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IDA Seeking Exemption from DMCA Criminal Provisions

By Michael Donaldson

The Digital Millennium Copyright Act (DMCA) made it a crime to unscramble the encryption on a DVD for any reason whatsoever. Documentary filmmakers who wanted to copy public domain material on a DVD or to copy a small portion of a DVD to use as fair use were faced with a dilemma: Either use other, generally inferior, sources for the work they wished to use or face criminal prosecution for unscrambling the codes on a DVD.

The IDA has asked the Copyright Office to approve an exemption for documentary filmmakers who are working on a documentary and wish to decode a DVD to access public domain material or for the purpose of accessing material to use in their documentary pursuant to fair use. The request was filed in November 2008. The hearing was held May 7, 2009, in Washington, DC.

The IDA is represented by Michael Donaldson, past president of IDA and formerly general counsel to IDA. Working as co-counsel with Donaldson are Chris Perez and Ashlee Lin, members of the University of Southern California Intellectual Property Clinic, under the supervision of Professor Jack Lerner. Gordon Quinn, creative director of Chicago-based Kartemquin Educational Films, and his longtime colleague, Jim Morrissette, will provide written and oral testimony as part of a coalition of filmmakers and film organizations. In addition to IDA and Kartemquin, the coalition includes Film Independent, Independent Feature Project, National Alliance for Arts and Media Culture and University Film and Video Association, as well as filmmakers Robert Bahar, Kirby Dick, Arthur Dong, Jeffrey Levy Hinte, David Novack and Morgan Spurlock.

A lengthy brief in opposition to IDA's request has been filed by the MPAA (Motion Picture Association of America) and Time Warner. The thrust of the MPAA argument is that if any use group is allowed to rip DVDs, even for limited fair use purposes, rampant piracy will result. IDA noted that MPAA made exactly the same argument three years ago when film criticism professors made a request for exemption. The Copyright Office granted the request. Not one incident of piracy has resulted from that exemption.

After the hearing, the Copyright Office will consider all the evidence, make further inquiry of the parties, and issue their recommendation to the Librarian of Congress, who must sign the exemption. In the past, the Librarian has adopted the recommendations of the Copyright Office without change. A final decision is expected in the fall of 2009. If adopted, the exemption will be valid for three years, after which time, the request has to be renewed, reargued, and decided anew by the Copyright Office. 

Donaldson notes that "The heavy lifting on this request was done by USC law students Perez and Lin. They did virtually all of the drafting of the request, the follow-up brief, and the written testimony that will be provided in Washington. Their contributions were amazing in the quantity and quality of their work."

All members of the IDA team expressed optimism about the strength of their arguments, but recognized the formidable opposition being laid down by the MPAA.