Darrell Issa is a representative but I think we all can recognize as someone who had a higher than average interest in intellectual property and so a Reddit user a loon dog asked as he stood on the subcommittee on intellectual property competition on the internet perhaps we could explain why I can't legally make digital copies of DVDs on personal use are you worse than working to change this and representative Issa responded you can in fact make personal copies for your own use a good example we'll be ripping his DVD so you can play it on your own which is not for him so we have to submit the authority now let's take a break from the questions and let's watch your presentation if you wanted to enjoy a movie there was only one place to go with television and home entertainment more options emerged now we're able to watch television and movie content wherever and whenever we want on a variety of devices working together the creative community and the high tech industry on revolutionizing home entertainment making it easier to find and watch more content in more ways than ever before regionaries are launching groundbreaking platforms for users to gain legal access to the highest quality content every day sites like fxhd which offers 15,000 plus titles with bonus features like interviews poster art and the ability to watch with friends across the web mspot which streams movies to over 50 phones and handheld devices and if you need to track down that famous movie scene everyone's talking about any clip and movie clips allow you to search not just by title but within the clips themselves using hidden metadata digital technology and movie theaters brings films to life with 3D pictures and surround sound and now the internet has become a high quality distribution platform thanks to emerging technology and innovative business models legitimate content is available everywhere across devices and formats in your pocket, on demand or in the cloud it's never been easier to find and watch and share the entertainment you enjoy to find out all of the ways you can enjoy your entertainment visit npaaa.org slash get-movies-tv dash shows anything you want to add? I'll just add that you know some of the other panels on other proposals some of the services you saw there it was questioned why were adequate alternatives because it wasn't just about consuming content for entertainment purposes it was about repurposing it for some new work and here we have the opposite the proposal is people want to access digital copies of content to enjoy for entertainment purposes and so all of the services there to provide that exact service are an alternative and I don't see any way around that so I would say that in contrast with some other situations where there's a debate about alternatives here do the alternatives are clear? I just said a couple of points one there was Michael made a remark about what the Apple iTunes that there was space shifting involved there where you can do to want to shift to a different device and I just want to emphasize that that is in the context of a license the content owners license the content of Apple they get the permission to allow for space shifting and the entire ecosystem is protected by DRM and so part of what the panel has to do is balance the damage to allowing certain mentions of DRMs and works being structured with their protection versus what the impact is on the reported fair use and in low space shifting situations that are licensed by content owners and licensed with increasing frequency they satisfy the need for space shifting that consumers want while still providing adequate protection for the content and so these are alternatives that are here that don't involve circumvention and I think the notion and the circumvention there's no way you can grant an exemption to circumvent space shifting and prevent the rent from returning I would have not heard any notion of how that sort of damage could be put aside not even talking about privacy from that sort of exemption and I sort of feel the argument about well I own it so therefore I get to add more functionality to it as it comes along without having to pay for it it's really a specious argument when people bought DVDs they knew they weren't allowed to copy them the devices that they had as Bruce referred to earlier really made copy either impractical or impossible now that that's available it doesn't mean you get it for free if I bought a cell phone that didn't have text in and then Samsung came out with the next version of the cell phone that had text in doesn't mean I get that cell phone the next Samsung version for free and so I just think the fact that I own that particular copy means I get to do more functioning of that copy I just don't know yet let me address a few things first just quickly the reference I made to Apple wasn't to this other music service that is rolled out but really the fact that you can take any CD and put it in iTunes and rip it to an mp3 file that has no DRM that doesn't go to an iTunes since the beginning and there was no, I don't know I can't imagine they could have licensed that ability as a cart launch situation that ability to do that is part of that software they did not have a license for it that's very wrong but that's a very small point in terms of any services that are mentioned here I think there are two reactions to that first is that the selection on any of these services or even these services when compared to the universe of movies available right now is incredibly limited you're talking and this is anyone who has searched for a movie on Netflix or Amazon Prime or any of these has probably had this situation but it's true there are all sorts of films that are not available I we've not done a systemic study of this of public knowledge but I did on Friday afternoon just send out a request to the staff and said tell me about movies that you have that are only available on DVD and it was, it shocked me and they did because we were all out of the office at the single light and closed us down but how quickly I got responses back a lot of people talked about movies kind of foreign documentaries or about other foreign films a lot of TV shows are only available on DVD apparently most anime is only available on DVD and I actually went home and I only own 19 DVDs and I had a DVD collector even the 19 