1 June 11, 2018 Regan A. Smith General Counsel and Associate

June 11, 2018

Regan A. Smith

General Counsel and Associate Register of Copyrights

U.S. Copyright Office

Library of Congress

101 Independence Avenue SE

Washington, DC 20559

Re: Docket No. 2017-10

Exemptions to Prohibition Against Circumvention of Technological

Measures Protecting Copyrighted Works

Dear Ms. Smith:

Thank you for this opportunity to explain further why screen capture is not a sufficient

alternative to circumvention for educational uses of “short portions of motion pictures”

beyond film studies or other courses requiring close analysis of film and media excerpts.

We hope our response will be helpful to you, and we welcome any further questions you

may have

1. Most commercially released videos now block screen capture programs, rendering

them ineffective.

Thus, the viability of screen capture as a sufficient alternative is a moot

issue.

2. The distinction between courses that require close analysis of film excerpts and those

that do not is artificial. A wide range of instructors have pedagogical reasons for using an

excerpt, regardless of whether they are teaching a film course or a psychology course.

The quality of the excerpt inevitably has an impact on whether the pedagogical purpose

will be met.

Moreover, the highest quality video ensures the highest level of student engagement, no

matter the nature of the course. Students are exposed to high-quality video in all aspects

of daily life, and thus naturally expect high-quality video in the educational context.

Lower-quality video distracts students and prevents them from fully respecting and

engaging the material presented.

3. In previous rulemaking cycles, we have demonstrated that screen capture programs

produce deficient excerpts, and we have provided examples of how such deficient

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See Reply Comment of Authors Alliance et al., Docket No. 2017-10, 16–17 (Mar. 14,

2018), https://www.copyright.gov/1201/2018/comments-

031418/class1/Class_01_Reply_Authors_Alliance_et_al_.pdf (“2018 Reply Comment”).

excerpts do not meet the needs of courses far beyond film studies.

Footage obtained with screen capture technologies from DVDs contains many

imperfections, including interlacing, dropped frames, frame rate issues, insufficient

resolution, and artifacting.

Moreover, screen capture is not capable of accurately

capturing clips of the large files on Blu-ray discs or other high definition sources.

In the 2015 cycle, we provided the example of the shortcomings of screen capture

technology experienced by Kevin Platt, a Professor of Russian and East European Studies

at the University of Pennsylvania. In a course he taught titled “Russian and Soviet

Culture and Its Institutions: Media, Publics, Genres,” Prof. Platt depended on a clip he

used each semester depicting the engineered famine of 1942 from the documentary film

The Soviet Story. In that clip is an especially powerful scene in which an image of a

young girl standing by a field full of ripe corn is depicted, followed by the sound of a

gunshot, and then the merging of that image with one of the young girl lying dead on the

ground. When Professor Platt tried to extract this clip using screen capture, the resulting

resolution was so poor that it was nearly impossible to discern the difference between the

two images, making the clip unusable.

Another example involving Russian history concerns a Russian history professor who

wants to show a clip from the early Soviet newsreel and documentary filmmaker Dziga

Vertov as examples of Soviet propaganda. Vertov’s experiments with editing include the

use of single frames. Even with fast computer processors and video cards, screen capture

programs will drop frames, potentially leaving out key elements of Vertov’s message and

technique. We can imagine many classes that would want to investigate the history of

Russian propaganda in light of today’s headlines. The Exorcist also used single frames, as

do many avant-garde films. These may be used in classes focusing on perception and

cognition or on subliminal messages.

Screen capture is inadequate to meet the needs of science courses. A biology professor

might want to use PBS science videos to demonstrate plant cell biology. Even very small

details need to be rendered correctly to show the microscopic functioning of cells. Jagged

edges, artifacting, color distortion, and blurry and soft images are all common in screen

captures and have the potential to confuse students about the parts of a cell or stand

between them and complete understanding of what they are observing.

A language instructor might use a short portion of a video to demonstrate gesture, the

movement of face and mouth, and the sound of particular words. Screen capture

programs distort images and sound, sometimes changing the speed of soundtracks and

falling out of synchronization with images. The same language instructor might also

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See, e.g., Reply Comment of Authors Alliance et al., Docket No. 2014-07, 8–10 (May 1,

2015), https://www.copyright.gov/1201/2015/reply-comments-

050115/class%205/ReplyComments_LongForm_AuthorsAllianceEtAl_Class05.pdf.

AACS admitted in the 2015 cycle that it is not aware of any screen capture technology

capable of Blu-ray level quality, and nowhere in the current proceeding has it alleged that

such capability now exists.

choose to copy short portions of a motion picture with all of the subtitle and dubbed

tracks in tact so that students can switch between different versions as they acquire

language skills. As its name suggests, screen capture can only record what is on the

screen, losing the ability toggle between text and audio channels.

