Submitted by Martine Courant Rife, JD, PhD
Junior Chair of the CCCC IP Caucus
Lansing Community College
Part One of a Two Part Installment (the next installment in late 2010 will discuss what we can learn about fair use in remix writing from the Register of Copyrights)
As many have heard by now, on July 26, 2010, the Librarian of Congress issued new exemptions to the anti-circumvention provisions of the DMCA (Digital Millennium Copyright Act) section 1201(a)(1), USC Title 17 pursuant to the statutorily authorized tri-annual rulemaking process. Of interest to college and university composition teachers and students, the new exemptions permit the circumvention of CSS (Content Scrambling System) encrypted DVDs in limited circumstances, for purposes of comment and criticism. The exemptions favorably expanded toward the interests of educators and other remix writers, such as noncommercial video makers (“vidders”) and documentary filmmakers. In fact, the new exemptions are nothing short of a victory for the college and university crowd. I participated in the most recent Washington, D.C. hearings held at the Library of Congress on May 6 and 7, 2009, and I’m also a member of the CCCC Intellectual Property (IP) Caucus, so I thought I’d spend a few minutes discussing the exemptions in this month’s IP Report.
The tri-annual rulemaking hearings are a bright light in the copyright debate – serving as a rare open space where the educational community can voice its concerns over shrinking fair use protections and increased copyright policing and enforcement. Under the DMCA, every three years the Librarian of Congress, Register of Copyrights, and the Assistant Secretary for Communications and Information of the Department of Commerce follow certain procedures to decide what persons/users of copyrighted work “are, or are likely to be . . . adversely affected by the [anti-circumvention] prohibition” of the DMCA. Basically, the problem with the 1998 enacted DMCA is that notwithstanding our fair use protections under Section 107, the DMCA makes it illegal to circumvent technological protections in order to gain access to a work, like a CSS encrypted DVD movie. But, since CSS also prevents the ability to copy (even though the DMCA does not prohibit our right to copy under Section 107), circumventing the CSS in order to make copies of bits and pieces of a larger work, automatically circumvents CSS’s access protection. Because of the harshness of the DMCA’s anti-circumvention provisions, exemptions are granted every three years upon the showing of sufficient evidence by affected parties, like college teachers and students.
The rulemaking proceedings occurred previously in 2000, 2003, and 2006. The Copyright Office maintains the most useful and excellent website as a DMCA resource. This website maintains just about all of the filed documents as well as audio and text transcripts of all hearings.
The rulemaking process includes proposing initial classes of works to be exempted, submitting comments and responses to comments, submitting requests to testify, testifying, and participating in the post-hearing question and answer period. The hearings are open to any person or organization that wishes to participate as long as they follow posted procedures. In 2009, 37 witnesses testified on 21 proposed classes of works (“Recommendation”, p. 20, 2010). I became involved in the hearings as a witness, and participated in the intense and extended post-hearing question and answer period. On June 19 and 22, 2009 the Copyright Office sent out the first question set, and on August 21, 2009 it sent out the second question set. My response to the first question and the joint statement I signed are posted online, as is my response to the second question and the additional joint statement I signed. While the 2010 exemptions cover six areas, I’m just discussing the exemption I contributed to – that exemption focused on colleges and universities, and permitting educational/noncommercial uses of DVD clips for remix writing.
Along with other stakeholders, I requested the exemption achieved in 2006 by University of Pennsylvania film studies Prof. Pete DeCherney, be continued and expanded to include a broader population of teachers as well as students. The 2006 exemption reads:
Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors. (http://www.copyright.gov/1201/2006/index.html)
And the new 2010 exemption language issued is:
(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:
(i) Educational uses by college and university professors and by college and university film and media studies students;
(ii) Documentary filmmaking;
(iii) Noncommercial videos. (http://www.copyright.gov/1201/ )
This new expanded exemption reflects a huge leap moving forward from 2006, and addresses broader needs of college-level stakeholders – including documentary filmmakers and vidders.
