A DMCA Exemption for Filmmakers:
We Need Your Help

The Digital Millennium Copyright Act (DMCA) makes it illegal to rip from DVDs, Blu-Ray and many other technologies. For over a decade, this law undermined filmmakers’ ability to make fair use in their films. But in July 2010, documentary filmmakers won a three-year exemption that allows you to take materials from DVDs in order to make fair use. This year, we will be requesting that this exemption be renewed to allow all filmmakers to obtain the film clips they need – and to do so, WE NEED YOUR HELP. Please send us your stories using our online form.

Do any of the questions below apply to you? If the answer is yes or even maybe, please e-mail us at DMCAstories@law.usc.edu.

1. Have you obtained clips from DVDs for use in a documentary since July 2010?
   (Generally, the 2010 exemption makes this use legal, if it was done for purposes of fair use, such as for criticism or commentary.)
2. Are you currently planning or producing a film – whether documentary or fictional – that will require you to obtain clips from DVDs in the near future?
3. Are you planning or producing a film that will require you to obtain clips from Blu-Ray?
   (In other words, do you need footage that is not available elsewhere or is not feasible to obtain from DVD or other sources, or needs to be HD-quality?)
4. Have you been harmed by an inability to access clips from Blu-Ray for use in your film?
5. Do you need to use clips from cable, satellite, or Internet streaming sites in your film?
   • For example, do you need material that is NOT available on DVD or Blu-Ray?
   • Or, is your need time-sensitive, and the material will not be available on DVD or Blu-Ray until after your production deadline? (For example, your project is a weekly film series that comments on popular culture or current events, and you need material consisting of entertainment or news coverage, and this material is only available from broadcast, cable, satellite, or encrypted news websites.)
   • Or, is it unclear when, or if, the material you need will ever be released on DVD or Blu-Ray?
     (For example, you want to discuss political events, and need to use footage of a political protest uploaded by an individual to a website that hosts user-generated content.)
6. Have you been harmed by the DMCA in some other way? If so, you are not alone – and we want to hear your story.

Do any of these questions apply to you? If so, please send us your stories using our online form, or e-mail us at DMCAstories@law.usc.edu.

Here’s more background. As we all know, fair use is a critical part of documentary filmmaking. For more than 100 years, filmmakers have had the right to make fair use of copyrighted works in their films, such as using film clips for criticism and commentary. But because of the DMCA, many filmmakers are afraid that the simple act of ripping a Blu-Ray is a crime, even though actually using the footage is perfectly legal under fair use.

Responding to this message will help you to preserve your fair use rights! In order to receive an exemption allowing filmmakers to make fair use, we will need to demonstrate that filmmakers are being harmed by the DMCA, and that documentary filmmakers are being helped by the July 2010 exemption for ripping DVDs. That’s why we need to hear your stories!

We need as many responses as possible, and we’d like to hear from you by Friday, November 4, 2011 in order to meet the deadline for submission. (We would still love to hear from you after that date, but responses received by Nov. 4th will be vastly more helpful.)

Thank you for your help in this fight to preserve our fair use rights!

For more information, see the FAQs below.

--Prepared with the assistance of the USC Intellectual Property and Technology Law Clinic and attorney Michael C. Donaldson.

1. What is this all about?

   A recent exemption to the copyright laws permits filmmakers to rip DVDs for use in a documentary film for purposes of fair use, including criticism, commentary, and illustration.

   This FAQ serves to answer basic questions about the exemption in order to help documentary filmmakers utilize it during film production.

2. Why should I care?

   Documentary film is critical to our culture and our democracy. When the DVD became the default media format of our time, the ability of filmmakers to make fair use of copyrighted video clips became compromised. Because “ripping” a DVD requires bypassing the DVD’s “technological protection measure” (see question 4, below), the Digital Millennium Copyright Act made the act of “ripping” a DVD illegal even in situations where the doctrine of fair use permits filmmakers to use the material on the DVDs without permission.

   This Exemption restores our fair use rights by allowing us to use material on DVDs in our films for purposes of criticism or commentary without fear of crushing liability.

3. What is the DMCA?

   DMCA stands for the "Digital Millennium Copyright Act.” Passed in 1998, it was Congress’s attempt to update copyright for the digital age. Among other things, the DMCA made it illegal to “rip” DVDs.

