Submission on behalf of Joint Creators and Copyright Owners Class

Submission on behalf of Joint Creators and Copyright Owners

Class 1: Audiovisual Works – Criticism and Comment

[ ] Check here if multimedia evidence is being provided in connection with this comment

ITEM A. COMMENTER INFORMATION

The Motion Picture Association, Inc. (“MPA”) is a trade association representing some of the

world’s largest producers and distributors of motion pictures and other audiovisual entertainment

for viewing in theaters, on prerecorded media, over broadcast TV, cable and satellite services,

and on the internet. The MPA’s members are: Netflix Studios, LLC, Paramount Pictures

Corporation, Sony Pictures Entertainment Inc., Universal City Studios LLC, Walt Disney

Studios Motion Pictures, and Warner Bros. Entertainment Inc.

The Alliance for Recorded Music (“ARM”) is a nonprofit coalition comprising the many artists

and record labels who together perform, create, and/or distribute nearly all of the sound

recordings commercially released in the United States. Members include the American

Association of Independent Music (“A2IM”), the Music Artists Coalition (“MAC”), the

Recording Industry Association of America, Inc. (“RIAA”), hundreds of recording artists, the

major record companies, and more than 600 independently owned U.S. music labels.

The Entertainment Software Association (“ESA”) is the United States trade association

serving companies that publish computer and video games for video game consoles, handheld

video game devices, personal computers, and the internet. It represents nearly all of the major

video game publishers and major video game platform providers in the United States.

Represented By:

J. Matthew Williams (mxw@msk.com)

Sofia Castillo (szc@msk.com)

MITCHELL SILBERBERG & KNUPP LLP

1818 N Street, NW, 7th Floor

Washington, D.C. 20036

202-355-7904

ITEM B. PROPOSED CLASS ADDRESSED

Proposed Class 1: Audiovisual Works—Criticism and Comment.

ITEM C. OVERVIEW

MPA, ARM and ESA (“Joint Creators and Copyright Owners”) did not oppose renewal of the

existing exemptions applicable to circumvention to access short portions of motion pictures for

certain educational purposes and noncommercial video creation.

However, the proponents now

request the following expansions: (1) allowing the circumvention of full length motion pictures

for purported non-infringing purposes under Sections 107, 110(1), 110(2) and 112; (2) the

creation of a broad new exemption for “educators and preparers of online learning materials,”

regardless of their accreditation or for-profit status; and (3) the elimination of the obligation to

consider and use screen-capture technology where satisfactory. These, or similar proposals, have

all been rejected by the Copyright Office in the past, and no material, new evidence has been

submitted to justify a different outcome in this rulemaking.

Although the Joint Creators and Copyright Owners do not object in principle to rewording the

existing regulatory language, the language must be appropriately targeted to preserve current

limitations and to prevent an unwieldy exemption that goes beyond both the aims of the

rulemaking and what is warranted by the record and the law. Those who endeavor to eliminate

the limitations have not presented sufficient information to support discarding the current,

common-sense boundaries. Moreover, the Petitioners have not demonstrated that using screen-

capture technologies, or other licensed marketplace alternatives, are inadequate for

accomplishing many uses of motion pictures. Indeed, options for presenting clips of motion

pictures in-person for teaching and in remote classroom settings, as well as for licensing uses of

motion pictures in videos that are not exempted by the current regulations are even more broadly

available today than they were three years ago. The Register should preserve the limitations

contained in the existing exemptions.

Finally, the Petitioners requested exemptions applicable to motion pictures, but the Copyright

Office described this class in the NPRM as applying to all audiovisual works. There is nothing

in the record to justify expanding the exemptions to apply to video games. The limitation to

motion pictures should be retained.

ITEM D. TECHNOLOGICAL PROTECTION MEASURE(S) AND METHOD(S) OF CIRCUMVENTION

The proposed expanded and new exemptions would cover a wide array of access controls,

including on discs, digital streaming services, digital download services, remote services that

facilitate cloud-based access, and (potentially) cable and satellite set-top boxes and videogame

consoles.

Many of these access controls enforce terms and conditions of use that allow for

lower cost, temporary access and do not allow for the retention of permanent copies. These are

precisely the kinds of access controls Congress intended to incentivize when enacting the

The Joint Creators and Copyright Owners continue to believe that exempting the entire category of “non-

commercial videos” is vastly overbroad and prone to abuse. Nevertheless, given the Copyright Office’s repeated

adoption of the existing exemption for this class of works, our comments will not belabor the issue.

Because that the Copyright Office previously rejected a proposed exemption for circumventing the HDCP

encryption scheme utilized for devices that connect to televisions through HDMI cables, including video game

consoles, R

EGISTER OF COPYRIGHTS, SECTION 1201 RULEMAKING: SEVENTH TRIENNIAL PROCEEDING TO DETERMINE

EXEMPTIONS TO THE PROHIBITION ON CIRCUMVENTION: RECOMMENDATION OF THE ACTING REGISTER OF

COPYRIGHTS 144-45 (2018),

https://cdn.loc.gov/copyright/1201/2018/2018_Section_1201_Acting_Registers_Recommendation.pdf

(“2018

Rec.”), the proposals are best interpreted to exclude circumvention of HDCP and other access controls on consoles

from their scope.