films that I own which I did not purchase in order to get a good sample of movies only available on DVD three of them were not available in any other format so these services even if they were adequate would not cover a huge corpus of DVDs and motion pictures that are currently available and that people own but in terms of the ones that are I think these services are inadequate first of all because they do essentially are part of you repurchase things you already own I just, it's not something that I believe that the copyright office should stand behind it and that actually allows and the other thing is that a lot of people require internet connection and that's something that is not going to work in a huge number of situations one is because for better or worse and a huge part of what public knowledge does when we're not here at the copyright office is try to increase access to high speed broadband and that access just isn't what it should be in this country right now and in so many cases that access is limited by fairly restricted data caps or it simply isn't possible even if you have that high speed connection to download full movies with any sort of regularity they do one maybe two a month depending on what your connection is so these are just, these are not real substitutes for being able to take media you already own and simply make a copy I think ultimately will we get back to you with this and this is the word that we can use a lot today and yesterday is balance right, I mean we could say in order to in order to space shift a movie you have to go and buy a movie that writes a movie from Universal Pictures for a hundred million dollars anything else is inadequate but now we say okay you could buy the DVD and you could also buy it again on iTunes maybe you could also pay for it we're talking about kind of a scale of balancing things, a balance of hardships whether or not this is worthwhile is paying two or three or four dollars to copy a DVD the same thing as being kicked out of your house because the government must have turned into a highlighter we're working at a completely different scale but it is an inconvenience to consumers and so you balance that inconvenience against the cost of that inconvenience to rights holders and what I haven't been able to figure out is what that is I haven't figured out how to finish the sentence if the copyright office allows people to make personal uses of movies they already own then the day after that happens the bad thing I cannot figure out what harm is done by allowing people to do this so I cannot figure out how much evidence to give you because the idea that it's going to increase piracy is frankly ridiculous piracy exists the idea that people are willing to become confused about the legitimacy of using media is also ridiculous because they already think this is the case so we live in that world already the idea that we are going to prevent rights holders from reselling movies to people they already own that they can already make the use of but for this law can you see that so I just don't understand what we're balancing the hardship on consumers and yet couple of steps quickly I think first on this huge corpus of titles that aren't available online I don't think there's one title in the record where that's demonstrated I'm interested I missed it I just don't think that can be the basis for creating the exemption on the question of what is the harm there's somewhat of a misunderstanding or a misnomer going on when you buy the DVD you are buying the right to access that coffee but all these great services that are being developed that provide access in very different ways to multiple copies to streaming copies to access in multiple locations that's a different offering and it's sold at a different price point and the fact that it's sold at a different price point enables my clients to work with technology companies to develop these services that benefit the consumer at the end of the day so I think the harm that you're unable to identify is clear to me it's that copyright owners and their technology partners offer products in order to retook investments to fund the creation of new products and new services so without that ability the new services drive two points first is that the kind of as I said in my opening comments the kind of space shifting that is proposed here it's exactly the kind of space shifting that DVDs and CCAs are not common to to make sure that its licensees are not able to do under the license it is exactly the licensee of what is doing on their product and the basis for a license to be integrity of those things that's a licensee system depends on the ability to enforce those terms and the exception of this kind would make that very hard for us to do second point is that he mentioned the sort of rent or borrow written in return model there is absolutely no way to police or ensure in any way that in fact the person who makes the copies owns the DVD that the whole premise of the DMCA came about when Hollywood was looking at it was at the very time that CSS was being developed the DVD was being developed and the concern was fundamentally that you sell one copy of the work and then everybody in the world will be able to make copies and you wouldn't sell any more copies of the work and this is absolutely a concern with this exemption request that one DVD on the block and all of a sudden everybody has the right to make a copy of it and a lot of what was done we used the monitor which people criticized and had its limitations but the notion of CSS being a technology that keeps people honest is I think the reality in today's world where people who are not honest can't go on the internet and find out about the way to get around it the people who are honest who know by the barriers that are put in place by the technology they're not supposed to be doing this you completely obliterated if you ran this exemption so Michael when I read the language of your book exemption I think it does in fact permit someone to make a DVD or if I were to borrow a DVD from Rob it's a lawfully made DVD and it's lawfully acquired so by its very terms it would allow people to make copies of those is that intended and so can you justify it so let me address the the rhetoric from the return issue and answer that question if when you made if you bought a DVD and