 So, we're familiar to the office from previous hearings, but I just wanted to give that brief introduction. Now, today I wanted to focus on a couple of points. First, I want to spend a few minutes just reminding all of us about the standards for this proceeding. And this was very well laid out in the initiation notice from the Federal Register, and I think in some of the comments in the back and forth has gotten a little bit lost, and I wanted to underscore a few points there. The copyright office in the notice indicated that in order to prevail the proponents, I have the burden of proof of an exemption, and they must demonstrate distinct verifiable and measurable impacts on their unproported bare uses. There must be actual instances of verifiable problems. In order to satisfy the likely prong, which is a possibility, as heard in the register notice from the manager's report, an exemption based on the likely future ever sent back during the applicable period should be made only in extraordinary circumstances in which evidence of likelihood is highly specific, strong, and persuasive. And as being indicated, that the proponent must show that the problems justify the exemption in light of all of the relevant facts, including the availability of works using the protective format. Identification of isolated or anecdotal problems will generally be insufficient to warrant an exemption. The mere fact that the digital format being more convenient to use for non-intriguing purposes is generally insufficient, and there must be sufficient harm to warrant an exemption from the default rule. And again, the default was to uphold the circumvention prohibition. And the full range of availability of work for use is necessary to assess in order for the evaluation of an exemption on the prohibition on circumvention, and whether the measure supports a distribution model that benefits the public generally is an important factor. All of those things we think are important as the Copyright Office examines the set of requests that are important. Now, with regard to DVD, CCA, DVD specifically, very briefly, DVD, CCA does not object to renewal of the exemption for college and university professors, with all of this obviously with regard to CSS and DVDs, renewal of the exemption for students in film studies classes, nor a clarification that was requested by librarians and others who may be assisting users who are otherwise exempted for their use. We did suggest some perhaps clarification on some of the exemptions, and we would direct the Copyright Office to our written comments on that. In the context of this panel, we do object to the exemption of the exemption to all college and university students and the exemption of the exemption to 8 to 12 teachers. Fundamentally, we believe that the alternatives that are available for those users and uses are fully sufficient to meet the needs that have been identified. The screen capture software I would point to specifically the demonstration that is here on May 11 by the teacher from the Poolsville High School in Montgomery County, also a public school I would note, who demonstrated the use of the replay video capture software where it was evident that it works easily and it integrates the presentations that he made into the teaching software that he's provided for his classroom. It allowed the screen capture software integrated very well with that. He was able to record exactly the segments that he wanted. The quality, as he pointed out, even some of the fine features of all the President's Men video where there was a scene where there was a focus in the foreground and a focus in the background and in between, deliberately, a more fuzzy picture, the screen capture software was able to pick up that distinction. And as we've seen on Dean's presentation, there are testimonials from other teachers and professors. The reporting of the screen by the smartphone, as we've demonstrated, particularly when you add some of the easily available video editing software is easily to use and the quality is certainly acceptable. The visual details are clear. The subtitles were clear. The audio was in sync with the video. And I think the smartphones that are available are certainly well within the reach of many ordinary consumers as Dean's indicated. There are going to be hundreds of millions of them in sort of hands shortly. Mick Singer's demonstration at the May 11th demo also showed how bulk marking can be done with online streaming services. And so that's available as well. And as to cost, the video capture software that we demonstrated costs less than $40. The smartphones are, as I said, are things that are available to many millions of Americans and easy to use, high quality video editing software is less than $50. As to the legality issue, I would state that the DVD CCA concurs in the statements that Dean made with regard to ASSLA and its conclusions with regard to screen capture of DMCA. That concludes the... Thank you. Good morning. I'm Steve McAllister. This is the year on behalf of seven national organizations of the 23 years. I think I'm glad that you're having this hearing, that you've broken up the hearing the way that you did. We feel that three streams that are encompassed right now in the existing exemption really ought to be on-tact. They present very different issues. And in this case, the main issue here is not less whether the use is being made or sought to be made by circumventions on infringing and more questioning whether there are alternatives that don't require infringement. Bruce has already summarized the points about the burden of persuasion in this proceeding. The fact that it's