DMCA, Fair Use and Educators

The best theater in Washington, D.C. is in federal agencies and hearing rooms. That’s where ritual battles over power take place. The first day of the Copyright Office’s hearings about exemptions to the Digital Millennium Copyright Act pretty much met expectations. (Read about day two where the focus was on Fair Use for documentarians and remix artists, here.)

The issue: The DMCA prohibits breaking of any encryption on copyrighted digital material, even when you have a legal right to the material inside—for instance, a Fair Use right. If you can make a strong case for the need to do so during the tri-annual hearings at the Copyright Office, though, you can get an exemption. Three years ago, thanks to film professors Peter DeCherney and the Washington College of Law’s intellectual property clinic overseen by Prof. Peter Jaszi, film professors won the right to break code on film DVDs and digital files from material in their libraries, for use in their classes.

Three years later, we’re back again. And the film professors have company.

Yesterday, the opposing sides sat across from each other in the room. On the right were a band of educators and their lawyers. On the other, corporate lawyers represented the interests of the motion picture companies and the encoders. (One of them, Steve Metalitz, was recognized from the bench as being semi-resident.)

Peter DeCherney started, noting that film professors could do their work much better now. He then asked the Office to expand the exemption to other teachers (what about history teachers? literature teachers?) and to the students who also needed to assemble videoclips for class and conference presentations and for video essays. Lawyer Jonathan Band then spoke on behalf of library interests, slamming large copyright holders for being "reflexively confrontational." He asked the Copyright Office to expand the exemptions as well to non-university settings. He cited a police academy technique, using Hollywood films to train police in close observation by study of facial and body gestures. Temple university professor Renee Hobbs, the Center’s partner in creating the Code of Best Practices in Fair Use for Media Literacy Education, showed that the widespread teaching of media literacy required access to high-quality video, and supported the expanded educational exemption. Several other speakers on behalf of library interests urged the same. Lawyer and English composition professor Martine Courant Rife brought research showing that many teachers and students are intimidated in their research and composition for fear of copyright violation—a chilling effect on academic work.

Industry lawyers sighed and got to work. Steve Metalitz representing a coalition of copyright holders and Fritz Attaway of the MPAA professed themselves lovers of learning but not at the expense of their businesses. The law was designed to make copying inconvenient, they said, and no one had the right to demand the quality of the original in the copy. Besides, they said, shooting an image off a screen with a camcorder produces a perfectly good copy. They showed how you could do this with off-the-shelf equipment, in a quiet, perfectly dark, large room, and compared their copy to shabbier copy drawn from a website made by Peter DeCherney. (DeCherney quickly noted that the web copy was vastly compressed, however.) Sandra Aistars from Warner Brothers said that the studio was happy to give permission for schoolroom uses, and welcomed requests from permissions from professors. (Prof. Rife had already estimated that such permissions just from her community college alone would flood the studios.)

Today, the hearings continue, with requests for a different exemption from documentary filmmakers. And sooner or later, the Copyright Office will tell us what exemptions they will renew, extend and grant.