This is the presentation. One, two. This is the presentation. You'll have one. So we have three years. We have three years. Three years. We just wanted to make sure they're all working properly. J.J. J.J. J.J. J.J. J.J. J.J. I asked the people who are on the 330 panel. Are any of you going to have any audio? Alright. So Denise, Can you hear, in case if you need any help on that. We do have another break. We're lucky enough to have time for a break if I'm not. We even got to have a break one way or another. That number. OK. I hope he was on his way but I don't think we'll wait for him because... because... This is the second panel on classes 7a, 7b, 7c, 7d, again all of them relating to motion pictures and audio visual works and the order of the witnesses I have in front of me, Jim Morissette, followed by Gordon Quinn, Peter Bramley, Beth Buster, Alex Cohen, and Brandon Charney, is that right? Okay, and then I see Mark Bruce Terzl and Steve So, let's get moving, 10 minutes each, yes? Peter, not that, we'll be speaking in favor of 7d. 7d, which is... Oh, okay, good, right, thank you. Good. 10 minutes each, and again we're going to be pretty strict on that, so Jim? Good afternoon, everybody. Thank you for the opportunity to testify on behalf of some of you may have seen it. Some of you may have seen my presentation on May 11th at the technical presentations. And what I'd like to do today is do two things. One is to give my response to the opponents' demonstrations of very technical alternatives to circumvention. And then I'd like to do a short recap of my May 11th testimony to clear up some misunderstandings. The opponents demonstrated two alternatives that have been suggested as an alternative to circumvention. One is screen capture software, using replay video capture, and the other is smartphone scan conversion. Screen capture software allows a computer to playback protected media and then actually record what is on the screen into a file that can be used. We tried this technique as well, and what I observed of screen capture software were the same issues that we observed when we did the test. We noticed an extreme problem with scuttering images into dropped frames. It's very computer-intensive to try to record live 30 frames a second video into a file and have audio all at once. And we have sections of the video that have a lot of rapid motion, or you attempt to capture them in a higher resolution in DVD by filling the computer screen with them. Drop frames occur and they can never be replaced because they were never recorded. There's no software that can actually replace them. This is not acceptable for public television broadcasts. There are audio synchronization issues because the audio lag is behind the picture. And more serious is that because a vast majority of documentary filmmakers use Macintosh computers for editing and producing their programs, the latest Mac computers do not allow any screen capture software at all when playing back a DVD or any iTunes media, whether it's video or screen or download. So it's really not a workaround that we can work with. The other technique was something we call smartphone video screen capture. And it's exactly what it sounds. You take a smartphone, use the video portion of it, aim it at a monitor that's playing back a protective media disc, and literally photograph the monitor. Well, this introduces, again, unacceptable problems. Smartphones have automatic exposure and automatic focus that are constantly searching. And there's a change in the video settings if it jumps out at you. The audio is only from the camera microphone. So anything else that's in the room, you have to essentially play it back on the speakers of the TV set and pick it up with the microphone. But the most serious is something called video aliasing, which occurs when you have very fine detail dots on a computer screen or monitor and very fine dots on an image sensor in your iPhone. And when they don't line up exactly right, you get artifacts at the overlap point. And these artifacts show up on top of people's faces. They show up on buildings with fine detail. And this is specifically forbidden in the latest public television technical specifications that came out in March. The image must be free of compression artifacts and aliasing, such as the artifacts associated with scan pollution. So again, it doesn't work for us. So I tried to come up with some alternatives to this, explore them. And I presented two possible options that I considered, alas, neither of them are successful. And I'll tell you why. The first one was to take an analog output from an EV player or a Blu-ray player and up-convert it to high definition using a sophisticated expensive box called Tarenax.  And the manual is 249 pages. And there's 24 pages of just telling you what different colors each of the buttons on the front panel might be and what that means. It's not something for the family party. And here's just one example of one menu. This is the menu that is used to adjust the aspect ratio of your signal coming in. This is some of the older DVDs. The aspect ratio is 4 by 3. High definition has to be 60 by 9. So you need to convert that. But it's so labor-intensive and confusing that it's impractical. But there's a more serious problem. Since it requires an analog input, we have two choices. We have the component analog signals that are the better of the two analog signals coming out of DVD and Blu-ray players. And we have the composite signal, which is a much lower quality signal where all the colors are smushed together and you get all sorts of interactions between the color and the luminance part of the picture. Well, here is an example of a Blu-ray player from late last year, December 2011. And you can see that it has component analog outputs on the top row, red, blue, and green. And on the lower right, you have the composite output. Here is the same mid-level model Panasonic that was released early this year. Component output's gone. And the latest version of this Panasonic Blu-ray player, there's no analog output at all. So without an analog source from a protected disc, the Taranex is worthless because we can't get a signal input. So another method I explored was to essentially say, okay, what's the problem? We've already stated the problem with software image capture. So let's investigate hardware image capture. A Matrox box was selected as a test. And the way it works is you play back your protected media on the computer to take the monitor output from the computer tower, loop it through this box which extracts that signal and turns it into a recordable video signal. You'll notice that there's no audio associated with this system. Audio is a whole separate signal path and it requires an audio delay box because the time it takes to process that video signal, if you don't delay the audio, everything will be out of sync. But there are problems with this as well. It's also costly and complex to operate. It requires a high-end computer tower and graphics card. And it will not work with Blu-ray because Blu-ray HDCP on the graphics cards blocks any high-definition output. And it blocks the use of hardware scan conversion because you're putting this box in between the computer and the monitor. And once you do that, the high-definition signal stops. At Cartemkin Films last year, we produced a 90-minute American Master Show called The Good Man and we were able to take advantage of our current exemption to pull numerous clips from DVD without ever going through an analog path. And that worked for us back in 2011. And now we're being asked by public television to produce everything in high-definition, to release everything in high-definition to them. That's all they will accept. And they put a severe limit on any kind of standard-definition clips being up-res by analog, which, as I've mentioned, is fading away, and also the problems I've mentioned with hardware screen capture. So in summary, both of the alternatives proposed by the opponents will not work for public television and broadcast specifications. We would be rejected. We wouldn't be able to use the clips. Hardware upconversion and hardware scan conversion are very costly. They require an engineer to operate. You can find one that knows how to do it. They degrade the image because when you upconvert a signal from a standard-deaf source, you're creating quasi-high-definition. You're creating image detail out of nothing by duplicating lines and interpolating lines. It's a mathematical trick. It's not HD. It may have the same number of lines of resolution as HD, but it's coming from a bad mediocre source. And, of course, analog is disappearing from all of our sources, our disc playback sources, and PBS severely limits it even when we do have it. I get calls from filmmakers all the time asking me, how can I deal with this? How can I get my archival material into my show? And when I explain these options and some of the problems that exist, they realize that they don't have the financial resources or the technical resources to even try to use them. And so if, because of the existence of this equipment that doesn't even satisfy our needs, is going to prevent 95% of the filmmakers from gaining access to protected media that's going to be of a quality enough to broadcast, then it's a real shame. Thank you. By the way, I should have mentioned this this morning, but all those people who are bringing PowerPoints to any other audio-visual age, you will be leaving copies with us, I assume, and a record, good, good. And also, I did misspeak when I said which glasses we were talking about. I was reading from the wrong page, so I hope no one will object if we just correct the transcript. So that when anyone gets to that point of the transcript, they're not hopefully confused. So when I started this session, what I should have said, is that this particular panel is to discuss 7D and 7E. Any objections? Thank you very much. Are you ready for me? Yes, please. I'm Gordon Quinn.  You've got to press that darn button all the time, unless Peter might be able to share you. I think this is okay. Okay, thanks. Okay, so I'm Gordon Quinn. I've been making documentary films for 46 years. I'm the founder and artistic director of our template films. And we are a fairly robust institution, an entrepreneur who produces for PBS and we see theatrical presentation is very important to us and other cable outlets that we've been on. And they all have very technical specifications. We are rights holders and we are also rights users. We are unusual in that we do have a technical director, Jim, who has an engineering background. And so we consider ourselves a resource for the larger community. And when Jim talks about, he gets calls all the time from people within this particular area, but we get calls in a range of areas and we see that part of our mission is to help people exercise their fair use rights. We're syncing this exemption to continue the fair use that we reclaimed with the publication of the documentary film, Emperor's Sight and the Best Practice in Fair Use. It's a narrow and a defined fair use exemption. 18 years ago when Hoop Dreams was released, we licensed what we should have been able to claim fair use on, but at that time we had lost that fair use, not because of so much court decisions, but because of big players intimidating the broadcasters and insurance companies and other gatekeepers. But we've now won those rights back at this terribly important level. The interrupters, which was just on the front line, had many fair use clips in it, as did a good man, which Jim reported to, which was on American Masters. We are really asking to be able to continue the status quo and merely updating what we've had for the past few years to updating the exemption to be able to deal with the new technical standards that are coming from... that are already here, actually, they've arrived from broadcasters and theatrical presenters. Any solution that involves licensing, managing copies, streaming, anything that involves us having to go and ask permission from the people that we may be critiquing, parroting, using a clip to make an argument about trying to show something about what's happening in the society. Many of that is unacceptable for a whole variety of reasons. We're exercising a right, and that's where we learn that in our struggle in reclaiming fair use, how important it is to us to have this right and to be able to use it. I should have set up front, by the way, that I'm here speaking for documentary filmmakers and for the panel, the class, and for the Independent Documentary Association. Just a couple more points. Let me give you two examples of how important having quality that is close to the original, how important it is to us. In a good man, in a film that I just directed, about the dancer, Bill T. Jones, there is a scene where he is talking and he's saying, you know, and it's over a clip that we fare use to.  