EFF Prepared Testimony at Copyright Office section 1201 rule-making hearings presented by EFF Staff Attorney, Gwen Hinze
May 15, Panel 2 EFF 4th Proposed Exemption – Public domain motion pictures released on CSS-protected DVDs
EFF has sought a narrow exemption for audiovisual works and movies that are in the public domain in the United States, and that are released solely on DVD format, where access to the content is prevented by Contents Scramble System, and possibly other technological protection measures.
First, I’d like to address the applicability of section 1201 to these works. EFF believes that section 1201(a)(1) does not apply to public domain works because they are not works protected under title 17. However, there is legal uncertainty about this, particularly as to the application of section 1201 to compilation DVDs containing public domain works bundled with copyrighted works. Therefore, to the extent that the Copyright Registerand the Librarian of Congress consider public domain works released on CSS-protected DVDs to be within section 1201′s scope, we have requested an exemption for this class of works.
The creation of a healthy and rich public domain for the benefit of all society, is one of the core principles underlying copyright law, as recognized by the Supreme Court in Twentieth Century Music Corporation v. Aiken, The public domain is an important source of ideas, information and cultural exchange.
With the transition to DVDs and away from VHS tapes as the predominant medium for releasing and viewing movies in the United States, public domain movies are now beginning to be released only on DVD format. As public domain works, this material is not subject to copyright law and consumers’ use is, by definition, non-infringing. However, consumers’ use of these works is inhibited where the public domain material is released on a DVD with CSS protection. An exemption is therefore required to allow consumers to exercise their full range of rights in this class of public domain material and preserve the constitutionally-mandated copyright balance.
Opponents of this exemption have made three main arguments:
First, they have argued that EFF is mistaken in arguing that public domain works released on DVDs subject to CSS protection will become less available to the public. The joint commenters argue that copyright owners will have no incentive to re-release public domain material on DVD in the absence of a legal regime that prohibits circumvention of technological protection governing access to these works. In support of their argument, they quote from a section of the Register and Librarian’s 2000 final rule discussing the availability of copyrighted content for alternative minority operating systems such as Linux.
This argument is irrelevant to the question of whether copyright owners should be entitled to use technological measures and the legal norms of section 1201 to preclude access to public domain works. An important -indeed fundamental- distinction exists between the case in issue, and the quoted comments on playability on alternative playback systems. Copyright owners do not have copyright rights in public domain works. The joint comments’ claim to user facilitation proceeds on a mistaken reliance on copyrights that DVD publishers do not control.
If studios choose to release or re-release a public domain motion picture on a DVD, they may do so in order to obtain revenue from the sale of the physical DVD, but they do not thereby obtain copyright in the public domain motion picture. To argue that a major studio requires technological protection measures backed by legal norms to give them an incentive to release works in which they do not hold the copyright, is either factually false, or else amounts to an inappropriate attempt to assert private rights over a public asset.
It’s factually false, since motion picture studios are, and will continue to re-release these works in order to obtain revenue – even though it’s a public domain work and they don’t hold the copyright in it. Studios will continue to release public domain movies, in the same way that book publishers have successfully continued to publish the works of Shakespeare, even though they don’t hold the copyright in those works. Granting an exemption to permit circumvention by consumers who have already purchased a public domain DVD has no impact at all on a copyright owner’s profit from the DVD, and does not impact any copyright they own. The existence of legal sanctions for circumventing technological measures controlling access to works that they don’t own copyright in, cannot have any bearing on a studio’s decision to re-release a public domain movie on DVD.
The situation is no different where copyright owners have a thin copyright – for instance, where they choose to release a compilation DVD with a public domain work bundled with works in which they do hold the copyright. In either case, the copyright owner would obtain, at best, a thin copyright in the non- public domain elements, but does not thereby obtain copyright in an uncopyrightable public domain work. As recognized by numerous cases, including the Supreme Court’s decisions in Harper & Row v. Nation Enterprises and Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 345 (1991), and the Ninth Circuit’s decision in Sega v. Accolade, the public continues to retain the right to access the uncopyrightable parts of the compilation. An exemption is required to allow consumers to exercise their right of access and to prevent copyright owners from using technological protection measures as a bootstrap to extend their thin copyrights over public domain works.
Second, our opponents claim that this exemption confuses access and copy controls. This claim is based on two misunderstandings: first, about the merged nature of CSS as both an access and copy control, as recognized by Judge Kaplan in the Corley case and the Register and the Librarian of Congress in the 2000 Final Rule. Second, a misunderstanding about the applicability of section 1201 to a public domain work. Even if section 1201 applies to a DVD compilation which includes public domain and copyrighted parts, the requested exemption will permit circumvention only for the purpose of accessing and copying public domain works within the compilation. Since public domain works are not copyrighted or subject to copyright law, there is no prohibition in copyright law on copying a public domain work once access has been gained through a permitted circumvention of the CSS measure which controls access to that work.
Third, our opponents have argued that we have not met the burden of proof on proponents of establishing a substantial adverse impact on consumers.