you made a copy with the intention of taking that DVD and returning for personal use you take the copy to fraud to store your return to distance and so you are outside the bounds of the exemption if you bought a copy and returned it if you're doing this you're outside of the environment let's talk about mental work the same situation when you're making the copy the copy is a non-commercial personal use and you're making that copy with the intent of returning it or returning it the sale of returning the rental I think that the validity of that use becomes a problem and it's like oh that's not the scope of the exemption I don't follow that one bit it's non-commercial I'd like to borrow from Rob I'd like to borrow from Rob so let me actually that's a second question because the first way didn't work so yeah well no because it's not because well you have lawfully acquired I find rendered that I lawfully acquired that copy you don't have to word ownership in that you say lawfully acquired I acquired it lawfully let me let me ask this a different way this actually goes back to keeping honest people on it right now anyone who wants, anyone who has bad intent to do this type of thing is doing it already the existence of the of the DMCA is not preventing that person from acting in a bad way and this is a couple of the different of the hearings it is absolutely true that someone could have used this exemption just as someone could have used it's really important to tailor them as narrowly as possible to try and minimize that abuse you're never going to eliminate that abuse I think the thing we do pay attention to is this is what I said it's really important to recognize the state the state of the world as it is right now not as you wish it to be right now the only people who are being prevented from making these legitimate personal copies and having an ongoing conversation whether or not they're legitimate personal copies or the state that they are legitimate the only people who are doing that who are people who really who are being prevented by doing that from the DMCA are people who really, really care about complying with every element of the law and so is granting this exemption going to open a floodgate of people who before the exemption were not interested in renting, ripping, and returning but now feel like it's been blessed by the Comfort Office that just strikes me as unbelievable but if we use your language we are blessing that I don't know if you are blessing that I think you're blessing people but that's language why not throw in let's assume everything you say is true why not throw in the language when the person making the copy owns the copy from which the new copy is made step in the right direction for church you still have a problem there's absolutely in the other circumstances in the documentary circumstances you've got an ongoing industry program you've got a narrow group of people who are working together on standards of fair use and who are conducting the educational program we have one of the professors talking about conducting seminars you're not going to conduct seminars for whatever million people or just absolutely no way I would just reiterate as I said in my opening that you still have the problem of establishing that in fact not infringing and they've admitted again today that the purpose is for convenience and that the only other purpose is to save a few dollars here and there which I think would be a good set as not right and when I put the proposition to him I said assuming everything and I'm everything else is up in the air Steve, do you have questions? I'd like to reaction Michael to the notion this is this would destroy the ability to have an access model the nature of DVD is an access model so two things to add first is we drew this extension narrowly I think one of the things that I'm going to be sure in the last couple of days at least to me movies are being distributed on any and this is not an exception that allows you to break on any medium this is narrow so it does not I don't see how it impacts a Blu-ray or streaming because it's only tailored to DVD you said that if one lot copies of the terror works are mainly basically saying that this won't impact the market for DVDs that are acquired already basically so therefore it's not a detrimental effect to the recovery of others but wouldn't this ability displace the offerings that they're making so wouldn't it have anything to do with that? I think that's where you get back to should we recognize these offerings as offerings that are legitimate replacements for but it is a negative impact well it's only a negative impact to view that positive impact as really exists as a legitimate or is legitimate but does it exist? yeah it exists but I mean again you could, I think if we were talking about making clips available to teachers do the clip services they charge per clip for education and things like that? these are three services you can access on the monitor so if those services charge for each clip that educators wanted to use it would certainly be true that granting educators the exemption would have a negative impact on those services that they charge money but I think the larger question would be is that a service that we want to bless from policies? I get your point I think I have the answer you don't understand with the harm is there at least some identifiable harm you question the legitimacy of whether that the benefit is frankly theirs but you understand taking something wait that is a harm? yeah I think I don't know that we should recognize the benefit so you wouldn't recognize the loss of it but I would just say that the case that I quoted earlier recognized the definition anyone look at it this is an exemption that is designed to open the language narrowing as I suggested but it is designed to really target people who want to play by the rules who have purchased DVDs these are not the types of people who are paying for motion pictures who want to make legitimate use of it and the only thing preventing them from doing it is the existence of this of the DMCA which is why we have these exemptions so I would urge you to look at that as a really finding way to reward these good actors and it really does not have an impact on any number of bad actors you can imagine and probably already exist in our functioning