Michael Donaldson, founding partner of Donaldson & Callif, was part of the team that drafted the request to the U.S. Copyright Office which called for an exemption to the Digital Millennium Copyright Act (DMCA) that would allow documentarians some leeway in using materials from encrypted DVDs in their own projects. Here, he provides some advice on how to work within the exemption’s guidelines.
By now, you are all aware that the Copyright Office recently took a huge step in granting a lot of relief to documentary filmmakers. It granted a request from the International Documentary Association for an exemption from the provisions of the DMCA that made it a crime to rip a DVD. In order to qualify for the exemption you must meet all of the criteria set out by the Copyright Office.
The most important thing to remember is that ripping a DVD can’t be your default method of obtaining material. You must have a good faith belief that there isn’t a reasonable alternative to ripping a DVD. Once you have checked to be sure that you need to rip the DVD in order to obtain the material, here are guidelines which will keep you safely within the exemption.
1. The DVD you are copying must be lawfully made and acquired. You can’t rip a pirated DVD under this exemption and you cannot have acquired it illegally.
2. You may only copy “small portions” of material from a DVD. That is the language that the Copyright Office used. However, I am told that many of the programs designed to break the encryption on a DVD will copy the entire DVD or nothing. Other programs, such as DVD Shrink and Fair Use Wizard, will allow you to rip the “small portions” allowed by the exemption, as opposed to the whole DVD.
3. The amount of copying was discussed at length. The Copyright Office asked both sides to submit specific lengths that could be copied. Both sides resisted the invitation. The Copyright Office discussed the matter in a way that suggested that 2 ½ % to almost 4% was a good guideline on the outer limits of the “small portion.” The CO made it clear that extensive use of material from a single source was not permitted.
4. The use must be non-infringing. That translates into copying material in the public domain or copying material that you plan to use pursuant to the doctrine of fair use.
5. You should be in production on your documentary. That is not explicit in the exemption, but it is safer. Development work does not require making copies of the item you want to use. Wait until you are putting your film together.
6. You should not retain a copy of anything from the DVD that you do not use in your film. Again, this is a recommendation based on the totality of the discussion by the Copyright Office which runs 55 pages of the almost 300 pages of discussion concerning all the requested exemptions.
It is important that you be very diligent in complying with the details of the regulation when they take advantage of the exemption as the Copyright Office will be looking at the issue totally fresh at the next round of requests. It is uncertain whether the next round of requests will be heard in two years or three years. Whenever it is heard, the CO looks at each request anew. Renewal is not automatic.
Of course, there are folks out there who have an interest in turning back these decisions. One of the best ways to do that would be to catch various examples of abuse and misuse of the exemption. If you have any doubts about what constitutes fair use, keep your eyes peeled for a seminar or talk on the subject. The IDA is planning one in the fall. The Realscreen Summit, coming up in February, has had fair use sessions in the past, and other organizations will surely weigh in on the subject in assorted forums.