In a rich submission to the Copyright Office on behalf of the Library Copyright Alliance, Jonathan Band asks the Office to renew its rule allowing college professors and film and media students to decrypt DVDs for educational uses.
The submission is part of the administration of the Digital Millennium Copyright Act, which created a new statutory protection for digital locks, also know as Digital Rights Management (DRM) or Technical Protection Measures (TPMs). Under the DMCA, it is against the law to crack a digital lock, even if you ultimately use the underlying work in a way that is perfectly legitimate. This gives copyright holders who sell their works in digital formats a kind of super-copyright; they can control their works in ways that copyright law ordinarily would not allow, blocking fair uses and educational uses that the law would otherwise allow, and even encourage.
DVDs are a perfect example, because every DVD is protected by an encryption system called CSS. Only authorized DVD players (not rippers!) can decrypt the discs and play the underlying movies. That means that under provisions of the DMCA, video works stored on DVDs are not available for fair use such as copying clips from a movie to include in an online review, or for educational uses that involve copying from the DVD, and so on. Indeed, users of some open source platforms complain that they can’t even watch a DVD because they don’t use software that licenses the CSS decryption technology.
Sidebar: It’s also illegal to “traffic” in tools created expressly to “circumvent” digital locks. SOPA copies some of its key provisions from this part of the DMCA and makes it illegal to create tools that route around the digital censorship mechanisms that SOPA would create. Now, see how long it takes to find a DVD-ripping tool on the Internet. Not long, right? So how successful do you think SOPA’s anti-circumvention provisions will be? Not very, right?
In an attempt to alleviate these foreseeable points of friction between the DMCA and legitimate uses, the law also empowered the Copyright Office and the Librarian of Congress to consider and approve exceptions to DMCA protection every three years. DVDs have been the subject of several exemptions in the past, thanks especially to the important work of Professor Peter Decherney on educational uses.
Because the law requires that existing exceptions be renewed each cycle, rather than extending them automatically, the library community has weighed in this cycle to ask for an extension of the existing exception for professors and film and media students.
The bulk of the filing, and the most fun reading, is a series of stories from professors and students around the country describing how they use the exception for DVD ripping to teach better courses and create better class projects. There’s a lot of talk among copyright policy geeks about e-reserves and streaming video, and you could get the impression from the more conservative voices that professors and students are just looking for a free ride, that they should be paying a recurring license fee for the privilege of incorporating their library’s lawfully acquired DVDs more seamlessly into their teaching and learning. I think these stories create a pretty powerful rebuttal to that idea. It seems clear to me, at least, that these folks have made exciting fair uses and legitimate educational uses of these films.
So, again, check out the LCA filing here.
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