You can see the sweat on his body, the lighting is spectacular and you can see every detail of this body that he's talking about. He goes on and says a little bit more about this point and what it means to be this kind of an artist in a culture like that. And I need that quality and an image like that to get that across. There's another project that we're in conversation with now about a major film critic of theatrical films, one of the most important film critics in America today. And I can foresee in making that film how important it's going to be. This is a critic who constantly makes the point that people should be seeing films in theaters on the big screen. That experience is very important here. So when we make our film about him, we need to be able to be, when he's talking about the sensual and subtle qualities of an image that he may be critiquing in some kind of way or helping the audience to understand how to perceive that image, we need to do something that approximates. It doesn't have to be, you know, but it has to really be a high quality image. And of course, we have to meet the technical standards of BDS and, as I would hope for this film, also the theatrical presentations. I'm also aware that there are films now that are coming out, new films, that are only going to be released on Blu-ray. That's going to be the only way we'll be able to get them, or in some encrypted streaming kind of way. And so it's important, obviously, in this film that we'll be able to get that. And we see this as not only, you know, I mean, this is going to be a benefit to everyone who loves movies, to have this guy be able to take an audience inside his work and understand what it is that people can actually see in movies, to help people to have a little media literacy to be able to read what's happening in their technology. Something that I think is pretty significant is that we've had this exemption for three years. There has been no abuse. There have been no documentary filmmakers. There's no situation in which documentary filmmakers have broken the encryption where they have been using the exemption to exercise their legal fair use rights that has led to any kind of abuse. Yeah, I think that. We are, you know, rights holders, as I said, and we care about piracy, too. You know, we're not trying to do anything that enables people to steal anything. What we're trying to do is do our work, make our points, critique things, criticize them, and show them. In conclusion, I just want to say that it's in a democracy we need to be able to comment, to critique, to put into context all of the culture that exists out there. Nothing can be, you know, you can't be, well, this is a safe, you can use this and you can critique this, but you can't critique something else. It all has to be available to us within the narrow limits set out in the documentary filmmakers' state. We're only talking about peer abuse, but it's a right. We have to be able to point at it to say this is what it's like. And we live now in a digital age. We live in an age where the quality of the image is not close to that quality in what we're critiquing or to duplicate it. Fair use should not be locked out not by technology and not by clinicians. So that's really... Okay, thank you. Good morning, West Coast time. Not too bad. But anyway, so the work that I do is currently focused primarily on transformations in publishing, and I'm here to talk about multimedia and e-books. I'm currently the director of the BookServer project at the Internet Archive, and I also run a fairly well-known conference called Books and Browsers with O'Reilly Media and with some major support from Safari Books Online. I'm also a contributing editor and blogger at Publishers Weekly, where I cover libraries, wonderful property issues, and media. And I'm an expert member of the International Digital Publishing Forum, which is the standard's body for e-book standards and is responsible for the EPUB format, which has recently been updated to the EPUB 3 format to accommodate greater interactivity and stronger support rational buy. I'm here to talk about three things, shortly. First is just rapid advances in e-book authoring tools and software making it possible for people, for authors to create multimedia books for the first time with relatively little technical expertise. Second, a DMCA exemption is necessary for authors to create these works because alternatives would require financial resources that most authors do not have or an increasing in-case result in a deterioration of video quality with consumers and distributors requiring unacceptable. And third, alternatives to certain invention are inadequate and hard because there are rapid advances in video standards in displays, particularly for mobile displays devices that the recent times had retina, which are compelling content distributors to produce content really beyond even HD video quality and high-quality audio content as well. So, first, let me briefly talk about multimedia e-book technology and development. For the first few years of the e-book explosion, there have been early translations of analog or print books into digital formats. But a couple of years into that transition authors are now beginning to explore what they can do with digital books that were beyond them in terms of what they could do with print. And this has been aided by increasing integration of e-book standards into web standards. So, for example, IETF the standards body for e-books is now actually coordinating development of e-book 3 and successors with the W3C and HTML5 standards to support interactivity, high-quality video, audio and other advanced features. An example of this, an instance of this, is an e-book project for an IETF project called Readian, which seeks to embed the ability to render or digest e-book files directly in a browser for the first time without any additional software necessary. New offering systems are beginning to emerge that take advantage of these affordances on the web. And these tools enable drag and drop authoring of multimedia content that we've never seen before. And they also provide support for what we call push to publish. Let me give you a couple of quick examples of these. One, San Francisco startup called Airbook just released a new tool today called Airbook Maker which is drag and drop of media into a web browser template and again, push to publish output. An indication of the importance of video that filmmaker Kati Chubb is a principal of this company and is much engaged in assisting their integration of video content. Airbook Maker has been demonstrated in Sixth Avenue in New York and major online retailer with great interest in all occasions. A book, another startup in San Francisco initiated with video e-books but pivoted realizing that their platform for e-book creation was more vital and more important and is making that available to authors and small publishers. And then finally, Apple's iBook author a tool in the hands of millions and growing which enables sophisticated multimedia e-book programming and push to publish into the iBook store. It's also important to note that Mozilla, a well-known browser company, is releasing probably around November 1st a tool called Popcorn Maker. Popcorn is a new video framework which for the first time will enable the embedding of external web resources or interactive links within video content. This will enable highly interactive video content for the very first time and e-book manufacturers like AeroBook are already integrating Popcorn into their toolkits. Both the Internet Archive, my organization and Wikimedia are providing support for Mozilla to integrate this content into their toolset. So I'm going to also then talk about why DMCA exemption is required and what are some of the other forces pushing on the advances here. A DMCA exemption is necessary to prevent a substantial adverse impact on multimedia offering. Any author that seeking to use multimedia content today is going to first look in large online archival repositories like the Packers Collection or the Internet Archive among others. But online collections are very spotty and fragmentary and as a consequence most e-book authors are going to have to resort to secured physical media like DVDs and increasing in the new rate. Licensing is not a strong alternative because content is rarely available in fragments almost always is available in its entirety and this is a very similar to the problem that we saw in the Georgia State involving these e-books. Additionally, fees and terms are structured for commercial use from one commercial party to another from a commercial party and do not tend to be adhered toward individual authors or creators seeking educational and entertainment products. Finally, I want to talk about technical advances which are really pushing the bar dramatically in terms of video quality expectations. For the many years in Silicon Valley we have gone through stages of focus on first memory of higher quantities of memory storage than on more and more sophisticated processing. But today focus right now is on display and we can see that with the iCAD Retina already newer mobile displays are coming out being marketed by LG and other companies with higher resolution and what we're seeing come now into manufacturing are that level of screen at a far reduced cost as well as newer generation screens that are embedded in plastic and therefore wearable or wrackled or turbable. These are display technologies that are as I said coming into manufacturing and these are not lab only screens at this point. This will be fairly dominant in a couple of years or very prevalent in a couple of years. Finally we see this echoed as well in video standards. For several years there was contention among browser manufacturers over what video standard would be utilized to embed video in browsers and ebooks. And just this spring video or sorry browser manufacturers coalesced around a common standard H.264. So all of the browser manufacturers Mozilla, Google, Microsoft, Apple are now endorsing H.264 which supports high quality HD video and next year we'll see the release of the successor of H.264 Understandably enough H.265 and H.265 is being prepared in concert with this growing innovation in displays H.265 will actually support what are called 8K displays or ultra HD DVD displays. So already we're seeing the march of quality content moving extremely rapidly beyond the level of DVD. Thank you very much. I just want to let you know that for Bobbett's presentation we're just going to turn down the lights because there's some audio visual and we'll make sure to turn it back on right after the presentation. Good afternoon. I'm Bobbett Buster. I've been since 1992 an adjunct professor at the University of Southern California graduate school of cinematic arts and computer start producing program. I'm also been on the guest faculty of La Femise in Paris the University of Milan and I've lectured in film and business programs all over Europe Japan and South America. Since 2000 I've also been on the guest faculty of Pixar for the last 12 years and the last two years I've been developing a specific program for Disney animators Sony animation and I've developed an extensive program about the history of Hollywood economics for 20th century box. Basically I just want to get into what I do and that has to do with technology. Okay. In the beginning it all had to do with technological wonder when Thomas Edison created the first films but he saw them like light bulbs and it took 25 years before DW Griffith understood that it was storytelling combined with technology and that was the shot heard around the world and that's the beginning of the industry that the US now dominates worldwide since that time. So this is what I teach how do you take any idea with current innovations in technology and do what visionary filmmakers have learned to do progressively in our business. I'd like to just discuss one of the leading concepts that I do I'm going to take six and a half minutes just to show you some of these concepts now let's all remember our Hegel from philosophy class actually it was DW Griffith who first understood this it's the principle of editing and he got this from Charles Dickens basically how do you create a big idea to combine two colliding ideas and that's what we call juxtaposition. So in 1972 Francis Ford Coppola and the Godfather decided to do the following this little girl in white crossed the river past Marzini who's the Uber villain of the Godfather what we're doing here is setting up a DNA in the story of Montiosa you're going to see an Edison child questioning how far would you run a protector family and this world would go as far as murder notice Tommy Hagen right here he will be surrounded by two little girls and a pregnant woman will come into the shot because he's always there at the inception of the murder's idea the camera pans directly over to the garage notice the little girl in white he is the man who's the headman this is