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Documentary Filmmakers: We Need Your Help!

By Michael Donaldson

The Digital Millennium Copyright Act of 1998 prohibits the circumvention of technological protection measures, including the "CSS" technology commonly employed on DVDs. Because of this prohibition, many documentary filmmakers who want to make fair use of material, or use public domain material, cannot do so because they fear the consequences of circumventing the CSS technology found on most DVDs.

Every three years, the U.S. Copyright Office conducts a rulemaking process to assess whether the DMCA's ban on circumvention interferes with noninfringing uses of copyrighted materials. If the Copyright Office finds a substantial adverse effect on noninfringing uses of certain types of works, it grants a three-year exemption from DMCA liability for that class of works.

The USC Intellectual Property & Technology Law Clinic at USC Law School and Michael Donaldson are working with Kartemquin Films, IDA, Arthur Dong, and Robert Bahar to seek an exemption that would make it clear that documentary filmmakers can access CSS-protected material on DVDs for fair use purposes or if the material is in the public domain. Earlier this month, a request for such an exemption was submitted to the Copyright Office, which can be viewed on the Copyright Office's website at

We would like your support in gathering real-world examples that will help illustrate any adverse effect that the prohibition against copying material from a DVD is having on documentary filmmakers. What we would like in this regard are:

(i)  examples of how you’ve been unable to use material from DVDs for fair use purposes (or public domain material) due to CSS, or have had to use severely degraded analog versions of noninfringing material due to CSS, and the effect that had on your documentary; and

(ii)  stories about any problems you have had getting your documentary approved for air on PBS or similar broadcasting networks because you used degraded analog versions of material that did not meet the technical standards set forth by the broadcaster; and

(iii)  stories about what you would do with noninfringing material in your documentary films if you could obtain protected material from DVDs without fear of breaking the law.

We are looking forward to hearing about your experiences. Please send your stories, as well as any questions or comments, to Ashlee Lin at or Christopher Perez at by Friday, January 30.

Thank you for your help on this important issue!

Entertainment attorney Michael C. Donaldson, Esq. (Donaldson & Hart), is a former IDA Board President and served on the Legal Advisory Board for the Documentary Filmmakers' Statement of Best Practices in Fair Use.