What Does it Mean?
The new exemption limits permission to circumvent specifically to motion pictures on DVDs rather than the broader category of audiovisual works. During the DC hearings, evidence offered focused almost exclusively on motion pictures on DVDs. I, for example, showed a student created montage (one collected during my 2007 research on copyright and chilled speech) – made by taking clips from numerous popular movies – as an example of a cultural critique that could not exist but for the student being willing to violate the DMCA in order to make what was clearly a fair use of the movies. The reason I showed this montage at the hearings was because, as I told the copyright panel, a student shouldn’t have to violate the law in order to critique popular movies in the format in which those movies were presented to the public. (My submitted presentation summary is available here). The new exemption is further broadened to remove the limitation that only works in libraries can be circumvented.
The new exemption now includes all college and university teachers, plus college-level “film and media studies students.” But, any use that isn’t covered by this should be covered by the noncommercial video or documentary filmmaker exemption. The Recommendation affirms that in order to be a documentary filmmaker, one need not belong to a professional organization or be enrolled in a class. Instead, the Recommendation states that the best way to define if someone is in fact a documentary filmmaker, is “to ask whether that person is making a documentary film” (p. 73). The Recommendation affirms “noncommercial videos that comment on motion pictures can be made by anyone; fair use does not depend upon the credentials of the person engaging in a noninfringing act” (p. 73). As long as a person falls into one of the three categories (1. Educational uses by college and university professors and by college and university film and media studies students; 2. Documentary filmmaking; and 3. Noncommercial video making), the person who wishes to circumvent then needs ensure they are within the other requirements provided.
According to the exemption, the following requirements must be met for all circumventors:
The purpose of the circumvention must be to take only “short portions of motion pictures.”
These short portions must be intended to be incorporated “into new works.”
The new works must exist “for the purpose of criticism or comment.”
And the circumvention must be necessary. If there are other less egregious means to accomplish the taking of short portions for new works, a potential circumventor should use those. The language states that the person who is thinking of circumventing must believe or have “reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use.”
The DVD circumvented must also be “lawfully made and acquired.” So if someone acquired a pirated DVD, it would not be acceptable under the exemption to circumvent because a pirated DVD is not “lawfully made.” If someone steals a DVD – that too would not be covered because it is not “lawfully acquired.”
Don’t Traffic the Tools Primarily Designed to Circumvent Technological Measures Meant to Control Access
As we all acknowledged at the hearings, it is still illegal to traffic any tool “primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title” (1201[a]). I’ve already been asked, as a college teacher, is it “trafficking” to provide a link to a tool that is meant for circumvention? At the same time, several tools have been suggested to me for use.
This area is really uncharted territory. As a writing teacher, I am not going to develop, invent, or market a tool whose primary purpose is to circumvent the CSS on DVDs. Nor am I going to download a tool and then provide it to students. I won’t link to a tool either – if it is a tool whose primary function is to hack the CSS on DVDs. Instead, as I work through using this exemption in teaching, I will raise these issues in class discussion. As a matter of pedagogy, I’d consider it imperative students know this exemption was hard won, and is only in place for another two years unless we argue for its continuance. So I think giving students a context is really important. From my experience, most college-age students are familiar with these tools and at the hearings, tools were listed that are well known and widely available for free download.
During the hearings most of the educational/noncommercial stakeholders agreed the main type of work we need the ability to circumvent is CSS encrypted DVDs. Of course, at the 2012 hearings, some might request a broader exemption, but in order to do so they will need empirical evidence showing how they are adversely affected otherwise. Further, for those who are celebrating this new exemption, like me, we need to be prepared to show this exemption actually has been useful in order to demonstrate our continued need for the exemption beyond 2012. Because of this, I sincerely hope that those of us connected to CCCC can fully use this exemption and gather examples and stories of how we have benefited from it.