DMCA, as they increase the availability of motion pictures at affordable prices through access-

based business models.

ITEM E. ASSERTED ADVERSE EFFECTS ON NONINFRINGING USES

1. The Record Does Not Justify An Exemption To Obtain Access To Unauthorized

Copies Of Full-Length Motion Pictures For Educational Performances

BYU seeks to expand the existing exemption for educational purposes to include “[m]otion

pictures (including television shows and videos), as defined in 17 U.S.C. 101, where the motion

picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a

Blu-ray disc protected by the Advanced Access Content System, or via a digital transmission

protected by a technological measure, where circumvention is undertaken by college and

university employees or students or by kindergarten through twelfth-grade (K-12) educators or

students (where the K-12 student is circumventing under the direct supervision of an educator),

including of accredited general educational development (GED) programs, for a noninfringing

use under 17 U.S.C. §§ 107, 110(1), 110(2), or 112(f).”

BYU claims that this exemption is necessary because:

As a practical matter, optical discs and players are becoming increasingly difficult

to use for educational purposes. Such difficulties have been exacerbated by the

large-scale shift to remote instruction caused by the COVID-19 pandemic. And

unfortunately, the current market for licensing or purchasing digital copies of

motion pictures does not meet the needs of educational institutions.

First, BYU identifies a problem that is not caused by access controls, but by the unexplained

difficulty of using optical players

and the shift to remote instruction caused by the temporary

social distancing measures necessary to address the COVID-19 pandemic. The Joint Creators

and Copyright Owners of course acknowledge the difficulties created by the pandemic and are

willing to identify the best ways to resolve issues through marketplace solutions. However, the

current market for accessing, licensing and obtaining digital copies of motion pictures is, as

specified later in this comment, already robust. In addition, the pandemic is a time-limited event

that should not drive public policy changes with potentially long-lasting effects. The proposed

exemption would be in effect until at least 2024. We are hopeful, based on the availability of

Brigham Young University, Class 1 Long Comment at 2 (Dec. 14, 2020),

https://www.copyright.gov/1201/2021/comments/Class%2001_InitialComments_Brigham%20Young%20Universit

y.pdf (“BYU 2020 Comment”).

BYU 2020 Comment at 3.

Petitioner does not elaborate on the reasons for this “difficulty.” In the last rulemaking, however, it was clear that

the difficulty was caused by choices made by institutions not to invest in players, which are currently available,

including from well-known brands such as Sony and LG, for under $50 from retailers such as Amazon

https://www.amazon.com/b?node=3213027011&ref=lp_1266092011_nr_n_3

and Best Buy,

https://www.bestbuy.com/site/blu-ray-dvd-players/dvd-players/abcat0102005.c?id=abcat0102005. To the extent

BYU and other educational institutions have been choosing not to invest in available players to support the use of

their collection, and instead are relying on unauthorized reproduction and streaming, their actions are on

questionable legal footing that and do not support the requested exemption.

vaccines, that widespread effects from the pandemic will reduce substantially during the next

year. Thus, BYU does not identify a substantial adverse effect that is likely to occur within the

next three years and that is caused by the statutory prohibition on circumventing access

controls.

Second, BYU has not identified a non-infringing use in which it seeks to engage that is not

covered by the existing exemptions and that requires unauthorized access via circumvention.

BYU reminds the Copyright Office of its own statement that this proceeding is not the place to

“break new ground” on fair use.

And yet, BYU’s proposed expansion to cover space-shifting of

full motion pictures asks the Copyright Office to break such ground. As the Register has

repeatedly concluded,

and should conclude again during this proceeding, no court has held that

space-shifting is fair use. Indeed, “the reported decisions unanimously reject the view that

space-shifting is fair use under § 107.”

BYU suggests that the absence of judicial precedent on

point in the education context means that “rightsholders are not overly concerned about the

practice of space-shifting motion pictures by educational institutions, at least not concerned

enough to file any lawsuits about it.”

This claim suggests that copyright holders must sue over

every potential infringement or violation of Section 1201 or lose their rights—a position the

Supreme Court has flatly rejected.

The Section 1201 Rulemaking should not have such an

effect on rights holders.

Third, BYU misreads Fox News Network, LLC v. TVEyes, Inc., 883 F.3d 169 (2d Cir. 2018), and

Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984), to support its proposition

that making copies of full-length motion pictures is transformative because it purportedly

enhances the efficiency of delivering content.

In TVEyes, the court ruled that the service’s

Watch function had a “modest” transformative character because it enabled clients to isolate a

subset of material from Fox’s vast audiovisual corpus, and to access that material with targeted

See Exemptions To Permit Circumvention of Access Controls on Copyrighted Works: Notice of Proposed

Rulemaking, 85 Fed. Reg. 65293, 65294 (Oct. 15, 2020),

https://www.govinfo.gov/content/pkg/FR-2020-10-

15/pdf/2020-22893.pdf (“NPRM”) (listing requirements for granting an exemption).

BYU 2020 Comment at 7.