I’d like to make two comments in response to this claim. First, as I noted in the previous panel, if interpreted as the joint commenters have suggested, the standard of proof would raises serious questions about the equity of this
rule-making process. It is simply not feasible for consumers to provide an authoritative listing of every public domain motion picture available only on DVD. As a result of considerable effort by EFF and a team of researchers, including reviewing and cross-checking several sources, several databases, and including a review of records held by the Library of Congress, EFF was able to identify and provide evidence that 9 public domain motion pictures are currently available as solo works only on DVD and not on VHS format. The joint commenters have not disputed this claim. They have instead argued that this is an insignificant number of titles and that there are alternative sources for these movies in existing VHS compilations, so an exemption shouldn’t be granted.
The fact that nine titles that have been released as individual works solely on DVD is evidence of current actual harm to the public interest. Whether or not some of them may exist in a compilation in an unprotected format does not detract from the fact that public domain works are now being re-released solely on CSS protected DVDs. Since these works are in the public domain, the public is harmed by the fact that consumers are currently precluded from accessing or using them by virtue of technological means. That harm occurs irrespective of whether there’s an alternative unprotected source. Public domain works are unique. They’re not fungible. Precluding the public’s access to one version of one of them harms the public interest and upsets the careful copyright balance. And this is true even if the work might exist in another format.
In the next three years this trend is only likely to increase, as DVDs overtake VHS as the most common format for home viewing, and as the existing stock of VHS tape deteriorates. My colleague, Ren Bucholz, is displaying a graph showing the comparative sales of DVDs versus VHS tapes over the last three years. DVD sales overtook VHS tape sales in 2002. The pie chart Ren is currently showing displays DVD rentals versus VHS rentals for the last three years. DVD rentals overtook VHS rentals in March of this year.
As DVD players continue to penetrate the market and DVDs replace VHS tapes over the next three years, public domain movies will increasingly be released or re-released only on CSS-protected DVD format. This is already occurring. Ren is currently showing a slide which quotes a Warner Home Video executive announced this year that Warner decided in January to phase our releases on VHS because, “for us, VHS is dead”.
Finally, I wish to emphasize that the exemption we have requested is narrow and does not permit widespread copyright violation. If a consumer went beyond the scope of the exemption, and sought to reproduce or otherwise infringe the copyrighted part of a DVD compilation, the copyright owner could bring an action for infringement, and would continue to have the full range of copyright infringement remedies currently available under Chapter 5 of Title 17.
Still, Frost told Sohmers, “thousands and thousands” of people do have genuine autographed items from “The King of Pop.” “He was very fan-friendly. He was very generous,” said Frost, who is president of Professional Autograph Authentication Services. Authenticated signed photos are worth about $800 to $1,200. “Even before his death, Michael Jackson was a $400-$500 autograph,” he said.
And even before his death, there was a steady market for Jackson’s music, said Dan Phipps, manager of Newbury Comics in Natick. “Michael Jackson is such an icon that he is a regular seller, but nothing compared to what happened after he passed,” Phipps said yesterday. DVDs, CDs, posters, even vinyl records, “we sold out of most of the stuff the night he died. The next morning, anything at all remotely related to Jackson was gone.” The store in the Sherwood Plaza has restocked with an assortment of Jackson and Jackson 5 collections, but “it’s still flying out at a good pace,” said Phipps.
On the other side of Rte. 9, at Barnes & Noble in Shoppers World, “we definitely had a steady stream of people” buying Jackson albums and tribute-themed editions of Time, Newsweek and other magazines, said Heidi Bryce, manager of the Framingham store’s music department.
As at Newbury Comics, Barnes & Noble sold out of most everything connected to Jackson “right after his death,” said Bryce. “There has been steady interest” in Jackson items arranged on a table near the customer service kiosk, and in those in the music department that share space with DVDs of TV shows and movies featuring the recently departed Farrah Fawcett and Karl Malden.
As for what Sohmers, who is also an appraiser featured on PBS’s “Antiques Roadshow,” is being offered for consideration, it’s “a lot of paper items, posters, record albums, things like that,” but nothing of particular interest to the man who dubbed himself “The King of Pop Culture” soon after Jackson added the royal title to his resume.
“Everyone has a different definition of what’s ‘the good stuff,’ ” he said, and Jackson memorabilia is no different. Some like “Thriller” era, others prefer the early days of the Jackson 5. Sohmers prefers the “Captain EO” era. “It was just fabulous,” Sohmers said of the 3-D movie featuring Jackson that was shot in the mid-1980s and shown in Disney theme parks. “I’ve got a bunch of Captain EO,” and “I’m holding onto it.
“Unless somebody offers me crazy money.”
Julia Spitz can be reached at 508-626-3968 or firstname.lastname@example.org.
The MetroWest Daily News
By Doug Levine
18 June 2009
Legendary blues singer Koko Taylor died June 3 in Chicago, Illinois of complications from intestinal surgery. She was 80 years old. Taylor was not only a magnetic performer but an important influence on entire generation of female blues artists.
It was Koko Taylor’s earthy growl and heartfelt delivery of blues classics like “Wang Dang Doodle” that earned her the title, “Queen Of The Blues.” The song was a million-selling hit on the R&B charts in the 1960s, and over the years, it became Taylor’s most-requested show tune.
