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Victory for Fair Use and Fair Users on DMCA Exemptions

US Copyright OfficeFilmmakers, students, teachers and professors have again successfully asserted their fair use rights to break encryption on DVDs. The U.S. Copyright Office has renewed previous exemptions to the Digital Millennium Copyright Act (DMCA), with some tweaks and a couple of expansion clauses.

The DMCA creates criminal penalties for breaking encryption on digitized work, but communities of practice can go every three years before the Copyright Tribunal and argue that they need to break it in order to employ fair use to get their work done. In 2010 (after delays), noncommercial video producers like vidders, documentarians,  and college professors all won exemptions for cracking DVDs.

But exemptions have to be renewed every three years, and the needs change with rapidly changing technology. This year, the Copyright Office received persuasive evidence from these and also K-12 teachers that they can’t get their work done adequately without breaking encryption, not only on DVDs but also online and on Blu-Ray, for a wide variety of purposes.

Wins on Online Streaming and K-12

The new ruling allows noncommercial video makers (that includes all those YouTube uploaders, remixers, vidders, mashup artists and beyond), documentarians, makers of e-books that do film analysis, teachers in K-12, college professors and students “in film studies or other courses requiring close analysis of film and media excerpts” to break encryption on DVDs and in online streaming.

Expanding the category of work that can be de-encrypted to online streaming is a valuable and necessary recognition of changing technologies. Expanding the category of user to K-12 is a real relief to media literacy educators in particular; they badly need access to encrypted material to employ their fair use rights, which they’ve clearly asserted in a Code of Best Practices in Fair Use for Media Literacy Education.

No to Blu-Ray and Space-Shifting

The Office however said no to documentarians’ request to be able to crack Blu-Ray legally. Kartemquin Films (Hoop Dreams, New Americans, Milking the Rhino and much more) played a leading role in testimony. Kartemquin’s  executive director Gordon Quinn said: "We are pleased with this decision to extend the DMCA exemption for DVD and streaming video, which is necessary for documentary filmmakers to practice their fair use rights. But we are disappointed that the copyright office decision doesn't also cover Blu-Ray. In this rapidly changing technical environment we will have to assess over the next three years how this may impact our ability to effectively make documentaries."

The Copyright Office also refused to expand the category from ‘motion pictures” (a very wide category, including TV) to “audio-visual” in general, denied the petition to break encryption in order to “space-shift” (move media from one of your devices to another).

There’s a lot more, including exemption renewals on jailbreaking smartphones and disability access.

Overall, documentarians, video and e-book makers, and teachers and students everywhere have another three years to exercise fair use rights on a good swath of audio-visual material, and to build even stronger arguments for the necessity of these exemptions. The success of the renewals has a direct relationship to the affected communities’ growing awareness of the value of their fair use rights, and the need to assert them.