E.g., 2018 Rec. at 111-27 (“2018 Rec.”); REGISTER OF COPYRIGHTS, SECTION 1201 RULEMAKING: SIXTH

TRIENNIAL PROCEEDING TO DETERMINE EXEMPTIONS TO THE PROHIBITION ON CIRCUMVENTION,

RECOMMENDATION OF THE REGISTER OF COPYRIGHTS 107-26 (2015),

https://cdn.loc.gov/copyright/1201/2015/registers-recommendation.pdf

(“2015 Rec.”) (explaining, inter alia, that

Recording Indus. Ass’n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072 (9th Cir. 1999), and Fox

Broadcasting Co. v. Dish Network LLC, 160 F. Supp. 3d 1139 (C.D. Cal. 2015), do not support a broad conclusion

that space-shifting is a fair use).

Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 862 (9th Cir. 2017).

BYU 2020 Comment at 14-15.

See Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 665 (2014) (“It is hardly incumbent on copyright

owners…to challenge each and every actionable infringement. And there is nothing untoward about waiting to see

whether an infringer’s exploitation undercuts the value of the copyrighted work, has no effect on that work, or even

complements it.”).

Id. at 17.

precision.

However, that did not render the use lawful. Id. The court in TVEyes read Sony to

stand for the proposition that “a secondary use may be fair use if it utilizes technology to achieve

the transformative purpose of improving the efficiency of delivering content without

unreasonably encroaching on the commercial entitlements of the rights holders.” Id. (emphasis

added). Here, BYU’s proposed copying of motion pictures would be mere “republishing” of

original copyrighted works without any “enhanced efficiency” or addition of new expression,

meaning, or message. In addition, BYU’s proposed use of full-length motion pictures would

unreasonably encroach on rights holders’ educational licensing market, as explained below.

Therefore, TVEyes does not justify a change in the Copyright Office’s 2018 conclusion that the

proposed uses of full-length motion pictures are unlikely to be fair use.

Fourth, as the Copyright Office recommended in 2018, the fact that BYU is an educational

institution should not alter this analysis.

The Supreme Court has held that “the mere fact that a

use is educational and not for profit does not insulate it from a finding of infringement.”

Fifth, the inherent conflict in BYU’s request is apparent in that the proposed exemption

simultaneously: (1) allows circumvention to copy full-length motion pictures; and (2)

incorporates by reference sections of the Copyright Act that do not allow educational institutions

(“EIs”) to copy full-length motion pictures to perform them in a classroom or remotely. See 17

U.S.C. §§ 110, 112. Moreover, BYU’s proposal would violate the requirement of Section 110(2)

that prevents EIs from making transmissions of full-length copyrighted works for distance

learning and from engaging “in conduct that could reasonably be expected to interfere with

technological measures used by copyright owners to prevent such retention or unauthorized

further dissemination.”

Although Section 110(1) allows BYU to engage in certain public

performances of complete motion pictures “in a classroom or similar place devoted to

instruction” (emphasis added), without obtaining licenses, it does not allow those performances

to be generated from unauthorized copies, nor does it contain any limitation on the reproduction

right. If Congress wanted EIs and students to be exempt from purchasing complete copies of

works or authorized access thereto, it would have included an exception to the reproduction right

within Section 110 – which it clearly did not.

The educational exemptions granted in prior cycles are limited to copying short portions of

works for what the Copyright Office has concluded are transformative purposes. Thus, they are

more compatible with Section 110(2), which limits online transmissions by educational

TVEyes, 883 F.3d at 177.

In its 2018 Recommendation, the Copyright Office rejected BYU’s claim that Authors Guild, Inc. v. HathiTrust,

755 F.3d 87, 98-99 (2d Cir. 2014), and Authors Guild v. Google, Inc., 804 F.3d 202, 229 (2d Cir. 2015), render all

copying for educational purposes a fair use because these opinions “distinguished the proposed uses of indexing and

data analysis, from performing the works themselves, and carefully considered the risk that those circumscribed uses

might act as market substitutes.” 2018 Rec. at 52.

Id. at 52-53.

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584 (1994); see also Sony Corp. of Am., 464 U.S. at 450

(“Even copying for noncommercial purposes may impair the copyright holder’s ability to obtain the rewards that

Congress intended him to have.”).

17 U.S.C. §110(2)(D)(ii)(II).

institutions to “reasonable and limited portions” of motion pictures.

They are also more

compatible with fair use, given that the third factor specifically favors the use of no more of a

work than is necessary to accomplish a legitimate purpose.

Sixth, BYU’s proposed exemption would pose a significant threat to the value of copyrighted

works.

BYU’s proposed copying for space-shifting would negatively impact rights holders’

legitimate revenues from streaming and download services that publicly perform or otherwise

transmit copies of motion pictures – some of which cater specifically to educational

institutions.

Even if not all titles are available through one or more of these services, many

titles are available and more are constantly added. Rights holders should not be deprived of

revenues and potential revenues derived from the titles that are available on, or may soon be

available on, these licensed streaming services that cater to educational institutions, such as:

• Swank - Digital Campus

provides on and off campus faculty and students in

colleges and universities with over 25,000 films, documentaries and TV shows via

streaming.

BYU references a 2006 Congressional Research Service Report, which cites to a Senate Judiciary Committee

report, for the proposition that the TEACH Act allows for performance of full-length motion pictures in certain

circumstances. BYU 2020 Comment at 10. There are two problems with this source. First, the CRS report is

without interpretive value. Second, the CRS Report is wrong in its interpretation of the Senate Report. The Senate

Report itself does not endorse the notion that full-length movies might properly be performed in some

circumnstances. S.

