Documentary Filmmakers Want DMCA Exemption; But Almost Definitely Won't Get It

from the unlikely dept

Thu, Jun 17th 2010 8:50pm — Mike Masnick

Every few years the US Copyright Office is supposed to review requests for exemptions to the DMCA. However, it rarely gives any serious exemptions. In fact, the process is such a joke that some have argued it's not worth participating in at all. None of the exemptions have ever favored consumers. They've always been extremely narrow. So, while it's nice that documentary filmmakers are asking for a DMCA exemption from the anti-circumvention clause so that they can get around the digital locks on movies for legal (non-infringing) uses of clips in their documentaries. As they say: "If you want to use material pursuant to fair use, you have to commit crime despite your constitutional right to do so." However, given the way the US Copyright Office tends to view these things, I find it highly unlikely it will allow this.

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Filed Under: circumvention, dmca, documentary, exemption

39 Comments

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Anonymous Coward, 17 Jun 2010 @ 10:05pm

Interesting in that I have never thought of fair use as a constitutional right, due in part to longstanding federal jurisprudence that a claim of fair use constitutes an affirmative defense that one must appropriately plead.

If it truly was a right of constitutional proportions, this would seem to suggest that the statutorily prescribed fair use analysis is underinclusive.
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Anonymous Coward, 17 Jun 2010 @ 10:16pm

"If you want to use material pursuant to fair use, you have to commit crime despite your constitutional right to do so." - yes, and they can obtain those clips legally by contacting the studios in question. they are attempting to go about it in an illegal manner. it is no different from obtaining a handgun from a street corner seller rather than buying a licensed one from a dealer. they are just trying to do it in the most illegal way possible, probably to attract the attention and sympathies of websites such as techdirt. congrats mike, you got played again.
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- tim, 17 Jun 2010 @ 10:36pm
  
  Re:
  which means there is no fair use unless the company you are requesting the video from decides you can have it? Doesnt this just make a huge opportunity for people to say 'Hell No!' to someone like michael moore, or other documentaries that arent neccesarily going to be positive?
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- Anonymous Coward, 17 Jun 2010 @ 10:43pm
  
  Re:
  Personally, I think fair use is important and I also believe fair use is useless if it is only at the digression of the owner of the material, as that goes against the whole idea of fair use.
  
  Also, the purpose of making circumvention of DRM illegal is to prevent piracy, it is absolutely not to prevent legitimate use of content (or to give a new revenue stream to a studio). So when a legitimate use is being blocked by a law designed to prevent piracy, and there is a safeguard built into the law to allow exceptions in cases that DRM is not suppose to interfere with, it makes perfect sense to make such an exception.
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  - Jay (profile), 17 Jun 2010 @ 11:10pm
    
    Re: Re: That hasn't happened
    What the Copyright Office is doing is saying everything is a "minor inconvenience"
    
    Furthermore, you have to read 200+ pages of rulings so as not to have an idea a second time, which really runs counter to the idea of defining the fair use restrictions.
    
    Then on TOP of that, you have to get analysts, industrialists, naturalists, specialists, among other ists to be able to read all of this.
    
    As it stands, I don't know WHY the Copyright Office is handling something so important when their main job is to tell others "ok, you were first, here's your copyright form"
    
    If I could ever become president, the patent and copyright offices will be the first to go... *shakes head sadly*
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- Mike Masnick (profile), 17 Jun 2010 @ 11:06pm
  
  Re:
  yes, and they can obtain those clips legally by contacting the studios in question
  
  The entire point of fair use is to get around having to ask for permission. In fact, that's where the entire concept comes from: the realization that it was ridiculous to have to ask for permission in such cases. Why would you push everyone back in the other way?
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  - Anonymous Coward, 17 Jun 2010 @ 11:28pm
    
    Re: Re:
    "Why would you push everyone back in the other way?" - quite simply, because the amount of fair use in question here is so small when compared to the total use of the movie. it seems a total shame to toss out any law just because of a few rare exceptions (like movie makers).
    
    you know as well mike, if you make drm circumvention tools legal for some, everyone else will get them and things are back to zero. i think you are supporting this to slide in the back door what clearly is not coming in the front door.
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    - Mike Masnick (profile), 17 Jun 2010 @ 11:43pm
      
      Re: Re: Re:
      it seems a total shame to toss out any law just because of a few rare exceptions (like movie makers).
      
