March 16, 2015

The DMCA Exemption Process - What We've Learned Thus Far

Last month, with the help of the UCI Intellectual Property, Arts, and Technology Clinic and Donaldson + Callif LLP, the IDA filed a lengthy comment with the United States Copyright Office seeking an exemption to the DMCA’s prohibition on “ripping” from encrypted media, which makes it illegal to access encrypted material on DVDs, Blu-Ray, and just about any commercially available video source. The exemption we seek would allow filmmakers to “rip” media in these formats and from online media and cable TV for fair use purposes. The exemption is necessary because the DMCA is preventing us from exercising our fair use rights, which we’ve had for over 150 years: even though it’s legal to use clips in our films for purposes like criticism and commentary, the DMCA makes it illegal to access those same clips. The comment we filed last month followed up on the short petition we filed last fall. Film Independent, Kartemquin Films, and six other organizations joined IDA in filing the comment.

For more information on what the DMCA Exemption process is all about, and the massive, nationwide undertaking to protect fair use, please visit the FAQ at documentary.org/advocacy/dmca-exemption. In this post, however, we’d like to talk briefly about what we’ve learned along the way.

In the process of researching, writing, and filing this comment, we learned a lot about the thicket of legal and technical problems that filmmakers deal with every day. To convince the Copyright Office that these are real issue facing real filmmakers, we needed to poll, interview, and gather letters from hundreds of filmmakers across the nation. After collecting this feedback, we came away with the following big takeaways.

 

Technology is developing so fast across the documentary filmmaking world that High Definition is already on its way out. Many filmmakers are now filming in 2K and 4K, personal computers can process, edit, and even stream 4K, and the latest television sets are moving beyond HD as well. More importantly, PBS’s technical specifications declare that HD is the minimum standard they will accept. In short, high quality footage is mandatory in the modern world. This presents a problem for filmmakers because the current exemption allows us to “rip” only from DVD and online media, but not Blu-Ray. We are hopeful that the Copyright Office and Librarian of Congress will recognize this and grant an exemption that includes Blu-ray as well as other HD sources.

 

Access is now often a bigger concern than fair use itself. In many cases, licensing is either prohibitively expensive or just not possible, and at the same time, more content than ever is locked behind encryption or other types of DRM. Without the ability to “rip” from DVDs and Blu-Ray, the fair use option is as good as dead.

 

Licenses are often rejected for political purposes – fear of being seen as endorsing a certain viewpoint, or protecting the reputation of a person the studio views as important to their business model. This is exactly the type of chilling of political speech that is most vital to the First Amendment, and a tremendous demonstration of the importance of fair use. Legendary archival researcher Kenn Rabin provided many examples of this dynamic. Two of the most striking were a refusal to grant licenses to any military footage that showed American soldiers in a bad light and a refusal to grant license to any footage to the producers of Selma that showed children participating in the Selma march.

 

The evolution of footage quality in the digital age is happening faster than the three year exemption process can handle. By the time the next triennial hearing comes around, the footage standards discussed in the previous round will be laughably outdated.

 

Narrative movies are increasingly dealing with real world issues that benefit greatly from real world footage. In fact, four of this year’s Best Picture contenders at the Oscars were biopics that portrayed stories of real people, both the Best Actor and Actress winners were portrayals of real people, and even the purely fictional films made use of copyrighted materials that arguably could have been covered by fair use.

 

However, narrative filmmakers feel so chilled by the access issue that they often work under the assumption that they have no fair use option at all. This has the effect of making the type of evidence the Copyright Office wants very difficult to get. If people are terrified to make fair use, there will be little evidence showing people making fair use.

 

The feedback we received demonstrated widespread frustration and feelings of helplessness and disbelief about the current state of affairs in copyright law. Filmmakers across the spectrum, from small, independent, first-time filmmakers to award-winning, nationally known directors and producers at the pinnacle of their field, expressed great concern about how difficult the access issue has become.

As we prepare for the next steps in this long process, the IDA, with the help of the UCI IP, Arts, & Tech Clinic and Donaldson Callif, will continue to gather evidence and tell your story.

On that note, consider this a call to action. We will soon be filing a second, reply comment addressing the opposition’s arguments. If you work in film, and want to lend your support to this process, take our survey, and check back frequently at documentary.org/advocacy to learn more about how IDA is standing up for doc filmmakers and how you can get involved.

 

Aaron Benmark, Kyle Reynolds, and Rahul Sajnani are Certified Law Students in the UCI Intellectual Property, Arts, and Technology Clinic, which is representing the IDA in the DMCA rulemaking. Jack Lerner is a professor at University of California, Irvine, School of Law and operates and supervises the Clinic. To learn more about the Clinic, visit their website.

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