You know that it is legal to “rip” DVDs for some educational purposes, right?
As the saying goes, there’s good news and there’s bad news. Ever since late October, I’ve been painfully coming to terms with the decisions made by the acting Librarian of Congress, David Mao, who has adopted exemptions recommended by the Register of Copyrights, Maria Pallante, regarding the 1998 Digital Millennium Copyright Act (DMCA). There is a special provision of the law, Section 1201, which regulates the conditions under which people may “rip” (or circumvent the technological measures that control access) audiovisual copyrighted works on DVDs, Blu-Rays, or digitally transmitted (including streamed) material.
Thank goodness we have come to the conclusion of the 6th DMCA rulemaking process which happens every three years. I was one of 44 petitioners who formally requested an exemption for K-12 teachers and their students and educators working in non-profit organizations, including libraries and museums. My main argument: “ripping” DVDs is an essential part of media literacy education because both students and teachers need to create, use and transform film clips for purposes including teaching critical analysis and developing creative production skills.
This is not my first rodeo. I have been asking the Copyright Office for exemptions since 2009. You can learn more about my previous efforts here. It’s a bizarre process: each cycle, the Register of Copyrights must gather and assess proponents’ evidence (and opponents’ counterarguments) to make a determination about granting a particular exemption. Every three years, the exemptions that were granted in previous cycles could be revoked. So to maintain previous exemptions granted, you pretty well are forced to continue the process.
But I will admit that, this time around, I was disillusioned by the sheer effort involved to participate in this arcane legal procedure. It’s no longer a novelty, that’s for sure. I was simply not willing to spend countless hours on this process this time. Perhaps as a result, I did not get the results I had anticipated.
What was I requesting? I was asking permission for K-12 educators (and their students) to circumvent access controls on lawfully made and acquired motion pictures and other audiovisual works for educational purposes (Class 2). See a summary of the testimony here. This exemption would allow a high school student or teacher to circumvent DVDs of various adaptations of Shakespeare’s works in order to create a compilation of film clips comparing and contrasting literary adaptations, for example. It would allow a teacher OR student the right to “rip” a film clip in order to create short clips for commentary and critique.
What ELSE was I requesting? I also wanted to ensure that DVD ripping was permitted for media literacy education as offered in libraries, museums, and nonprofit organizations (Class 4). You can see a great blow-by-blow of the oral testimony here, thanks to Professor Rebecca Tushnet. I wanted to make sure that educators in a community center adult education program or public library could legally “rip” DVDs in order to create video clips for media literacy education. For example, educators may want to discuss the portrayal of African-American women in a movie or popular television show. There are over 123,000 libraries and 3,000 public, educational, and government media access centers in the United States and some of the most important and innovative work in media literacy education is occurring there. In oral testimony, I agreed that this exemption could be limited to “digital and media literacy instructional practices in informal learning contexts” and would properly exclude “exhibition” uses by museums and other institutions.
The Register of Copyrights was tougher than the media industry opponents. Opponents representing the media industry did not object to renewing the 2012 exemption permitting K-12 teachers to “rip” to obtain short portions of works on DVDs and online material. But they DID oppose extending the exemption to cover educational uses by K-12 students. They also claimed that screen-capture software has “developed significantly over the past three years into an effective tool that allows users to appropriate high quality, broadly compatible images and video.” Opponents also objected to granting the exemption to programs operated by museums, libraries or nonprofits, seeing this as “an unreasonably large, unworkable class,” since not all nonprofit organizations have educational missions. For these reasons, the Register of Copyrights claimed that I did not clearly identify the particular uses of protected works, rendering it “impossible to know whether [the] proposed . . . activities ‘for education purposes’ would be noninfringing.” The Register of Copyrights also did not like my use of terms such as “digital media and learning,” “educators” or “learners.” After all, this could mean anyone — indeed, it does!
So here’s the good news and bad news, all mixed together:
- When high-quality images are needed for close analysis of motion pictures, university faculty and college students can engage in legal “ripping” of DVDs, Blu-Ray discs or digital transmissions. The Register of Copyrights has authorized close analysis as a pedagogy that may require the kind of high-quality digital images that can only be gathered through bypassing encryption.The Register recognizes that university faculty and students are likely to suffer an adverse effect if unable to incorporate DVDs or Blu-ray quality images for close analysis of film or media images. To teach and learn using the pedagogy of close analysis, it is legal for some educators and some students to “rip” DVDs.
