MPAA Opposes Several Filmmaker Associations Request For Expanded Circumvention Exemptions

from the not-our-film-studios dept

Over the past few weeks, we've mentioned in a couple of posts that the Copyright Office is currently taking public commentary for changes to the DMCA's anti-circumvention exemptions provisions. While we've thus far limited our posts to the Museum of Art and Digital Entertainment's bid to have those exemptions extended to preserving online video games and the ESA's nonsensical rebuttal, that isn't the only request for expanded exemptions being logged. A group of filmmaker associations put in a request last year for anti-circumvention exemptions to be extended to filmmakers so that they can break the DRM on Blu-ray films in order to make use of clips in new works. At issue is the fact that these filmmakers are able to make use of clips in these new works thanks to fair use but cannot readily get at them due to the DRM on the films themselves.

This is confusing and creates uncertainty, according to the International Documentary Association, Kartemquin Films, Independent Filmmaker Project, University of Film and Video Association, and several other organizations. Late last year they penned a submission to the Copyright Office, which is currently considering updates to the exemptions, where they argued that all filmmakers should be allowed by break DRM and rip Blu-rays. The documentary exemptions have been in place for years now and haven’t harmed rightsholders in any way, they said.

“There is no reason this would change if the ‘documentary’ limitation were removed. All filmmakers regularly need access to footage on DVDs and without an exemption to DVDs, many non-infringing uses simply cannot be made,” the groups noted.

So, there are several groups that lobby for documentarians going to bat for the larger filmmaking world, having seen just how beneficial the exemptions they enjoy have been to the documentary craft. Frankly, it's nice to see associations such as these not simply staying in their own lane and instead advocating for their larger craft as a whole. Unlike, say, the MPAA which leapt to respond with claims of how awful all of this would be.

A group of “joint creators and copyright owners” which includes Hollywood’s MPAA, the RIAA, and ESA informs the Copyright Office that such an exemption is too broad and a threat to the interests of the major movie studios.

The MPAA and the other groups point out that the exemption could be used by filmmakers to avoid paying licensing fees, which can be quite expensive.

Which, of course, is precisely the point of these exemptions. An end-around of fair use by locking up content behind DRM in order to extract licensing fees from those that legally would otherwise not have to pay them is a special kind of perversion of the DMCA. Not to mention copyright law as a whole, actually. Recall that the entire purpose of copyright law in America is to promote the creation of more works for public consumption. What the MPAA is arguing is that these exemptions, which would do much to promote new work, should be cast aside in favor of a system in which those new works live at the pleasure of the licensing schemes of the major movie studios. Unlike the group petitioning for the exemptions, the MPAA isn't even bothering to hide who's interests it cares about.

If the filmmakers don’t have enough budget to license a video, they should look for alternatives. Simply taking it without paying would hurt the bottom line of movie studios, the filing suggests.

“Many filmmakers work licensing fees into their budgets. There is clearly a market for licensing footage from motion pictures, and it is clear that unlicensed uses harm that market.

“MPAA members actively exploit the market for licensing film clips for these types of uses. Each year, MPAA member companies license, collectively, thousands of clips for use in a variety of works,” the group writes.

The Copyright Office has limited the exemption to the documentary genre for a good reason, the creators argue, since non-documentaries are less likely to warrant a finding of fair use.

Except, thanks to the silliness of reserving fair use as an affirmative defense rather than a clearly defined statute, whether a use qualifies as fair use or not is a question to be answered after the use, not before. And that question isn't a valid reason to lock up content behind DRM from filmmakers that could make fair use of it.

The MPAA goes on to suggest that if the Copyright Office and the Librarian of Congress were to allow these exemptions, it would lead to "widespread hacking" that would ultimately defeat the DRM in Blu-ray discs entirely. Limiting the exemption to documentaries has kept this from happening because the documentary market is smaller. None of that, however, serves as a true copyright argument and instead is, again, all about the licensing fees Hollywood is able to extract by locking up content on discs behind DRM.

It is nice of the MPAA to lay its loyalties bare for all to see, however -- major movie studios and nobody else, it seems.

Filed Under: circumvention, clips, copyright, dmca, dmca 1201, drm, fair use, filmmakers
Companies: mpaa

Reader Comments

The First Word

Re: Re: Re: Re: Re: Economics of movie creation

> What should, and should not be allowed under fair use.

For authors, less than 3-5 words per 300 pages of text copied from existing products.

Well, you just used more than 3-5 words when you quotes the question being asked, so I guess you don’t really believe the foolishness you’re spouting.

For users, enjoying the product in your own home, without transferring it to network or showing it to many people.

That’s not fair use because fair uses have to be infringing but for fair use. Copyright doesn’t grant authors a right to control “enjoying the product in your own home” so there is no need for fair use for that in the first place.

For sales channels, money must flow to the authors

A lot of your ideas just have nothing to do with fair use at all, but this is a doozy. Not only does it have nothing to do with fair use but it’s insultingly paternalistic, and it is contrary to the strong principle that people should be able to engage in contracts freely absent a strong public purpose otherwise. If an author wants to sign a contract that treats him badly, who are you to tell him he cannot be allowed to do so?

Anyway, the reality of fair use is that it is the catch-all exception to copyright of last resort. If no other special exception applies, but it would be contrary to the public purpose of copyright (which has nothing to do with benefiting authors) to let the rules be enforced, then fair use applies and the rules cannot be enforced as to the fair use.

This is why it is impossible to define it; it’s about what’s fair under the circumstances. Under the right circumstances, it’s fair to copy an entire book. Under the wrong circumstances it’s not fair to copy even three words per 300 pages. There’s no rule that can work for fair use, other than to consider all of the relevant circumstances in deciding. And that’s what the law is. You clearly don’t understand the first thing about it, based on your ridiculous post.

—cpt kangarooski

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  1. icon
    That Anonymous Coward (profile), 5 Mar 2018 @ 3:33pm

    "by filmmakers to avoid paying licensing fees"

    Because we are still pissed you idiots think there is that fair use thing!!!!
    Screw fair use!!!!

    We deserve to get paid for keeping the public domain a barren wasteland while we try to figure out how to get 3 more cents out of Steamboat Willie.

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