      This is not about tossing out the law. This is in fact talking about the exact opposite. It's asking for a specific exception to the law for this specific use... and the law says the Copyright Office is supposed to grant such exceptions.
      
      Did you not actually read the post?
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      - Anonymous Coward, 17 Jun 2010 @ 11:50pm
        
        Re: Re: Re: Re:
        "Did you not actually read the post?" - yes i did. more importantly, i remembered all the things you have said about everyone becoming a journalist, everyone becoming and musician, and everyone becoming a movie maker. if you own a camera, you could be a movie maker. should all movie makers have an exception to the law? should anti-drm software come with every camera sold?
        
        you see, this is where your ideals and reality crash into each other and burn brightly.
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        Anonymous Coward, 18 Jun 2010 @ 12:05am
        
        Re: Re: Re: Re: Re:
        I don't understand what you are saying.
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        Black Patriot (profile), 18 Jun 2010 @ 1:30am
        
        Re: Re: Re: Re: Re: Re:
        I don't think he does either. All the filmmakers want is an exception so that they can use clips for their films. Provided the film is actually fair use then there should be no problem. That's the key, if it's fair use then there's no issue, if it's not fair use then it's infringement, but in either case the DMCA shouldn't be involved.
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        Mike Masnick (profile), 18 Jun 2010 @ 1:50am
        
        Re: Re: Re: Re: Re:
        yes i did. more importantly, i remembered all the things you have said about everyone becoming a journalist, everyone becoming and musician, and everyone becoming a movie maker. if you own a camera, you could be a movie maker. should all movie makers have an exception to the law? should anti-drm software come with every camera sold?
        
        This is odd. I have said none of those things. Perhaps you are confusing me with Suzanne.
        
        You keep saying I've said stuff that I've never said. It's bizarre.
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        Anonymous Coward, 18 Jun 2010 @ 5:29am
        
        Re: Re: Re: Re: Re: Re:
        so you have never said that everyone becomes a citizen journalist, because the tools are there for everyone to publish on the internet?
        
        so you have never discussed how the arrival and availability of cheap software and tools have allowed anyone to become a musician and record their own songs?
        
        so you have never discussed how the availability of cheaper software tool and cameras allows anyone to be a journalist, a documentary maker, or a movie maker?
        
        you have never discussed any of these topics on techdirt? ever? are you sure?
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        Hephaestus (profile), 18 Jun 2010 @ 7:26am
        
        Re: Re: Re: Re: Re: Re: Re:
        "so you have never said that everyone becomes a citizen journalist, because the tools are there for everyone to publish on the internet?"
        
        Some where along the line I made similar a statement. Are you sure you are not confusing someone elses comments with mikes?
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        Anonymous Coward, 18 Jun 2010 @ 7:28am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        how about: http://www.techdirt.com/articles/20091106/1551566841.shtml
        
        or for that matter: http://www.techdirt.com/blog.php?tag=citizen+journalism&edition=techdirt
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        Modplan (profile), 18 Jun 2010 @ 8:07am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Except that everyone becoming a journo/musician/film maker is nothing like the potential to become one if you wanted to be. Nice try though.
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        Anonymous Coward, 18 Jun 2010 @ 10:59am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        i am using mikes views, not my own here. everyone can be a musician, a journalist, or a film maker. so all film makers should be allowed a drm bypass tool. since everyone can be one, they should all have the tool. it is just his own logic represented joining two distinct thoughts that butt end each other nicely, like two puzzle pieces. it just points out that you cant have it both ways.
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        Mike Masnick (profile), 18 Jun 2010 @ 12:27pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        everyone can be a musician, a journalist, or a film maker. so all film makers should be allowed a drm bypass tool.
        
