EFF Prepared Testimony at Copyright Office section 1201 rule-making hearings presented by EFF Staff Attorney, Gwen Hinze

May 15, Panel 2 EFF 4th Proposed Exemption - Public domain motion pictures released on CSS-protected DVDs

EFF has sought a narrow exemption for audiovisual works and movies that are in the public domain in the United States, and that are released solely on DVD format, where access to the content is prevented by Contents Scramble System, and possibly other technological protection measures.

First, I'd like to address the applicability of section 1201 to these works. EFF believes that section 1201(a)(1) does not apply to public domain works because they are not works protected under title 17. However, there is legal uncertainty about this, particularly as to the application of section 1201 to compilation DVDs containing public domain works bundled with copyrighted works. Therefore, to the extent that the Copyright Registerand the Librarian of Congress consider public domain works released on CSS-protected DVDs to be within section 1201's scope, we have requested an exemption for this class of works.

The creation of a healthy and rich public domain for the benefit of all society, is one of the core principles underlying copyright law, as recognized by the Supreme Court in Twentieth Century Music Corporation v. Aiken[1], The public domain is an important source of ideas, information and cultural exchange.

With the transition to DVDs and away from VHS tapes as the predominant medium for releasing and viewing movies in the United States, public domain movies are now beginning to be released only on DVD format. As public domain works, this material is not subject to copyright law and consumers' use is, by definition, non-infringing. However, consumers' use of these works is inhibited where the public domain material is released on a DVD with CSS protection. An exemption is therefore required to allow consumers to exercise their full range of rights in this class of public domain material and preserve the constitutionally-mandated copyright balance.

Opponents of this exemption have made three main arguments:

First, they have argued that EFF is mistaken in arguing that public domain works released on DVDs subject to CSS protection will become less available to the public. The joint commenters argue that copyright owners will have no incentive to re-release public domain material on DVD in the absence of a legal regime that prohibits circumvention of technological protection governing access to these works. In support of their argument, they quote from a section of the Register and Librarian's 2000 final rule discussing the availability of copyrighted content for alternative minority operating systems such as Linux.

This argument is irrelevant to the question of whether copyright owners should be entitled to use technological measures and the legal norms of section 1201 to preclude access to public domain works. An important -indeed fundamental- distinction exists between the case in issue, and the quoted comments on playability on alternative playback systems. Copyright owners do not have copyright rights in public domain works. The joint comments' claim to user facilitation proceeds on a mistaken reliance on copyrights that DVD publishers do not control.

If studios choose to release or re-release a public domain motion picture on a DVD, they may do so in order to obtain revenue from the sale of the physical DVD, but they do not thereby obtain copyright in the public domain motion picture. To argue that a major studio requires technological protection measures backed by legal norms to give them an incentive to release works in which they do not hold the copyright, is either factually false, or else amounts to an inappropriate attempt to assert private rights over a public asset.

It's factually false, since motion picture studios are, and will continue to re-release these works in order to obtain revenue - even though it's a public domain work and they don't hold the copyright in it. Studios will continue to release public domain movies, in the same way that book publishers have successfully continued to publish the works of Shakespeare, even though they don't hold the copyright in those works. Granting an exemption to permit circumvention by consumers who have already purchased a public domain DVD has no impact at all on a copyright owner's profit from the DVD, and does not impact any copyright they own. The existence of legal sanctions for circumventing technological measures controlling access to works that they don't own copyright in, cannot have any bearing on a studio's decision to re-release a public domain movie on DVD.

The situation is no different where copyright owners have a thin copyright - for instance, where they choose to release a compilation DVD with a public domain work bundled with works in which they do hold the copyright. In either case, the copyright owner would obtain, at best, a thin copyright in the non- public domain elements, but does not thereby obtain copyright in an uncopyrightable public domain work. As recognized by numerous cases, including the Supreme Court's decisions in  Harper & Row v. Nation Enterprises[2] and Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 345 (1991), and the Ninth Circuit's decision in Sega v. Accolade,  the public continues to retain the right to access the uncopyrightable parts of the compilation. An exemption is required to allow consumers to exercise their right of access and to prevent copyright owners from using technological protection measures as a bootstrap to extend their thin copyrights over public domain works.

