Tagged: Copyright

DMCA Exemptions for Circumventing Copyright Protections on Motion Pictures, 2015 edition

DMCA Exemptions for Circumventing Copyright Protections on Motion Pictures, 2015 edition

Since 1998, the Digital Millennium Copyright Act (“DMCA”) has prohibited the use of technologies that circumvent copyright protections. The letter of the law prohibits the use of DVD ripping software, jailbreaking your smartphone or smart TV, or modifying the diagnostic software of your automobile. Every three years, however, the US Librarian of Congress considers various exemptions to these provisions, and on Wednesday, the Library of Congress ruled on those exemptions, which took effect the same day.

As a film and television scholar, I am most interested in the provisions governing the circumvention of copyright protections on motion pictures on digital video media. Students and teachers in film studies courses need to study short clips and even individual frames. Making these excerpts and stills from a copyright-protected DVD offers the best solution in terms of efficiency and fidelity. Since at least 2006, the Librarian of Congress has exempted college and university faculty teaching film-studies courses from the technological protection measures on motion picture video works to make those short clips and frame grabs.

Each triennial review considers new technologies and new, non-infringing uses for exempting certain parties from the prohibition on copyright protections. When I first learned of these exemptions in 2006, extracting digital video clips only applied to DVDs. Since then, however, new digital video technologies have emerged, including Blu-ray disks and streaming video protocols, and those have surpassed the image resolution and availability of standard-definition DVDs. Moreover, groups beyond film-studies faculty, such as community librarians and documentary filmmakers, have made compelling cases for circumventing the copyright protections on digital video formats and petitioned the Librarian of Congress for similar exemptions.

The Librarian of Congress divided the petitioning parties seeking exemption into seven classes:

  1. college and university faculty and students, for purposes of criticism and comment
  2. kindergarten through twelfth-grade educators and students, for educational purposes
  3. students and faculty participating in massive online open courses (“MOOCs”), for purposes of criticism and comment
  4. educators and learners in libraries, museums and nonprofit organizations to circumvent access controls, for educational purposes
  5. authors of multimedia e-books
  6. filmmakers
  7. videos made for noncommercial purposes

The Ruling on Motion Pictures, 2015–2018

Wednesday’s ruling extends the exemption for several methods and instances. The Librarian of Congress outlined two methods for recording short excerpts from a copy-protected medium:

  1. using screen capture technology
  2. using software to circumvent the copyright protection from a DVD, a Blu-Ray, or digital transmission (a “stream”) where screen capturing will not produce the “required level of high-quality content.”

In all cases, the video being extracted must be “lawfully made and acquired” for the purpose of criticism or comment. This excludes unauthorized (“bootleg”) videos and also videos that were imported from an licensed market to a market where no licensing exists. Again, the exemption only applies to “short portions” of a motion picture for the purpose of “criticism or comment.”

Summary

From reading the ruling, these are the instances where the Librarian of Congress has granted an exemption to the prohibition for circumventing copyright protection on motion pictures. Although I’m not a lawyer and can’t defend you in an infringement suit, I am reasonably smart and understand the ruling to allow circumvention of copyright protection in the following cases.

Can I circumvent copyright protections on a legally made and legally acquired motion picture to extract a short portion for the purpose of comment and criticism for use in… Screen Capture[1] Technological Circumvention[2] Notes
a documentary film? Yes Yes
a noncommercial video? Yes Yes This includes a commercial entity, such as a video production house, paid by a non-commercial organization.
a nonfiction multimedia e-book offering film analysis? Yes Yes This is a very specific kind of e-book.
by college and university faculty and students, for educational purposes? Yes Yes, for film studies courses That’s me!
by faculty of massive open online courses (MOOCs) for educational purposes? Yes Yes, for film studies courses MOOC must be administered by an accredited institution and must do their due-diligence to prevent infringement.
by kindergarten through twelfth-grade educators for educational purposes? Yes Yes, but only for film studies courses Screen capture only for other, non–film studies courses.
by educators and participants in nonprofit digital and media literacy programs offered by libraries, museums and other nonprofit entities with an educational mission? Yes No Screen capture only.

These exemptions took effect on October 28, 2015, and will remain in effect until they are replaced after the next triennial review.

  1. Screen capture technology must “appear to be available to the public” and only used to “reproduce a motion picture that has been lawfully acquired and decrypted.” This permits someone to use screen-capture software to grab the content from something that you legally acquired and can legally play.  ↩
  2. The ruling specifically mentions two copyright protection methods that can be legally circumvented: CSS for DVD, and AACS for Blu-ray. The ruling also vaguely mentions whatever “technological measure” is used to protect a “digital transmission,” presumably because there is no standard method for protecting different digital video streams. All of these fall under the technological circumvention.  ↩

It’s Only Fair Use

Last week, in time for Manhattanhenge, I received a request to use one of my photographs to illustrate an article about what the kids today are calling LICHenge.

