Copyright Office Extends Anti-Circumvention DMCA Exemptions To All Filmmakers, Not Just Documentarians

from the victory dept

Earlier this year, we wrote a bunch of posts on the Copyright Office’s request for comment on changes needed to the DMCA’s anti-circumvention exemption list. There were lots of interesting submissions, but one that caught my attention was a whole bunch of film association groups, most of them for documentarians, advocating that the anti-circumvention they enjoyed to be able to use clips from other films and content be expanded to include filmmakers generally. This would address the copyright industries’ cynical attempt to route around Fair Use usage by filmmakers by simply locking up their content behind all kinds of DRM that, unless you’re a documentarian, you can’t circumvent. The MPAA, as you would expect, said that allowing for this would kick off “widespread hacking” of all the DVDs on the planet, while all it was really concerned about was the licensing agreements it was able to secure by filmmakers who didn’t want to violate the DMCA to get the Fair Use clips they wanted.

Well, the Copyright Office made its decision and the exemption will now be offered to filmmakers en masse.

Digital Millennium Copyright Act (DMCA) exemptions aren’t just for documentary filmmakers any more. The U.S. Copyright Office and Library of Congress last week broadened a DMCA exception to now allow more filmmakers to circumvent anti-copying technology and rip short video clips for purposes of commentary and criticism.

“This is huge for the independent film industry,” said Michael Donaldson, an attorney who argued for expanding the exemption before the Copyright Office, in a written statement. “The use of fair use material by narrative filmmakers has exponentially increased to the point where expanding the exemption to fiction films was absolutely necessary.”

What this means is that more filmmakers will now be able to simply rip clips from protected DVDs to use in their own creative works, as long as the purpose of the clip is used for parody or to demonstrate biographical or historically significant information. This opens up all kinds of uses, of course, but all of them will still be subject to being truly Fair Use cases. That, of course, is a defense, so you can expect lawsuits to be filed before we settle into some kind of a norm here.

Still, this is a good decision by the Copyright Office. The idea that the MPAA and others could lock up content that could otherwise be fairly used behind DRM obviously doesn’t comport with the purpose of the law.

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Comments on “Copyright Office Extends Anti-Circumvention DMCA Exemptions To All Filmmakers, Not Just Documentarians”

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40 Comments
Dan Under says:

Speaking of wins for the people...

Hey FCC.

Come and see what a REAL Competition Commission can do!!

“Last year, former NBN Co boss Bill Morrow called for a tax on mobile broadband services, in what was seen as a bid to restrict competition when it launched.

Then Prime Minister Malcolm Turnbull quickly shot down the idea, but the apparent concern by the NBN’s operators has led the ACCC to issue a warning.

“What we must NEVER DO, however, IS seek to restrain others in order to PROTECT THE NBN business model. This would be a disaster for consumers,” Mr Sims said. “

https://www.qt.com.au/news/could-superfast-and-widely-available-5g-be-the-fin/3566586/

PaulT (profile) says:

Re: Re:

You’re taking the result of a case that clarifies the fair use rights of individuals as meaning that the law that protects people from false accusations of acting outside of fair use will be repealed?

At this point, wouldn’t it just be easier on you to deal with reality, rather than addressing the overly complicated and illogical fiction you keep going for? It’s not even good fiction, let alone a useful straw man.

ECA (profile) says:

Re: Always 10+ years too late

the BIG part of all these laws is..
Display and distribution..
which is funny when you got the the store and find Barrels of $3-5 DVD’s..
BUT STILL, there are collections that have ne ver been converted, NOR released..

The word collections is special, as Groups and person have Bought certain films, and this has Nothing to do with those movies..they are in private hands.

Nemo (profile) says:

Big loss for the MPAA, IMO

Instead of being ahead of the game on the legal side, they just went to behind, if my read that this means that circumventing DRM to access Fair Use material has gone from the circumvention of DRM being presumptively verboten until proven valid for FU purposes and done a triple backflip with a Lutz and a double Salchow, and stuck the landing at such activity being presumptively allowed.

Things just got more expensive for the MPAA, as well as more complicated – which also means more expensive. Funny how that works, almost as if someone had employed a business model based on exploiting that very concept.