Second, our opponents claim that this exemption confuses access and copy controls. This claim is based on two misunderstandings: first, about the merged nature of CSS as both an access and copy control, as recognized by Judge Kaplan in the Corley case and the Register and the Librarian of Congress in the 2000 Final Rule. Second, a misunderstanding about the applicability of section 1201 to a public domain work. Even if section 1201 applies to a DVD compilation which includes public domain and copyrighted parts, the requested exemption will permit circumvention only for the purpose of accessing and copying public domain works within the compilation. Since public domain works are not copyrighted or subject to copyright law, there is no prohibition in copyright law on copying a public domain work once access has been gained through a permitted circumvention of the CSS measure which controls access to that work.

Third, our opponents have argued that we have not met the burden of proof on proponents of establishing a substantial adverse impact on consumers.

I'd like to make two comments in response to this claim. First, as I noted in the previous panel, if interpreted as the joint commenters have suggested, the standard of proof would raises serious questions about the equity of this rule-making process. It is simply not feasible for consumers to provide an authoritative listing of every public domain motion picture available only on DVD. As a result of considerable effort by EFF and a team of researchers, including reviewing and cross-checking several sources, several databases, and including a review of records held by the Library of Congress, EFF was able to identify and provide evidence that 9 public domain motion pictures are currently available as solo works only on DVD and not on VHS format. The joint commenters have not disputed this claim. They have instead argued that this is an insignificant number of titles and that there are alternative sources for these movies in existing VHS compilations, so an exemption shouldn't be granted.

The fact that nine titles that have been released as individual works solely on DVD is evidence of current actual harm to the public interest. Whether or not some of them may exist in a compilation in an unprotected format does not detract from the fact that public domain works are now being re-released solely on CSS protected DVDs. Since these works are in the public domain, the public is harmed by the fact that consumers are currently precluded from accessing or using them by virtue of technological means. That harm occurs irrespective of whether there's an alternative unprotected source. Public domain works are unique. They're not fungible. Precluding the public's access to one version of one of them harms the public interest and upsets the careful copyright balance. And this is true even if the work might exist in another format.

In the next three years this trend is only likely to increase, as DVDs overtake VHS as the most common format for home viewing, and as the existing stock of VHS tape deteriorates. My colleague, Ren Bucholz, is displaying a graph showing the comparative sales of DVDs versus VHS tapes over the last three years. DVD sales overtook VHS tape sales in 2002. The pie chart Ren is currently showing displays DVD rentals versus VHS rentals for the last three years. DVD rentals overtook VHS rentals in March of this year.

As DVD players continue to penetrate the market and DVDs replace VHS tapes over the next three years, public domain movies will increasingly be released or re-released only on CSS-protected DVD format. This is already occurring. Ren is currently showing a slide which quotes a Warner Home Video executive announced this year that Warner decided in January to phase our releases on VHS because, "for us, VHS is dead".

Finally, I wish to emphasize that the exemption we have requested is narrow and does not permit widespread copyright violation. If a consumer went beyond the scope of the exemption, and sought to reproduce or otherwise infringe the copyrighted part of a DVD compilation, the copyright owner could bring an action for infringement, and would continue to have the full range of copyright infringement remedies currently available under Chapter 5 of Title 17.

Thank you.

[1] 422 U.S. 151,156 (1975): The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. 'The sole interest of the United States and the primary object in conferring the monopoly,' this Court has said, 'lie in the general benefits derived by the public from the labors of authors.' Fox Film Corp. v. Doyal, 286 U.S. 123, 127, 52 S.Ct. 546, 547, 76 L.Ed. 1010.

[2] 471 US 539 (1981)