a very deliberate choice in every single scene and sequence notice in the next moment Luca Brazzi will thank Vito for having been invited to his daughter's wedding and he will pledge he won't see that but he pledged his undying loyalty and at that moment children scattered into the room all around him showing the visual that Luca Brazzi has done many instances of murder for the godfather and finally in the climax of the movie ask Michael as he's standing godfather to his sister's baby and then we see that he's also wrought a baptism of blood by killing the heads of all five families in New York City and the priest says will you go in peace and indeed he will because now he's the uber godfather how far has he gone to protect his family he's gone as far as to damn himself to hell in the middle of the Catholic Church consciously in a ceremony so for the next instance I want to show you was a turning point in Pixar's history John Lasseter had given the Toy Story 2 to another director when he saw it he was devastated he said it had no heart he took it back and Ed Katmell said in the Harvard Business Review that it was this scene of which we're only going to see a minute out of four and a half minutes of Pixar's history notice the reflection of Jesse she has been thrown under the bed by her child and it turns out she will have been there perhaps 10 or 15 years notice the dust and as the pink is taken out from under her we turn to a world of autumn colors there's even dust on her hat and what we're learning here as Bruno Bettelheim said in the Usance of Enchantment is that fairy tales very necessarily psychologically prepared children for life's inevitable tragedies in this sequence the music is so sad it's in direct contrast to the rest of the film which is in blues and yellows and upbeat and fun and what Jesse learns is what we all have to learn that someday someone we love will be broken we'll be thrown into a nursing home we will be abandoned this is extremely important to the power of the entire film and once they understood this Ed Cattenall said it transformed Pixar's history and they now have the greatest track record of blockbusters in history but they forget you and this is Woody's journey at the very end of the film he has to say the threshold of a window looking out at Andy knowing he's going to grow up and go away to college and Buzz says, what do you think about that and he says, I'm going to cherish every day as long as it lasts I'm going to love anyway such is the power of cinematic storytelling and finally I'd like to talk about a concept called the power of rhymes this is extremely important in cinema storytelling and Steven Spielberg's tour de force film we have the concept of what is the power of industrialization notice this is a master shot all in one sequence as the camera dollies in and out the lighting Cartier Gresson like lighting high-key whites and darks notice we can see the steam coming out of us and we are watching in real time as a pot is made and it's astonishing, it's wonderful isn't it and we are on the same wavelength as this man here who is who would have had a destiny going to Auschwitz but Schindler hired him just to bring him into his because he was cheaper to be in the factory now this last shot we just saw that's 8 seconds long that is the fulcrum of the story it proves that Schindler is going to be a huge success he's got millions of pots in his hand he's going to make a lot of money with the SS and guess what it shows the volume of industrialization and then in our final shot here this is the shot we call the rule of threes that leads us to the emotional horror of Schindler's list because guess who else had this idea of industrialization Hitler and so an arriving shot of dollying going in and out very painstakingly with the same lighting grayscale we see how deliberate and intentional the process was for Hitler and the SS to eliminate an entire 6 million race of people it's volume industrialization and what happens in cinema is all about the orchestration of emotions what you want to do is take people from the opposite emotion first which in this case was delight and wonder and now as we're facing this and taking it in and going oh my god and what we are on is the same wavelength as the jewelry appraisers we are about to meet and I want you to notice they're all wearing the gold star of David they're Jewish men working for the SS and finally one man wakes up we are on his wavelength we are waking up to the horror of industrialization and in this scene classic Spielberg scene he makes it very clear now this is 50 minutes into the story what this film is about and finally it climaxes because cinema is the art form of transformation in this I saw a documentary shortly after World War II and there's an SS officer so very matter of fact you know that the job of killing millions of people is a messy business and the big problem is management because the men on the front line go crazy so it's a matter of management he has to separate them from the problem hence the gas out there so what we need to do is in the madness of this situation you start asking what could have done it's overwhelming but in this case listen to this line of dialogue party, Auschwitz in one sentence that's juxtaposition and that's horrifying what could one person do and so what Spielberg does what he's foreshadowed is he shows a little girl with a red coat and she's now dead we had seen her once before alive she is Schindler's conscience and at this moment he wakes up in this scene we go from madness to enlightenment and that's what cinema does best now I seek to make an e-book of my course because it's all about technological wonder it's all I've been able to do right now because I've appealed to the studios and I have been rebuffed at every turn first of all they don't really do business they don't return emails or phone calls and once they do they'll give me a very high price or they will say I have to reach all the descendants whoever in the scene including the musicians I even got a hostile season to sys-letter from one attorney and what I would like to do is an e-book like this look at this 10 minutes into Toy Story 2 we see Woody challenge Buster the dog to reach for the sky he then gives Buster a belly rub and says who's going to miss me when I'm gone this is the scene of the entire film foreshadowing Woody's journey I am appealing for exemptions to the DVD to be able to use DVDs for my outcome of life and finally what I'd like to say is I've tried to do this with only 200 people a year worldwide in the ivory tower I would like to now be able to broadcast this in an e-book to those thousands or millions who would like access to this material which you can only get through the process of inventory and education we can only wonder what the technological wonders and storytelling they would discover then thank you very much thank you so my name is Alex Cohen I'm here again on behalf of filmmakers and fictional filmmakers and e-book authors to clarify a few points along with my colleague Brandon Charney that have been made or discussed over the last few weeks in the hearings first there really should be no question that documentary filmmakers, fictional filmmakers and e-book authors clearly make fair use everyone agrees on this and there's a really good reason for that all three of these groups are supervised and in a sense regulated by very conservative gatekeepers the errors in insurance companies that ensure that any form of fair use that actually is going to be inserted into these films or e-books is clearly fair use and has been reviewed and opined on by an attorney by experience doing that not to mention the fact that the filmmaking community has a statement of best practices that deals with fair use and that they are rights holders in their own regard and therefore are also very concerned about abiding within the law and being true to the meaning and intent of fair use in addition I just wanted to quickly clarify in case it's unclear for the e-book exemption we are only asking for DVD and digitally transmitted video and even though as Peter stated the capability of e-books is actually app or above blue-ray HD that is not what we're asking for because we're only asking for what we consider to make effective fair use and that leads into the next point which is that the fair use that has been discussed and as Bob that has shown requires the ability to make nuanced and detailed analysis and as Bob that did so better than I could have ever done when you see when you need to see the dust on the floor when you need to see the reflection on the wood or when you need to see the splattering of water in the Schindler's List scene that's just not possible unless you have an exemption that is not possible with any of the alternatives that have been discussed and it's not possible because as Jim discussed no alternative is sufficient because these alternatives are too expensive they're too complicated and they will not satisfy critical technical standards that are set by distributors and broadcasters in particular we've had a lot of discussion about hardware stand conversion and up conversion and Jim I think Jim is a very modest person I just want to really make it clear that Jim is in the top of his field and he has more than 40 years experience working with film, with technologies and things that could be called proposed alternatives and that there's almost no one else in the US who knows what Jim can do or even has a gym involved or would even know how to do the work that Jim does and as Jim stated very very well film makers call him because they don't know what they're doing and that's actually the reality of the majority of filmmakers in the US they don't have technical directors and they don't have access to the knowledge expertise or financial wherewithal to even use these exemptions and as a result if an exemption is not granted what would happen would be only a handful of filmmakers would be able to make fair use and they wouldn't even be able to make fair use they would be able to attempt to make fair use and try to use things that for all the reasons that Jim talked about frequently do not meet these critical broadcast standards and as a result nearly all filmmakers and probably even more evoke authors would not be able to make fair use they would be foreclosed from that finally from my portion of this testimony I just want to make two very small points about things that were said at prior hearings the first is on May 11th Jim briefly mentioned the use of upconversion with regards to CNN we would just like to clarify that CNN is a broadcaster in its own regard and does not necessarily have to meet the stringent technical and distribution standards that a third party like pretends to an app to in order to get distributed on a PBS or in theaters and as Jim talked about very proficiently upconversion has many many issues and the sources of how upconversion are rapidly disappearing on a second point you may remember on May 17 Mr. Lawrence Baruch who spoke on behalf of fictional filmmakers talked about sending out a clip for upconversion in order to get a film in a film festival we also wish to clarify that the technical standards for film festivals and for ultimate distribution broadcast are completely different and the latter being the true requirements for distribution and broadcast the filmmakers like Gordon and all of his colleagues are extremely stringent and they have very strong restrictions with respect to upconversion and all of the other alternatives that have been discussed over the last few months and with that I can hand over to my colleague Brian and Sharon thank you very much the opponents have made a lot of screen capture but it's unclear if it even qualifies as an alternative even if rights holders in this room can see even if rights holders in this room state that screen capture doesn't violate the DMCA that doesn't prevent other rights holders or other people who might bring claims filmmakers and authors can't rely on screen capture because screen capture is a broad term that encompasses many software products and these software products involve digital methods that operate within the black box of a program that the user can't scrutinize or understand these programs can be easily updated without a user understanding how they've been updated that means that if the copyright office were to deny an exemption based on the idea that screen capture could be an alternative we would see a situation in which filmmakers would look at this black box product not know whether or not it would violate the DMCA and in the face of the risk that this uncertainty creates many would fear that the crushing liability and sanctions that DMCA violation brings just aren't worth making fair use in a particular instance when that's aggregated across the entire filmmaking community we would see a lot of fair uses not being made and that's exactly the sort of harm to fair use that