Copyright Advisory Network

More important copyright news from District Dispatch:

In December 2008 the Library Copyright Alliance (LCA) and the Music Library Association (MLA) submitted comments to the U.S. Copyright Office at the Library of Congress, asking for an expansion of the previous exemption to the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) to include the following:

• The exemption should apply to audiovisual works included in any college or university library, not just the library of the media studies department
• The exemption should apply to classroom uses by instructors in all subjects, not just media studies or film professors

LCA and MLA followed up in February 2009, submitting additional evidence supporting the circumvention of access control technologies of audiovisual works included in a library of a college or university. The associations highlighted the absence of alternatives available and included additional examples of film clips used by college and university faculty – from many academic disciplines.

On Friday, May 1 in Palo Alto, CA, the Copyright Office began a series of hearings on the proposed anti-circumention exemptions. Yesterday, the hearings moved to the Library of Congress in Washington, D.C., where they’ll conclude on Friday, May 8. Jonathan Band, testifying on behalf of the American Library Association (ALA), the Association of College and Research Libraries (ACRL), and the Association of Research Libraries (ARL) offered evidence in support of the expansion of the exemption (for a transcript of the testimony, go here). Band said that DVDs provide the high-quality audio and video necessary to discern subtle forms of communication central to teaching language and criminal justice classes. Band went on to question the alternatives to circumvention offered by content industry representatives, such as videorecording a TV screen or asking permission from film studios in order to use a clip. Finally, Band excoriated rightsholders for opposing the modest expansion of the exemption to include all faculty on campus. He said,

They know that whether the exemption is granted or rejected will have absolutely no impact on the level of infringement…they insult us by treating us as potential infringers who can’t be trusted to use a technology any 12-year-old can download from the Internet.

Many others testified yesterday in support of this exemption, or similar exemptions. Check out the Twitter feeds from OITP, Public Knowledge, and Wendy Seltzer for more updates. Follow #dmca1201 on Twitter for proceedings over the next 2 days. And don’t miss this surreal video of members of the Motion Picture Association of America (MPAA) showing the Copyright Office how users should not be allowed to circumvent copy protections on DVDs because there is a viable alternative – videorecording a TV set!

MPAA shows how to videorecord a TV set on Vimeo.

Timothy Vollmer ALA, Copyright news, Events, Fair use, Technology 1201, acrl, ALA, anti-circumvention, arl, copyright, copyright office, DMCA, dmca 1201, hearings, library of congress

[March 25: Factual updates via TechDirt]

It’s common knowledge that for years the content industry and other threatened rightsholders have been appropriating the Digital Millennium Copyright Act (DMCA) in order to bully competitors or the fair-use-toting public into removing content from the Internet. Google has now released some statistics that show just how widespread these tactics have been.

In a submission to the Telecommunications Carriers Forum concerning proposed updates to New Zealand’s copyright law, Google noted that “more than half (57%) of the takedown notices it has received…were sent by business targeting competitors and over one third (37%) of notices were not valid copyright claims.”

The data suggest that businesses have been misusing the DMCA in order to squash competition and chill legitimate speech. The provisions of the DMCA that were originally intended to protect ISPs and other distributors of content from liability continue to be improperly wielded by an overzealous industry trying to make others play the game by their rules. While some recent rulings provide a glimmer of hope in reforming the broken DMCA takedown system, the public interest will have to continue the copyright fight for their rights.

Timothy Vollmer Copyright news copyright, copyrightfail, DMCA, Hall of Shame

Sometimes I am a glutton for punishment. Last night, just for laughs, I thought I would read the 73-page reply comment submitted by attorneys for the copyright industry trade associations in response to requests for exemptions to the 1201 anti-circumvention provision of the DMCA. This reply comment represents the views of some BIG players, including the Motion Picture Association of America, the Recording Industry Association of America, the Software Business Alliance, and the Association of American Publishers.

The issue of importance to faculty and librarians who work at colleges or universities is whether faculty in all subject disciplines can circumvent DVD protection technology to make clips of films to show face-to-face in the classroom. Currently only film and media studies professors have the exemption to circumvent DVD technology for this purpose, and the copyright trade associations oppose broadening this exemption to faculty in all disciplines. The ALA and others argued that faculty in all disciplines should be able to circumvent DVDs as well for classroom teaching purposes. Many examples from faculty in many different disciplines were submitted that demonstrated the need that the exemption should be expanded. Our comments are here and reply comments here.

We expected this opposition since similar arguments have been used in previous rulemakings.

What was more interesting to me is Section II of the comments. This is the section where the copyright trade associations provide instructions to the U.S. Copyright Office. The “creative industries” seem to be telling the Office what they should do – I guess the same way that the creative industries tell Congress what to do. On the other hand, the attorneys are writing on behalf of their clients and if they can sway the decision making process of the Office, then they have the right to do so. I just disagree with a lot of what they advise.

