Thursday, October 25, 2012

DMCA rulemaking recommendation released

Full text here.  The Register recommended expanding the noncommercial remix exemption to cover both DVDs and online services.  The reference to "motion pictures" covers "movies, television shows, commercials, news, DVD extras, etc." Congratulations to all the people at the Organization for Transformative Works and the EFF who worked so hard for this, as well as to the individual vidders who allowed us to share their stories and make their creative work and values visible to policymakers.  Among other things:
Creators of noncommercial videos provided the most extensive record to support the need for higher-quality source material.  Based on the video evidence presented, the Register is able to conclude that diminished quality likely would impair the criticism and comment contained in noncommercial videos.  For example, the Register is able to perceive that Buffy vs Edward and other noncommercial videos would suffer significantly because of blurring and the loss of detail in characters’ expression and sense of depth.

 The short clip exemptions:
Motion pictures, as defined in 17 U.S.C. § 101, on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System, where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary because reasonably available alternatives, such as noncircumventing methods or using screen capture software as provided for in alternative exemptions, are not able to produce the level of high-quality content required to achieve the desired criticism or comment on such motion pictures, and where circumvention is undertaken solely in order to make use of short portions of the motion pictures for the purpose of criticism or comment in the following instances: (i) in noncommercial videos; (ii) in documentary films; (iii) in nonfiction multimedia ebooks offering film analysis; and (iv) for educational purposes in film studies or other courses requiring close analysis of film and media excerpts, by college and university faculty, college and university students, and kindergarten through twelfth grade educators.  For purposes of this exemption, “noncommercial videos”  includes videos created pursuant to a paid commission, provided that the commissioning entity’s use is noncommercial.  

The next exemption is the same except that it covers motion pictures "that are lawfully made and acquired via online distribution services and that are protected by various technological protection measures."

The next exemption is a bit odd, since the Copyright Office itself takes the position that screen capture is not circumvention.   But since copyright owners could litigate the issue, this exemption covers DVD "circumvention, if any" "undertaken using screen capture technology that is reasonably represented and offered to the public as enabling the reproduction of motion picture content after such content has been lawfully decrypted, when such representations have been reasonably relied upon by the user of such technology, when the person engaging in the circumvention believes and has reasonable grounds for believing that the circumvention is necessary to achieve the desired criticism or comment," with the rest of the exemption the same. 

The final exemption in this set is the same except that it covers online distribution services.  By the Copyright Office's logic, though, one could try screen capture on Blu-Ray content since that's not circumvention anyway--if one could live with the ugly results.


Dana said...


Jackie Kjono said...


Unknown said...


Jack L. said...

A big congrats to OTW, EFF, Prof. Tushnet and all the vidders out there. So glad the Register did the right thing here for the most part.

Rebecca Tushnet said...

To you as well, Jack. Next round in Blu-Ray!