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:
- college and university faculty and students, for purposes of criticism and comment
- kindergarten through twelfth-grade educators and students, for educational purposes
- students and faculty participating in massive online open courses (“MOOCs”), for purposes of criticism and comment
- educators and learners in libraries, museums and nonprofit organizations to circumvent access controls, for educational purposes
- authors of multimedia e-books
- 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:
- using screen capture technology
- 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.”
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||Technological Circumvention||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.
- 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. ↩
- 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. ↩