DMCA Exemptions

Guest Post by Jan Boyles

It’s time to protect the hard-won fair use rights that artists, professors, librarians and online video makers won three years ago at the Copyright Office. The Library of Congress has issued a Notice of Inquiry calling for written comments by December 1. 

Here's why it matters. In 2008, the librarians, professors, documentarians and online video makers successfully argued that they should get an exemption to the Digital Millennium Copyright Act’s penalties for breaking encryption to access copyrighted material, if they are accessing it for fair use purposes. Now, anyone making a non-commercial video (teachers, students, parents, kids, librarians, vidders, really anyone) is so exempt. So is any professor in higher education, all film and video college students, and all documentary filmmakers, even when producing work in a commercial environment.

But every three years, these exemptions must be renewed. As well, this is a moment for anyone else—say, college students who don’t happen to be in film and video programs, or media literacy teachers who aren’t in higher-education, or gamers—to come forward to ask for exemptions.

In order to gain an exemption, the individual or group filing the ruling must demonstrate that the strict access controls under the DMCA have adversely impacted the ability of people to create new, non-copyright-infringing material. (Exemptions are highly targeted—for specific user groups and media formats.)

Intellectual property law clinics and non-profit public interest organizations around the country are now gearing up to provide assistance to people who want help in petitioning for an exemption. They include clinics at American University, Fordham, the Berkman Center at Harvard, University of Southern California, and University of California-Berkeley, as well as the Electronic Frontier Foundation.

Interested in making or joining a petition? Have a good story about your need to access copyrighted material that is encrypted, making it impossible for you to access it legally even when you have a legal use for the material under fair use? Let us know at socialmedia@american.edu (subject: DMCA exemption), and we’ll match you up with legal helpers.  They can also help you shape your remarks for the Notice of Inquiry (due December 1).   (This post updated September 30, 2011)