REP. NO. 107-31, at 7-8 (2001) (“The performance of works other than non-dramatic literary or

musical works is limited, however, to ‘reasonable and limited portions’ of less than the entire work. What

constitutes a ‘reasonable and limited’ portion should take into account both the nature of the market for that type of

work and the pedagogical purposes of the performance. In addition, because ‘display’ of certain types of works,

such as literary works using an ‘e-book’ reader, could substitute for traditional purchases of the work (e.g., a text

book), the display exemption is limited to ‘an amount comparable to that which is typically displayed in the course

of a live classroom setting.’ This limitation . . . recognizes that a ‘display’ may have a different meaning and impact

in the digital environment than in the analog environment to which section 110(2) has previously applied. The

‘limited portion’ formulation used in conjunction with the performance right exemption is not used to connection

with the display right exemption, because, for certain works, display of the entire work could be appropriate and

consistent with displays typically made in a live classroom setting (e.g., short poems or essays, or images of

pictorial, graphic, or sculptural works, etc.”).

See 2018 Rec. at 52 (“The Register has previously found the ‘short portions’ limitation to be critical in

recommending exemptions for audiovisual works”); 2015 Rec. at 70 (“[T]he Register suggests that the ‘short

portions’ limitation provides useful guidance as to what is generally likely to be a fair use in these contexts without

imposing a wholly inflexible rule as to length. As a general matter, longer uses are less likely to be considered fair

because they are more likely to usurp the market for a work.”); id. at 99 (“[T]he use of only short segments is critical

to the Register’s determination in this proceeding that a significant number of the desired uses are noninfringing.”).

See 17 U.S.C. § 1201(a)(1)(C)(iv).

An exemption from the 1201 prohibition would not supplant equivalent prohibitions established in the Terms of

Service of many of these services. See e.g., Terms of Service, Kanopy, https://www.kanopy.com/terms

(last revised

Apr. 17, 2020) (“(c) Except with respect to Your Content, you may not: (i) use, capture, reproduce, modify, adapt,

create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge,

transfer or otherwise grant rights to the Service, except as expressly permitted under the TOS.”).

https://www.swank.com/digital-campus/

• Kanopy

partners with public libraries and universities to stream content for free to

personal devices. Users can log in with a library membership and enjoy a diverse

catalog with new titles added every month.

• Alexander Street

enables libraries to increase faculty and student access to learning

and scholarly content. It offers subscription and demand-driven acquisition options.

• Passion River

distributes a catalogue of award-winning independent and

documentary films on topics such as Multicultural Studies, Women’s Studies,

Medical Studies and Advances, Religious and Spiritual Studies, Environmentalism,

Aging, Drug Addiction, LGBT issues and others. They provide educational DVD

and streaming licenses.

• Roco Films Educational

enables students and faculty to instantly stream

documentaries at any time, on or off campus through their proxy library server. Roco

Films’ catalog consists of highly-acclaimed, festival award-winning films,

specifically curated with their academic potential in mind. They offer à la carte

licenses, entire collection subscriptions, and a patron-driven acquisition model that

allows users to pay only for films that are being used.

• Collective Eye Films

offers a license for colleges, universities, and corporations for

films to be used by students, staff and faculty in classrooms or at home.

Additionally, the marketplace offers a variety of options that could provide all or at least most

motion pictures required by educational institutions for both in-person and remote learning

without the need to circumvent. Asking students to subscribe, purchase, rent, or digitally

download a motion picture through a retailer or an education-oriented or mainstream service is

akin – although often much cheaper – to asking students to purchase a book, especially as many

of these services are available for low prices and some (like Hulu) offer student discounts. These

alternatives to circumvention include streams/transmissions available through cable providers,

satellite service providers, Amazon Prime Student

, Disney Plus

, HBO Max

, Hulu

https://www.kanopy.com/about-us

https://alexanderstreet.com/page/academic

http://www.passionriver.com/about.html

https://www.rocoeducational.com/streaming_intro

https://www.collectiveeye.org/pages/film-licenses

https://www.amazon.com/amazonprime?_encoding=UTF8&hvadid=444135817896&hvdev=c&hvexid=&hvnetw=g

&hvpone=&hvpos=&hvptwo=&hvqmt=b&hvrand=13151886747917283974&planOptimizationId=WLPStudentMo

nthlyEligiblePlans&primeCampaignId=studentWlpPrimeRedir&primeCampaignIdPref=studentWlpPrimeRedir&ref

=pd_sl_5bvjl7yi1_e&ref_=st_wlp_pr_redir&tag=googhydr-20

https://www.disneyplus.com/

https://www.hbomax.com/

https://www.hulu.com/

Netflix

, Peacock

, and YouTube Premium

; Vudu’s Disc-to-Digital program

; digital copies

made available with purchases of discs through redeem codes; digital copies available for rental

or long-term access; access through Movies Anywhere

; permanent and temporary downloads

available through Amazon

, Apple iTunes

and Google Play

; and other services (many of

which offer time-limited downloads of many titles). We attach hereto an Appendix summarizing

such services.

