June 3, 2016

Fixing the Digital Millennium Copyright Act

For the last eight years, the IDA has been a leader in efforts to obtain exemptions to the Digital Millennium Copyright Act (“DMCA”) that preserve documentary filmmakers’ abilities to make fair use in the digital age. Now the Copyright Office is looking at ways to reform the exemption process, and it looks as if things may get just a bit more bearable.

The DMCA is the 1998 law that makes it illegal—in some cases a crime, even—to rip from DVDs or other encrypted media, even for filmmakers like us who need to access high-quality media in order to make criticism, commentary, or other forms of fair use. Congress saw this coming, so it established a rulemaking proceeding every three years as a “fail-safe” mechanism. Three times, we’ve gone to the United States Copyright Office to advocate for exemptions that protect the ability to make fair use of copyrighted material. The rulemaking is intense, expensive, controversial, and only partially helpful to filmmakers like us. In other words, it’s a deeply flawed process.

Recently, Congress asked the Register of Copyrights to study this law and suggest ways it could be improved. On March 3, together with Film Independent and Kartemquin Educational Films, the IDA submitted a comment asking the Register to take a fresh look at the DMCA, and make some changes in the rulemaking process. In April, the IDA, joined by Film Independent, Kartemquin Educational Films, Independent Filmmaker Project, Indie Caucus, The National Alliance For Media Arts and Culture, New Media Rights, and Women in Film & Video, submitted a reply comment further clarifying the recommendations made in the Initial Comment and responding to comments made by other initial commenters.

In the Initial Comment, we first recommended a simple fix to the DMCA that many others have called for: make the DMCA apply only when ripping is tied to illegal conduct. As it stands, without an exemption, ripping is illegal even if what you want to do with the material is a no-brainer fair use, like basic criticism or commentary. That’s not right. This one-sentence fix would solve many of the problems with the DMCA and it would make the rulemaking process unnecessary.

In case that fix isn’t in the cards, we suggested that the Register revise the rulemaking in the following ways:

  • Make it so that those seeking exemptions do not need to reinvent the wheel every three years. Currently, the Copyright Office requires commenters to prove from scratch that they need an exemption each round. This is incredibly burdensome. Exemptions that were granted in a previous proceeding should generally remain in force.
  • Structure the proceeding more fairly and in a way that is more conducive to fact-finding. Currently, the Copyright Office runs the proceeding like litigation, placing all the burden on those who are proposing exemptions. A more traditional, open-ended process makes more sense in this context, because the rule applies to everyone, not just the parties who submit comments.
  • Operate the proceeding in a manner that honors Congress’s intent. Over the past twenty years, courts have largely gotten it right when deciding fair use.  This has allowed the law to evolve with the times.  But when evaluating requests for exemptions, the Copyright Office has imposed additional burdens beyond what the law requires.  We asked the Copyright Office to make it a top priority not to interfere with the natural development of fair use law in the courts.
  • Finally, we pointed out a huge loophole in the law that has been used to undermine the entire point of the DMCA. Congress clearly intended the law to prevent people from illegally accessing copyrighted media (like circumventing password protection)—but not from breaking controls that prevent copying or other uses. That is exactly the case with filmmakers, who lawfully purchase the media and the player, and only want to make a copy in order to make fair use. In other words, Congress never intended to make the type of activity we’re doing illegal in the first place. But the Copyright Office and some courts have treated encryption on DVDs and Blu-rays the same as “access controls” like password-protection, rather than mechanisms primarily designed to prevent copying. In the process, they have lost sight of Congress’s original intent. We urged the Register to get back to how Congress meant for this law to work.

Last week, I participated in a roundtable hearing in San Francisco, CA hosted by the United States Copyright Office, where I was able to make our case directly to the Office’s staff. We had several productive exchanges about the ways in which the Office could approve the process and we are hopeful that the Office will act on some of our recommendations. Later this year, the Register of Copyrights will issue her report on the DMCA, and when that happens, we’ll let you know here on documentary.org.  

Jack Lerner is a professor at the UC Irvine School of Law and directs the UCI Intellectual Property, Arts, and Technology Clinic. He is also a member of IDA's Board of Directors. 

The UCI Intellectual Property, Arts and Technology Clinic at the University of California, Irvine School of Law would like to thank the IDA for the privilege of representing it on this issue and in the last rulemaking proceeding, along with our co-counsel, Donaldson + Callif, LLP.