Showdown at the 2009 DMCA Exemption Hearings

SCREEN MAGAZINE – DMCA Exemption Hearings
by Kevin Jeong

On the steps of the Library of Congress May 7 from left to right: USC Intellectual Property and Technology Law Clinic / Gould School of Law Team Jack Lerner, Ashlee Lin, Chris Perez and Michael Donaldson of Donaldson and Callif.

May 6th & 7th, 2009 — Chicago-based Kartemquin films, along with a coalition of five major independent documentary filmmaking organizations and six prominent documentary filmmakers traveled to Washington D.C. in order to make a case at the tri-annual Digital Millennium Copyright Act exemption hearings. The filmmakers, accompanied by an experienced legal team led by lawyer Michael Donaldson of Donaldson & Callif and Jack Lerner, Intellectual Property and Law Professor at the University of Southern California, sought to reinforce and extend the position of Fair Use rights among documentary filmmakers, production teachers and students.

The doctrine of Fair Use is a part of United States copyright law that allows for the limited use of copyrighted material without requiring permissions from the rights holders. However, for documentary filmmakers those same rights have recently come under fire in that the acquisition of media from such sources as DVDs or CDs containing Digital Rights Management (DRM) or otherwise encrypted information is in direct violation of DMCA regulation.

Recently, it seems that many have taken DRMs as an affront to their own rights and have fired back. An entire subculture has developed, finding ways to circumvent digitally encrypted information even with looming threats of prosecution from groups such as the MPAA. However, for documentary filmmakers, that is simply not the case. Jack Lerner explains, “Filmmaker’s have a pretty good idea of what’s fair use, they’re highly educated compared to other communities of artists because of the Documentary Filmmakers’ Statement of Best Practices in Fair Use.” A 2005 doctrine outlining four common situations documentary filmmakers encounter in which the applicability of fair use can be asserted.

Lerner continues, “The problem is that these locks still exist on DVDs with a separate set of penalties quite apart from any type of copyright infringement penalties. It doesn’t matter what you do with it, if you break those locks, there are criminal penalties and there are civil penalties.” This is the conundrum faced by documentary filmmakers. Although it is within their Fair Use rights to use certain media, it is against the law for them to access that same media because of now commonplace encryption.