In sum, BYU’s proposed exemption is unnecessary and legally unsupportable. It was denied

three years ago. The only change in circumstances identified – admittedly an important one – is

the current pandemic. Yet, the proposal is not limited to instances of pandemics or other

emergencies; nor is it limited to titles that are unavailable at reasonable prices in the legitimate

marketplace; nor does it impose other limitations common to other exemptions, such as an

obligation to encrypt unauthorized copies, to take other steps to prevent infringement and

unauthorized access, to only engage in circumvention for the sole purpose of the purported

noninfringing activity, or to prevent transfers of decrypted copies to other institutions or

commercial actors. It does not even require any criticism or commentary on the works. Remote

learning is incredibly important, especially right now, but ignoring and upending the statutory

regime in place and undermining developing licensing markets is not the answer. Doing so

would hinder technological development and ultimately deprive consumers of new methods of

accessing motion pictures at reasonable prices.

2. The Record Does Not Justify Creating A New Exemption For “Educators And

Preparers Of Online Learning Materials”

Joint Educators IV seek a new exemption:

[t]o allow educators and preparers of online learning materials to use short

portions of motion pictures (including television shows and videos), as defined in

17 U.S.C. 101, for the purpose of criticism, comment, illustration and explanation

in offerings for registered learners on online learning platforms when use of the

film and media excerpts will contribute significantly to learning. The online

provider will limit these online learning materials, to the extent technologically

feasible, to registered learners of the online learning platform, institute copyright

policies, and provide copyright information to educators and preparers of online

https://www.netflix.com/

https://www.peacocktv.com/

https://www.youtube.com/premium

https://www.vudu.com/content/in_home_disc_to_digital.html?cid=SEMGoogle5787349473&scid=207983839&kwi

d=13653427999

https://moviesanywhere.com/welcome

https://www.amazon.com/

https://www.apple.com/itunes/

https://play.google.com/store

learning materials, learners, and relevant staff members. Further, the online

provider, to the extent technologically feasible, will work to reasonably prevent

unauthorized further dissemination of online learning materials in accessible form

to others, including after the registration period ends.

Petitioners claim that this exemption is necessary because the existing exemption for Massive

Open Online Courses (“MOOCs”) is insufficient to accommodate similar uses by a skyrocketing

number of online learning platforms, irrespective of their educational accreditation or for profit

status.

The Copyright Office rejected similar petitions in 2015 and 2018 for the following reasons:

While acknowledging the growth and importance of online education, in granting

the existing [MOOCs] exemption in 2015 the Register agreed that an unbounded

exemption where anybody can declare that they’re teaching a MOOC and anyone

can be a student would be anathema to the exemption process as envisioned by

Congress. As in 2015, Joint Educators’ current broadly framed proposal would

seemingly encompass any online video that could be characterized as an

educational experience.

Joint Creators IV’s current petition presents the same problems in this cycle.

First, the Section 110(2) limitations benefit accredited nonprofit educational institutions. Joint

Educators IV seek to bestow this benefit upon a much broader – indeed, potentially infinite –

segment of users. Moreover, Section 110(2) requires accredited nonprofit educational

institutions to apply technological measures that reasonably prevent the (1) “retention of a work

in accessible form by recipients of the transmission… for longer than the class session”, and (2)

“unauthorized further dissemination of the work in accessible form by such recipients to others.”

Without an explanation, Petitioners weaken the technological measures requirement by inserting

the clause “to the extent technologically feasible” and leaving out the requirement of

technological measures that prevent “retention” of a work.

Second, their proposal would pose a significant threat to the value of copyrighted works. As

discussed above, educational licenses for motion pictures are available. In addition, licensed clip

services continue to be available. For example, the Fandango Movie Clips Website

and Movie

Clips YouTube Channel

offer a wide variety of clips and movie trailers. Finally, all the motion

Joint Educators IV, Class 1 Long Comment at 18 (Dec. 14, 2020),

https://www.copyright.gov/1201/2021/comments/Class%2001_InitialComments_Joint%20Educators%20IV.pdf

(“Joint Educators IV 2020 Comment”).

Id. at 2.

2018 Rec. at 54 (internal quotations omitted).

https://www.movieclips.com/

https://www.youtube.com/channel/UCi8e0iOVk1fEOogdfu4YgfA

pictures cited as examples of works for which the exemption would allow circumvention are

available in streaming services in the marketplace.

Third, this exemption is unnecessary because at least some of the proposed uses are presumably

covered by the “non-commercial” video and the documentary filmmaking (biographical

significance) exemptions. Also, using non-circumventing alternatives such as screen capture

technology, users could obtain the clips they want to use.

3. The Record Fails To Justify Eliminating The Screen-Capture Language

All three Petitioners in Class 1 ask for the elimination of the screen-capture limitation from the

existing exemptions. BYU argues that screen-capture is not a viable alternative to circumvention

because it produces low-quality and static copies, causes the loss of metadata, is time consuming,

and does not prevent infringing uses.

Joint Educators IV claim that screen-capture is

inadequate because “the image resolution, audio synchronization, and frame coherence of

screen-capture can degrade picture quality, create distortions in image and audio, and drop

frames at critical moments.”

The Organization of Transformative Works claims that the

screen-capture language makes the non-commercial video exemption difficult to understand and

that most users do not use screen-capture technology.

