2015 DMCA Exemption for Filmmakers
By Jack Lerner
The DMCA’s ban on breaking encryption is hurting our ability to make fair use. But you are helping us renew our exemption!
The Digital Millennium Copyright Act (DMCA) makes it illegal to rip from DVDs, Blu-ray discs, and many other encrypted technologies. The law is blocking our ability to make fair use and could seriously harm documentary filmmaking. Why? Because even though fair use allows us to use copyrighted footage, the DMCA restricts our access to such material.
Luckily, the law lets the Librarian of Congress grant exemptions that allow folks to access the works they need. In November 2014, we published a survey asking filmmakers to weigh in on how the DMCA has effected their ability to make fair use.
Your responses were much appreciated, and made a huge difference.
On February 6, 2015, Jack Lerner and Michael Donaldson submitted a final DMCA Exemption Comment to the United States Copyright Office on behalf of the IDA, Film Independent, Kartemquin Educational Films, and the Indie Caucus, among others. Please stay tuned for more updates on this issue. We couldn't have done it without you.
Thank you for your help in this fight to preserve our fair use rights!
Want to know more? Read our FAQs.
Frequently Asked Questions
1. 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 and later Blu-ray discs.
2. Why should I care?
The art of filmmaking 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 Content Scramble System— 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. The same holds true now for Blu-ray discs, as well as other technologies like set-top box DVRs, digital streaming services like Netflix, and almost every technology out there that filmmakers need to make fair use.
To account for the danger that the DMCA poses to fair use, free speech, and other lawful uses, Congress created a special process in which the Librarian of Congress grants specific exemptions every three years.
3. What is this “exemption” process all about?
A recent exemption to the copyright laws permits filmmakers to rip from DVDs and some online sources for use in a documentary film for purposes of fair use, including criticism, commentary, and illustration. But this exemption will soon expire. The International Documentary Association and Kartemquin Films, with the help of the UCI Intellectual Property, Arts, and Technology Clinic and Donaldson + Callif, LLP, are actively seeking a modified exemption for all filmmakers that would apply to DVD, Blu-ray, and digitally transmitted video.
The current exemption restores documentary filmmakers’ fair use rights by allowing them to use material on DVDs in our films for purposes of criticism or commentary without fear of crushing liability—but it will run out in 2015. We are now seeking a renewal and modification of the exemption, one that covers makers of scripted film as well as other important sources of material like Blu-ray and digitally transmitted videos.
4. What are technological protection measures?
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 primary technological protection measure used on Blu-ray discs is called AACS (Advanced Access Control System), and there are a variety of other protection measures—both hardware and software based—for digitally transmitted video (like cable TV and streaming services like Netflix). The act of ripping a DVD or Blu-ray disc bypasses this protection, which is illegal in most circumstances. The same applies to ripping video from digital downloads or streams.
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 our current exemption last?
The current exemption expires in October 2015. Exemptions must be re-applied for and re-approved by the Librarian of Congress every three years. The exemption proposal process has already begun and this is why it is so important to act now in order to secure a more effective exemption for all filmmakers!
7. I want to learn more about this! Can you point me to some resources?
Yes, we can!
For more information on the previous exemptions, and how to use them, listen to this episode of Digital Production Buzz in which these issues are discussed by IDA Board Member Jack Lerner.
The Copyright Office maintains a website discussing the Exemption process and announcing all of the petitions for new exemptions. It is available here:
- Copyright Office website discussing exemptions
- The initial petition of the IDA, Kartemquin Films, and other organizations and filmmakers requesting the exemption, filed in October 2014
- Our 2011 comment, which was the basis for the current exemption
- Testimony of the 2012 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)
- Los Angeles Times post on the 2011 exemption request
Learn all about fair use for documentary filmmakers:
- American University’s Center for Social Media’s website on fair use for documentary filmmakers
- Examples of successful fair use in documentary film
This post was prepared by a team of student lawyers at the UCI Intellectual Property, Arts, and Technology Clinic, at the UC Irvine School of Law. Together with Michael Donaldson of Donaldson + Callif, the Clinic is representing the IDA and Kartemquin Films in this effort.