Breaking Down the 2009 DMCA Rulemaking, Part 1: Victory for Vidders
Now that the dust has settled on the long-awaited announcement of new DMCA circumvention exemptions, it’s time for an explanation of what these exemptions will (and will not) do for consumers and creators. We’ll start with a tremendously important exemption that we fear was somewhat overlooked in the excitement about jailbreaking and unlocking: breaking DVD encryption in order to take short clips for purposes of criticism and commentary for noncommercial use, educational use and documentary films.
This exemption represents many months of hard work by an array of public interest groups. EFF led the charge on behalf of vidders (with invaluable support from the Organization for Transformative Works, among others). The documentary films issue was pushed by the International Documentary Association, Kartemquin Films (a Chicago-based nonprofit) and the USC Gould School of Law Intellectual Property & Technology Law Clinic. The educational uses were championed by a group of educators from American University, the University of Pennsylvania, Temple University, and the University of Maryland, working with the Library Copyright Alliance.
In public comments and at numerous hearings, these groups called on the Librarian of Congress to bring copyright in line with its true purpose – promoting creativity and education – by removing the DMCA as a powerful legal impediment to fair use. Hollywood responded by suggesting that fair users should use “alternatives” to circumvention, such as pointing a camcorder at your television screen to “capture” a poor quality copy of a movie that is playing. In other words, fair users should pretend they are living and working in 1994. Happily, the rulemakers decided to let us live in the present, describing this suggestion as “specious.”
What this means.
Before this exemption was issued, the only people allowed to circumvent DVD encryption for fair use purposes were film and media studies professors. Now, that category has expanded to include all college and university professors and film and media studies students (as long as they are circumventing for educational purposes), documentary filmmakers, and noncommercial vidders. The user may take only a “short portion” of the original work for purposes of criticism and commentary, and she must reasonably believe she needs to break the DRM to accomplish that purpose.
What it doesn’t.
This exemption does not affect toolmakers – i.e., those that develop and provide the tools that make circumventing CSS possible. Nor can it stop Hollywood from attempting to impose other technical limits on the ability to copy, even for fair use purposes. Also, K-12 educators and students who aren’t in film and media studies classes have to keep using 20th century technology. Finally, even though the Register of copyrights has declared that using short portions of a movie for purposes of criticism or comment in a noncommercial video is a fair use (no surprise), Hollywood can still use tools like YouTube’s Content I.D. system to take down such videos with the flip of a switch.
This exemption is long overdue, and therein lies a question: why now? After all, as the Register of Copyrights notes in the report that led to the rulemaking, it was clear back in 2000 that CSS could interfere with fair use in ways Congress didn’t anticipate when it passed the DMCA. The Register’s answer is that the factual record has changed: First, proponents submitted enough substantial evidence of hardship to support their cases. (Which points to a fundamental problem in the process – where it’s clear as a matter of pure logic that a given form of DRM is impeding fair use, it’s irrational to force fair users to suffer for years under legal threat until enough evidence of the harm is accrued.) Second, the market for DVDs has (supposedly) changed:
In past rulemakings, the MPAA has offered evidence that CSS protection was a critical factor in the decision to release motion pictures in digital format . . . [but] CSS-protected DVDs have continued to be the dominant form even though circumventions tools have long been widely available online. At this point in time, the suggestion that an exemption for certain noninfringing uses will cause the end of the digital distribution of motion pictures is without foundation.
We think the MPAA’s bluster that it would stop distributing DVD movies if an exception was granted for fair use circumvention should have never been credited by the Register, but it’s gratifying that the Register refuses to do so any longer.
Some Other Highlights
In the report that led to the rulemaking, the Register of Copyrights made a series of telling observations about encryption and fair use. For example, she implicitly acknowledged what we’ve been saying for years -- that DVD encryption is primarily designed not to restrict access, but to serve as a legal "hook" that forces technology companies to enter into license agreements before they build products that can play movies. As the Report puts it:
By design, the CSS encryption system serves as a link in a chain of legal and technological requirements that ultimately inhibit the possessor of a CSS-protected DVD from copying the work or works embodied in it.”
Of course, those license agreements do more than inhibit copying -- they define what the devices can and can't do, thereby protecting Hollywood business models from disruptive innovation.
Also notable is the Register’s fair use analysis, and particularly her conclusion that there was no evidence that taking short clips cause any harm to any actual market for the original works. Opponent of the exemption had argued, among other things, that they were experimenting with ways to get short clips to educators – in other words, a market might emerge. Not good enough, said the Register: “there was no evidence in the record that a viable or efficient mechanism for permissions or licensing exists or is likely to exist” for the next three years.
This exemption could go further -- for example, there's no sensible reason why literature students, or math students for that matter, should have been excluded. Nonetheless, it represents a big step in the right direction. Hopefully the next rulemaking will go further down the path.