DMCA Rulemaking–Submit Examples by October 31

Recently the U.S. Copyright Office issued  a “Notice of inquiry and request for comments” with regard to anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA).  See the Federal Register for the full text of the notice.

Sections of the DMCA forbid breaking copy-protection mechanisms on digital media, even for non-infringing uses, such as those allowed under fair use.  However, the law also allows the Register of Copyrights to recommend that the Librarian of Congress issue exemptions to the anti-circumvention statutes every three years.  Exemptions that are in place from previous rule-making must be renewed every three years as well.  In the summer of 2010, the Librarian issued a number of exemptions, including one to allow de-encryption of educational video under certain circumstances.

Here is an example of the situation the exemption is intended to address:  A faculty member wants to show some short video clips in class to make an educational point or perhaps comment on a social situation.  He or she would like to copy clips from a legally-obtained commercial DVD so that they could easily be taken into the classroom and shown as a compilation.  Without the exemption, if the DVD was encrypted with  the commonly-used Content Scrambling System (CSS), it would be illegal to break that system and copy parts of the video, even if everything else about the copying would fall under fair use.  Before the summer of 2010, an exemption that would allow copying high-quality video was available only if the faculty member was teaching in the area of film or media studies and the DVD was part of a collection in that subject area.

Under the rules announced in the summer of 2010, the exemption was extended to all university and college professors and to college and university film and media studies students.  The same exemption is available for documentary film-making and noncommercial videos.  The copier must reasonably believe that the circumvention is necessary in order to fulfill one of the above purposes. (In other words, a lower-level resolution screen capture video that did not circumvent would not fulfill the intended purpose.)  In all cases, the DVD from which the copy is made must be legally-acquired and the copier must still perform a fair use analysis.  This exemption states that it is for “short portions” only; it does not allow copying of entire works.  The exemption only covers DVD and CSS technology, not systems such as Blu-Ray, video streaming, or others.

The Library Copyright Alliance is an organization made up of three library associations that deal with intellectual property matters and “communicate with lawmakers…to express [the need for] changes that enhance, rather than harm, the ability of libraries and information professionals to serve the needs of the general public.”  They are preparing comments showing why it is important to extend this exemption for another three years.  The Library Copyright Alliance is asking those of us involved with university teaching to send them as many examples as possible of how this exemption is helpful in teaching.  From one staff member:  “We need LOTS of examples of faculty in all disciplines using clips and examples of film students using clips.”  Examples cannot be speculative; they must be real-life situations.

Ohio State folks, please send me examples by October 31.  I will compile them for the Library Copyright Alliance.  The final date to submit comments is December 1, but the Library Copyright Alliance will need some time to compile all the examples they receive.

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