Expanded fair use rights for everyone!

27Jul10

It’s been a summer of minimal blogging, what with various family plans, media consumption, and household tasks. I do have a number of posts in the planning stage, and a longer essay drafted that will appear here soon. But yesterday a bit of news arrived that mandated a return to blogging.

The Library of Congress issued its 2009 ruling (just a bit delayed!) on exemptions to the DMCA anti-circumvention policy. While such news has made nary a blip in the mainstream media, it has caused a nice ripple amongst education and technology bloggers. I joined the conversation with a post about the ruling on one of my favorite higher ed technology blogs, ProfHacker. In that post, I focus on the how the ruling allows faculty to rip DVDs for a wide array of uses, and I’ll be writing a follow-up soon providing a how-to guide on the actual ripping process.

But I want to highlight that the ruling addresses more than just educational uses for DVDs. More broadly, it extended the exemption to documentary and noncommercial video. Together, this is a huge spectrum of uses, and the ruling does not specify anything about the nature of the user for these fair uses. Hence, even though they did not grant the petitioned request for an exemption for K-12 media literacy instruction, if a K-12 educator is making noncommercial or documentary videos, I believe they’d be exempted and thus allowed to circumvent. It also does not limit the distribution venues for these videos, meaning that a remix video or academic video essay posted online would be covered, as long as it follows fair use guidelines and is a noncommercial context.

It’s important to note that in the longer rationale posted with the ruling, the Librarian of Congress highlighted that users need to justify the use of circumvention:

Because alternatives to circumvention such as video capture may suffice in many, and perhaps the vast majority of situations, users must make a reasonable determination that heightened quality is necessary to achieve the desired goal. The justification for designating this class of works is that some criticism and/or commentary requires the use of high-quality portions of motion pictures in order to adequately present the speech-related purpose of the use. Where alternatives to circumvention can be used to achieve the noninfringing purpose, such non-circumventing alternatives should be used.

This argument concerning higher-quality certainly applies to academic analyses and discussions of media, where having the clearest images and sound are vital. Likewise, for derivative works of documentary or remix, the image quality should be the best possible to allow for effective commentary, juxtapositions, or ideas to come through. My own biases as a media scholar make it hard to think of a time where image quality is irrelevant, as nothing puts me off more than a bad dub obscuring the content and style of a video. But there is no official you need to apply to or request permission – the rationale is assumed to be made by the user, and needs only to be defended in the case of a (highly unlikely) lawsuit.

What I find most heartening about this ruling is that it built on and overhauled the precedent of the 2006 ruling – the earlier narrow exemption was highly limited in scope concerning the type of use, user, site of use, and source of video. I believe that the success of that ruling in not starting a domino effect of piracy and taking down Hollywood, as well as the effective argumentation of many media scholars and activists, led to a much more reasonable approach in exempting types of uses rather than only in narrow contexts. In effect, the ruling says that most fair uses of video are no longer trumped by the DMCA circumvention law, removing one of the most egregious overreaches in copyright legislation.

Of course, this exemption expires in 2012, meaning we’ll all have to demonstrate how this exemption has strengthened our ability to teach, create, and inform – so exercise and document your fair uses!

Filed under: Academia, Copyright, Fair Use, Meta-blogging, Technology   |  3 Comments
Tags: DMCA