de novo and the position of the joint creators of copyright owners is similar to what Bruce just mentioned. If you concurred, if you believe that the opponents have made, met their burden in this de novo proceeding a simple renewal of the existing exemption as it applies to the post-secondary education. We do have very strong concerns about expansion of it to cover not just the need but all access control formats for motion pictures, which is some of what's proposed here. Concerned about extending it to all students. We're concerned about extending it to all educational levels. We're concerned in particular with number eight, the proposal to cover all educational uses. That is quite different from the much more expansive than what is covered by these folks for classroom use. And I just want to mention that because two of the proposals before you referred to audio-visual works rather than just motion pictures, we heard I think for the very first time today two examples from Ms. Hobbs, a request involving video games, which of course are audio-visual works. I think we need to know a lot more about, I don't understand what the server mentioned was needed in order to make the uses that she would describe was made in that order to be explained there. So if we look back at what has changed over the last three years since we were all here together in this room discussing similar proposals let's look at what has changed both in terms of the components claimed need to circumvent and in terms of our position that there are alternatives available. I think if you look through the materials and the written submissions and the testimony you're going to see a lot of examples where yes perhaps it could be done better in high definition and move beyond the DVD format. But you see almost no evidence that's really necessary to do that. And of course the office has long maintained in accordance with the law that this proceeding is not about enabling access to works in the favorite format of the particular format necessarily preferred format but into whether there's any substantial work on the infringing use. So when you take an example such as from Professor from the AAP submission using a Zoolander film to compare that with Chaucer that was fine in 2009 to do it on DVD. Somehow it has now become intolerable to limit this to DVD. I'm not sure that they've made that case. I think the library copyright alliance was very candid in its reply comment when they said that with the we're dealing with here there's always going to be a subjective feeling by the loopy circumventor that circumvention is needed and their point was from their point of view objectively it is always needed in every single educational setting. So that's really kind of a meaningless limitation on the existing exemption. And I think again I understand why educators want to have the option to do this and to circumvent the high definition but I don't think that they presented compelling arguments that would be their burden on why that is necessary. Jonathan's argument is we made it high quality for a reason everyone should be entitled to circumvent in order to obtain that high quality. The industry has also used access control for a reason that well spelled out in the areas of Los Angeles. This is an important element in making more material more available in more ways to more people in more formats and in more price points than ever before. And that access controls, robust access controls are a key element of that so we're quite concerned about proposals to allow potential millions of people to circumvent those access controls. I think Dean has already discussed the depth of DVDs and those reports are somewhat exaggerated as Mark Twain might have said. I'll just briefly mention the issue of expansion to allow all students including K through 12 students together to perform circumvention. I don't think again that a compelling case has been made or persuasive case has been made that that's necessary. We've recalled that students are early teachers. That's the AEP submission which I'm sure will come as a surprise to the members of that trade union that teachers actually have some privileges that students can have. But I don't think the persuasive case has been made. As far as the K through 12 uses I think we had some testimony on that today I think Mr. Wallace's testimony that teachers use VHS because the timeliness of the use is more important than the quality of the use in their setting or the quality of the production in that setting I think is indicative of whether that's important to consider and whether they have the burden of showing that they need to be able to circumvent issue materials. And as far as what comes out in the classroom, in the battle of high school social studies teachers, you saw the presentation from Coolsville High School and I think it was useful to get the students' reactions but I think you have to decide whether that really means the burden of showing this. I'll just say briefly on the other side a lot has changed in terms of the available alternatives. We already heard about the improvements in camcorder, the accessibility of that, improvements in video editing and screen capture. This is a lot different than what it was three years ago. I think the big change is what is available commercially now. In terms of the clip sites, movie clips has lots of available clips and teachers are able to create PowerPoint presentations with embedded links to clips that can start at a particular point and move seamlessly between presentation slides without any class interruptions. Obviously that doesn't cover all titles but again this is a service