IMG_0846

I often read DNA Info’s coverage of Long Island City and environs so I let them use my photograph free of charge. Also, since I use a browser plug-in to block ads and tracking software, meaning they can’t easily monetize me, I figured it was only fair to give something back for all that content I’ve read for “free” over the years.

A few days later, I ran into a former student around NYU. He informed me that he had shared an article about the Four Seasons restaurant with another former student of mine. He reported that they both did a double-take when they noticed that it was my photo illustrating that article.

Pool Room

Unlike DNA Info, Curbed didn’t ask for permission to use it. In all fairness, they didn’t need to ask for permission. Many of my photos, including the one of the Four Seasons, are available for use through Creative Commons. They’re free to use them just as I am free to use other’s content for this website and whatever other original work I create. Old fogies and enfants terribles call this sort of thing fair use.

Besides, I didn’t even take the photo. Sarah took my camera on the OHNY tour while I went to a softball playoff game. It’s really her work, anyway.

Every Three Years

The Digital Millennium Copyright Act, a sweeping piece of legislation passed in 1998, prohibits the circumvention of copyright controls, known as Technological Protection Measures (TPM). The aim of this prohibition is to prevent users from defeating TPMs to infringe on copyright. There are various measures in place, especially as newer media technologies emerged since 2000, and cracking them is not only difficult, it is actually illegal, even if you don’t infringe on any specific copyrights.

Every three years, the Librarian of Congress decides which uses are non-infringing and permits specific exemptions to the anti-circumvention provision. I first became involved with this triennial review on the eve of the 2006 rule-making process. At the time, media scholars and teaching faculty were legally hamstrung in extracting short clips and screen captures from copy-protected DVDs for teaching film and television classes at a college or university level. DVDs offered a better source than a film print or a videocassette for two major reasons: efficiency and fidelity.

  1. DVDs offered a convenient package for us to extract clips and frame grabs. With a DVD, we would use a computer’s optical drive to extract clips. We could easily skip to a scene and take what we needed in a short amount of time. In the few times I took frame enlargements from a 16mm print, the process could take as little as a few days but would often take over a week. It would also be expensive because I had to buy 35mm film, pay to have it processed and printed. With a DVD, I could grab what I needed in a matter of minutes at almost no cost.
  2. DVDs offered higher fidelity than what was available on videocassette and on some film prints. Not only does a DVD offer many more lines of resolution than a videocassette or look better than a beat-up film print, extracting a clip or a frame is an entirely digital process. We don’t have to resort to an analog conversion and the attendant generation loss. The image would look as sharp as it did on the DVD.

Well-written laws need to respond to their current historical moment. For example, college and university faculty have received an exemption from TPM on DVDs since 2006 for making clips, but today, most of us look online first for videos.1 We need to expand the exemption to allow us to circumvent online video, as a public interest group, documentary filmmakers, librarians, and educators have all argued.

Moreover, the EFF (aka the “good guys”) have filed several briefs on behalf advocating for additional exemptions. Most of these exemptions account for emerging technologies that seemed fantastic fifteen years ago at the dawn of the millennium but are very real today. Some of the exemptions the EFF is seeking to secure include:

  • Accessing onboard computers on vehicles for research and repair.
  • Creating video remixes from locked videos on disks and from streaming sites to upload onto video sharing sites.
  • Jailbreaking phones and tablets.
  • Modifying video games so that they need not “phone home” to an authorization server when the server is offline.

While it is cumbersome to constantly reapply for these exemptions, it is important to continually update our laws. They should not only keep up with new emerging technologies, but also with our own ever-evolving culture.

  1. We may have been exempt before then, but I was a scofflaw in this regard in 2006. ↩

Public Holiday for a Private Individual

On January 15, 2015, eighty-six years after the birth of Martin Luther King, the Academy of Motion Pictures Arts and Sciences announced that Selma, a film about MLK, was nominated for the Best Picture of 2014.

I have not yet seen this film, but I’ve been preoccupied with the coverage of how the film features speeches that sound like ones King delivered when, in fact, those were not King’s actual words. The film’s director Ava DuVernay had to rewrite all of the speeches King’s character delivers because she could not secure the rights to King’s actual speeches for her film. She discusses this with PBS’s Gwen Iffil.

One of the reasons that the speeches are not available for film is because Dreamworks and Steven Spielberg own those rights. Exclusively. While a public person, such an elected official, cannot copyright their speeches, a private individual can. According to DuVernay in an interview with KCRW’s The Business, Martin Luther King, Jr. is considered the latter and can exercise copyright over those speeches.

Today, we observe Martin Luther King, Jr. Day as a national holiday. Schools, government offices, and banks are closed in observance. I vaguely remember when we started to observe this day when I was in fifth grade. It was a good age to learn about King, in particular, and about the Civil Rights movement, in general. It would forever shape my outlook on civil rights and equality. To that young school kid, King became a public hero for all of us through that having a holiday.