One suggestion made to the Office is to not focus on the users who propose the exemptions (even though it is a user that is trying to make a non-infringing use). The comment goes on to say that “once the Librarian grants an exemption to a specific educational use (e.g., use of clip compilations for face-to-face teaching), engaged in by a specific subset of educational users (e.g., media and film studies professors), for example, it is inevitable that other educational users will demand a similar exemption for other educational uses.” (Other educators will want to exercise fair use, damn them!!) The comment goes on to say that this “slippery slope,” if unchecked, will lead educators to believe they are “favored groups of users” when it comes to fair use.

In fact, educators are already favored users of fair use under the copyright law. The first factor of fair use is the purpose of the use – non-profit, educational uses are more likely to be considered fair. Section 110 of the law allows educators exceptions for the public performance and display rights for teaching purposes. Even the TEACH Act recognizes that educators should be able to use portions of audio visual works in the distance educational classroom. Moreover, Section 108 allows libraries to make copies of works for users engaged in scholarship and research. Section 504(c) says that educators who thought their use was fair and are subsequently taken to court cannot be charged statutory damages. Educators are favored because the purpose of the copyright law is to advance learning. Educators advance learning.

The trade associations argue instead that “alternative means for achieving the desired use should first be pursued including seeking permission from the rights holder.” This is wrong — a non-infringing use is one where prior authorization from the rights holder is not necessary. Reminder: fair use is an unauthorized use. If you are asking permission, then you are not exercising your lawful exception.

In any case, the motion picture industry is not in the habit of giving permission to circumvent for educational purposes. This is a result of permissions employees evaluated based on how much money they can bring into the company via royalties. Naturally, they focus their attention on those requests that bring in the most money. Educational uses will not bring in the money because if the royalty fee is prohibitive, the user will forgo the use.

The copyright trade associations also suggest that if a work is available in an analog format, then the digital version cannot be circumvented for a lawful purpose. The problem here is reality — universities and colleges have discarded their VHS players to make way for DVD players. In many cases, only DVD playback equipment is available for classroom use. In addition, many distributors are no longer selling videos.

Another directive states the obvious. Circumvention should only be allowed for the sole purpose defined in the exemption. News flash! In their spare time, faculty are not circumventing technology just for grins. They would prefer to just have access to barrier free DVDs for teaching purposes. They may not know how to circumvent. And if they do, they might forgo the use because of the risk associated with 1201.

The copyright trade associations have argued that without technological protection measures, they will not bring their products to the digital marketplace. (I can’t imagine that these industries would just stop participating, can you?) They say that the risk of piracy is too great, even though there is no data to suggest that any piracy is due to faculty circumventing classroom DVDs. Even if there is a risk that there may be market harm, the Copyright Office is advised to reject the proposed exemption.

Our hope is that during the public hearings portion of this rulemaking, faculty will be allowed to demonstrate how and why they are using clips in the classroom. Maybe people will then be convinced that the use of clips is an effective teaching tool for today’s media literate students. We shall see.

Carrie Russell Copyright news 1201 rulemaking, copyright, DMCA, Fair use, MPAA

As you know, ALA (as a member of the Library Copyright Alliance and with the Music Library Association) submitted comments for the DMCA 1201 rulemaking in December 2008 arguing that the exemption to circumvent TPMs on DVDs to create clip compilations for classroom use by film and media studies faculty be expanded to include faculty who teach in all subject areas. See our comments (PDF).

Reply comments are due February 2nd, and we would like to provide even more examples of faculty who would like to or are circumventing DVD copyright technology in order to make clips for the classroom (not online, face-to-face). For the academic librarians reading this blog, could you try to get some examples from your faculty? We need to know how the faculty person is using the clips — why they are a valuable teaching tool — subject area and institutional affiliation. If we can actually use the faculty member’s name, that would be great.

Thanks very much for your help! Please send examples to Carrie Russell – crussell AT alawash.org.

Carrie Russell Copyright news 1201 rulemaking, Academic libraries, copyright, DMCA

A recent piece in the NYTimes Bits Blog points out a study from the University of Washington which showed that the technologies Big Media uses to investigate illegal file sharing regularly produce false positives.

From the Bits blog:

In two separate studies in August 2007 and May of this year, the researchers set out to examine who was participating in BitTorrent file-sharing networks and what they were sharing. The researchers introduced software agents into these networks to monitor their traffic. Even though those software agents did not download any files, the researchers say they received more than 400 take-down requests accusing them of participating in the downloads.

The researchers concluded that enforcement agencies are looking only at I.P. addresses of participants on these peer-to-peer networks, and not what files are actually downloaded or uploaded — a more resource-intensive process that would nevertheless yield more conclusive information.

In their report, the researchers also demonstrate a way to manipulate I.P. addresses so that another user appears responsible for the file-sharing.

An inanimate object could also get the blame. The researchers rigged the software agents to implicate three laserjet printers, which were then accused in takedown letters by the M.P.A.A. of downloading copies of “Iron Man” and the latest Indiana Jones film.

This is not the first time flaws in the RIAA/MPAAs’ strategy have been revealed, and librarians and other concerned parties have been calling for more transparency in their tactics for quite some time. Now opponents of file-sharing lawsuits – not to mention the defendants in those lawsuits – have scientific evidence that these tactics implicate innocent people. And laser printers.

MollyKleinman Copyright news, Technology DMCA, file sharing, MPAA, RIAA