that was not available at all three years ago that was growing. And finally the ultraviolet presentation that you had here on May 11th and that was discussed as well in LA on May 17th I think is a real game changer in this environment. It really enables a lot of real time access, more downloaded access in many cases to this material in high definition format, 1080 grids of format. Thousands of titles are available today through Voodoo and if you look at how this is developing the whole disc to digital process which is started at the world, at the nations and world's largest retailer now and is soon going to be available in the home. This will, over time, and probably not very much time, this is going to narrow the gap between the number of titles that are available on DVD and the number of titles that are available through this type of ultraviolet service for the kind of classroom uses that are being proposed here because virtually every DVD title over a relatively short period of time will be available in this digital copy format that enables the kinds of uses that we have demonstrated here on May 11th. I think that's the real change in terms of alternatives that show that the exception is probably less needed now than it was three years ago and that certainly shows why the expansion of the exception for the components you're calling for should not be needed. Thank you. Steve, I just want to ask one question about the last thing you said. Maybe I need to go back and look at what happened on May 11th again but with ultraviolet, does that include the ability to take clips from the copy that you made and use them in the ways that some of the folks on this side of the room want to do that? Does that include the ability to queue up the titles and start them here and go another title and start it there? So functionally I think the answer is yes, but in fact I don't think it's specific. Before we get to general questions and answers, I'd like to ask the folks on this side of the room if you have a quarter to two minutes' worth of response, by response I mean actual response to what was just said by any of the folks on this. One thing I'd like to talk about is why clip websites are not good enough. As much as we appreciate the value of clip websites, it turns out that careful selection and curation of audiovisual works is part of the responsibility of the teacher in using audiovisual materials in the classroom. If you and I were to watch a movie and decide which excerpt we want to make, we'd probably pick different endpoints and different outpoints because the choice of endpoints and outpoints, the choice of what clip to use is in fact a pedagogical decision. You're going to make that choice based on the students, based on your learning objectives, based on the context. Clip websites are inherently inadequate to the important choices that an educator makes about using audiovisual materials in the classroom. Are you saying they're inadequate because you can't necessarily get the clip you want that they don't cover everything? Is that the point? Because the choice of where to begin the clip and where to end the clip is a pedagogical choice that's based on the needs of the learner. And by definition, the clip compilation website has a choice made by someone else. And while sometimes that choice might be okay or even good, many other times that clip choice will be not appropriate. It'll be too long, it'll be too short, it will start in the wrong place, it will end in the wrong place. Let me ask the folks on this side of the table who know more about these clip sites if you can respond to that. I'll just shut up. I think what Renee has said as far as my knowledge of the sites is accurate in terms of that, that the sites do not provide a teacher or a user to select whatever clip that they would like to from a particular motion picture and select their particular start and stopping points that clip services have. If you will pre-formatted clips and put them into those services, but the clip services are offered as just one means of satisfying the needs for pedagogical and educational uses. Sorry. And I think when it comes to the need to select very particular pieces of a motion picture, there are always these other alternatives of using video capture software or simply queuing up the DVD or Blu-ray to the point that you wanted either showing it in the classroom or if you're making clip calculations simply recording it off computer screen or television screen using a tablet, smartphone, video camera, et cetera. So we have not regarded the clip licensing services as the be-all and end-all for answering all educational needs. Anything else that any of you want us to point to is here. So I think the bigger issue with the clip licensing services isn't that choosing starting end date, which I think is an issue, is that right now it's a tiny, tiny percentage of material that's available. In the future there'll be a real alternative right now. It definitely is. We actually did a study where we looked at a hundred courses that used video clips and actually a tiny percentage of them were represented of the clips, fewer than a third were clips that were owned by a major studio. They're the kind of people that participate in the clip licensing services. So at least 75% of them were licensed by independent, were owned by independent counter-inheritors. The smartphone demonstration, that's a really quick thing. I mean, it's obviously pretty bad, I thought, but more technically it's very choppy and jumpy. The framing was off, even some of the, I think it was hard to read some of the subtitles. It was very flaggy and it was muted. There