        No one is saying that. You are making a ridiculous argument based on your own warped extrapolation.
        
        This is a specific exemption that is being asked for: the ability to circumvent DRM on DVDs *solely* for making a documentary movie.
        
        it is just his own logic represented joining two distinct thoughts that butt end each other nicely, like two puzzle pieces. it just points out that you cant have it both ways.
        
        You use to at least make some amount of sense. That became too difficult for you?
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        Anonymous Coward, 18 Jun 2010 @ 2:08pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Maybe they're dyslexic?
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        Anonymous Coward, 18 Jun 2010 @ 7:55pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        sorry if you dont like your own logic tossed back at you, with the points connected.
        
        "This is a specific exemption that is being asked for: the ability to circumvent DRM on DVDs *solely* for making a documentary movie. " - i am a film maker (i own a camera). i am thinking about making a documentary about all the top movies in the us this year. i want to be able to crack drm on all of them. why not? everyone is a film maker, everyone is a reporter, so everyone can be a citizen documentary maker too.
        
        you have reached the level of desperation mike, it is actually humorous to watch you go.
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        Jay (profile), 18 Jun 2010 @ 10:34pm
        
        Here we go... Another TP
        You seem to be deluded by your own conclusion. The Sarah Palin story is explaining how anyone can report a news story, irregardless of whether "official" reporters are banned. Ok, remove the press badge, enter the room, dissect the speech for your viewers. Hell, I'm doing that by reporting on this.
        
        What I find odd is how that has to do with DRM circumventions and wanting to "reset the clock" as you put it.
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        Anonymous Coward, 20 Jun 2010 @ 4:43pm
        
        Re: Here we go... Another TP
        mike wants documentary film makers to have the right to circumvent drm. the problem is anyone with a camera is potentially a film maker, so everyone should have the same rights. buy a camera, get an anti-drm tool.
        
        more than anything, discussions like this prove that mike doesnt work in the real world, where opening the door a crack for one small group or another usually ends up with everyone crowding through the door. in the end, it is easier for the rare true documentary movie makers to just contact the product companies for clips (or an unencoded version). for that matter, just capture the damn thing and be done with it.
        
        sorry mike, but this is another one you have punted badly.
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        Jay (profile), 21 Jun 2010 @ 11:12am
        
        Why should we turn into a permission culture?
        What? So I have to ask permission to use a song?
        
        I have to ask permission to speak a language? I have to have permission to use a collection of words in a tape because it was learned from someone else?
        
        The exception is a fair one. Clamping down on all rights actually makes us a totalitarian state rather than a free one. My question still stands as to why I need to ask permission from others to use a part of a work that they themselves don't know about. Also, your explanation STILL doesn't explain why the floodgates don't need to be opened.
        
        Quite frankly, DRM is going out the door in other fields. Google "Ubisoft DRM" for the most drastic reason why DRM fails and makes pirated copies of entertainment that much more desired.
        
        If I had to look at DRM'ed products at all, I quite frankly WOULD download the entire thing. It limits my usage for arbitrary reasons. Being able to circumvent DRM when it limits me for no reason other than someone else's bottom line is truly a godsend.
        
        Imagine if there was a DRM that only allowed me to play a DVD 3 times, then I have to buy a new one. I'd be pissed as all get up over that.
        
        Quite frankly, as it stands, the exception should work under fairer conditions than what the Copyright Office should get.
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        Richard (profile), 18 Jun 2010 @ 2:47am
        
        Re: Re: Re: Re: Re:
        if you own a camera, you could be a movie maker. should all movie makers have an exception to the law? should anti-drm software come with every camera sold?
        
