Worth the Wait - installment #1

Peter Jaszi
July 30, 2010

So, finally, the Copyright Office and the Librarian of Congress have spoken (not quite with one voice, of which to come), in the fourth approximately triennial rule-making under Sec. 1201(a)(1) of Title 17, which we were given as part of the Digital Millennium Copyright Act of 1998. For those (perhaps wisely) haven't been paying close attention, let me review the bidding. One of the dubious accomplishments of the DMCA - achieved despite the best efforts of various "public interest" copyright campaigners, myself included - was a the introduction of a general prohibition (with new penalties to match) on the unauthorized "circumvention" of so-called "technological protection measures" used to secure copyright works especially in the digital environment - the hacking of encryption being the most obvious example. This "paracopyright" provision (that is, a law that's not copyright strictly speaking, but is related to and reinforcing of it) has various striking features. Perhaps the most striking is that it includes no general "fair use" exception for socially desirable uses and users. Some specific exemptions (for law enforcement, reverse engineering, etc.), are written into the statute, but otherwise users who want to engage in unauthorized decryption are relegated to a rulemaking procedure overseen by the United States Copyright Office. At this point, citizens have a chance every three years to persuade the Office (and the Librarian of Congress, who is the final decider) that they "are, or are likely to be ... adversely affected [by the prohibition] in their ability to make noninfringing uses ... of a particular class of copyrighted works."

During the original war of words around the DMCA, back in 1995-1998, public interest advocates argued loudly that the new anti-circumvention rules could "chill" the exercise of fair use rights. The 1201(a) (1) rulemaking was offered up, in the final days of that legislative battle, as a grudging concession to the truth of that argument. But over the first several rounds, various groups of self-proclaimed fair users had a tough time making their cases to the Office's (or the Librarian's) satisfaction. As a result, most of the exemptions granted in the 2000 and 2003 proceedings were both narrow and technical. But in the 2006 round, there was a perceptible shift, with an exception carved out for film studies professors who needed to rip DVD's (most of which are protected by the movie industry's Content Scrambling System, or CSS) to extract clips for classroom use. The person who deserves most credit for achieving this breakthrough was Professor Peter Decherney of the University of Pennsylvania. But I should say, in the spirit of full disclosure, that the Glushko-Samuelson Intellectual Property Law Clinic at the Washington College of Law, American University, which I direct, acted as Prof. Decherney's counsel in the proceeding. Specific though the exemption was, it's recognition hinting at possibilities to come. In any event, it was enough to invigorate the public interest and education communities. When the Copyright Office announced a rulemaking late in 2008, professors, libraries (through the Library Copyright Alliance and the Music Library Association), the EFF, the Organization for Transformative Works, representatives of the K-12 media literacy community, and even documentary filmmakers responded in force, filing requests for exceptions to accommodate a broad swath of practices, educational and otherwise. And last Monday, in the Federal Register, we finally got the results, which amply justify the delay.

Before going further, the broad details. In the Librarian's words, exemptions (covering period until the next rulemaking) were issued to cover:


(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:
(i) Educational uses by college and university professors and by college and university film and media studies students;

(ii) Documentary filmmaking;

(iii) Noncommercial videos

(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

(4) Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if:

(i) The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and

(ii) The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.

(5) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace; and

(6) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book's read-aloud function or of screen readers that render the text into a specialized format.

Some of these (especially numbers 4 and 5) are exemptions of the familiar and somewhat mind-numbingly technical sort, relating to possible overreaching and obsolescence in the arcane field of computer security - vitally important to some, but obscure to most. Of greater general interest are the second and third exemptions (which create - or, at least, legitimize, interesting new consumer choices for cell phone users). The sixth, a carry-over from previous rulemakings, deals with a topic (access to e-texts by print-disabled persons) that has taken on new importance in recent months - and came to be included by an interestingly circuitous path. I'll hope to have something to say about some of these in future installments of this blog. But first things first.

The initial exemption, relating to circumvention of CSS on DVD's, benefits educators and students, documentary filmmakers and remixers/vidders. Although, as the statute requires, it is formally addressed to a "class of works" ("motion pictures on DVD's..." it effectively speaks to the needs and practices of several significant classes of users. But before discussing these particularly, I should make some generalized points of possible interest about how these conclusions were reached. One is the take that the Copyright Office, in the Register's Recommendation, took on the general issue of what constitutes "fair use." The legislative history of Sec. 1201(a)(1) makes it clear that first and foremost among the kinds of "noninfringing uses" potentially at risk were fair ones Thus, the Office was required, in connection with its recommendations, to explain why some (if not all) of the activities to be enabled by a proposed exemption would qualify under this rubric. The relevant passage in the Recommendation is at pp. 49-52, and deserves to be quoted in extensive (if somewhat truncated and unfootnoted) form:

All of the proponents and supporters of the classes covering CSS-protected DVDs for educational, documentary and noncommercial videos have demonstrated that some of the underlying uses may be fair uses. The educational users, the documentary filmmakers and the noncommercial, transformative users all fit squarely within the illustrative uses of criticism, comment, or teaching, set forth in the preamble of Section 107.