As the 2018 Recommendation explained, “a requirement that users consider whether it is really

necessary to engage in circumvention before doing so is consistent with the aims of the

rulemaking.”

In addition, the screen-capture language serves an important purpose “to address

the possibility that use of this technology could be deemed to involve circumvention. Inclusion

of this provision can give a user comfort that if he or she uses technology that was marketed as a

non-circumventing screen-capture tool, then the user can use the technology without fear of

violating Section 1201 regardless of its actual technological operation.”

Both of these reasons

justify keeping the screen-capture language. There is no evidence that the performance of screen

capture technologies has degraded during the last three years.

Congress intended this rulemaking proceeding to be a “fail-safe” mechanism to “allow the

enforceability of the prohibition against the act of circumvention to be selectively waived, for

limited periods of time.”

Therefore, exemptions should be narrowly tailored to avoid

swallowing the general rule against circumvention. Because the exemption in question applies

only to “short portions” of works, screen-capture is the most narrowly tailored and appropriate

Hidden Figures is available on Amazon Prime and Disney +; Stranger Things is available on Netflix; Game of

Thrones is available on Hulu; Mr. Robot is available on Amazon Prime.

BYU 2020 Comment at 23.

Joint Educators IV 2020 Comment at 7.

Organization of Transformative Works, Class 1 Long Comment at 7 (Dec. 14, 2020),

https://www.copyright.gov/1201/2021/comments/Class%2001_InitialComments_Organization%20for%20Transfor

mative%20Works.pdf (“OTW 2020 Comment”).

2018 Rec. at 84-85.

Id. at 85.

H.R. REP. No. 105-551, Part 2, at 36 (1998).

method of obtaining access, as the user can capture only the short portion of the motion picture

that the user actually needs to accomplish his or her purpose. In contrast, non-screen-capture

methods involve bypassing protection measures in a manner that disables access restrictions and

results in the creation of an unprotected, perfect, digital, in-the-clear copy of the entire work.

Moreover, the existing exemption does not require the use of screen capture and expressly

allows for circumvention where a user “reasonably believes that non-circumventing alternatives

are unable to produce the required level of high-quality content.”

Additionally, some of the

expressed concerns with the quality of screen capture clips are overstated, as the quality of

screen capture services continues to improve.

None of the petitioners dispels previously posed

questions about whether screen capture involves circumvention. Therefore, keeping the present

language assures users that uses based on screen-capture remain exempt.

ITEM F: DOCUMENTARY EVIDENCE

We have included hyperlinks to webpages/documents within the body of this document. We

also attach an Appendix. We are not submitting any other documentary evidence.

Respectfully submitted:

/s/ J. Matthew Williams

J. Matthew Williams (mxw@msk.com)

Sofia Castillo ([email protected]om)

MITCHELL SILBERBERG & KNUPP LLP

1818 N Street, NW, 7th Floor

Washington, D.C. 20036

202-355-7904

37 C.F.R. § 201.40(b)(1).

See Cat Ellis, The Best Free Screen Recorders 2021: Free Software to Capture All the Action, TECHRADAR,

https://www.techradar.com/news/the-best-free-screen-recorder#1-obs-studio

(last visited Feb. 2, 2021); Paul

Bender, 13 Best Screen Recording Software for Windows – Free and Paid (Updated 2021), ISPRING (Dec. 17. 2020),

https://www.ispringsolutions.com/blog/10-best-screen-recording-software-for-windows-free-and-paid (last visited

Feb. 2, 2021).

Appendix

The digital ecosystem for enjoying motion pictures continues to evolve to the benefit of

distributors of quality motion pictures, continue to seize opportunities to reach viewers with

content they want to watch, in the formats they desire, for prices that are reasonable, and via

devices on which audiences prefer to watch movies and TV shows. Copyright owners are

embracing digital technologies to expand the reach of creative works and to make them available

to audiences more broadly than ever before.

(a) Digital Copies Available With Disc Purchases

DVDs, Blu-ray discs, and Ultra HD discs are often sold in “combination packs” that

include a “digital code” the consumer can use to access a downloadable digital copy of the

motion picture through a variety of channels. For example, each MPA member that distributes

titles on discs generally provides an avenue for redeeming digital codes through its website or

through the Movies Anywhere website and app (discussed further below). For years, discs have

been sold with digital codes, or with actual digital copies included on discs in the package at the

time of purchase. These offerings are usually sold at a higher price than offerings that include

only a disc with no access to a separate digital copy.

(b) Disc-To-Digital Through Vudu

If a consumer owns a disc that did not offer access to a digital copy, that consumer may

be able to obtain a digital copy through the Vudu

mobile application by scanning the disc’s

barcode. This Disc-to-Digital

program enables a consumer who owns a DVD to obtain access

to a standard-definition digital copy for $2.00 or a high-definition digital copy for $5.00. If the

consumer owns a Blu-ray disc or Ultra HD disc, the consumer can obtain access to a high-

definition digital copy for $2.00.

Numerous digital retailers offer consumers the opportunity to obtain downloads of digital

copies of movies and TV shows produced, distributed or owned by MPA members and other

are frequently available in HD quality for as little as $9.99.