Finally, authors of multimedia e-books may want to magnify parts of the frame in order

to call attention to specific details that are the subject of criticism and commentary in

their work. In our 2017 Comment, we shared the story of one author of fan fiction, who

chose to remain anonymous.

The author wanted to create an e-book to explore and

critique a little-discussed aspect of a major television series, and needed access to high

quality footage to “highlight[] details within a larger setting such as a cradle or the baby

in the cradle.”

Similarly, the attorney and author Heidi Tandy, who writes fan fiction not only to create

novel works but also to educate the public about fair use, hopes to create a multimedia

fan fiction e-book offering analysis and commentary on the long-running television series

Supernatural.

To do so, she needs to capture small details from the television show, such

as a set artifact or a character’s fleeting facial expression, and then blow up these details

to analyze and comment on them.

Given the well-documented flaws and degradation present in all screen-capture software,

a screen capture requirement would prevent or severely hinder each of these authors’

ability to make fair use using e-book technology.

Not every problem occurs with every screen capture. But as a rule, screen capture

programs are unreliable and almost without fail introduce inaccuracies that change the

image and soundtrack in ways that can have a deleterious effect for teaching in a range of

fields.

These examples are all equally applicable in a middle school classroom, a PhD seminar,

and an online course.

4. The use of screen capture technology can be much more resource-intensive than

circumvention. Faculty, students and authors should not be expected to acquire

professional-grade products to engage in the audiovisual equivalent of quoting text in a

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See Comment of Authors Alliance et al., Docket No. 2017-10, 18–19 (Dec. 18, 2017),

https://www.copyright.gov/1201/2018/comments-121817/class1/class-01-

initialcomments-authors-alliance-et-al.pdf (“2017 Comment”).

Id. at 19.

Id. at 20–22; 2018 Reply Comment at 9–10.

2017 Comment at 21.

As the attached letter from Jim Morrissette demonstrates, the video presentations

submitted by the AACS-LA do not undermine this conclusion. In particular, the video

presentation submitted at the Section 1201 Roundtable in Washington, D.C. on April 11,

2018, would not provide sufficient quality for use by Ms. Tandy in creating her e-book.

term paper or a PowerPoint slide, especially when circumvention is so much more

convenient.

In particular, screen capture technology is far more expensive than ripping software.

Sarah Jane O’Brien, an English professor at the University of Virginia, reports that:

The most significant reason to use ripping software rather than screen capturing

software is cost. […] [A]n educational license for Camtasia currently costs $169,

which is prohibitively expensive for students, particularly those who are not

pursuing film or media studies degrees and who will thus have limited use for the

software. Free, open-access screen-capturing options do exist, but they are

difficult to use and frequently place watermarks on footage. In comparison,

Handbrake, the free, open-access software that is most frequently used to rip

DVDs, is easier to use and provides high-quality footage without a watermark.

Likewise, Fang Yi, an Educational Technologist at the University of Virginia Library

who provides tech support to courses where students make remixes, states that screen

capture software is inferior to ripping software in terms of resolution, convenience, and

cost.

Screen capture software usually does not produce as good resolution as those

original files ripped from DVDs. […] Screen capture software is also time

consuming. You can’t do anything when the computer[] is doing the recording.

However, when ripping DVDs, it is much faster and allows you to do other things

with your computer. […] Usually good screen capture software cost money. Even

though Mac has Quick Time which can do screen recording for free, you need to

install another 3rd party software and do a lot of audio setting adjustments to be

able to record both original audio and the screen at the same time. For students

who are not technical savvy, it could take some time to learn. […] Camtasia is

certainly a good software for screen recording, but it is very costly… [and] it is

not just a screen capture software. It also has editing functionality. So technically

it can be a bit too complicated for just screen capture.

With respect to the need for high quality video in student remixes in non-film courses,

Fang Yi explains that “we’d like highest resolution possible to make sure students videos

are presentable and professional looking.”

5. The films we seek to use in educational settings often reflect enormous creativity. They

typically are expressive works that convey complex ideas with subtlety and nuance, by

combining sound and moving image to produce the quintessential art form of our time.

The author’s intention is taught in a wide range of fields, from literature to fine arts to

history to communications. Relying on an imperfect copy of a film is like forcing

students to look at a painting with flakes of paint artificially removed or a still

photograph through an intentionally cracked piece of glass. Respecting the integrity of

these works is critical to effective teaching and learning.

6. Opponents of exemptions for the use of video clips in educational settings have

repeatedly raised screen capture technologies in the triennial review, and we have

repeatedly shown that these technologies are inadequate for the needs of instructors and

students in the 21

century. The references to screen capture in the exemptions issued by

the Librarian have sown confusion among would-be exemption users. Particularly now

that many commercially-released videos block screen capture software, limitations

relating to screen capture should be removed from the exemptions. Further, the Office

should make clear that it will no longer entertain exemption opponents raising the vague

prospect of a viable screen capture option without addressing in concrete terms how it

actually would serve as an alternative to circumvention to engage in the proposed

conduct.