Hmmmm, I wonder if we’ll ever figure out that conundrum…

Anonymous Coward says:

Despite being “just a defense”, fair use does have a powerful deterrent effect on would-be filers of infringement lawsuits, and at the same time forces fair-users to be careful about how much and for what purpose they copy without license.

MPAA lawyers don’t want to lose a lawsuit on fair-use grounds, as it would effectively enshrine a certain kind of usage as fair use for everyone. After seeing what’s been happening to IP trolls, they also are reluctant to demand settlements for suspected infringements they have no intention of taking all the way to trial.

Instead, they know it is usually better to do nothing and accept a status quo where the question of “is this fair use?” remains uncertain, causing some to just not risk using the content at all, and some portion of the rest just licensing the content because they don’t want to risk being sued (even if they’re pretty sure they’d win).

The MPAA knows that most producers will never allow even the briefest snippet of a copyrighted movie or TV show in a new work without a license. There is nothing about this recent ruling that will change that in any way, nor does it change the risks involved in using clips under a presumption of fair use.

All that has happened is a conflict in the law was resolved: instead of fair use being an impossibility when DRM had to be circumvented to get the content, it is now the same possibility as when no circumvention was needed. This does not open up any new avenues for mass piracy, and the MPAA knows it is being disingenuous by saying so; they really just didn’t want to lose the ability to sue fair-users on a technicality.

Anonymous Coward says:

Re: law was reseolved ?

“All that has happened is a conflict in the law was resolved”

________

But it was “resolved” by a new/modified ‘law’ issued by a Federal agency with absolutely NO authority to legislate or adjudicate anything. Thus a much larger problem for American governance presents itself here.

“Well, the Copyright Office made its decision and…”

The Constitution gives Congress (and only Congress itself) the power to enact and modify copyright laws in the U.S.
The U.S Copyright Office is merely an administrative bureaucracy established by Congress — a support agency with zero legal authority to impose or interpret any new “rules” (de facto laws) upon the U.S. public.

Folks here who sincerely believe they strongly support the rule of law … have no clue how the American legal system actully operates day to day.

Killercool (profile) says:

Re: Re: law was reseolved ?

By your “logic,” no money in the USA is valid, because it was printed by the US Mint, and only “The Congress shall have Power… To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures.”

They aren’t doing their job of running those presses!

Anonymous Coward says:

Re: Re: Re: law was reseolved ?

…US Mint does not “legislate” (make laws).

Constitution Article I, Section 1: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives”

Constitutional Law precisely defines who has authority to make any and all Federal laws — the formal House & Senate.

There is no clause permitting Congress Congress to ‘delegate’ its legislativ authority to anybody else !

Of course Congress does routinely delegates its legislative authority to hundreds of Federal persons and agencies.
That is not any problem at all … unless you really think the Constitution is a fundamental LAW itself (most Americans do not think so, or choose to avoid such troublesome thoughts)

Killercool (profile) says:

Re: Re: Re:4 law was reseolved ?

You want legal facts? Your "arguments" about the "constitutionality" of regulators would be even more pointless if not for when the Supreme Court gave itself the power to determine constitutionality. 1803, Marbury v. Madison.

If you knew anything about the Constitution, you’d know the people who wrote it considered certain powers "implicit," such as judicial review and delegation of power. How much of that power can they delegate? As much as they want, it’s their power.

Coyne Tibbets (profile) says:

Re: Re: Re:2 law was reseolved ?

Go read the United States section of this page, especially:

However, the Supreme Court ruled in J. W. Hampton, Jr. & Co. v. United States (1928)[1] that congressional delegation of legislative authority is an implied power of Congress that is constitutional so long as Congress provides an "intelligible principle" to guide the executive branch: "’In determining what Congress may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination.’ So long as Congress ‘shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.’"

Unless and until SCOTUS overrules this, you’re wrong: they can delegate their legislative power.

Anonymous Coward says:

Re: Re: Re:3 law was reseolved ?

great. So 139 years after the Constitution was established, a couple of federal employees magically discover a delegation-power that no one ever noticed before and directly contradicts the Constitution text(?)
What other yet undiscovered laws lurk in the Constitution?
(HINT: they made it up from thin air)

But at least you are using a reasoned argument here instead of empty personal insults.