I know copyright laws are often ridiculous, but I still can’t understand how someone whose life we honor through a public holiday can be considered a private individual. King belongs to all of us.1

  1. Speaking of public resources that belong to all of us, you can visit any National Parks site for free on Martin Luther King Day. ↩

The Kaleidescape Cinema One: A Fantastic Set-Top Box That You Can’t Afford

David Pogue, now at Yahoo, reviewed the The Kaleidescape Cinema One.

The Cinema One is a set-top box[1] that allows you to rip your entire movie collection—DVDs and Blu-ray disks—so that you can watch it instantly on your big TV. But because the Cinema One bypasses the copy protection on those disks, Kaleidescape had to seek the blessings from the Hollywood studio cartel. And boy did they make it unusable. Pogue writes:

When you want to play a Blu-ray movie off the Cinema One, you have to hunt down the original disc you own, insert it into the Cinema One’s slot, and wait for it to load. You’re not playing the disc; you’re just confirming that you own it. But you’re also losing 80 percent of the value of having a Cinema One! What happened to “any movie in your collection, instantly”?

If you’re not dissuaded by the fact that the Cinema One doesn’t work any better than playing a Blu-ray, the price tag might. It costs $4,000.

Doesn’t BitTorrent seem easier?

  1. Pogue is right in pointing out that this term is antiquated, but we still call it a computer mouse, long after it’s lost its “tail,” and we still “dial” phone numbers.  ↩

Is Streaming Copyrighted Videos to Enrolled Students Okay?

From The Chronicle of Higher Education:

A federal judge in California has for the second time thrown out a lawsuit that accused the University of California at Los Angeles of violating copyright law by streaming videos online.

This is a nice win for those of us who would like to stream videos for students to watch, on their own, outside of class. It’s a better use of class time than playing a DVD for them.

However, as much as I would like this case to affirm streaming entire videos as fair use, I think the dismissal has almost no impact beyond the two litigating parties. Reading over the story, it really only protects UCLA, as a “sovereign entity,” against Ambrose Video, who lacked “standing” to bring this particular case against UCLA. The judge stops short of saying that streaming videos to only enrolled students is NOT even fair use because no court has ever declared it as such. If anything, it might even be grounds for an appeal.

I do applaud UCLA’s vigilance and hope that the fair use applies to entire works over an intranet. The technology is here, the need is here, and it’s a more efficient use of scarce class time.

Republican Study Committee Offers Real Copyright Reform…But Then Retracts It

From Ars Technica:

The memo, titled “Three Myths about Copyright Law and Where to Start to Fix it,” is a direct assault on the relentlessly pro-copyright worldview dominating Washington for decades. “Most legislative discussions on this topic are not premised upon what is in the public good or what will promote the most productivity and innovation, but rather what the content creators ‘deserve’ or are ‘entitled to’ by virtue of their creation,” the memo says. That’s a problem, it argues, because the Constitution says the point of copyright is to “promote the Progress of Science and useful Arts”—not merely to line the pockets of incumbent copyright holders.

We discussed this issue of copyright reform in my New Technologies class in the context of Lawrence Lessig’s book, Free Culture. One of the central arguments in that book was that there is a dire need for copyright reform in the face of new, digital technologies. Our copyright laws have been less a way to promote a free culture, but instead to stifle innovation in favor of profits.

It’s disheartening to see sensible reform was retracted almost as quickly as it was drafted, circulated, exciting a supportive audience.

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Senate Takes on Streaming. Could it Stop Place-shifting Streaming?

As reported in Broadcasting and Cable today, the US Senate will be considering a bill that would make a felony the unauthorized streaming of “stolen” copyrighted work, including television programs and movies. It is already a felony to upload and download digital files of copyrighted work, and this would extend that protection to work that is streamed.

The move seems like a fair one. I believe that one should have to pay for quality content. But I’m concerned that this move could go too far and cripple time and place shifting technologies that allow users to stream video that one recorded at home. Last fall, I began using Elgato’s EyeTV hardware and software products to turn my iMac into a digital video recorder that’s connected to an over-the-air antenna. One of the nice features about this product is that it allows you to stream the content recorded on my iMac to a mobile device, like my iPhone or iPad, using an iOS app. It’s not a foolproof process—you have to wait for EyeTV to convert the raw MPEG-2 broadcast file to a H.264 file that the iPhone/iPad can actually play.

I’m concerned that a law like this would apply to technologies like this or to something that Slingbox. I’m not trafficking in this content. I’m merely shifting the location where I’m watching it from my home to somewhere else. I’m not accessing channels that I don’t have access to using perfectly legal means using an over-the-air antenna to receive broadcast signals and a perfectly legal recording device. My concern is that either the companies and personnel that produce the content or the Internet service providers that carry the data will put a stop to innovative new ways for viewers to access video content they’re authorized to use.