Thanksgiving for New DMCA Exceptions

Exciting and surprising good news from the world of copyright law: the Librarian of Congress has approved an exception to the anti-circumvention rules of the DMCA that prevented film and media studies professors from copying clips of DVDs for use in class. This legal obstacle to an educational use of digital content was one of the case studies at the center of our Digital Learning white paper released this summer by the Berkman Center. The final rule is here, and this page has links to more details.

The problem was a serious one for film professors. A provision of the Digital Millennium Copyright Law (or DMCA) prohibited the “circumvention” of “access controls” placed on digital media — including the CSS encryption used in just about all commercially distributed DVDs. A film professor who wanted to show three clips from three movies that exemplified, say, a particular cinematographic convention, had to break that encryption to make the “clip reel” (or else waste half the class period navigating scene selection menus to get to the relevant part). Until this ruling, breaking the encryption meant breaking the law — and while many (perhaps most) film professors did so anyway, they were taking a risk. Their dilemma illustrated the ridiculous over-inclusiveness of the DMCA, since the actual use of the film clips in class was unquestionably legal.

The new exception is one of six — count ‘em, six — granted in the three-year review undertaken as part of the DMCA by the Librarian of Congress (who oversees the Copyright Office). Others include:

  • renewal of a provision meant to help blind readers (who often confront difficulty with DRM) circumvent access controls that prevent conversion of e-books to reading machines;
  • a new provision allowing security research on CDs with DRM that would harm computers, such as the infamous Sony root kit; and
  • a new provision allowing circumvention of access controls in cell phone handsets that can prevent use of the phone on other wireless carriers (including using your GSM phone in Europe — sort of defeats the purpose of GSM if you are “locked in” by your domestic carrier…).

I must say I am pleasantly surprised. The DMCA calls for such a rulemaking proceeding by the Librarian once every three years, but the two previous ones since the law passed have been disappointing. These rules are still quite narrow, but after all, the DMCA only authorizes exceptions that correct for situations where DRM prevents noninfringing uses of content. Advocates such as EFF, Peter Jaszi and the crew at the American University IP clinic, and Jennifer Granick and the Stanford Cyberlaw Clinic, among others, all deserve credit for commenting in a situation where they might have appeared to be tilting at windmills — their efforts have been rewarded.

Nice to enter the holiday giving thanks for, of all things, a DMCA rule!

6 Responses to “Thanksgiving for New DMCA Exceptions”

  1. [...] William McGeveran (Harvard) (good for film profs) [...]

  2. For Thanksgiving, let’s be thankful for the U.S. Copyright Office…

    Yes, copyright policy is seriously out of balance, and there’s rarely reason to be hopeful. But yesterday the forces for truth & righteousness got a nice victory: the U.S. Copyright Office ruled that we film & media educators can legally……

  3. [...] [Later: Band’s focus was on how DMCA creates antitrust-like problems, specifically tying, and how DMCA interferes with legitimate uses (similar to my rant about why DRM and fair use are fundamentally incompatible.) In discussing tying, he focused on Lexmark and similar cases, staying away from the iPod-market protection discussion. In discussing legitimate use, he focused on the 1201 exemption process for the academic fair use of films (which Bill McGeveran discusses here.) Apparently the MPAA actually had the gall to suggest that film professors should use a video camera to tape DVDs off a big screen. Nothing new for me, though parts of it were probably new to most of the audience.] [...]

  4. [...] or backing up encrypted DVDs remains illegal under the Digital Millennium Copyright Act, with the exception of using film clips for educational purposes, a ruling that was made in 2006 and is set to expire [...]

  5. [...] or backing up encrypted DVDs remains illegal under the Digital Millennium Copyright Act, with the exception of using film clips for educational purposes, a ruling that was made in 2006 and is set to expire [...]

  6. [...] or backing up encrypted DVDs remains illegal under the Digital Millennium Copyright Act, with the exception of using film clips for educational purposes, a ruling that was made in 2006 and is set to expire [...]