On Friday, October 26th, the U.S. Copyright Office published a final rule in the Federal Register adopting exemptions to prohibitions of the circumvention of technological control measures (TPMs) which are enacted in the Digital Millennium Copyright Act (DMCA). Part of the exemptions recently approved by the Copyright Office enables the broader use of video clips for fictional and narrative films, an exemption which is being hailed as a major victory for independent filmmakers.
The final rule is part of the Copyright Office’s rulemaking responsibilities under Section 1201 of the DMCA (17 U.S.C. § 1201), the statute prohibiting the circumvention of TPMs. However, Section 1201 also directs the Librarian of Congress and other Copyright Office officials to consider and adopt limited temporary exceptions to the general prohibition of circumvention to last for a period of three years. This is intended to prevent the unnecessary inhibition of legitimate uses of copyrighted works, which is balanced with the DMCA’s intended purposes of, for example, preventing the unauthorized decryption of a copyrighted motion picture from a DVD which uses a TPM to protect that content.
The final rule recently published in the Federal Register renewed various exemptions to the DMCA which had previously been put in place, including electronic literary works using TPMs that interfere with assistive technologies for the blind or visually impaired; 3D printers using TPMs which prohibit the use of alternative third-party feedstock; and smartphones using TPMs which prevent “jailbreaking” phones to either remove software applications or interoperate with other software apps. In all, the Acting Register of Copyrights recommended the renewal of exemptions in nine different technology classes.
The Section 1201 rulemaking also considered expansions to existing exemptions or newly proposed exemptions in a total of eight different tech classes. As a result of the consideration, the Acting Register recommended the adoption of exemptions such as DVDs of motion pictures where the purpose of circumventing a TPM is for the purpose of criticism or comment; lawfully acquired wireless devices, including cell phones and tablets, where TPM circumvention is performed by a wireless network operator for connecting the device to that network; and vehicles where TPM circumvention is performed for diagnostic and repair purposes.
One of the new exemptions for motion pictures includes the expansion of the exemption of TPMs protecting motion picture clips on DVDs, Blu-Rays and streaming services to include fictional films; the prior exemption only protected documentary filmmakers circumventing TPMs on those tech platforms to capture movie clips. Fictional filmmakers are now able to circumvent TPMs on the same platforms where the circumvention is intended to capture a clip for use in parody or where the clip is significant for biographical or historical reasons.
This last DMCA exemption was trumpeted by Los Angeles-based law firm Donaldson + Callif, which represents independent film, TV and web-based producers, in a press release issued a day prior to the publication of the DMCA exemptions in the Federal Register announcing that the firm, with the help of Professor Jack Lerner, Director of the Intellectual Property, Arts and Technology Clinic at UC Irvine, helped to secure what it called a “monumental win” for indie filmmakers in this most recent round of exemptions. Donaldson + Callif partners Michael Donaldson and Chris Perez, along with Lerner, had previously secured a similar exemption for documentary filmmakers but their requests to extend these rights to fictional, or narrative, filmmakers had been previously denied in 2012 and 2015. The press release notes that the DMCA exemption is more limited than the rights afforded under the Fair Use Doctrine but covers the vast majority of uses of motion picture clips which are sought by fictional and narrative filmmakers.
Donaldson + Callif partner Michael Donaldson was quoted as issuing the following statement on the news of the DMCA exemption for fictional filmmakers:
“This is huge for the independent film industry. 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, and I’m immensely overjoyed that we were able to establish that at the hearings earlier this year and obtain a favorable ruling granting broader exemptions.”
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3 comments so far.
Jack HoffmanJanuary 3, 2019 01:21 pm
This is huge for the independent film industry. 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.
BennyNovember 19, 2018 05:40 am
Here’s a good one:
UK comedian Dave Gorman wanted to use a magazine cover in one of his routines, and of course needed permission from the magazine publisher. Which he didn’t get. However, he says, he checked with his lawyers (this is UK law, remember) and learned that he can display the magazine cover ” for the purpose of criticism or comment”. At that point, of course, the audience burst out laughing because they could all see where it was leading to. It was probably at that point, too, that the magazine publisher, red faced and bathed in Dave Gorman’s vitriolic criticism, learned a valuable lesson about co-operation, and why it is sometimes better to be smart than be right.
Also, if we put up too many restrictions on the use of copyrighted material for the purposes of parody, we wouldn’t have Wierd Al Yankowitz, and the world would be a sadder place.
AnonNovember 18, 2018 10:01 am
Not an active area of my practice, but from my vantage point, the whole “exceptions” thing to TPM just strikes me as band-aids to lazy Law writing and a lack of tackling tough issues related to the nature of copyrights (i.e., that copyright protection is not like patent protection in that certain aspects of copying simply are not infringements in the first instance, so that any type of “lock-out” by technological process — the TPM — is quite possibly an over-protection on its face).