Basic problem in your SCOTUS argument is that the Constiutional text nowhere grants SCOTUS the legal authority to independently modify/void the Constitution’s provisions nor any laws duly enacted by Congress; Marbury vs. Madison was simply Chief Justice John Marshall inventing a totally new “supremacy” power (“judicial review”) for himself and SCOTUS. The Constitution says SCOTUS is ‘supreme’ only over lower federal courts– not over the other two branches of government nor the Constitution itself. If SCOTUS justices legally object to any Congressional laws/actions — SCOTUS can readily refuse to enforce those laws in Federal courts, thus depriving Congress of enforcement power for unconstitutional laws.

Immediate issue here is that U.S. Copyright Office blithely altered a formal law (1998 Digital Millennium Copyright Act) enacted by Congress and signed by President Clinton. If bureaucrats in federal agencies can simply make/remake laws… why do we need a formal legislature of elected representatives? How do American citizens know what the laws are if the laws are so unpredictable, many, often unknowable beforehand?

Killercool (profile) says:

Re: Re: Re:4 law was reseolved ?

Since you’re simple, I’ll try to use simple words.

The Constitution itself says you are wrong, so I’ll let it speak for itself.

Article 3, section 1: The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Section 2, clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.

I think "all cases" is pretty clear, no? "All cases" includes cases about, and by, Congress. The only exception is impeachment. The Supreme Court, using it’s authority to decide in "all cases", said it was permissible. Suck it up.

Another point you seem unable to comprehend is that the exemptions are EXPLICITLY allowed for within the DMCA, including the 3 year exemption cycle. Of course, I would expect that an expert such as yourself would have actually read the law you know so much about? Or at least the Cliffs Notes?

Anonymous Coward says:

Re: Re: Re:5 law was reseolved ?

your sudden weird fixation upon “all cases” has absolutely nothing to do with anything under discussion here; you are just flailing (along with your usual personal insult compulsion)

DMCA itself is an awful, bizarre, and non-Constitutional product.
In a just world, no copyright laws would exist.

Stunning that the “Library of Congress” can hand out “exemptions” to Federal criminal law!
gotta luv that ruleoflawstuff

the Feds can fool most of the people most of the time

Killercool (profile) says:

Re: Re: Re:6 law was reseolved ?

The SCOTUS, using it’s constitutional duty to review "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority," came to the decision that Congress had the right to delegate it’s powers in the suit J. W. Hampton, Jr. & Co. v. United States (1928). Including the power to alter what a law covers, as long as there are clear and limited guidelines involved.

The DMCA is awful, bizarre, and completely constitutional, since copyright and it’s management is a power granted to Congress, that they (constitutionally!) partially delegated to the Copyright Office/Library of Congress.

Also, copyright is civil law. Not that it matters. You’re either a complete moron, or an unskilled troll. Either way, I’ve made myself more knowledgeable about the subject.

Thank you.

Space5000 (profile) says:

Re: Re: Re:7 law was reseolved ?

What do you mean it’s “completely constitutional”?
Do you mean in a different way? DMCA wasn’t in the USA constitution and it might be possible that some federal laws can be argued as unconstitutional or party. But I agree it’s awful and bizarre but I don’t think it’s constitutional to not allow people to bypass copy protection code of legal software they own. DMCA was an extra law added, that even if something was not Copyright infringement, it could still violate DMCA sometimes.

Sorry if I misunderstood. I just found your comment.

Scary Devil Monastery (profile) says:

Re: Re: law was reseolved ?

"But it was "resolved" by a new/modified ‘law’ issued by a Federal agency with absolutely NO authority to legislate or adjudicate anything. Thus a much larger problem for American governance presents itself here."

Yes…and then again, no.

Law enforcement has no ability to amend or adjust legislation. But it does have the ability to decide operational procedure.

In this case congressional protection of copyright exists, but the constitution doesn’t specify how this protection is to be carried out. The copyright office’s amendment on this issue will probably stand until successfully challenged in a court of law.

And that’s going to boil down to a court decision on to what extent copyright protection can be considered proportional and justified – a principle the copyright cult has historically tried to keep as far away from a decision-making authority as possible. The precedent offered by Valenti’s crusade against the VCR which resulted in home taping being considered fair use is still a bad memory for copyright maximalists everywhere.

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