Proponent of DMCA exemptions reflects on DMCA hearing experience

Making the Case: DMCA, video and ebooks
by Peter Brantley

cross-posted at: http://blogs.publishersweekly.com/blogs/PWxyz/2012/06/05/making-the-case-dmca-video-and-ebooks/

Yesterday I had the extraordinary opportunity to formally testify before the general counsel of the Copyright Office to obtain a DMCA exemption permitting the Fair Use embedding of video clips in ebooks. This followed on written testimony that was submitted to the Copyright Office. Our panel was led by Professor Jack Lerner of the USC Intellectual Property and Technology Law Clinic.

The right to this testimony is enshrined in the Digital Millenium Copyright Act, which makes breaking “technical protection measures” (or DRM) on digital content unlawful, even if the use of such content is Fair Use. Fair Uses would include cases where authors or filmmakers embed segments for teaching, education, or entertainment. The DMCA provides an escape provision whereby the “Librarian of Congress may designate certain classes of works as exempt from the prohibition against circumvention of technological measures that control access to copyrighted works when such circumvention is done to engage in non-infringing uses of works … .” In order to assist the Librarian, the Copyright Office, which is housed administratively in the Library, holds hearings on applications for exemptions. Permitted exemptions are granted for a period of three years and must be renewed. Exemptions that have been granted in the past include support for jail-breaking phones, allowing the blind to have access to protected ebooks, and support for the use of video clips from protected media such as DVDs.

Our session on ebooks proposed that it should be permissible to “break” the DRM on DVD video sources in order to embed brief video segments into multimedia ebooks; we didn’t apply for the higher-quality Blu-Ray, seeking a relatively low threshold. Nonetheless, this exemption would be useful in a wide number of situations: travel books, cooking, cinema and performance arts, and a wide array of other cases could easily take advantage of an exemption. I was joined in my testimony by Bobette Buster, a famous film scholar at USC, who is seeking to make an ebook that permits her teachings on cinema to reach tens of thousands of individuals, as opposed to the mere tens or hundreds who might be able to attend her classes in person. As multimedia ebooks are expected to see tremendous growth within the next few years, our request seems both necessary and urgent.

My testimony was ably summarized by Professor Rebecca Tushnet of Georgetown University’s Law School, who had testified earlier in the day. Each panelist was restricted to 10 minutes, so I focused on the rapid advances in ebook authoring tools that make it possible to create multimedia books with relatively little technical expertise; examples include Aerbook, Vook, and iBooks Author among others. I also discussed the growing inter-weaving of EPUB ebook and HTML5/CSS3 web standards. The coordination between IDPF and W3C, and the launch of the Readium project to render EPUB files directly in browser without additional software, highlight the growing ability to develop rich, portable content that is easily rendered on a wide range of devices and platforms. I also discussed Mozilla’s Popcorn project, and its pathbreaking support for embedding interactivity within video content.

Alternatives to a DMCA exemption would result in a dramatically deteriorated video quality that consumers would find inadequate. Apple’s retina screens and their successors are rapidly resetting the bar for video quality in portable devices, making even DVD quality video – which is markedly below HD – appear increasingly antiquated. The coalescing of browser vendors around the H.264 video standard, and the looming release in 2013 of the H.265 standard that will support 8K, Ultra HD video highlight the increasingly relentless march of innovation in display hardware and software.

Much of the content that authors seek to use in multimedia ebook projects isn’t available for licensing and couldn’t be used without a DMCA exemption. Even in those cases where a licensing option exists, it is often based on the whole work instead of supporting video clip-level acquisition; this is the same restriction of digital access that a U.S. District Court recently observed in the GSU case on course reserves, brought by the Copyright Clearance Center. And because filmmaking and video distribution is heavily controlled by large corporations, fee structures are premised on the assumption that most licensing would occur between peer commercial actors; they are not set up to support individual authors and creators seeking educational/informational uses. Notably, Bobette Buster’s requests for video clips in her ebook have been rebuffed, ignored, or denied.

The counters from the industry panel in response to our requests were predictable; primary among them is the claim that videotaping a computer display running a DVD’s video is adequate for the kinds of uses we were citing. In addition to the obvious loss of video quality, this fall-back to digital-to-analog downgrading was devastated by our panel’s testimony from film engineer Jim Morrissette, who showed a series of photographs of the business end of three successive models of Panasonic video players, showing the gradual elimination of all analog interfaces. There are very few ways to work with analog input anymore.

One interesting request for clarification from the Copyright Office panel concerned what could constitute an ebook – in other words, were there “narrowing principles” that governed what an ebook could contain, or how it would behave? Our panel emphasized that an ebook is a packaged document containing content whose behaviors are circumscribed by a clearly specified set of constraints. It provided a useful opportunity to stress the importance of IDPF’s ebooks standards in the digital publishing environment.

The Copyright review process will continue for several more months. There may be requests for clarification and other documentation, but hopefully by the end of the year we’ll know whether our request has been granted. I certainly hope so; the world of ebooks will be a lot gloomier without the sparkle of video.

 

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