The U.S. Copyright Office posted reply comments for this year’s round of the triennial 1201 rulemaking. The Library Copyright Alliance (LCA), a coalition of U.S. library associations of which ALA is a member, filed initial comments (pdf) in February requesting an exemption to circumvent digital technology employed by rights holders when technological protection measures (TPMs) prevent users from exercising a lawful use, such as a fair use. LCA argued for an exemption so faculty and students at non-profit educational institutions can bypass technology (content scrambling system (CSS)) on DVDs in order to make a clip to show in the classroom or for close analysis and research. In this year’s request, LCA joined the American Association of University Professors (AAUP), the College Art Association (CAA), the International Communication Association (ICA) and others requesting that in addition to the renewal of the DVD exemption that the rule should be expanded all media formats including Blu-Ray discs. In the reply comment phase, the rights holders make their case why circumvention requests should not be allowed.
If lawyers are paid by the word, some are doing well financially (not that there is anything wrong with that). The lengthy comments, at least in the past, have always come from lawyers representing the content community. When I saw the 85-page comment (pdf) from Steve Metalitz representing the Joint Owners and Creators—aka the motion picture and recording industry companies—I thought, oh geez.
But it turned out that the comment section was the shortest ever submitted by Metalitz—only 12 pages! The rest of the submission was devoted to “exhibits” of articles and advertisements of various streaming and downloading services available in the marketplace like VUDU and Netflix. One exhibit provides instructions on how to embed a video in a PowerPoint presentation. How very helpful, but what does this have to do with the rulemaking?
The Joint Owners and Creators state that “the confidence afforded by the security of TPMs, and the flexibility in business models that such TPMs enable, are essential marketplace pillars which have led creators of motion pictures to expand their streaming and downloading options and to experiment with a broad range of business models to increase access to their works, such that some films can now be purchased and digitally downloaded before they are made available on physical discs.”
They go on to suggest that the Warner Brothers Archive, Disney Movies Now, UltraViolet digital storage locker services and the like are services that educators can use for film clips, making most circumvention unnecessary. Really? All of these services are available via license agreements that restrict access to “personal, non-commercial use.” If educators did use these services for non-profit educational, public performances, they would be in violation of the non-negotiated, click on contract. (You would think experienced intellectual property [sic] lawyers would know that and maybe read the terms of service, but hey, I am just a librarian).
Marketplace solutions like non-negotiated contracts for Hollywood content are not solutions for libraries and non-profit educational institutions because they are written with only the individual consumer in mind. TPMs have not enabled business models that work for libraries and educators. Alas, we have no market pillar. Librarians and educators cannot do their jobs when license agreements have erased fair use and other copyright exceptions from existence.
In the 2005 triennial rulemaking, the content community argued that instead of circumventing technology on DVDs to extract clips, that users go into a darkened room with a video recorder and copy the clips they needed from the television screen as the DVD is played. They played a demonstration video at the public meeting. That suggestion still remains at the top of the list for craziest ideas proposed during a rulemaking. But proposing the use of services not even legally available to educators and librarians makes a close second.