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Fair Use Question of the Month: Can I Use Footage From a Copy-Protected DVD?

Encrypted DVDDear CMSI,

I’ve been playing with some new remix platforms, and I have a really funny video that does a mashup of similar scenes in three recent popular comedies, plus some old stuff from an educational film. I got the comedy stuff by breaking encryption on the DVDs. Am I in trouble? I can hardly wait to upload it to YouTube, but I don’t want to get busted.  



Dear Monique,

Thank you for your question. Create new works entirely out of existing works can make an entirely new work (as collages do). So you'd be asking yourself why you used those other pieces of work, and what you want to say with them.

The Code of Best Practices in Fair Use for Online Video highlights this in Principle Six. Principle Six states that this kind of activity is covered by fair use “to the extent that the reuse of copyrighted works creates new meaning by juxtaposition.” The new work must be identifiable on its own and must address a different audience from what the original owners of the work(s) intended. However, as in most cases to fair use, there are some limitations to be aware of: If the work “is merely reused without significant change of context or meaning, then its reuse goes beyond the limits of fair use.” In addition, if the amount used is excessive, then fair use is not employed.

As far as breaking encryption on the DVDs, thanks to advocacy by people who make videos, who explained to the Copyright Tribunal how breaking encryption helps people make new and transformative work, there is currently an exemption in the law for people who break encryption to employ fair use, in order to make noncommercial work. People who care about this exemption will need to return to the Copyright Tribunal, to renew the exemption for this class of people who are making noncommercial online videos.