4. What are technological protection measures? What is Content Scrambling System?

   Technological protection measures are security measures designed to prevent access or copying. The primary technological protection measure used on all DVDs is an encryption scheme called CSS (Content Scrambling System). The act of ripping a DVD bypasses the DVD’s encryption, which is illegal in most circumstances.

5. What is fair use?

   Fair use is a doctrine in the law that allows people to use copyrighted material without the copyright owner's permission, for certain purposes, such as criticism, commentary, or illustration. It is critical for much of what documentary filmmakers do. You can read more about the principles and best practices for fair use in documentary filmmaking here.

6. How long does the Exemption last?

   The Exemption expires in October 2012. Exemptions must be re-applied for and re-approved by the Librarian of Congress every three years.

7. What happens to material I have taken off DVDs after the Exemption expires?

   The Exemption does not address what you must do with material taken off DVDs after the Exemption expires. However, unless you have further use for the material such as scholarship or research, the prudent thing to do is to take only material that is needed, keep only what is necessary for use in the film, and promptly dispose of unused material.

8. How do I know if I have "reasonable grounds for believing that circumvention is necessary"?

   This means that you must believe that without ripping, you will be unable to use the needed material for your project. Some factors to consider are:

   • Alternate sources of footage: you probably are not covered by the exception if the material you want to use is available and feasible to obtain elsewhere (such as an archive or in unencrypted format).
   • Quality of footage: you likely have a strong reason to rip if your project demands high quality footage that can only be obtained from DVDs.
9. What is noncommercial video?

   The term “noncommercial” is not defined in the Exemption and it can mean different things to different people. In our view, it basically means any use not primarily directed at profit, commercial advantage, or making money. This can include videos made for fun and other non-profit videos not made with the intention of selling.

   For more information on the term “noncommercial use,” take a look at Creative Commons’ discussion of the 2009 report it prepared on this issue, which can be found here.

10. What is a “short portion”?

    The exemption requires that you take only “short portions” of works for use in your film. The term “short portion” is not defined in the Exemption, and will depend on the nature of the material you are using. In general, when making fair use the best practice is to use only what is necessary to make your point. You can read more about the best practices for fair use in documentary filmmaking here.

11. How much can I rip? Do I need in and out points?

    The Exemption is unclear on how much you can rip. However, the prudent and responsible course of action is to rip only what you need where possible (using in and out points) and then delete any material you do not use.

12. What if I’m not a professional filmmaker?

    Your level of experience does not matter. Anyone making a documentary film is covered by the Exemption, as long as they follow the restrictions contained in the Exemption.

13. The Exemption refers to “motion pictures.” Can I also obtain material from DVDs of TV shows?

    Yes, you may. The Copyright Office’s definition of “motion pictures” is broader than just movies and covers television shows and similar audiovisual content.

14. What if I want to obtain material from a DVD for use during the production process, but not for use in my film?

    The Exemption suggests that any ripped material must be incorporated into the new work. Ripping footage for use in the production process but not the film is likely not covered by this Exemption.

15. What about Blu-ray?

    Blu-ray is not covered by this Exemption. The Copyright Office considers DVD and Blu-Ray to be two distinct formats.

16. I want to learn more about this! Can you point me to some resources?

    Yes, we can!

    For more information on the Exemption, what it means, and how to take advantage of it, listen to these episodes of Digital Production Buzz in which these issues are discussed by IDA President Eddie Schmidt and IDA Board Member Jack Lerner:

    • Digital Production Buzz – Eddie Schmidt
    • Digital Production Buzz – Prof. Jack Lerner

    The Copyright Office maintains a website discussing the Exemption process and announcing all of the exemptions. It is available here:

    • Copyright Office website discussing Exemptions
    • The initial comment of IDA, Kartemquin Films, and other organizations and filmmakers requesting the exemption
    • Our follow-up comment
    • Testimony of the hearing where Gordon Quinn and Jim Morrissette of Kartemquin Films testified in support of our request, together with exhibits in support of our request (Audio here)

    Learn all about fair use for documentary filmmakers here:

    • American University’s Center for Social Media’s website on fair use for documentary filmmakers
    • Examples of successful fair use in documentary film