this rulemaking is designed to prevent we'd also like to clarify a few points about licensing now there's no question that licensing forecloses critical uses because as has been discussed nearly every license involves a non disparagement clause that expressly prevents sort of film criticism and social criticism that's that fair use really allows and that is designed to allow into the First Amendment but we would also like to like mention that even for non-critical uses one license isn't enough if one if one rights holder grants a license and that won't necessarily prevent others from bringing suit under the digital and copyright act in fact most licenses contain standard clauses that in some instances state that the license isn't complete and in other instances require the licensee to obtain permission from all others who might claim rights to the material that's the sort of problem that Ms. Buster has encountered this makes clear that the burden that licensing would impose for even non-critical uses would impose a substantial adverse effect and that's why an exemption is needed and that's the point Congress created this rulemaking in order to prevent requiring licensing for fair use finally this exemption won't lead to any piracy or any other sorts of harm that's the final point that we want to make and emphasize and it's the point that's ultimately in the face of the adverse effect that our filmmakers and authors are suffering it's the point that shows that this exemption absolutely should be granted nobody has alleged any piracy flowing from the previous exemptions or even any current perception of piracy or confusion that's because the previously granted exemption like the ones proposed today cover a clearly defined group of responsible creators who themselves rely on copyrights and digital protection for their own works there's no basis to even speculate that harm would flow from these two exemptions the reasons that we have discussed and others have discussed proposed classes 7D and 7E are perfect examples of the sort of non-infringing uses that Congress intended to grant exemptions for thank you very much I'm sorry just one last quick point in case I wasn't clear before when filmmakers do call Jim and ask for his help there are very few Jims out there in the filmmaking community the ultimate answer that they come to is they just can't do it for it's too complicated, it's too expensive they don't even know if it's going to meet the standards and they don't want to take away the thunder from that last statement this one made very clear that the answer is that filmmakers aren't using it even when they are able to talk to Jim because it just can't meet their needs and it can't meet the distributor's requirements so thank you very much now, Dean, are you going first? yes classes 7D and 7E be denied and the reasons for that are as follows one, for the filmmakers we really haven't seen identified ACS protective works that are unavailable for non-infringing use of uses for example one of the witnesses testified that there were films available only in BD protected by ACS that were not available in DVD and we've just really not been able to find that except for a very small set of directors that's for bonus material but to our knowledge the fact is we testified that media is still in an emerging format and the dominant format is DVD that film titles that were available on BD are also available on DVD for which the certain convention exemption for documentary film makers exist and bidders and e-book creators did not specify ACS technology in the proposed classes and therefore should we have just are confirming that they are not seeking an exemption to circumvent ACS who will make the proceeding so for the documentary filmmakers as well as the fictional filmmakers there are alternatives for the documentary filmmakers there is the use of the work on DVD it was stated that for broadcasting purposes now the standard definition did not work for documentary filmmakers but in our looking at the BDS website it says that PBS will accept video that is acquired in standard definition and up converted to Sony HD cam video format for submission and it may well be for documentary filmmakers that clips that they seem to use are not available on high definition it's a rude or footage for Kennedy assassination that I've seen in many documentary films simply isn't available on high definition so I don't believe that public television stations are going to ban documentaries and not broadcast them that include that in particular footage simply because it's not in high definition and for documentary filmmakers who have the word of the ball to be obtaining DNO insurance and the like in producing films for broadcaster BDS we believe this up conversion capability is not beyond their reach but the other thing we wanted to demonstrate in particular for documentary filmmakers and for professional filmmakers is that unlike from the panel this morning they typically have access to them they typically have access to very very high quality cameras because they use those cameras to shoot their films and so David was going to just lay a clip that was made from shooting with a camera it's a Panasonic HP X2000 the manufacturer suggested retail prices $28,000 they're available on Hubei for between $10,000 and $12,000 and so here's a clip that was made using a camera taking the recording from a is it a computer spring? This is from Warhorse the point here is that video capture software which we were speaking about this morning which costs under $50 or $40 and seems to be an acceptable tool we would contend for educators we wouldn't expect educators to have these high-end cameras if you're a fictional filmmaker or documentary filmmaker of course you're going to be making your product with a high-end camera particularly it has to be a high definition to meet broadcast standards and so we believe this is a perfectly reasonable alternative to use a camera of high quality to capture and if you will cam or up a screen in order to be able to use the clips and then we talked about clip licensing a little bit we believe that and since my regular job is really for the studio the studios have really gone made incredible progress making the clip licensing process easier Universal has an online site we had testimony from the 17th Warner Brothers regularly response to the first clip within 48 hours we appreciate the fact that in terms of uses that may be considered very critical disparaging that often the licenses do have those provisions so we acknowledge that the licensing isn't the answer for every single use of that a documentary, a fictional filmmaker might seek to make but we believe it shouldn't be dismissed out of hand as not a viable alternative and finally we wanted to so we were just displaying some of the screen shots from Universal's online clip licensing service for documentary filmmakers we wanted to display this a little bit from a documentary filmmaker named Aaron Brannon and his experience with working with the United States National Film Archives where a filmmaker can go and access the work that is in the archives and create a variant of copy by using audio and video cables which is permitted by the archives again another alternative for that and finally in terms of discussing the documentary filmmakers and the need for the highest quality material we were looking at some of the submissions from Ralph Rolani who did the documentary film bigger, stronger, faster and wrote a very interesting piece about fair use and trying to get the outlines of fair use and was talking about that as well as the access to materials and what she said is that they ended up mastering from a whole variety of materials things like old VHS recordings of TV shows low res online downloads for which no master existed so we believe it's typical for documentary filmmakers to access many, many different sources of materials of various qualities in order to put together the final product it was interesting, she said also in a few cases we actually decided to pay for the license of clips which we knew we could employ fair use simply to get the high quality master so sometimes clip licensing isn't necessarily about the permissions it can be about getting access to the underlying master material because studios and they grant licenses work with the filmmakers to try and deliver the content and the format that's going to be the most useful for them I just wanted to sort of comment on a couple of the comments that we see the brand and made for one of the other witnesses we shouldn't confuse the fair use and the access controls measures because for example you are given a no objection letter and that letter says you may need to get rights from the musicians involved or the talent involved or other parties involved we as a studio are simply saying that fair use the fact that there may be talent rights involved has nothing to do with access control measures it simply has to do with fair use rights so if you have fair use and you are confident that your use is a fair use then you wouldn't need to see the underlying talent in sets because you would be relying on your fair use defense so to say that that permission somehow negates the the fact that that letter, no objection letter somehow negates its value because it may say that you need to go see other permissions really doesn't seem to hold water to me because it's fair use, it's fair use so you don't have to go see other permissions and so I think it's important not to confuse rights, permissions and their uses with the notion of whether you actually need to have an exemption to circumvent technical protection measures in order to make the fair use I think there's been a little bit of a mashup of that in the earlier testimony and now that I made that to you let me just look back to this so it's common practice for filmmakers to go to various sources with varying degrees of quality to obtain their clips as I mentioned clip licensing is available and the issue is not necessarily the legal requirement or lack thereof but rather simply as a mechanism to access the source and the format technical protection measures like ACS actually facilitate non-imprinting uses because it is those technical protection measures that have made the content owners comfortable to release the content out into the market in the first place where then documentary filmmakers or other filmmakers can take advantage of copying that in ways that don't involve circumvention and in fact we think this will actually make it less likely that filmmakers will have to rely on the studios to provide access to the underlying source materials and I just wanted to just briefly talk about again the value of technical protection measures to the studios and the filmmakers for ACS as well as for DVD CSS for DVD we use those measures in order to facilitate our sale of content through the home entertainment market it's a market that isn't defined overall even if BD and the original distribution models that's what that last slide showed and from this slide what you can see is that although the overall market is declining BD is a bright spot BD is the little blue bar there and it is increasing and therefore it's one of the bright spots that we think it deserves particular caution before granting any sort of assumptions that protect BD and finally this slide is showing based on third party studies about where we are today in the BD market the adoption of blue break players being at around 40 million households and expected to rise to at least 64 million households in 2015 and here again is showing your buyer on a quarterly basis the growth, the positive growth in BD which is an excess of 20 percent and therefore we believe that that augurs precaution in granting exemptions that's it thank you Bruce you're in I'm representing the BPD Capital Association as today is yesterday the same organization this afternoon as we were this morning and I want to make a few points in relation to this panel especially first to clarify BPD CCA does not object to the renewal of the documentary film exemption BPD CCA does object to the creation of new exemptions for fictional filmmakers or e-book creators the here our distinction is made in part on the likelihood that a use is fair use in the broad categories that have been described where we think that it's much more likely the documentary film that they use is fair use in a fictional film we're not as certain and to have a broad category exemption for all fictional films we seem to invite the possibilities that the uses of the exemptions were not in fact fair use and we don't believe that it has been demonstrated here that sufficient high number of them would be fair use to warrant an exemption the same is true with e-books there the experiences is much less we're much less experienced because this is a new phenomenon to the market but our concern is that we don't believe that the the numbers of uses that have been