was a lot of compelled lead from one another. Mr. Trumbull said that the sound was the same, but in fact it was silent. And so it's not clear if the sound was distorted or not. It's a little more pixelated. There's just a few of the issues you can see in it. I feel like there can be more. Managed copying, we've been hearing about for a long time and it does sound interesting, but there's no evidence that there's even an agreement on format for managed copying, let alone technology that will allow for managed copying. I think it's favorware for now, but it may not be in the future. And then we talked a little about screen capture and we talked a little about the, and we all talked about some of the technical problems of screen capture, but I was really interested to hear Mr. Marks say for the first time that screen capture was not a form of decryption. Because for the first time actually today I realized that screen capture may in fact require decryption because it can be blocked by some sort of copy protection. We saw in Rahab's discussion of Netflix that Netflix through certain browsers perhaps could definitely block some screen capture programs. So maybe that screen capture can be blocked by technical protection measures in the same way that other kinds of decryption programs are. Which would require I would see some kind of copy protection in order to get it out. Any other responses? I just want to make kind of smart phones. That was an interesting argument, but if we imagine that the exemption was formally expanded to include all students, depending on the teacher, the presence of phones in the classroom can cause some problems. So in some schools even don't allow students to have fun stitching. So my colleagues said, okay, that in the classroom. And so thinking about expanding it and like teaching in the classroom using smart phones could cause some problems and all students also don't have them, although many of them do. The other thing about the smart phones is that that would make it more likely that these clips that could be created with that would be disseminated over the web. So it seems like not a very realistic example because if you're doing something in a kind of a confined digitalistic it seems like you have a lot of control on how it's disseminated in that. When something's on someone's phone and you hear all kinds of stories about inappropriate content that's disseminated in smart phones and so forth. So I think that it actually caused a lot of problems if that was to be a legitimate solution. The other thing is that when I listened to the individuals tested by the other side of the aisle I thought that it seemed like they said pretty much that they didn't have objection to it. I just want a small comment on Steve's point about how surprised he was that students are now teachers and that somehow the new instructional techniques where students essentially create media as part of the learning experience are somehow inferior or inadequate. In fact it was John Dewey almost a hundred years ago that said if you really want to learn something the best way to learn it is by constructing something so that when students actually put together their own piece of video when they make their own critical commentary that's when they learn best. I think it's really important to understand that that's not a new instructional strategy. It's in fact quite an established part of teaching and learning in the 20th century and in no way represents an aggregation of a professor or teacher's responsibility. If I could add to that along with what Renee is talking about creation Bloom's Taxonomy is something that is valued in the classroom when we talk about progressive teaching evaluations, synthesis, analysis and Bloom's Taxonomy has actually been revised by many to include creation because as students are able to create then they're able to better decode media around them because these are critical learning skills we want our students to have. Again I'll go back to the smartphone thing I wanted to mention one more time smartphones are very expensive they appear to be cheap, they appear to be ubiquitous but they always incur these monthly charges not every kid does have access and it is still a real-time capture it is not a file you can just create or rip off of DVD it takes time to do that and sometimes people don't have that time but hearing up the DVD before a classroom begins I guess some people have never taught a class in which you have to share rooms with others but you don't have your own room and time again is of the essence. I just wanted to respond to the point about why the importance of having the highest quality work especially if that is the way it is distributed when you're teaching something you're teaching the thing you're not teaching a shadow of the thing and so it is important to there is a value of having authenticity so obviously it's always better to study something in the original language if you can now if the students don't understand the original language you have to study in the translation but if you can study in the original language that is better from an educational point of view and if you're able to study the real work the work is distributed that is better than studying the camcorted version or the smart phone copied version it's just not the same work and there is an important to the authenticity and the integrity of looking at the original work as opposed to some derivative of it before we do we're going to go to questions we're going to take a break before we do that and if you have anything to respond to what we have heard from many folks on this side of the table how's the