- When high-quality images are needed for close analysis of motion pictures, K-12 teachers can engage in legal “ripping” of DVDs or digital transmissions –but not Blu-Ray discs. Good news: K-12 teachers can “rip” DVD to create film clips for close analysis. Bad news: the Register noted that I did not demonstrate that K-12 educators needed to de-encrypt Blu-ray quality or Bluray-unique content. I did offer an example where a high school teacher wished to compile clips of Shakespearean works taken from Blu-ray discs, but the Register believed that a DVD could be sufficient. I also gave an example of using Blu-ray discs to critically analyze the television series Orange is the New Black, but since this is available on Netflix, the Register claimed that I did not establish there is a likely adverse impact. The Register claimed that the few specific programs I cited “did not appear to depend upon close analysis of motion picture excerpts; rather they seem to involve more general engagement with and manipulation of digital media, which can be accomplished through screen capture.”
- Media education programs in libraries, museums and nonprofit organizations cannot legally “rip” or bypass encryption to create clips for educational use. Screen-capture technology is a legal alternative for these educators. Bad news: This decision reflects the belief that this group of educators is a large, unworkable class of potential users. Good news: Screen-capture technology using digital tools like Camtasia or Screencast-o-Matic does enable people to make a digital file from a DVD motion picture after the content has been lawfully acquired. Although the image quality is not equal to ripped clips, it is often sufficient to meet a variety of educational needs.
- Screen capture technologies can also be used by K-12 students, K-12 and college teachers, and those teaching and participating in MOOCs or GED educational programs. The Register has determined that at least some types of screen-capture software are “comparable to camcording the screen—a process that has been identified as a noncircumventing option to accomplish noninfringing uses” because the images are captured after they have been decrypted. This is good news: We can clearly communicate to teachers and students that screencasting is a legal form of appropriation for the fair use of copyrighted content. This should help propagate a wide variety of innovative pedagogies that advance digital and media literacy education.
- Documentary filmmakers, those creating noncommercial videos and producers of nonfiction multimedia ebooks offering film analysis can legally “rip” videos but only if really high-quality clips are needed. The person engaging in circumvention must “reasonably believe” that screen-capture software or other non-circumventing alternatives will be unable to produce the required level of high-quality content.
In summary, the Register of Copyrights made some noteworthy comments that hopefully will inspire someone who might want to carry on the tradition of defending fair use for media literacy education. You can see an excerpt of the final rule here. You can read the full recommendation of the Register of Copyrights here.
There’s some wiggle room. For educators whose students are creating media for authentic audiences, the documentary and noncommercial video exemption can apply, enabling learners who are also creative media makers to access high-quality digital clips through “ripping.” Thanks to the International Documentary Association and Kartemquin Films for this pure and simple good news!
Slow, effortful and very gradual change. The DMCA 1201 process must be thought about as exemplifying the slow, gradual way that the law changes. I was pleased that so many more petitioners were involved in the process in 2015– this is good news! And while I admit that I’m impatient with the rate of change, I do understand the value of it. As a non-legal professional, it was humbling to have the (very real) limitations of my evidence and arguments presented as weaknesses by the Register of Copyrights in an official document. I take full responsibility for the limits of my work, of course. But it’s worth pointing out that this was the first time that I petitioned the Copyright Office in a DIY “do-it-yourself” mode, without the support of attorneys. Perhaps that was part of the problem. Unless you’re as brilliant as Penn’s Peter DeCherney, maybe you have to have a lawyer (or be a lawyer) to get results.
Telling the story. I will admit that it’s an uphill battle to communicate the meaning and significance of the results of DMCA 2015. Let’s simply say that, in the years ahead, educators will clearly need to continue defend fair use for digital learning, for themselves and their students. There is so much more work to do to help American K-12 educators AND college faculty AND students understand the scope of their legal rights and responsibilities when it comes to copyright, media literacy, digital learning and fair use.
The future. I can’t say at this point whether I’ll be up for doing this again in 2018. Is the effort really worth it? I’m not sure anymore. Perhaps some new voices will contribute to this process in the future — I certainly hope so! In any case, I was certainly grateful to have the support of the Library Copyright Alliance as well as the American Library Association ( “ALA”), Frances Jacobson Harris, Sherri Hope Culver, Erin McNeill of Media Literacy Now, and Michelle Ciulla Lipkin of the National Association for Media Literacy Education (NAMLE). Thanks also to Gretchen Clausing at Philly CAM: Philadelphia Public Access and D.C. Vito at The LAMP (NYC) for supporting this petition with me. Superlawyer Jonathan Band, in particular, continues to inspire me with his legal acumen and big-picture perspective on the whole process. It’s been fun to sit near him during these proceedings. I am grateful to have benefitted from his brilliance, wisdom and insight on copyright in 2015.