put forward in terms of the broad category of all multimedia e-books would necessarily lead to a high percentage of those uses we also believe that there are a number of alternatives that are available we've just seen the high quality camera shot of a high resolution screen that would be available for filmmakers who have access to a professional level of camera even for those who don't have access to the level of camera we didn't go buy a camera like that we hired a videographer for a relatively minor amount of money per day to work with us to create that so that's not beyond the fact that you might have to be able to afford a 20 or 40 thousand dollar camera because you don't have access to it similarly the video capture software there's been quite a bit of discussion during the course of the day of that and for certain purposes we understand it may not be at the quality but for other purposes it should provide the quality images the ego creators for example may well be able to make use of video capture software as we have demonstrated that was able again just to re-emphasize the point I made this morning but in this context to make the point that the replay video capture software was able to make an image sufficiently high quality as to make a distinction in that scene and all the presidents been so you could tell that two parts of the scene were in focus and in between was not we believe that's high enough quality for many uses if not most and with regard to the fictional filmmakers again licensing of clips for these types of uses and standard practices moving in history and provides and actually can go out of the actual format which is what Dean was making that Shikeshu just made by a particular movie maker as opposed to taking either DVD or Blu-ray and then have him modify that format in any event have to process that format to become the format that would be available and for all those reasons we believe that those two new requests should be not denied very much, Dean thank you, Steve McCallance for presenting the seven national organizations under the name of two creators of copyright thank you again for structuring this hearing in the way that you have because I think it's important to distinguish among types of uses of what you want to single that's significantly different and pretty distinct cases and we think this is true both with respect to the two main types of issues here first are the uses that are intended to be made for certain events in fact not infringing which is the standard for this machine and second whether in fact if that work is met with alternatives that are available to people who wish to make those known both of those categories are present in all three of the flavors of this circumvention of PPMs for materials and exemptions but I think the mix is quite different in the three of them I'll say a little bit about both of them both the question of alternatives logically I should start with whether the use is in fact not infringing and I think it was Alex who said clearly this is all fair use because there are gatekeepers involved errors in emissions insurance has been obtained as practices have been followed and clearly that means everything is done here is fair use I think that very much overstates the case but I do think that productions that meet those criteria are certainly much more likely to be fair use than the category that's proposed that simply is someone making a documentary film or a documentary film or a fictional film and being able to have a reasonable belief that the circumvention is necessary I don't see anything in that proposal about gatekeepers or about containing insurance or about these other safeguards if you will substantially increase the likelihood that the uses that we're talking about are in fact not infringing there's no guarantee and there will continue to be disputes about this I'm sure but I think it makes a big difference and if that's the basis on which this assertion is made then it's going to have to appear in the exemption itself I think with respect to e-books I think that the record is probably not quite as clear on the I'll get to that in a minute the professionals who obtain errors in omissions insurance probably even though there's only one Jim Morris said I think there's probably other people who won't be intimidated by a 249 page manual for operating the equipment that's needed I would be but I'm not in that business so I think even for the professionals I think there's a greater assurance that the use is in fact not infringing there's also probably greater availability of alternatives so let me turn to alternatives I think the case for alternatives here really depends on another set of gatekeepers we're told again that PBS requires everything to be in high definition won't accept up conversion and therefore in order for people to make these uses they need the exemption I think I would just encourage the office to probe that as we already stated if it were the case that anything that isn't done in H.D. it isn't Native H.D. we're banned from the America's airways we would be losing a great deal of our national heritage we would be losing a lot of Gordon Queen's films that he's made over the years I don't think it's quite that black and white if you will it's not quite that clear that how tightly the gate is being monitored here even if it were I would just call your attention to the legislative history the provision that you are applying if you look on page 639 of the House Managers Report page 6 of the Popular Society and it tells you that adverse impacts on non-enriched uses that flow from other sources including based trends other technological developments or changes in the roles of libraries, distributors or other intermediaries are outside the scope of the rulemaking so in terms of this is the legislative history of the provision you're expected to apply here you're required to apply here so I think that has to be taken into account in evaluating whether the intermediary gatekeepers and so forth are really rigorously without exception requiring the extent that would justify the exception that's sought I think to the extent that that's not this particularly turns on the blue-gray question but it also goes to the question of streaming video and I think if you look at the chart that Dean just showed DVD is still very much with us it's still three quarters of the volume of the business blue-ray is growing but it's not a lot yet and as Dean pointed out everything just about everything that's available on new-ray is also available on DVD so unless you are convinced that proponents have met their burden of showing that they simply just can't get on television without and can't use up conversion and so forth and are just going to be entirely shut out of that and if you reconcile that with what the rest of the history says I think those are some goals that have to be surrounded finally with respect to the e-books I think the record is probably much less well developed on that both in terms of whether there is an equivalent to the gatekeeping that Alex talked about for documentary filmmakers in other words is there some type of assurance that increases the likelihood that the uses will be fair in the e-book setting I have no quarrel with the uses we were shown here if they were appearing in the e-book but again this covers everybody this would cover all the e-book producers and that's a concern that we have and second in terms of the other intermediaries I wasn't clear and maybe I didn't really appreciate Peter's test but I don't think we have the same situation of as described by the documentarians of a rigid gatekeeper who won't let anything on HD through so I would just encourage the officer for those issues a little bit more and I think the demonstration that was shown with using professional equipment which was pretty impressive I'm sure Jim will tell us all the areas in which it falls short from his perspective but I think it helps to show that just as in the previous panel one thing we know has changed over the last three years is that the alternatives have become more robust the ability of the material has become greater the licensing part of it which I agree is not the whole answer but maybe part of the answer is much more available the screen capture and any technology has become more robust and more able to deliver a higher quality product so I think that has to be taken into account in comparison with three years ago but in the final analysis I think your decision on this really needs to turn on whether the exemption is defined clearly enough to reduce the currently very high risk that a lot of these uses will not be and secondly there are reasonable alternatives available that will enable the non-infrared use Thank you, one question for you Steve I think you may have distinguished your position from that of DVD CCA but I want to make sure I have a clear understanding I understood Bruce correctly correct if I'm wrong Bruce DVD CCA at any event is okay with the existing exemption for documentary filmmakers I think I heard the opposite from you That is not our decision again you have to determine whether they have met the burden based on the evidence that is presented this time to me if they are to be if there is an area in which let me put it this way it seems to me more likely that that burden could be met if the exemption is narrowed significantly to incorporate the kinds of key keeping safe large and the proponents themselves are repeatedly talking about and that I'm sure the proponents sitting at this table abide by but our position is in opposition to review of the exemption and maybe this is cutting it a little too finely but is your position something that they haven't met their burden or is your position that in fact there is no need for this exception you may have or they haven't met their burden showing that there is because they have to show that you started back on it for a minute there are no alternatives I think on both counts I will give you folks an opportunity to say anything in direct response to what you've heard from these folks but on the last point Steve made which is with respect to the documentary film making the exception that is now in place I'd like your reaction to the notion of building in some additional protections perhaps set it around gatekeepers that you've spoken about for example, is that workable, desirable, totally unworkable totally undesirable, what's your reaction on that board? You asked that Michael Donaldson, you asked that question a last time with regard to insurance and I could tell you were wanting to enrich the definition of the restriction I just wanted to get answers to my question the insurance clearly won't work just comes way too late and I'll be darned if I could think of anything in the documentary field that would would work or is needed because the the exemption has helped literally hundreds of filmmakers make films that are more impactful, get the message across better without any adverse impact there's no expansion so I I did struggle because I sensed your desire there but I don't see any way to change that rule that would help anybody do anything except just perhaps discourage a couple of uses Steve what about that point that the E&O was sort of one of the last steps so by the time you get to the E&O carrier the circumvention is already taking place that's true but let's put it this realistically I mean again what we're trying to what I think the proponent is trying to avoid here is the risk of a lawsuit from a copyright owner or anybody else standing under section 1203 against the circumvention I mean because again it's fair use, there's going to be disputes about fair use but that's a separate issue I think it's extremely unlikely that those suits would be brought before the in most cases the potential point of what he would be aware of the circumvention having taken place until the documentaries released by the time the documentaries released there either is insurance or there isn't insurance and if the the producer has decided to go naked and not take on insurance then perhaps that's a factor that should be taken into account in deciding whether and this would be a lawsuit, let's remember this is not a copyrighted print from a lawsuit it doesn't have even the remedies for $2,500 statutory damages I mean obviously it's an extremely successful documentary that makes millions of dollars and maturely involved is very large part of the film and perhaps potentially large damages there but I think let's not confuse this with a copyright infringement case but I think in a matter of practice I don't think it's I don't think it will be impractical because I don't think these claims are likely to arise except in cases where the film is actually distributed I get your point as a practical matter but yet in trying to craft an exemption I guess what you'd be suggesting we do is come up with an exemption that is sort of conditional the conditional