Movies Anywhere

(previously known as “Disney Movies Anywhere”) continues to

provide consumers with the ability, via its “Key Chest” technology, to link their accounts with

participating digital retailers in order to bring eligible movies from those accounts into one

synched collection and to make them available across all of their connected retailer accounts. In

October 2017, Movies Anywhere launched its service with titles from Disney, Marvel and

Lucasfilm, and almost every other MPA member. Eligible titles obtained through the

https://www.vudu.com/

https://www.vudu.com/content/in_home_disc_to_digital.html

https://moviesanywhere.com/welcome

redemption of digital codes included with Ultra HD, Blu-ray, and DVD discs, as well as through

purchase from participating digital retailers are accessible through Movies Anywhere. The

number of participating retailers has expanded significantly since the 2018 rulemaking

proceeding and now includes Amazon Prime Video

, Google Play

, YouTube

, iTunes

, Apple

TV+

, Fandango Now

, Microsoft Movies

, Vudu

, Verizon

, Xfinity On Demand

, and

DIRECTV Movies.

Any eligible title obtained from a connected account with one of those

retailers also becomes available via connected accounts with the other participating retailers’

platforms (i.e., once you connect multiple retailer accounts to Movies Anywhere, you can view

movies purchased from, for example, Vudu, within your Amazon, Google Play and iTunes

accounts). Consumers have used Movies Anywhere to store more than 280 million movies in

user collections.

Movies Anywhere users may download movies from Movies Anywhere to as many as

eight permitted devices for viewing via Movies Anywhere at any given time. These downloads

are in addition to downloads that may be permitted by the participating retailers through linked

accounts (e.g., for viewing via iTunes). The number of times a user may download a single

movie through a Movies Anywhere account to devices associated with the account is unlimited.

A user may download movies to a maximum of sixteen different devices within a rolling twelve-

month period. Given the large number of devices that may be used to access content using

Movies Anywhere and linked accounts with participating digital retailers, a user’s movie library

becomes accessible to her entire family. Through Movies Anywhere, viewers can start streaming

a movie on one device and finish it on another; two viewers can watch the same title on different

devices at one time; and up to four viewers can stream different content on different devices at

the same time.

Viewers can also use the co-viewing

feature to invite up to nine other viewers to join a

synched viewing of a movie that the viewers have in their libraries. Finally, Movies Anywhere

https://www.amazon.com/Amazon-Video/b?ie=UTF8&node=2858778011

https://play.google.com/store

https://www.youtube.com/

https://www.apple.com/itunes/

https://tv.apple.com/?itscg=MC_20000&itsct=atvp_brand_omd&mttn3pid=a_google_adwords&mttnagencyid=1625

&mttncc=US&mttnsiteid=143238&mttnsubad=OUS2019801_1-474754719732-c&mttnsubkw=75222244984_kwd-

67743848_idXQ476O_&mttnsubplmnt=

https://www.fandangonow.com/

https://www.microsoft.com/en-us/movies-and-tv?activetab=movies:primaryr2

https://www.vudu.com/

https://tv.verizon.com/watch/browse/featured/

https://www.xfinity.com/xod

In July 2019, the Ultraviolet digital rights locker service discontinued its operations. Many of the studios and

digital retailers in Ultraviolet are currently participating in Movies Anywhere. Many Ultraviolet users have

transferred their movie collections to Movies Anywhere.

https://moviesanywhere.com/watch-together

iii

now offers a feature called Screen Pass

, which allows eligible users to send up to three Screen

Passes per month to another user to view a movie in their collection for a limited time with no

additional cost. By combining the Screen Pass and co-viewing features, the number of viewers

eligible to join a synched viewing increases to include users who do not have a title in their

personal collection.

(d) Digital Rental

Digital retailers, including those mentioned above, and others, make motion pictures

available for temporary digital rental at low prices. Once rented, the movies may be streamed

directly from these services or downloaded temporarily to devices to enable mobile viewing.

Some services, like Amazon Prime Video

, give the user up to 30 days to begin watching the

movie after the rental price is paid. New release titles are often made available for $5.99, even in

high definition quality. Older titles are available for as little as $2.99. Vudu

offers free, ad-

supported viewing options for some titles. These services supplement the availability of on-

demand rentals from cable and satellite television providers.

(e) Online Streaming Services and Over-The-Top Services

Consumers continue to embrace streaming services that existed in 2018 – like Hulu

(currently owned by MPA member Disney and MPA member Universal’s parent company,

Comcast), Netflix

(which is also now an MPA member), Crackle

, and Amazon Prime Video,

among many others, for viewing of both movies and TV shows on mobile devices, computers,

smart televisions, and (increasingly during the last three years) cable boxes. In addition, MPA

members have launched multiple new streaming services in recent years. Disney+

, HBO

Max

, and Peacock

all offer subscription access to long-time favorites and original

programming/movies. HBO Max is currently even making Warner Bros. movies available for

streaming for a 31-day period at the same time the films premiere in theaters. For sports

programming, ESPN+

is available directly to consumers for $5.99 per month providing access

to exclusive live events, original studio shows, and acclaimed series that are not on the ESPN

https://moviesanywhere.com/what-is-screen-pass

https://www.amazon.com/Amazon-Video/b?ie=UTF8&node=2858778011

https://www.vudu.com/content/movies/movieslist?AVAILABLE_FOR_FREE=Yes

https://www.hulu.com/

https://www.netflix.com/

https://www.crackle.com/

https://www.disneyplus.com/welcome?cid=DSS-Search-Google-71700000070655584-

&s_kwcid=AL!8468!3!493950986551!e!!g!!disney%2B&gclid=EAIaIQobChMI1tzS2ILb7gIVpzytBh102g8PEAA