Koko Taylor was born Cory Walton near Memphis, Tennessee. She earned the nickname “Koko” because of her love for chocolate. Her passion for the blues began at home, where she listened to records by Muddy Waters, Bessie Smith and Memphis Minnie on the radio. Although her father encouraged Koko to pursue gospel music, she would sneak out of the house, and sing the blues with her brothers accompanying her on homemade instruments.
Determined to leave the cotton fields of rural Tennessee for the bright lights of Chicago, Koko packed her bags and moved there with her future husband Robert Taylor. Her big break came in 1962, when famed blues producer and arranger Willie Dixon spotted her in a nightclub and signed her to Chess Records.
Koko achieved international success on the Chess label, turning out a string of best-selling blues hits like “I Got What It Takes.” When Chess folded in 1975, Koko went on to record nine albums with Alligator Records, eight of them nominated for Grammy Awards.
Koko’s 40-plus-year career includes an impressive list of honors and awards. Among them, a Grammy for Best Traditional Blues Album, 29 Blues Music Awards, the Blues Foundation’s Lifetime Achievement Award, induction into the Blues Hall of Fame, and a National Endowment for the Arts National Heritage Fellowship Award.
Koko Taylor gave her last performance on May 7 at the Blues Music Awards in Memphis. She died on June 3 at her home in Chicago.
VintageNewscast obtained permission to reprint this article.
Aaron Naar and Seth Cuddeback co-produced a new dramatic film called
Aaron Naar and Seth Cuddeback co-produced a new dramatic film called Fades with Age, which explores the issue of aging in America
Naar and Cuddeback are recent graduates from the film school at Vassar College, a small liberal arts institution in New York.
They are the co-producers of a new dramatic film called Fades with Age, which Naar says explores the issue of aging in America. “Fades with Age is a short, 23-minute fiction narrative film about an elderly man in New York City who’s trying to reconnect with his son and grandson in an increasingly fast-paced world,” Naar says. “And it’s basically a critique of the marginalization of the elderly in a business-oriented America.”
Naar says he wanted to make Fades with Age because, for him, the issue of aging in America is personal. The cast and crew of The cast and crew of Fades with Age
“I wanted to make Fades with Age because my grandparents’ generation actually, unfortunately, died off this year, and it was pretty alarming and unfortunate to see how little health care and aid and support there was among many of these elderly communities that they’re involved in…” he explains.
Naar says that it isn’t just a lack of social services that causes the elderly to suffer. He says many of them feel isolated even within the circle of their own families. That, he says, is the sentiment he tries to convey in his film, which follows a day in the life of an elderly man named Roger and the encounters he has with his family and society at large.
Cuddeback, writer and co-director of Fades With Age, says his reason for making the film was to present a view of the senior population that isn’t typically portrayed in American films. Cuddeback says a scene in which Roger is ignored by a receptionist provides a typical example of how elderly people are treated by society Cuddeback says a scene in which Roger is ignored by a receptionist provides a typical example of how elderly people are treated by society
“I wanted to write something and make something that showed more accurately what the aging process might be like for somebody in America today,” Cuddeback says.
An example of that comes in a scene where Roger, needing to make an important phone call, approaches the reception desk in an office building, where a young receptionist – wearing ear buds and enjoying his music – is indifferent to the old man’s pleas. Cuddeback says that scene is, unfortunately, a fairly typical example of how elderly people are often ignored by society. But what really hurts, he says, is how they’re ignored by their own families.
“Even though we see him interacting with his son and his grandson, you know, family members who love him, but in sort of a different way, they’re sort of each involved in their own lives to an extent that they never, ever, think about this person,” Cuddeback says. Roger interacts with many people in the film, but no one seems to really understand him Roger interacts with many people in the film, but no one seems to really understand him As the film develops, we learn that while Roger’s family may not always understand him, his best friend, Janet, does.
“Throughout the day, we see him interact with a lot of people, but none of them are people that he really connects with until this moment that he shows up at his friend’s house, somebody who he’s known for years, somebody that he shares a connection with personally and generationally,” Cuddeback says.
Janet, says Cuddeback, is the only person Roger feels can commiserate with him about his isolation and his loneliness. Roger and his friend Janet share their feelings of isolation and loneliness Roger and his friend Janet share their feelings of isolation and loneliness During one scene from the film, Roger and Janet have just finished dinner and are relaxing in her living room when Roger asks Janet if she ever wonders where they’re at.
“Sure, Roger, all the time,” Janet replies.
Cuddeback says most Americans are preoccupied with life in some form or another, which prevents many of them from connecting in a meaningful way with the elderly people in their lives. That, he says, is what needs to change.
“Our culture is very individualistic in a lot of senses, and, sort of, we all have this one specific thing that we want for ourselves, and oftentimes that comes at the expense of others,” he says.
Naar and Cuddeback hope their movie will help younger generations see the elderly in a more compassionate light and maybe even inspire them to put away that Blackberry, just for a few minutes, when Grandpa is visiting.
© VOA 2009