isn't even the right word I'm trying to figure out how it works because the exemption is an exemption from liability for the active circumvention which you will engage in clearly before you've taken the step of an E&O review you don't know at that point what the result of that E&O review is going to be so but you have to know what use you're going to make to qualify for the exemption as proposed you don't know what use you're going to make of the material that's been circumvented you have to know that your circumvention is solely for incorporating short portions for the purpose of various you're trying to put in a requirement that you go past that gatekeeper which is something that's going to happen at some point in the future following the circumvention and we've certainly never done that before and it strikes me as rather odd to craft an exemption that what it requires that you have a good faith intention to go to an E&O carrier is that it or how do you do that I don't think I've heard many times from proponents that if the use turns out that the use is not fair the exemption would not apply that again depends on the use that's made after circumvention but that's a different question that's a question of law in every case the use has got to be non infringing and in some cases maybe many cases you're never going to know that until the end of the day that's a question of law this is a factual prerequisite for you being able to exercise the exemption and yet that factual prerequisite is in fact a post-requisite and that just strikes me as being a bit difficult to do well I think it is a little different than what you've done in the past but you have all of these exemptions have conditions factual conditions I mean you have to prove that reasonable belief is a factual condition there's a lot of factual matters that would have to be proven and they don't all they haven't all come into fruition I think at the time at the moment of circumvention I hear you that in theory you would be committing an act of circumvention it wouldn't be clear at the time whether or not you're entitled to the exemption but I think if you're in the business of making documentary films you know that if you're going to release it anything more than a very limited release you're probably going to seek insurance so it's pretty foreseeable and as I said there are other instances where you don't know whether you qualify for the exemption until after you've done the circumvention Dean do you have something to add? I just wanted to I mean this is a little bit out of my area of expertise but my understanding is that when seeking insurance it's not just about reviewing the film once it's in the can and once it's been finalized it's an ongoing process that can involve review when it's still just a script and there hasn't been shooting that to be done and in fact in Tamsen we need to be consulting with the lawyers as you're in the process of making the film not when the film is finished because like Mr. Donaldson he will review potential uses of clips before they're actually put into the film to say I think this one qualifies as very useful I think that one doesn't or you may need to do more commentary so the notion that these gatekeeping functions whether it's legal review I just don't think it's accurate Michael, can you get your reaction to that? On a couple levels first of all to respond to Steve's point about the timing of the lawsuits last Sundance Film Festival we had 19 films that we worked on mostly documentaries but some shorts and some fictional films we had two cease and desist letters prior to the first screening at Sundance one of them was Mr. Thrush's film from this American life they mistakenly thought from the publicity that his film was based on one of their episodes so I didn't jump in I didn't have two nickels to put together so I just did it to get him out of that so he could stay on his way to Sundance and the other one was the Queen of Versailles that where the subject of the film ended up not liking the description of it being a rags to riches to rags story even though it came out of his mouth and he actually ended up filing a lawsuit before it ever showed publicly or he saw it or any representatives of him saw just based on the publicity so the sequencing of when you find out you have a problem is different now in the case of Queen of Versailles who had insurance with the case of Mr. Thrush he then doesn't now and you know the I don't know if you'll ever get insurance not because he couldn't if he could afford it but that film black and white no professional actors it'll have some distribution but it will not have much in the way of monetization to use it in the common to go more to what Dean was saying about this article we might as well out it here this was a film I worked on in the article did talk about our early involvement working with filmmakers so they understand fair use and we apply it fairly rigorously we also apply other laws we know about fairly rigorously this was before the DMC exemption so we were telling our filmmakers you can't rip a DVD and if you look at that article the head of the paragraph that all the quotes he came from the head of the paragraph said the downside of fair use which was that you have to go find a good source and the author of the producer of the film author in the article goes on to describe all those things as things they had to do because we wouldn't let them rip the DVD that was before the exemption this is a classic case why the exemption is needed for documentary films and in fact this did end up this film did end up running into some resistance with and it's been too long so I can't dredge out of my memory some techie who did not want to accept the film because of the degraded clips were too numerous because they couldn't rip DVDs pre the exemption I still have the answer I did I'm sorry I forgot the question let's say typically what you're making a documentary which is destined ultimately to go to an ENO carrier do you typically just not engage in any legal review what so ever until the film is done and then you send it off to the carrier or is there some kind of review done pre-filming, pre-putting it together during the process and so on as the article says ideally we like to get in early and at the concept stage and educate the filmmaker for his or her particular film what will help what won't help is very often our busiest month is December because that's when Sundance announces and we get a flood of people who have no attorney hadn't thought about it but Sundance tells them they better have their clearances in order and they come in nobody in our office takes a Christmas vacation we're just crushed with work of unprepared filmmakers who made their films out of credit cards family and friends and didn't have a spare nickel for attorneys and we're busy clearing so it happens both ways films like this film was not yet rated we were in a year early because an independent film channel that was paying for it was worried at the commissioning stage they wouldn't commission the film until they knew I was a boy because they were worried about the reaction of the MPAA that doesn't usually happen it happened in the film that this particular article was about that Dean was reading from I wish it happened more often but we I would say I would say today with this kind of work being better known it breaks not quite 50-50 yet I'd say 60% of the films come in pretty late in the game Jack, do you have something you want to add on to it? Yeah, I have two things and then Gordon has a something to say about this film Yeah, I thought just briefly about that The quote that Dean put up on the screen actually proves our point was we couldn't make fair use because we couldn't get the high quality material we had to go and seek permission and pay for permission for something that we had every right to use and that should be noted the other issue is that if you required ENO and I think Gordon can speak to this more if you required ENO at the outset what you'd end up doing is pricing out a lot of filmmakers who can't afford that until the end stage or who decide they are making fair use and thousands of filmmakers do that regularly, they make fair use and they go for it and it's not a problem many get ENO we have training we have a community and other resources and Alex is going to make the point too that it's not just ENO it's also the statement of best practices fair use, which many filmmakers know but Gordon Also, I'm going to come back to this point that you guys were talking about but since you're talking about that now I want to pick up on that this whole your ENO insurance and gatekeepers and for some of us that is our outlier and we work with those people but I'm here speaking for the entire class of documentary filmmakers and a bit of history for 20 years approximately we lost the right to use fair use because of the aggressive tactics of the people that you represent they wrote cease and desist letters they threatened everybody they never sued but the gatekeepers would not accept it when we first published the statement of best practice fair use for documentary filmmakers we spent years speaking to people to teachers in schools to broadcasters and to ENO insurance and to lawyers to re-educate everybody in the field about what the football really said and we finally got some traction and finally PBS was the first they came in and they said okay we will accept it and we went on to PBS we didn't have ENO insurance now we've come even farther but what's important and what I think we're facing now is a situation in which if you are concerned we've had no cases in the last three years of abuse but if you are concerned that there are filmmakers out there who are going to be making uses that are not fair use the problem with the way that the digital millennium copyright act constrains us is that the mere act of acquiring something for a legal use has been made illegal and so you never get to test the question of what without this exemption we never get for the courts to test the question of what I did is it fair use or not fair use Steve is right we can have ENO insurance we can have PBS and we can still be sued we understand that and when I speak about it I make people understand that you are asserting a right but if we can't get that test into the courts we're screwed if you are actually able to be able to enforce the DMCA so I just wanted to get that out there that there are many many kinds of documentaries that are all kinds of new markets now and ways that people are distributing we have been distributed a lot of our work in broadcasting theatrical and we do work with ENO insurance and we do work with ENO and that's important I want to come back to this thing about when do lawyers get involved and everything I agree with everything that Michael said but I want to be clear different filmmakers work with lawyers and make different decisions about at what point you need to get the lawyer involved to give you the letter that you need to get your ENO insurance if I was doing something like this film is not yet rated and Michael knows the things that I've talked to him about before we even started I want to get some idea of what how would this look but there are many many films and the two examples that I mentioned a good man and the interrupters it's kind of classic fair use I'm a filmmaker with a great deal of knowledge about this so I actually go and get my letter from the lawyer really near the end of the process we're in fine cut we deliver it to PBS and we're looking to get the insurance because I feel that I know it quite well there are other filmmakers and sometimes when I talk to people and they talk to me they're saying well what about this what about that I said you need to start talking to a lawyer earlier in the process so we do both kinds of things it's a relationship between two kinds of professionals that people define in their own way anything that kind of pre-defines when we have to do that would be a barrier and I certainly think that we do not need more stringent kind of gatekeeping that's not the problem the gatekeeping gives them some security and I'm happy about that and we mentioned that it would not go beyond fair use but if you have problems with fair use make that your issue don't make the issue that somebody shifted to DVDs if what they do makes that your issue take with the court for that not for something else that's why we need this exemption so that when our test cases when we do get into the courts we're going to get into the courts discussing the proper thing I don't think you'll find that there have been any cases in which documentary filmmakers have been sued for filing have they been? what I think I'm hearing lots of players are not acceptable to impose any requirement in order to get advantage of the exemption that you get ENO insurance or that you run up by a lawyer good idea to do it but you would resist having that as part