Under the first fair use factor, the proposed uses of portions of motion pictures are generally transformative in nature--they use the work for a different purpose than the entertainment purpose of the assessing a transformative use.

The Register does not conclude that all, or even most, of the examples offered by proponents of these classes - and especially of the class consisting of "noncommercial videos" - are transformative in the sense that is relevant to an analysis of the first fair use factor. However, it is fair to conclude that more than a trivial portion of those examples do qualify as transformative.

Despite the frequently commercial nature of the use with respect to documentary filmmakers, the activities of documentary filmmakers may be transformative in nature and purpose. Documentary filmmakers and noncommercial vidders may use works in order to criticize or comment upon the copyrighted work being used. When a motion picture is used for purposes of criticism and comment, such a use is a form of quotation, long recognized as paradigmatic productive use with respect to textual works, which is at the core of fair use's function as a free-speech safeguard. For example, clips from one or more copyrighted works may be used to make a point about some perceived theme or undercurrent in works, such as violence against women or racism. In other situations, portions of works may be used and remixed in order to make political statements about candidates or copyright law itself.

Under the second fair use factor, the nature of the copyrighted motion picture is generally creative in nature and thus within the core of copyright's protective purposes. On the other hand, the work is also published if it is available on DVD. The ambiguity created by the weight of these intra-factor inquiries must also be considered in relation to the transformative purpose of the uses. The Supreme Court has stated that in relation to certain transformative uses, the second factor is of limited assistance in evaluating whether the use is a fair use....

Under the third factor, an essential component of all of the proposals for use is that only a short portion of the work is used. Quantitatively, the evidence in the record suggests that most of the uses by educators, students, documentary filmmakers, and noncommercial, transformative users involve a relatively small portion of the copyrighted work.... Qualitatively, although the portion used may be an important scene or scenes from one or more movies, the transformative nature of the use in relation to a published work tends to avoid a situation where the portion used, either quantitatively or qualitatively, would adversely affect or supersede the potential market for or value of the underlying works.

Under the fourth factor, when the use of the work is transformative, there is likely to be no interference with the primary or reasonable derivative markets for the underlying work. Opponents of the proposed classes did not identify any use by educators, documentary filmmakers, or noncommercial vidders that has harmed the market for, or value of, any copyrighted motion picture. Any diminution in value resulting from the use for purposes of criticism or commentary would also not be cognizable harm under the Copyright Act....of small portions of motion pictures for criticism or commentary is not likely to be a market that the copyright owner would reasonably be expected to exploit. Indeed, even if such a potential market were reasonably anticipated, it would not eliminate the need to permit an unauthorized use that was fair....

On balance, the fair use analysis tends to demonstrate that many of the uses sought by the proponents may be considered fair uses. Importantly, the Register is not making any judgment as to whether any particular example offered by proponents actually is a fair use.... The point is that a cognizable basis has been established for concluding that some (probably many) uses in each of the proposed classes are likely to qualify as noninfringing uses under established judicial precedents.


What are the most important take-aways from this passage? In my mind, there are three: First, the Copyright has subscribed fully to the proposition that in today's dominant jurisprudential approach to fair use, "transformativeness" rules. The four statutory factors remain important, of course, but the inquiry into whether and how borrowed material has been repurposed by the user tends to inflect, if not to determine, the analysis of each. And that's true across the board -- even with respect to the famed and feared factor four (market effect), where transformativeness can trump even a showing of lost licensing revenue. This enlightened understand of fair use helps not only to explain why the Recommendation came out as it did this time, but contains a strong suggestion about the kind of reasoning we can expect in future rulemakings.

A closely-related second point, easily overlooked on a quick reading, is that in order to qualify for the exemption, an act of circumvention doesn't have to be in aid of an actual fair use - strictly speaking, the rule requires only that the user have a good faith belief that it is! Of course, the teacher or filmmaker or vidder who makes a wrong but rational choice on this score might still be liable for copyright infringement but - by the terms of the rule, not for unauthorized circumvention.

