Hanging in the balance

Michael Donaldson, founding partner of Donaldson & Callif, on what an exemption from the Digital Millennium Copyright Act could mean for documentary makers
November 1, 2009

Leading documentary filmmakers from around the United States sent a call for help to Washington, D.C., in 2008, and in the next few weeks those documentary filmmakers hope that the U.S. Copyright Office answers it.

Several leading groups and individuals in the documentary film industry requested that the Copyright Office grant an exemption from the Digital Millennium Copyright Act (DMCA) for documentary filmmakers who wish to decode a DVD in order to access public domain material, or to make fair use of material in their documentaries. The DMCA presently makes it a crime to unscramble the encryption on a DVD for any reason whatsoever.

The request, which was filed in December 2008, will be granted or denied within a few weeks of this writing. If granted, the exemption will last for three years, at which time the request has to be decided anew by the Copyright Office.

As the founding partner of Donaldson & Callif, a Beverly Hills law firm specializing in independent film, I, and the members of the USC Intellectual Property and Technology Law Clinic at the Gould School of Law, drafted the request and went back to Washington to lead the effort to remove this yoke from the necks of doc-makers.

Kartemquin Films and the Independent Documentary Association were the named Petitioners. Several documentary film organizations and individual documentarians also supported the request, including Film Independent, Independent Feature Project, Kirby Dick and Morgan Spurlock, among others. The MPAA, RIAA and Time Warner, among others, have fervently voiced their opposition to the exemption, claiming that rampant piracy would result. However, we argued with equal passion that the exemption’s opponents have failed to produce a single point of evidence to support their claims.

Qualification for the exemption from DMCA liability would be relatively simple. However, if the exemption is granted, documentary filmmakers must ensure they understand exactly how it will work. Predicting how rule makers will decide a matter is always precarious, but here are some potential restrictions:

(1) If a DVD is generally available to the buying public without the codes, use it. Breaking codes would still be a crime, if you can easily purchase unprotected DVDs.

(2) The exemption will probably be limited to documentary filmmakers who are members of a filmmaker organization – IDA, IFP or UFVA, for example – or are students in a film production course at a post-secondary school.

(3) Filmmakers will need to have taken substantial steps in producing their project before using the exemption.

(4) Filmmakers must make ‘fair use’ of the material they take, or the materials must be in the public domain. Be very familiar with fair use laws to determine whether a use qualifies as fair use or contact an attorney who specializes in this area.

We believe that the exemption, if granted, would signal a huge step forward for documentary filmmakers in their quest to fully realize their First Amendment rights. Over the next few weeks, the fate of those rights hangs in the balance.

About The Author
Barry Walsh is editor and content director for realscreen, and has served as editor of the publication since 2009. With a career in entertainment media that spans two decades, prior to realscreen, he held the associate editor post for now defunct sister publication Boards, which focused on the advertising and commercial production industries. Before Boards, he served as editor of Canadian Music Network, a weekly music industry trade, and as music editor for As content director, he also oversees the development of content for the brand's market-leading events, the Realscreen Summit and Realscreen West, as well as new content initiatives.