of the the roof exemptions that's exactly how I would put it and you're absolutely right I would say to people get ENO insurance get a lawyer involved but it should not be a requirement a good deal of what we've been hearing from you folks in LA and here is because there's ENO insurance and there's this legal review shouldn't we ignore all of that because you basically just told us you can't rely on that and you don't want to be bound by that why is that relevant to anything we're thinking about? what we are talking, okay that's a good point what we are talking about here is the continuum we're talking about a process and so for instance they were making the point that there is very little material right now that is out on Blu-ray that is not available in standard DVD well if I'm a filmmaker and the piece of material that I need is on an extra on a Blu-ray DVD to make my point that's the piece I need we're talking about a right we're talking about freedom of expression and so it's in the same way it's like I can't tell you what the needs are of every filmmaker in my class what I can tell you is is that we as a class have tried to be very responsible with this exemption and to make sure that it's not being abused that we are saying don't confuse locking something up with fair use fair use is what we're asserting that's the right that we need to be able to use and we need this exemption to be able to use it so it is true we bring up you know insurance we bring up and it's not the only thing we bring it up but we bring it up because we do understand that for most high visibility documentaries in most cases in which they are looking at that's the reality of the situation but I'm sure that there are exceptions that there are films that are out there that are absolutely important and have audiences and are playing a role and a range of information in our democratic society that do not have those two requirements met that are using it with absolutely solid legitimate fair use so that's what we're saying we're running out of time and we've just been talking about one little tiny talk if you feel compelled to something you've got one minute those are the two Alex is going to make a quick point just to follow up on what Gordon said we don't want the understanding to be that it's all about ENO and we have presented evidence about the prevalence of ENO practices the frequent requirement of ENO practices is one piece or one factor that will push documentary and fictional filmmakers any book authors over the threshold likely to be not infringing but this is part of a larger community with many other factors that also put us over that threshold including the use of a statement of best practices including the use of being rights holders in their own regard and therefore more likely to be responsible and we don't feel that ENO it's an all or nothing if I may respond to the point that was made about licensing earlier we're not saying that talent rights and other contractual rights are the issue here under 12 of 3A anybody who has a right protected under Title 17 can sue for a violation or an alleged violation of 12 of 1A 1A that means it's very hard and a great burden for filmmakers and authors to avoid DMCA liability for licensing even if the studios that are represented here today grant a license they still have to go after going to get licenses from all of the other individuals who might have been involved in the film and whose rights may be included in the film such as composers or people whose recordings are used etc and also if a filmmaker or author signs a license with the studios for example that license will often obligate them to seek all of these myriad permissions you know furthering that burden and in response to the legislative history that the opponents cited about a page before the language that was quoted there's a very telling section that congress put in there the point is that the harm here is not flowing that the harm here is flowing from the implementation of a technological protection measure and in order to ensure that harm we have to look at the facts that are confronted by fair users in this case filmmakers and authors and so what congress said was the committee is concerned that marketplace realities may someday result in less access rather than more to copyrighted materials that are important to education scholarship and other socially vital endeavors the result could flow from a confluence of factors including the illumination of printer other hard copy versions the permanent encryption of electronic copies etc and they created this rulemaking and this is the term they used a fail-safe mechanism to prevent that sort of harm that's I respect your time itself on there at this point on the standing rule is keep it short and say it only if you need to say it because we're running out of time and Steve got a lot of questions you haven't been able to start asking it's just a really good one it's just that standard which is about less access to copyrighted materials I don't think we have seen one shred of evidence that technical protection measures have led to less access to copyrighted materials in fact there's been a lack of a growth of copyrighted materials released into the marketplace precisely because of the existence of technical protection measures that give copyright owners the security to release this stuff into the marketplace I have a very short response which is that I would ask you to read our pleadings which discuss many instances where no makers could not access materials because of GMC I think Dean and you were probably speaking about two different things but okay, Steve two here and I'm going to suppose two I'm looking for a better idea of what an e-book is you were mentioning the standards e-book standards and associating web standards that's concerning to me is it everything, is it very defined can you help me with this? I'm coming from something I stated earlier hearing when someone said well if we don't have this exemption we're going to probably look towards another one in that case it was documented we're not going to go back to ENO right now but some sense of defining that it needs to be something there's a strong there's a compelling reason to think there needs to be something to further define these terms be it a documentary or an e-book for e-books just to address the specification issue but your presumption is exactly right the IDPF e-book specification is often informally referred to as a website in a box but what it really is is a set of constraints on html and display css text picking strategies that limit what an author can do to produce a valid e-book and so in the new standard of an e-book 3 e-book 3 embraces html 5 which is a newer version of html which is embedded in the browsers you use on your desktop if you use a fairly temporary browser and html 5 inherently supports greater interactivity greater support for embedded video and audio and other media and e-book 3 is a specification that determines which of those web behaviors are considered legitimate in the publication from this point on IDPF considers e-book 3 to be involving with web standards in the sense that there will be a defined set of allowable behaviors from the publisher's perspective as well as the author and readers perspective it's desirable to know what you have so just open means that books created that might not be able to be read widely so there's an interest in defining what an e-book can encapsulate we make wonders quick we are in time I want to put this to everybody okay I'd like to be an author of an e-book coming up my godfather lecture alone is about 5-6 hours much sought after all over the world what I would like to do is be able to show salient points and the one thing I want to say is that Jack Lerner and the Documentary Association have done an excellent job of educating the documentary community and anyone who wants to use fair use with four specific guidelines and so I would use the discipline of that in selecting the clips precise clips that I need to illustrate key points as much as I'd like to show the 5-hour lecture and many people would like me to do that I'm only asking to do an e-book with fair use so it's also just to clarify I want to talk more generally about what is going on in the larger world of things that we call e-book publishing or multimedia e-book publishing I just want to direct you on page 3 of our initial comments for the comment of Mark Berger at all we have a discussion on what you're trying to get at Mr. Ruey, sorry it reads electronic books or e-books or digital files capable of displaying written words on an electronic reader or e-reader generally without internet access and so we in the examples we've given these are people who are trying to take video clips and put them into a device that can display the video offline which is very distinct from kind of the general concept of the website even though there might be standards out there that would be in general our concept that we've been advocating for in our comment is a narrower subset of that the difference really online technology may have come from the web but in e-book is it discreet and very specific type of format that is not the web maybe you're given of that so in fact the way an e-book is packaged and distributed is actually as a zip file so the display of an e-book that you would see on an e-reader or on a computer essentially uses HTML rendering technology the presumption is that it's a package portable digital file that has to be downloaded or moved in a consumable portable in offline sounds like a podcast it sounds extremely broad as a definition I think I was putting forward if you have any narrowing principles it might be helpful if it's not again I think the e-book's re-expectation is not asking you to look at it but it's very specific and very detailed as to what is permitted types of behavior in an e-book and what is constrained so if it helps, for example on the advance of e-book 3 over e-book is simply to support CJK just to briefly go back to a point that we talked about at length with regard to documentary is there any other gatekeeper role that you would be able to point to that does narrow this concept of e-book we would be amenable to narrowing the definition to include specific by e-book formats that are in existence today such as EPUB and others that we could provide in later correspondence on gatekeeper role that's been mentioned for e-books I'm trying to get back to that for documentary but if you have anything to add the type of non-fiction e-book authors that we're talking about would use a lot of the same mechanisms to make sure that they're making legitimate fair use ENO insurance companies do offer ENO insurance the documents and fair use of flies in the e-book context very well you can apply that to very rigorous product can I just ask whether that was a clarification of the class that is intended to be non-fiction it hasn't been it was not can you tell me more specific more specifics about the requirements for distribution I have talked about it in the notion that the up-converted content use of threshold what are the specific specifications I'll just say one I'll just read two paragraphs from the latest specifications that came out in March one of them I share my PowerPoint which talks about artifacting but there's also one where it says it talks about in the case of archival content where no better copies are available that the image still has to be free of composite video i.e. analog artifacts so PDS is not a gestapo I mean they do recognize that there are older pieces of source material that are used there to put in the documentary what they're saying is you can't just throw everything together at YouTube quality and then up-convert it at the end specifically is that in our record has that been submitted in the record those requirements that's the question more than having provided I think this is on now just to give you some perspective it's like the first 25 years of my work are on film when you go back to film and you digitize it in the high depth when you stand it you are in high depth it's a very high quality image and so working with PDS the reality is if you get this is a brutal film or something like that is they're looking they're looking more and more for the overall look and feel of the thing to meet their standards so the kinds of things that right now I have a sense with the sense that I have right now if you have something like an image from a contemporary film and you're making a point about what goes on in the culture and that's a low quality image that's not going to be acceptable to them in other words if they're looking at it and they're saying hey come on guys this is ridiculous why don't you give us the quality of image that the rest of your presentation has that's the kind of thing that they would play if I'm using a brutal film if I'm using something else in which common sense would tell you like in a good man