While conducting research for Monday’s blog post on the topic of video film critic Kevin B. Lee’s recent struggle with YouTube, I discovered that there’s some confusion in the blogosphere with regard to why, exactly, Lee’s videos were removed from the web. The notices that YouTube reacted to were, in fact, notices that alleged that the videos in question violated copyrights. They were not, as some blogs seem to be reporting, notices that suggested that the videos in question were illegal on the grounds that they were produced by ripping copy-protected DVDs. This confusion is wholly understandable, however: both the notice and takedown regime (DMCA section 512) and the anticircumvention provisions that make DVD-ripping illegal (DMCA section 1201) are part of the same law–the DMCA–though these two sections represent discrete components of the complex law. On Monday, we discussed section 512 in depth, so today, let’s take a close look at how section 1201 applies to innovators like Lee, as well as current attempts to reform the law.
Under section 1201 of the DMCA, it is illegal to circumvent any technological protection measure–like the CSS encryption used on DVDs–for any reason aside from those specifically excepted (more on those in a bit). Even if a DVD is ripped for the purpose of making a fair use of the content therein–for example, in order to create a piece of video criticism–the act of ripping that DVD is still considered illegal. While we’ve yet to see a studio sue a user on these grounds for content that would otherwise be considered legal, there’s little stopping them from doing so–under the law, the act of ripping a copy-protected DVD is illegal in and of itself.
Film critics aren’t the only class of users that have brushed up against this particular provision of the DMCA. As some of you may recall, last year, we interviewed an innovator whose business was sued out of existence for ripping DVDs:
While most DVD-ripping users have seen little success in contesting section 1201, one specific group of users has managed to successfully carve out an exemption in the law. In 2006, film professors applied for DMCA exemptions that would allow them to rip DVDs in order to show film clips in class. Despite opposition from Hollywood and a handful of consumer electronics companies, the exemption was granted (though similar exemptions were denied in both 2000 and 2003). This means that professors are now allowed to rip DVDs for educational purposes, though only under specific conditions (the professor in question must be part of a film or media studies department and the DVD in question must belong to that department’s library).
Even if you’re not a film professor, there’s still hope. This year’s triennial rulemaking brings a major push to expand the classes of uses for which DVD-ripping would be considered legal. The film professors who successfully filed in 2006 are now seeking to have their exemption expanded to include film and media studies students who remix copyrighted works (PDF link). Meanwhile, multiple parties are seeking to have the exemption expanded to include all academics, not just film and media studies professors. Finally, our friends at the Electronic Frontier Foundation (EFF) are proposing a slightly more ambitious DVD-related exemption. The EFF’s exemption would protect “amateur creators who use excerpts from DVDs in order to create new, noncommercial works,” in order to protect “the video remix culture currently thriving on Internet sites like YouTube”. Needless to say, if granted, the EFF’s exemption would represent a major victory for advocates of fair use and protect creators like Lee, whose works are otherwise considered legal under copyright law.
As an aside, it’s worth noting that the EFF is also filing for two more exemptions that we’re really excited about. The first would exempt the “unlocking” of mobile phones, so that a handset purchased from a carrier could be hacked to run on another carrier’s network. The second would exempt so-called “jailbreaking”–a process that was popularized on the iPhone–which allows users to hack a handset to run applications that are not authorized by either the carrier or the manufacturer of the handset. While it’s not clear that either of these acts actually falls under the purview of the DMCA, if granted, the exemptions would create safe harbors, thereby allowing users to hack their phones without fear of invoking the DMCA’s anticircumvention provisions. To learn more about these two exemptions, head over to EFF’s website.
If you or your business have been harmed by section 1201 in a manner that pertains to one of these proposed exemptions–perhaps you’re a video critic who was kicked off of YouTube or maybe, you submitted an application to Apple’s iPhone App Store only to have it rejected for arbitrary reasons–you should consider filing comments with the copyright office in support of the relevant exemption. Comments are due by February 2nd and the copyright office will consider any and all comments when deciding which exemptions to grant.