- Moderator: Marcia Hofmann, Electronic Frontier Foundation
- Rob Kasunic, U.S. Copyright Office
- Christian Genetski, Entertainment Software Association
- Rebecca Tushnet, Organization for Transformative Works/Georgetown Law
Rob Kasunic: the DMCA was passed in 1998. The new rule-making started in 2000.
(someone is testing a radio mic on the same frequency. Ironic given White Spaces interference lobby by radio mic users).
Rulemaking was originally designed to be formal, like a courtroom proceeding. It became less formal, and a periodic review of exemptions. The exemptions expire each three years and must be examined again. 2000 rulemaking was difficult as the provisions weren't yet in force. "It would be nice if legislation could be understood by the general public. Failing that it would be nice if it was understood by Copyright lawyers."
We had to interpret what a "class of works" consisted of as that was what we coudl exempt, but was not defined in the statute.
Marcia Hofmann: I've been involved in all rounds so far. What does a successful argument look like?
Rob Kasunic: Seth Finkelstein documented what he had done to achieve exemptions. Look at what had been successful. Many people who have got them repeatedly were not lawyers. Presenting a very strong factual case is key, compared to making a legal argument. It helps to come to the hearing but that is not a requirement.
Rebecca Tushnet: I work with Vidders, a remix artists community. The hearings feel like Alice in Wonderland - the content people say that screen capture and other tools are circumvention, but they are available, and they won't go after fair use but they reserve the right to decide what isn't and so no exemption is needed.
Vidders are primarily made up of women, working with popular culture and non-commercial. Even though the Copyright Office should represent all creators, as outsiders we have to make this argument in perpetuity. Despite copyright protecting all creations, we need to make a case for creatiev quality and critical message, which is like explaining opera to non-fans.
The question 'Who gets to say what tools artists can use?' is very difficult. The content people argued that screen capture software was good enough, so cracking encrypted DVDs wasn't needed, despite generational loss. They said you don't need nice-looking stuff to use in your art. They also said that if we weren't getting good enough quality from screen capture they were doing it wrong. Hearing a bunch of guys who don't edit video telling a bunch of women who do that they are doing it wrong is a feature of the proceedings. You have to come back every 18 months are start again, and eventual people give up - like the dongle guy did. The copyright office cuts down your proposal each time, and more so if you don't come to the hearings. The burden of proof and the standards required to show that the use is substantial requires you to break the law in advance to show that it should be legal, which is highly problematic. Bruce Lehman told us about the process of enacting the DMCA. People making the next generation of media don't have lobbyists. they don't even have drivers licences today. They will surprise us like Facebook or Google. We need to let them surprise us in future.
Christian Genetski: The EFF brought an exemption request for jailbreaking consoles that followed that from jailbreaking cellphones. As we (Video Game Manufacturers) prevailed, I see this as a fair process. In the mobile phone example there was a competition issue wrapped up in the DMCA. We made the case that this was different for game consoles, where we were protecting 3rd party creative works - the games. We didn't question the legitimacy of homebrew and indie games, but said we were trying to promote these consistent with protecting commercial ones. The evidence showed that vast majority of the tools were used for infringement, not for development or indie distribution.
I don't think the DMCA 1201 rule is broken per se, The use of the statute by creative litigators is not unique to the DMCA, there were other statutes cited in the same complaints.
If we need to adjust tot he reality of what is being used, taking a fresh look every 18 months seems like a good idea. This is better than going to Congress and meeting on K Street. Perhaps there is an execution and burden-shifting problem.
Rob Kasunic: Burden-shifting is something we should consider for existing exemptions, to move the burden to opponents. The rule-making is not necessarily the answer to these issues. It's an adjunct to the statute. But for the rule-making process, Vidders would have all been unlawful. The Copyright office is not assessing 'good' works or legitimate art, but non-infringing use. When we use the term 'substantial' we didn't mean a higher burden of proof, but it needs to not be just mere inconveniences or anecdotal use. With vidding it was questionable if the use was non-infringing, but there needed to be sufficient that were.
Although 1201 exemptions only apply to the use exemptions, not the trafficking ones, when they passed they mean people can buy illegal tools for a legal purpose which is very odd.
Rebecca Tushnet: The exemption we got said we could only use circumvention if necessary for sufficient quality. This was an artistic judgment encoded in the exemption.
Granick: Trackphone continued to use 1201 against bulk unlockers as they were not doing it to unlock to connect to a network, but to profit by reselling phones, and have won these cases.
Q: Why would it be up to Congress to change the burden? Couldn't the Copyright office change this?
Kasunic: there is a lot of expectations from Congress in the lawmaking, even if not in the legislation. We're trying to implement what Congress intended. We would be delighted to have Congress give us more information.
Q: Copyright prevents actual copying and derivative works. What of we narrowed it down so derivative works weren't protected? How many problems would go away then?
Kasunic: Many of derivative works matter a lot eg movie adaptations. The line between derivative and transformative is a fine one.
Genetski: in the game industry the expansion packs and sequels are derivative and need to be protected.
Tushnet: people have been thinking hard about this. Substantial similarity has eaten this up. I wrote an article about this.