Reading the fine print

Yesterday’s announcement that the Library of Congress was designating new classes of works exempt from the anti-circumvention rules of the DMCA has generated lots of Internet buzz, especially about the exemption for those who “jailbreak” their cellular phones.  The major exemption for higher education, allowing circumvention by faculty for a range of defined educational purposes, has also gotten some press, some of it excellent and some of dubious accuracy.  In the latter category, unfortunately, is this piece from Inside Higher Education, which I will discuss below.

But first let’s look at the actual language of the exemption.  What follows is based on the detailed description of the six exemptions given in today’s Federal Register.

First, the exemption is to permit circumvention of technological protection measures — the breaking of digital locks — for certain classes of works and for defined purposes.  These rules do not change the definition of fair use; they merely specify a small group of purposes within the broader category of fair use for which circumvention is permitted.

Next, this exemption applies to lawfully made and acquired DVDs that are protected by Content Scrambling System (CSS).  This application is both broader and narrower than the previous rule.  It does not require that the DVD be part of a university’s library collection, much less the collection of a film or media studies library.  The DVD can come from anywhere as long as it is not pirated or stolen.  But it applies only to DVDs that use CSS; it does not, for example, apply to Blu-Ray discs.  So a faculty member can make a compilation of clips from her own DVD library, for example, unless she collects that library in some format other than traditional DVD.

The exemption applies to three specific activities for which circumvention is necessary.

First, it applies to educational uses by college and university faculty and by college and university students of film and media studies.  Notice that the category of faculty is all inclusive, but the category of students is limited.  The Library of Congress determined that not all students needed this exemption; presumably they were also aware of industry fears that students would carry the permission too far if the exemption were general.  Also, the application to educational uses does not include K-12 teachers, who were also determined not to need the ability to obtain high-quality clips.  Presumably they are still expected to point a digital camera at a TV screen if they want a clip from a motion picture.

The other activities to which the exemption applies are documentary film-making and non-commercial videos.  Presumably some of the limitations to the persons allowed to circumvent for educational purposes may be mitigated by these two defined activities.  A university student who is not studying film and media studies, for example, might still want to use a film clip in a class video project and could be permitted because it is a non-commercial video.

So once we are clear about what can be used, by whom and for what purposes, it remains to ask what exactly we can now do.  The answer is that we can circumvent technological protection measures in order to incorporate short portions of motion pictures into new works for the purpose of criticism and comment. Several phrases here call for explication.  First, circumvention is allowed for copying short portions, not entire films.  Second, this exemption applies only to motion pictures, not to other content, like video games, that may be available on DVD.  Third, the clip must be used to create a new work.  I was glad to see that the explanation of this phrase in the Federal Register is explicit that “new work” does include a compilation of film clips for teaching, as well as other videos in which a short clip may be subjected to criticism and comment.  Finally, that purpose of criticism and comment is a required aspect of the defined activity that is permitted.

The last requirement for this exemption is a reasonable belief that circumvention is necessary to accomplish the permitted purpose.  The announcement is very clear that if another method of obtaining the clip without circumvention is available and will yield a satisfactory result it should be used.

This seems like a lot of requirements, but I think that overall we have a pretty useful exemption here and one the application of which will not really be too difficult.  Once we understand the four italicized phrases above, it seems that we should be able to recognize permitted instances of circumvention when we see them.  Certainly this is easier to understand and apply than the exemption it replaced.  But when we look back at that item from Inside Higher Ed, it is easy to see how excessive enthusiasm can still lead to misunderstanding.

For one thing, the IHE piece does not acknowledge the limitation placed on students who can take advantage of this educational purpose exemption.  It may be, as I suggest above, that that limitation will be swallowed by the other permissions, but we should at least recognize the intent behind the rule.  More importantly, this exemption to the DMCA’s anti-circumvention rules really has nothing to do with the dispute between UCLA and AIME or with other projects to stream entire digital videos for teaching, in spite of what IHE suggests.  While such projects may or may not be justifiable, this exemption does nothing at all to change or define the boundaries of fair use; it merely carves out a portion of those uses, which the Registrar calls “classic fair use,” for which circumvention is now permitted.  There may be other uses that are fair, but this exemption neither determines that question nor authorizes circumvention for those purposes.

It is what it is, and no more, but what it is is good news for higher education.

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