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Help Needed for Documentary Filmmakers

By Michael Donaldson

Many documentary filmmakers, who want to make fair use of material on a DVD or use public domain material on a DVD, cannot do so. That is because the Digital Millennium Copyright Act of 1998 (DMCA) prohibits the circumvention of technological protection measures, including the "CSS" technology commonly employed on DVDs. These are criminal provisions. Pretty scary. But we have a brief window of opportunity to change that.

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.

I and the Intellectual Property Clinic at USC Law School filed a request with the Copyright Office for 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 without any charge. We are representing several individual documentary filmmakers, The International Documentary Association and Film Independent. Several other film organizations are considering joining this next phase. Our request was filed in early November, 2008.

According to the rules relating to such requests, we have until February 2, 2009, to file some more paperwork in support of the request. We plan to add stories and examples to enliven and enrich the legal request we filed. We are looking for real-world examples that will help illustrate any adverse effect the prohibition is having on documentary filmmakers. If you would like to help, you can provide:

1. Examples of how you've been unable to use material from DVDs for fair use purposes (or public domain material) due to CSS;

2. Examples of having to use severely degraded analog versions of noninfringing material due to CSS and the effect that had on your documentary; and

3. 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.

All responses and any questions you have can be e-mailed to Ashlee Lin at or Christopher Perez at You should send me a copy at We will put your stories in proper form to join other stories. Let us know if you want to submit your story with your name or without your name attached to it. You can read the entire request on the U.S. Copyright Office website at (see Document 11B). But watch it. It is 22 pages long. Thank you in advance for your assistance!

Below is the draft language of our proposed "class of works," which defines which materials would be eligible for the exemption and the conditions under which the exemption would be available.

Audiovisual works in the form of Digital Versatile Discs (DVDs) not generally available commercially to the public in a digital form not protected by Content Scrambling System technology when a documentary filmmaker, who is a member of an organization of filmmakers or enrolled in a film program at an accredited university, is accessing material for a use for the purposes of criticism, comment, news reporting, teaching, scholarship, or research in a specific documentary film that has been commenced and has progressed to the rough cut stage, where the material is in the public domain or will be used in compliance with the doctrine of fair use as defined by federal case law and 17 U.S.C. § 107.

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.