        If the DRM actually worked there would be no circumvention devices. Since it doesn't everyone can get a circumvention device if they want one and we are back to the same situation as if there were no DRM - i.e. some things are legal under copyright law and some things aren't.
        
        The only effect of the anti-circumvention clause is to make otherwise legal things illegal simply because you put a digital lock in the way.
        
        Fair use is like a right of way running across a farmer's land. Legally he is not allowed to block the path. If he does block the path then it is legal to climb over the blockage. What the anti-circumvention clause does is to make it legal for him to block the path and illegal to climb over the blockage even though you have the right to walk along the path
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        Anonymous Coward, 18 Jun 2010 @ 5:31am
        
        Re: Re: Re: Re: Re:
        "if you own a camera, you could be a movie maker. should all movie makers have an exception to the law? should anti-drm software come with every camera sold?"
        
        Yes.
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    - Anonymous Coward, 18 Jun 2010 @ 2:35am
      
      Re: Re: Re:
      if you make drm circumvention tools legal for some, everyone else will get them and things are back to zero. i think you are supporting this to slide in the back door what clearly is not coming in the front door.
      
      The anti circumvention clause is there because the rights holders can't be bothered to make DRM actually effective (that would be too inconvenient for them) or maybe because they realise that truly effective DRM is impossible.
      
      Either way it is a stupid clause because one of it's side effects is to guarantee that DRM will definitely be just a token (to enable lawsuits) and never be effective in stopping the real bad guys (commercial pirates). The reason for this is that the anti-circumvention clause inhibits open research into the vulnerabilities of the systems - which in turn pretty much guarantees that major vulnerabilities will exist and will never be fixed.
      
      Your argument is completely back to front. Everyone who wants them already has circumvention tools and the reason they have them is precisely because of the anti-circumvention clause.
      
      The point here is that filmmakers (who already have the tools anyway) need to be able to publish the results of using them without fear of prosecution.
      
      I recommend a crash course in security - to be found here:
      
      http://www.cl.cam.ac.uk/~rja14/musicfiles/preprints/Johnston/securitymaxims.ppt
      
      (and in lots of other places)
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      - Richard (profile), 18 Jun 2010 @ 2:37am
        
        Re: Re: Re: Re:
        The above comment is actually me...
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- bad analogy guy, 18 Jun 2010 @ 4:49am
  
  Re:
  "it is no different from obtaining a handgun from a street corner seller rather than buying a licensed one from a dealer."
  
  It is much different.
  
  Pro-Tip: Bad Analogies go best with automobiles.
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Jay (profile), 17 Jun 2010 @ 11:05pm

Define irony...
The Copyright Office is taking over and defining what is fair from Judicial courts...

While Congress and the Courts collude to take power away from the FCC for reigning in one of the big boys.

How messed up is our courtrooms?
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- MadderMak (profile), 17 Jun 2010 @ 11:32pm
  
  Re: Define irony...
  I think your courtrooms are fine.... it's the laws that are messed up.
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Jay (profile), 17 Jun 2010 @ 11:46pm

I'd agree but the laws are supported by a judicial court system that doesn't understand technology.

MGM vs Grokster defined "inducement", an absurd way to counter fair use by saying the technology was used to induce people to infringe on copyrights.

We have DVDs that we HAVE to listen to ads without being able to skip them. As it stands, it's more convenient to download a movie than it is to own it.

We also have an anti-hacking culture through DMCA. If you discuss security holes in Microsoft, be careful. It was threatened to be used against professors for no other reason than keeping quiet the problems with Microsoft's software.

