Wednesday, November 22, 2006

Breaking DMCA news

The new DMCA rulemaking creates an exception for media studies and film professors who circumvent access controls in order to create compilations of clips for use in teaching. Past rulemaking had rejected using categories of fair users to define a “class” of works for which circumvention was allowed. This rule enabled the Copyright Office to reject many broad requests for fair use exemptions out of hand because the requests weren’t limited to classes of works. The change in the Office’s reasoning, which allows consideration of users once a class of works has been specified, came at the behest of film scholars. People who teach film have sound pedagogical reasons for using DVD clips, rather than lower-quality and perhaps distorted second- or further-generation videotape transfers. In order to accommodate such professors without creating a blanket exception for compilations of DVD clips (which, it seems to me, would hardly have been the end of the world, but the Office was concerned that there was no general justification for the practice), the Office agreed to make the class of users part of the definition of the exemption.

Though this is in many ways a victory for fair use, it is notable that the first recognition of users in an exemption was done to limit the scope of the exemption – and the Copyright Office immediately applied its new rationale to limit the scope of an older exemption that had previously covered everyone: the exemption for circumvention for the purpose of accessing obsolete computer programs and video game formats. Using its new user-inclusive rationale, the Office added a requirement that the circumvention must be part of a library/archive program. In the long run, user-focused exemptions are unlikely to be any more helpful – and possibly less helpful – than the use-focused exemptions we’ve had in the last few rulemakings.

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