time to do that Steve? Just briefly on Jonathan's last point I think the office has kind of been down this road before and I understand from a theoretical perspective what Jonathan is saying I know he addresses the best evidence rule in court in federal courts but the fact is first of all if we're talking about works in high definition format today those works are available on DVD Ms. Hoppe said in many cases DVD is the only format that's available but even certainly for almost everything that's available in higher definition formats it's also available on DVD and that is no less the work than the high definition format is so I don't think that takes it very far but I think the office has also had to go through this in other contexts has made it clear that just as the federal courts have said that fair use does not mean that you're entitled to have access to work in any of your favorite format or to take your camp order to the movie theater so that you can actually go back as we'll get it all right after criticism similarly it's been quite consistent throughout this proceeding in the past years that you're not entitled to your favorite format necessarily if there are alternatives that enable you to make the non-increase use without, for example, circumventing high definition I just wanted to make two very brief remarks one enough video capture software to clarify for what Peter had said when we examined it and when we had it tested we were finding that the video capture software was capturing the images and the audio after they had been decrypted and that's why we concluded that in fact they are not circumvention devices and so I can't tell you why it didn't work for that teacher on Netflix but when we tested it it was working to both off of optical disc and off of streaming services so I just wanted to clarify that point and I think that was it for now Chris I can address the smartphone to the one the reference I made to the audio sync was to the May 11th demonstration where the audio was played and was part of the demonstration it was in sync secondly, with regard to the presence of phones in the classroom there were a couple things one can, that is a choice that has been made by the institution I understand the choice but it doesn't negate the fact that the use of the smartphone for video recording would be an alternative to circumvention I know also doesn't necessarily need to be used in class the context in which we had envisioned it frankly was not in class as part of the homework or whatever but even if it's an in class assignment for that particular day for that particular use one could imagine an exception being made and I guess I don't understand the more likely to disseminate I think the, I don't see how a smartphone video is any more likely to be disseminated than on a file on a computer okay we got two responses over here I just want to say that with the issue about I'm really frightened if you were to see that as a legitimate solution because I think I've read articles about people being arrested in movie theaters for using their smartphones to record sections of parts of the movie I just don't think that something I want to encourage my students to do it because when they do it in one form then they're going to do it in any form so I just think it's dangerous I don't think it's an idea to be clear I don't think they were suggesting you go and do a movie theater but if you teach them use your smartphone to take movies except when you're here and don't do it there and then it gets really confusing I just want to echo Martin Martin's point one of the most amazing things in the last round was when the MPAA showed people how to camcord off of a DVD and someone actually recorded that and was uploaded on the internet of the MPAA and this whole notion here so we're encouraging people to camcord in this situation and not in that situation here you have a bunch of educators who want to do the right thing who want to get high quality material to their students and especially in the K-12 situation and in response to people dedicated teachers who really are spending a lot of time and really trying to do the other high quality stuff you're saying no no no use your smartphone hold it up I just don't get it why do you want to make things difficult make it easy encourage them help the students I'd just like to respond first of all taking advantage of an exemption to circumvent is only limited to fair uses so if the student decides to circumvent the entire movie and put it up on the internet the student has also engaged really quite so we should not confuse this issue by saying that exemptions somehow give everybody a blank check and in fact that is precisely the concern of I would say ACSLA DBDCCA and the joint commentators is that as exemptions are perceived as blank checks for anybody to circumvent content and the entire piece of content upload to the internet it actually makes a mockery of technical protection measures so there's a very careful balance that needs to be achieved here the second point which I forgot from the first time around is that I think assembling clips for use in an educational setting requires time whether you're going to record off a screen in real time you can access the unencrypted file and have to go through it and select clips there is time required to do that I don't frankly know how much more time it is to record off screen at real time versus accessing an unencrypted file but I don't think it's accurate to think that one takes five minutes and the other takes four hours so let's take a break now and we will be back at 11 o'clock sure can you imagine it sorry oh yeah yeah yeah