YASAAEgKMDfD_BwE&gclsrc=aw.ds

https://www.hbomax.com/

https://www.peacocktv.com/

https://plus.espn.com/buy-now

networks, as well as on-demand access to an extensive archive of ESPN content. Paramount+

which will offer movies from Paramount as well as television shows from other Viacom

properties such as CBS, BET and Comedy Central, is scheduled to launch in March 2021.

And

streaming services offered by non-MPA members are also proliferating, including Apple TV+

Discovery+

, and many others. Streaming services offer consumers access to numerous titles

for low monthly fees. For instance, basic access to Hulu is currently available for $5.99 per

month (or $1.99 for college students) or $59.99 for a year; Disney+ is available for $6.99 per

month, or $69.99 for a year; basic Netflix access is available for $8.99 per month; and Amazon

Prime Video is free to Amazon Prime members. Streaming services are also frequently included

in cable television provider bundles. Many titles available on streaming services may also be

downloaded for offline viewing while the user remains a subscriber.

Several of these services have also increasingly offered add-on subscription access to

additional sources of programming. For example, Hulu provides subscription access to HBO

Max, Cinemax, Showtime and Starz, news networks, broadcast networks and sports programming

including on ESPN. This includes Hulu’s Live TV

option where consumers can view more

than 65 live and on-demand TV channels on Roku, Android devices, iOS devices, Xbox One,

Nintendo Switch, Playstation, Apple TV and Chromecast. These types of services allow for the

use of multiple devices by a single account, which enables access throughout a household by

multiple family members simultaneously.

(f) Cable, Satellite, IPTV and Fiber-Optic Subscriptions

Subscription television providers like Comcast Xfinity

, Cox

, Spectrum

, AT&T TV

Verizon Fio

s, DISH Network

, DIRECTV, and Sling TV

continue to offer large numbers of

channels for real-time, in-home viewing. In addition, their on-demand and remote access options

continue to grow rapidly and to enable access for subscribers to watch live programming. A

subscriber to Comcast Xfinity, for example, can, on a laptop or mobile device, sign into an

https://www.paramountplus.com/?gclsrc=aw.ds&&ref=__iv_p_1_g_115989849984_w_kwd-

934663795095_h_9060325_ii__d_c_v__n_g_c_493475968211_l__t__e__r__vi__&ftag=PPM-02-

10ade4f&vndid=google$null$null$paramount%20plus&gclid=EAIaIQobChMIheqd_YPb7gIVIRvnCh00KQRcEA

AYASAAEgJA3_D_BwE&gclsrc=aw.ds&_ivgu=b80b690e-0ba6-4484-9dc5-f426b5301561

Brett Molina, Streaming service Paramount+, featuring content from CBS, Viacom, to launch March 4, USA

TODAY (Jan. 19, 2021).

https://www.apple.com/apple-tv-plus/

https://www.discoveryplus.com/

https://www.hulu.com/live-tv

https://www.xfinity.com/

https://www.cox.com/residential/home.html?src=nonie

https://watch.spectrum.net/

https://www.att.com/tv/

https://www.verizon.com/home/fios-fastest-internet/

https://www.dish.com/

https://www.sling.com/

account, and watch all of the content stored on an in-home DVR associated with that account.

The consumer can also order on-demand movies and TV shows on mobile devices, for limited-

time rental or for long-term access. They may also watch linear and on-demand programing

from various channels via computers or through apps on mobile devices, smart televisions or

other connected devices simply by authenticating their cable or satellite subscription. For

example, the same Comcast Xfinity subscriber can access the Disney Now

app for free on their

mobile device, AppleTV, Roku or other device to watch the live, linear stream of the Disney

Channel, Disney Junior and Disney XD, as well as to obtain on-demand access to a library of

popular shows, shorts, and other content. These “TV Everywhere” services have revolutionized

the way consumers enjoy their television and on-demand programming.

(g) TV Shows and Movies Accessible Directly From Networks and Apps

Networks continue to make more and more programming available for viewing directly

to consumers, including back catalogues of programming and even live viewing of linear

content, through websites and mobile applications, often for free (usually in exchange for

watching advertising). For example, abc.com

and the ABC mobile app

allow free, ad-

supported access to recent episodes of popular TV shows and full seasons of many “throwback”

favorites. New episodes stream on-demand the day after they air for authenticated subscribers of

cable and satellite provider partners. In addition, consumers have increasingly greater options

for viewing movies and TV shows on ad-supported free video-on-demand (“AdVOD”)

streaming platforms, such as YouTube, IMDb TV

and Tubi

. These AdVOD platforms allow

viewers to stream a variety of content via multiple devices without having to pay a fee to access

such content.

https://disneynow.com/

https://abc.com/

https://abc.com/apps

https://www.imdb.com/tv/

https://tubitv.com/static/supported-browsers