we had some old up res VHS from like the early days that in the film there is nothing else we have no alternative but if I used this piece that I described to you where you see the sweat coming off of him in some one of his major works at the peak of his career they would have said hey come on that's ridiculous so I think they are practical people and they do look at that and it's certainly not like you know a bell goes off and they say oh well you didn't meet the standard as long as we have done all these things that Jim talked about meet the technical requirements just one quick note on that with the PBS requirements they also have a condition that says it is not necessary that your submission meet these requirements for submission in the initial review so just confirming that or documentaries or other works that are submitted to PBS for initial review to see whether they are interested in the board and it's not more important than all those in the technical that's absolutely true we're in agreement there they will review it even though you haven't done all the uprisings and everything to get it or you know gotten back to the original sources and I'd just like to make two very quick points one is that it was because of the current exemption that we were able to get the kind of quality necessary to pass the mustard a year ago PBS specs from a year ago for the clip that Gordon was talking about without the exemption it couldn't have done it there would be no way to bring it in completely digital and work with it in a way that it would be passed on the second thing is just to respond very quickly to the the camera high quality camera demonstration obviously when you use a ten thousand dollar camera it's going to look better than the cell phone however without the original footage to compare it to the only real way to compare it is to play a blu-ray disc side by side on identical projectors and see the difference my evaluation was that there was an excessive amount of over exposure and blooming on the highlights which I don't think was an improvement to the alternatives for the e-books the examples you put forward was shown juxtaposition of various films can you tell me more specifically why some of these alternatives would have worked for those sorts of juxtapositions it seems like for some of them I get it if the dust doesn't show up that's something you're making a specific point about I can understand that some of the other ones felt like it seemed apparent that some alternatives would have functioned to be able to show the contrast between a mobster and a child because I teach at the top film schools in all the world and we deal with the highest level of standards in all departments so I'm talking about the Seven Arts of Cinema I'm talking about cinematography the Academy Award for the cinematography of that you need to be able to see the highest-gray nation of his choices and he effectively lived that film as if it was a neo-realism film from the Italian era so you have to be able to see the distinctions at a certain point you also have to show what the production design department did costumes, music and sound design in that film is exceptional so I teach from the point of view of how does technology affect the storytelling in all departments and how does the director in this case he's also the writer employ this central idea in all the departments so it makes no sense to use integrated quality and besides I'd be left out of the room because I'm dealing at the highest level in the studios and in the ivory tower of what cinema can do best you preface that by talking about where you teach and it sounds like the point you just made is a very good point perhaps with respect to what we were discussing this morning I'm not sure it's necessarily germane to the evoc issue that you brought up well why would anyone want to buy a book with degraded quality materials if that's the only thing out there they might will well they're going to get it otherwise they're going to be pirates about it they're going to go to YouTube and besides why not it only advances the quality of the copyright holders it drives people to see the real film so you're okay with the guys if I may Miss Buster wants to take the scholarship that she currently can provide to the top universities in the world and make that available to the people at large and so if she's using a degraded copy they're not going to get the same quality of analysis that she's talking about they're not going to be able to see this lighting they're not going to be able to see the costume design that's the point the degraded images won't work any better in an evoc than they would in the classroom and also Bobette would you care to talk about your ability to make use of these alternatives well first of all I find that whole process to be cumbersome beyond belief I mean I don't know I could not get through that I'd have to hire a specialist beyond the caliber of someone like Jim and I would have to raise the money to find a camera like that and it feels like to me they're only creating extra work I have a career that it takes me all over the world I would have to be retrained in this in order to access all the materials I already have from the current exemption for an educator why would I want to do that we are constantly upgrading all of our equipment that the manufacturers are giving it to us Dolby is now reinstalling on our mixing stages at most which is an advance beyond THX we get Abbott came to USC and put in their editing facilities to train the students in the state of the art and Pixar came to USC and said we need someone who can actually do Abbott help us do it we don't have the old equipment we only have the latest equipment we only go forward back to Bruce um I forgot which discussing the initiative if there was an objection where I issued that the user would not be subject to lawsuit for 12-1 violation for other material I think that took issue with that Brendan do you have any reaction to that or Dean my my issue what I was saying is the studio issued a no objection letter I think Brendan is correct that if an actor or a musician also had a right in the film decided that they felt for 12-1 there was a certain mention that they would have standing to bring a lawsuit if they still chose that that would really happen under underlying copyright and issue a no objection letter to permit the use in the context for which it was being so I think it's a pretty while I think he's correct on the law I just think it's it's such an attenuated contingency that I don't think that's what an exception should be based on I would refer you to pages 52 and 53 of our initial comment we pointed out to disparagement clauses that are standard in studio contracts but if you look on the same page there are actually clauses that contractually obligate to the filmmaker to go and get permission from these other members so no objection letter that we contained as which again is standard or an actual license would still have these requirements and Dean thank you I had a little concern that I cannot have the same I can't speak to every studio's no objection letter but I can certainly speak to Warner Brothers no objection letter and Warner Brothers no objection letter does not contain just not disparaging and that's absolutely correct Warner Brothers is not so I gather we have nobody on the side of the room who can speak on behalf of everyone else State the largest film library it's not an inconstant there's no Warner Brothers film these two okay I have a question about the documentary filmmaker's best practices that we've heard about first of all like a reaction from this side of the room does a filmmaker who follows those best practices is that someone who you think ought to be able to go ahead and what he takes following those practices in emotion victory or do you have problems with those best practices we have some problems with those best practices your question I think your question is whether that's the type of condition if you will it would help to narrow this exemption I think it would I do think I'm not sure that everything in the best practices necessarily has been done at the time that the circumvention occurs which is your objection to the idea of conditioning on insurance so it may be subject to that same objective but I think Steve's question really is on that which is documentary filmmaking is not defined I mean respectional filmmaking neither is any I fear that the components of red I tend to the record definition of e-book but you know we heard this morning that the video production made by a student in a community college class may not qualify as a documentary film and therefore be subject to this exemption that exists now so I think it would be helpful to sharpen this and in my view narrow this so that you increase the chances that the user will be under pressure well that certainly has been a concern here and last time around it was a major concern and we tried to figure out all sorts of ways to figure out who qualifies and who doesn't and we came up with nothing well as I recall and I may be wrong perhaps the IDA people can remind me I think we actually had to agree the parties had to agree on one and then the office decided not to recommend it so I understand you're struggling with this and I think that's appropriate and in fact this might be the time to pose if I could put on the record a question that a lot of these exemptions and their viability will come down to drafting to recognize this is not an easy problem and I'm wondering if the office would consider treating this rulemaking more as a conventional notice for both rulemaking would be done under the procedure and put forward to the public what they plan to recommend looking at the calendar Steve I can tell you as desirable that might be I can't see him as being able to do it in a time frame well the nice thing about it is that the last rulemaking federal judge in New York has given us a definition of documentary filmmaking in one of the Borat cases you got it we also in this comment in the previous comment propounded a definition that you're welcome to adapt if you adopt if you feel like it but I would also point out that you didn't end up with promulgating a definition of documentary filmmaking in the last rulemaking no adverse consequences to that but we had a real effect on documentaries on the national line let me ask this side of it if we were to impose as a prerequisite for the qualified for this class that one follows the documentary to make the best practices what would your reaction to that be they're all looking at me because I'm one of the authors of course I think it's a great idea I think I think I think again this kind of goes back to our point we don't think it's a silver bullet the purpose of take a bronze one a brass one the best practices for documentary and fair use of documentary filmmaking was meant to classify for quote unquote very as close to as clear fair use as you can get standing as a factual determination made by a court after the fact it is not meant to represent the universe of fair uses and so in this case even more so than oh I think we'd be concerned that this would be limiting the definition of fair use not by the law but by what was meant to be a starting point for documentary filmmakers a broader test which actually takes in every case decided since January 1, 1978 is that three questions say Farber approach you'll hear about in whenever it is in June up in New Jersey so there's another there's even a better approach which will Michael I'm afraid that will not be in our records I'm going to have to leave the room when someone talks about it I just wanted to say to that I think from our perspective it's like I agree with everything that they said on the other hand that is the kind of thing I think there's there are reasons why implementing that kind of thing can have unintended consequences on the other hand the reality is when we as a community we use that document in schools and everywhere we go with you know butting young documentaries you should pay attention to this everything is not okay and this gives you some really clear guidelines of when you are within fair use so you know I think it could have unintended consequences but I don't think we would see it as oh my god that's a catastrophe you know that if you did something like that I think it needs to be thought through what would the consequences be but we do it's exactly how we use it in reality we're constantly pointing to it and constantly pointing to people who you know there's this there are people out there that think whatever you take is okay and it's like we're saying no no no we're talking about this and that's why we publish this statement that's practice alright well really five minutes over let's try to be back at 3.30 for the final panel and again the record is closed unless we reopen it for specific questions to you so we'll that remains to be seen that's a good one