So yes, the laws are messed up. But it takes a Judiciary system to uphold them.
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- Anonymous Coward, 18 Jun 2010 @ 7:30am
  
  Re:
  "I'd agree but the laws are supported by a judicial court system that doesn't understand technology." - they understand enough to know that if the law says you cannot decrypt drm legally, then that is that. the remedy isnt in the courts, it is in the house and senate to change the laws. dont blame the courts for reading and understanding the law.
  
  i think what you are saying is that the courts are wrong because they dont agree with your personal point of view, rather than not understanding the law or technology.
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  - Anonymous Coward, 18 Jun 2010 @ 9:02am
    
    Re: Re:
    They really don't understand technology.
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  - Jay (profile), 19 Jun 2010 @ 6:59pm
    
    Re: Re:
    "i think what you are saying is that the courts are wrong because they dont agree with your personal point of view, rather than not understanding the law or technology."
    
    Incorrect. It's true that I have a bias on the laws presented regarding technology, but the laws currently do not reflect very well on technology as a whole.
    
    Courts have a few options such as throwing out a case or defining the laws as need be by using precedents. To say that they have to follow the DMCA to the letter is absurd when judges have changed the laws on a number of occasions.
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jilocasin (profile), 18 Jun 2010 @ 7:41am

Someone's not been paying attention....
An anonymous coward wrote:
"Also, the purpose of making circumvention of DRM illegal is to prevent piracy, it is absolutely not to prevent legitimate use of content[emphasis mine] (or to give a new revenue stream to a studio). "

The purpose of DRM is absolutely about preventing legitimate uses of content. Copyright gives copyright holders a limited set of rights, supposedly for a limited time (just how limited limited is, is the subject for another post). Everything else is legal.

Copyright holders, and some of the posters here, think that any use against their wishes is piracy. DRM + DMCA = more control. When they couldn't legally go after people who:
time shifted content
place shifted content
excerpted for education, research, parody, etc.
resold

They got this nifty little law called the No Electronic Theft Act. That got rid of that pesky, it's not illegal for personal use problem. Then they got the Digital Millennium Copyright Act passed. Now all they have to do is put the most pathetic token digital lock on their content. All of the above listed activities are still just as legal for DRM'd digital content as they were for their analog or non DRM'd digital equivalent. It just now illegal to actually exercise any of those rights.

Format shift your CD/Tape to Ogg Vorbis? Legal
Exercising that right? Legal
Format shift your DRM'ed AAC file to Ogg Vorbis? Legal
Exercising that right? Illegal.
you would have to 'break the DRM' against DMCA

Excerpt a portion of that 8mm film for your documentary? Legal
Exercising that right? Legal
Excerpt a portion of that DVD for your documentary? Legal
Exercising that right? Illegal.
you would have to 'break the DRM' against DMCA

Resell your CD's or DVD's Legal
Exercising that right? Legal
Resell your DRM'd music and video files? Legal
Exercising that right? Illegal.
you would have to 'break the DRM' to make them useful to someone else. That's against DMCA

Of course that leads to perverse situations such as your CD/VHS/Books last until the media wears out. Your DRM'd video and audio files only last until the company that sold them to you turns off the servers that authenticate the DRM. You could break the DRM to let you keep enjoying what you paid good money for, but then you would run afoul of the DMCA anti-circumvention clause.

So no, the purpose of DRM is absolutely about preventing legitimate uses of content.
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Anonymous Coward, 18 Jun 2010 @ 12:00pm

Before raising a hue and cry about documentary film makers, it seems to me it would be helpful to have some sort of an idea just how many documentary film makers have actually had to shelve a project because of DMCA concerns.
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- Richard (profile), 18 Jun 2010 @ 2:06pm
  
  Re:
  One would be enough.
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Rekrul, 19 Jun 2010 @ 8:08pm

So, while it's nice that documentary filmmakers are asking for a DMCA exemption from the anti-circumvention clause so that they can get around the digital locks on movies for legal (non-infringing) uses of clips in their documentaries.

I think you forgot to include the point of this sentence. :)
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sprearson81 (profile), 9 Jun 2012 @ 6:25am

Participation is futile so why bother .
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