Tagged: Digital Millennium Copyright Act

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.”


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.  ↩

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.