Third, there may be more (or perhaps less) than meets the eye to the limitation of the first exemption to cases in which users of video clips are engaged in "criticism or comment" (terms derived, of course, for the preamble to Sec. 107 itself). In fact the recommendation takes a broad view of the kinds of uses that may qualify under this rubric. Consider, for example, the approving reference to remix videos in which "portions of works may be used and remixed in order to make political statements about candidates or copyright law itself." That's a kind of commentary, for sure, but not - to be clear - direct commentary on the work being used. Rather, it's illustrative use of an excerpt from a copyrighted work in the context of a comment on a larger social phenomenon. In other words, this is an understanding of "criticism and comment" that covers a very wide range of discursive practice - not coextensive with the category of all transformative uses, but expansive nonetheless.

With those introductory observations out of the way, it's important to emphasize again the extraordinary breadth of the exemption. College-level teachers of all kinds - not just those who specialize in media - can claim its benefits for their teaching. So, for the first time, can a significant number of higher ed students. Documentary filmmakers, who for all their dedication to truth-telling are also interested in (if not always successful at) money-making, get its full benefit as well. And so does the vast, emergent, inchoate community of volunteer, DIY video makers (some highly sophisticated and others not) who populate YouTube and the platforms with content. In extending the exemption's reach so broadly, the Copyright Office seems to have discounted the strenuous arguments of content owners, made at various points throughout the rule-making proceeding, that officially blessing any breach in the wall of CSS security, no matter how well-justified, would fatally undermine the efforts of the motion picture industry to protect its assets against Internet piracy!

One important concession to the industries concerns Copyright Office's decision to recommend the restriction of circumvention to situations where the user aims to include a "short" portion of an existing work in another, new work - while recognizing that longer excerpts sometimes may qualify as fair use in under ordinary copyright law. How significant the restriction is remains to be seen. For one thing, it applies literally to the amount of material to be used, not the amount actually decrypted. Although the point was energetically debated during public hearing on the rulemaking, it seems that the exemption does cover (for example) a documentary filmmaker who breaks the CSS code on an entire DVD movie in order to extract a 30-second clip. And, as the language already quoted illustrates, what qualifies as "short" is (to a great extent) the user's call. Although the proceedings heard calls for fixed limits (either so many minutes, or some percentage of the work) on the length of clips the extraction of which would qualify as exempt circumvention, none were included in the final rule. In other words, it's a rule of reason, with the reasoning to be done, in the first instance, by the user. And, in practice, it's hard to imagine a court second-guessing a reasonable good faith decision about how much material was appropriate to fulfill the user's transformative purpose.

At first blush, there's also another apparent problem with the exemption: the fact that it applies specifically to "motion pictures." Of course, the field of preexisting audiovisual material from which teachers, students, documentarians and video makers draw includes television programs as well as movies, and often the best source of high quality television programming will be a CSS-protected DVD. But not to worry. As the Copyright Office Recommendation makes clear, the term is being used in the rule in its technical sense, per the Sec. 101 definition: "... Audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any." So TV is definitely covered. Of course, other kinds of copy-protected audiovisual works (video games are the most obvious) do fall outside this exemption.

Finally, although the point may already have been made, I want to stress again the importance of the inclusion of documentary filmmakers in the first exemption. This is a tribute to the powerful presentations made by Gordon Quinn (of Kartemquin Films) and other representatives of the documentary community, to Prof. Jack Lerner and his students at the University of Southern California Intellectual Property and Technology Law Clinic (who helped put the case together), and to Los Angeles copyright lawyer Michael Donaldson, who advised them. The recognition that commercial fair use deserves recognition in the scheme of 1201 exemptions, along with educational and other noncommercial activities, is of enormous practical and conceptual importance. It underlines the fact that fair use rights belong to everyone, and that restrictions on those rights are of concern whoever they fall on.

In the next installment, I'll write a bit more about the significance of the inclusion of noncommercial video makers. I'll also provide some detail about what the first exemption doesn't include - and why. For one thing, it doesn't cover college level students outside of film and media studies courses. Likewise, the Copyright Office rejected arguments made Professor Renee Hobbs of Temple University (another client of the American University IP law clinic) on behalf of K-12 media literacy educators. In a nutshell, the Copyright Office concluded that these users needed to make a better showing about why they needed DVD-quality images to accomplish their teaching and learning goals. But for those who didn't get the nod, the Copyright Office Recommendation did offer a bit of immediate solace - making clear that they are free to take advantage of a variety of "screen capture" softwares in aid of their fair uses of copyrighted audiovisual material. This interesting proposition is derived from the Office's conclusion that these tools don't "circumvent" technological protections within the meaning of the statutory prohibition. And this observation presumably applies as well, to anyone who seeks to make fair use of non-motion picture audiovisual content (those video games, again). The legal status of screen capture hasn't been free from doubt and, of course, the Copyright Office doesn't have the final word. But its conclusion is likely to persuasive when or if the issue ever finds its way to court.

[More to come]

 

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