We are happy to respond to any additional questions you may have.

Respectfully submitted,

Brianna Schofield

Authors Alliance

Peter Decherney

Joint Educators

Jonathan Band

Library Copyright Alliance

Jack Lerner

on behalf of Heidi Tandy and Organization for Transformative Works

Regan A. Smith

General Counsel and Associate Register of Copyrights

Library of Congress

101 Independence Avenue SE

Washington, DC 20559

June 8, 2018

To Whom It May Concern:

This letter presents an opportunity for me to respond to the two videos submitted by opposition

to Section 1201 Proposed Class 1 Audiovisual Works—Criticism and Comment—E-Books and

Filmmaking. I was on the panel in Washington, D.C. on April 11, 2018 and spoke about the need

to renew the existing exemption in order to give filmmakers access to high quality video clips to

make Fair Use in productions which must meet highest technical quality available for Broadcast,

PBS, Netflix, and theatrical distribution.

Counsel for AACS-LA showed two videos—one at the hearings in Washington, D.C. on April

11, 2018

and a different one at the Los Angeles hearing on April 24, 2018.

Both were

apparently introduced in support of the point that computer screen capture software was a viable

alternative to circumvention.

Analysis of the Video Introduced in Washington, D.C. Focused on

iTunes E-Book Author Software

This was a demonstration of screen capture using Apple’s iBooks Author software. Screen

capture was used to grab a movie clip from an existing file, and then use it in an iBook creation.

The quality, image size, and file data rate were nowhere near the technical requirements of the

distribution options that filmmakers need to pass quality control standards. Because the software

is free to use, it has major limitations: only small file sizes are allowed, resulting in very drastic

image compression.

Regardless of whether iTunes accepts low quality footage in an e-book—

and Apple’s own standards indicate that it does not

—such footage will not work for filmmakers

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See Exhibit 1-B, Docket No. 2017-10 (2018), https://www.copyright.gov/1201/2018/exhibits-

043018/class1/Ex.%201-B%20(DVD%20CCA_AACS%20LA).mp4.

See Exhibit 1-H, Docket No. 2017-10 (2018), https://www.copyright.gov/1201/2018/exhibits-

043018/class1/Ex.%201-H%20(DVD%20CCA%20AACS%20LA).mp4.

The iBooks Store limits the size of an entire e-book, including all videos, to 2GB. See iBooks Author Help: Publish

a Book to the iBooks Store, APPLE, https://help.apple.com/ibooksauthor/mac/#/blscb0e718b.

On Apple’s minimum video standards, the iBooks Store lists as one common reason for an e-book’s correction or

rejection: “16.1. Quality. Your book’s media can’t have skips, static, corrupted files, pixelation, or other quality

with any broadcasters, distributors, or theatrical exhibitors.

Analysis of the Video Introduced in Los Angeles Focused on

Fixing Problem Videos Using Adobe Premiere Pro.

This video states that it was produced by an InCode technician who does work for Discovery

Channel. She demonstrated, using Adobe Premiere Pro software, how to “fix” a video clip that

was the wrong frame size and frame rate. It was not clear whether this existing movie clip was

produced by screen capture or acquired in some other way.

Screen capture technology is not made to reproduce exact frame-by-frame High Definition (HD)

video capture. At Kartemquin, we are quite familiar with Adobe Premiere Pro. Adobe Premiere

software simply cannot fix many of the problems associated with screen capture, such as

dropped frames or repeated frames.

The video simply does not support the assertion that Adobe Premiere can be used to fix problems

created during screen capture.

Summary

Screen capture technology is incapable of supporting the needs of filmmakers and e-book

authors, and it is not a viable alternative to circumvention. The videos shown in Washington,

D.C. and Los Angeles did not adequately address or contradict these points.

As technology evolves, audiences have come to expect HD production values, and broadcasters

and distributors demand it. Today, high-quality video clips are widely available on DVDs, Blu-

Ray discs, and through online video downloads. There are times when only low-quality footage

exists–such as when filmmakers work with archival footage–but filmmakers and publishers of e-

books must not be limited as a whole to low-quality production values. This is why it is so

crucial that the current exemption, allowing access to HD quality video for purposes of Fair Use,

be renewed.

Jim Morrissette

Technical Director

Kartemquin Films

1901 W. Wellington

Chicago, IL 60657

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issues.” iBooks Store Formatting Guidelines: 16. Books with Audio or Video Files, APPLE,

https://help.apple.com/itc/ibooksstoreformatting/#/itc03d3b3906 (last visited June 8, 2018).