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The 2010 DVD Exemption to the DMCA: An Interview with Abigail De Kosnik, Gary Handman and Mark Kaiser

The 2010 DVD Exemption to the DMCA: An Interview with Abigail De Kosnik, Gary Handman and Mark Kaiser of University of California, Berkeley

Guest interviewer: Eli Edwards

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The latest round of Digital Millennium Copyright Act exemptions, granted by the Librarian of Congress, has received a lot of press, partly for an exemption for bypassing DRM on DVDs and partly for the 2 exemptions that allow “jailbreaking” of smartphone operating systems (such as the iPhone) to allow non-authorized software and applications to run on the phone, or use the phone on a non-authorized wireless network.
The most recent DVD exemption is as follows:

(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:

(i) Educational uses by college and university professors and by college and university film and media studies students;

(ii) Documentary filmmaking;

(iii) Noncommercial videos

To find out more about the DVD exemption and what it means for the educational community, we talked to three people who advocated for the DVD exemptions at the DMCA rulemaking hearing held at Stanford Law School by the Copyright Office last year. Professor Abigail (“Gail”) De Kosnik, Gary Handman and Mark Kaiser are all educators at the University of California, Berkeley and all three addressed the copyright panel on the importance of being able to make high-quality film clips for their teaching and researching activities (transcript of the Stanford hearing here).

Eli Edwards (EE): The motion pictures on DVD exemption is not an entirely new class, but an expanded one that was contested by a coalition of media companies (represented at the hearings by Steve Metalitz). Could you discuss the previous exemption and its effect?
Gary Handman: The previous exemption was unrealistically limited to the extraction of DVD clips by Film and Media Studies faculty. The exemption was further limited to the use of legally acquired DVDs in the “educational library of a college or university’s film or media studies department.”
These limitations completely ignored (or at least did not take into account) the fact that both documentaries and feature films — whole works and clips — are used in teaching and research across disciplines on most campuses. On the Berkeley campus, film and media studies departments are actually minority users of the Media Center’s collections; disciplines such as Ethnic Studies, Women and Gender Studies, History and Political Science, and foreign languages are considerably heavier users of MRC’s collections. The previous iterations of the DMCA had the effect of leaving faculty in these programs who wanted to use clips in teaching legally out in the cold. The earlier DMCA versions basically trumped whatever fair use rights to except materials may have been available to these faculty in their teaching and research.
Mark Kaiser: My understanding is that the previous exemption for film studies faculty only was obtained through the efforts of one film studies faculty member in the 2006 round of hearings (Peter Decherney, associate professor of Cinema Studies and English at the University of Pennsylvania). The exemption was of great benefit to film studies faculty, who needed to be able to create short clips to demonstrate various cinematic devices to their classes.
When the DMCA legislation was proposed, there was not much discussion and even less opposition to the legislation. It passed Congress with a unanimous vote of approval, despite the fact that it was, in effect, making the most common method for distribution of video beyond the reach of fair use (if you couldn’t rip it, you couldn’t use it, unless you took the DVD into the classroom and cued it up). In effect, DMCA combined with the DVD was a step backward for using video in educational settings. With VHS, a professor could cue the tape before class, take the tape into the classroom, and play the desired segment. A DVD can be cued up, but only in the classroom. Showing multiple clips involves the loss of many minutes of instructional time.
However, DMCA was never really taken fully into account. Many university websites devoted to copyright and fair use never touched on DMCA’s prohibitions of circumvention of copy protection schemes on DVDs, but rather focused on copyright, fair use, and the four
factors for determining whether a use is fair. Many faculty produced video clips for their classes, either in ignorance of the DMCA prohibitions or in willful defiance of the regulations. In some cases attempts were made to justify circumvention by creating ties to film studies departments. As the software for circumvention became easier to use and more widely available and the equipment used in the presentation of video became a part of the infrastructure of university classrooms, the amount of “unlawful” activity over the past two years steadily increased. In effect, faculty were being asked to ignore effective pedagogy, and many chose instead to ignore the law.
EE: How did you come to be panelists at the 1201 Rulemaking hearing at Stanford? How much support did you get from associations and organizations in helping to advocate for the exemption?
Gail De Kosnik: Gary Handman, Head of the Media Resources Center at UC Berkeley, found out that I do a lot of work in the area of copyright law, intellectual property, and digital remix culture (individual users who appropriate and modify media texts using digital tools). Gary asked me to appear with him and Mark at the U.S. Copyright Office hearings at Stanford, and I was very happy to participate. It was very much a case of “the personal is the political,” as I have been working on remix culture for eight years (I wrote my dissertation, titled Illegitimate Media, on digital remix, and am currently expanding my dissertation into a book which will be published by the University of Georgia Press). Even though I am interested in digital remix as a cultural form, what it is about and why people are interested in engaging with media by appropriating it and making their own videos, icons, stories, game mods, etc., I realized as soon as I started working on this form of production that it is very saturated with issues of copyright law.
Handman: As Director of one of the largest academic library media collections in the US and a librarian who believes strongly in the importance of defending fair use rights in education and other creative work, taking on this battle was natural. In doing this, I worked closely with the American Library Association Washington Office, and with colleagues in the East who testified a few weeks after us in D.C. Some months before our testimony in Palo Alto, I had submitted written comments to the Copyright Office. These comments were put out via a blog for review and support by the community of media librarians in the US. Over 100 librarians and archivist signed their support for these comments.
Kaiser: Gary Handman asked whether I would be willing to discuss how foreign language instructors use video clips in the classroom, and I welcomed the opportunity to speak.
EE: How do you anticipate the exemption helping you, your colleagues and your students?
De Kosnik: It is crucial that the government take steps to make sure that “digital natives,” meaning that generation of people who were born after the Internet became a mass medium and personal computers became an ordinary tool o
f everyday life, are not criminalized for using all the technology at their disposal to learn. Educators and students are both very interested – as we should be! – in using new technologies to their maximum potential to learn and communicate and create. If using emerging technologies to learn is not fair use, then a lot of teachers and learners are guilty of infringing on copyright when using these technologies. So the importance of the DMCA exemption is that it lifts this shadow of illegality – whether you want to call it theft, piracy, infringement or whatever – from educational uses of DVD ripping software. And it signals to the digital born generation that they are simply learners, not criminals, when they want to use digital tech to do school assignments, make classroom presentations, construct creative artwork for their peers and instructors, and other very interesting kinds of work that are called for in educational settings.
Handman: Truthfully, the vast majority of faculty that I know had absolutely no idea about the DMCA strictures. Even if they did, it is highly unlikely that they would have changed their ways. In a sense, the previous DMCA strictures were so unrealistic as to be patently unenforceable. The recently broadened exemptions will at least make honest men and women of us.
Kaiser: The exemption clears the way for foreign language faculty to incorporate film clips into their teaching. Like other texts, film is a cultural artifact, capturing the attitudes, values, and behaviors expressed in language and visual imagery. Unlike written texts, film enables students to develop listening comprehension skills and model spoken language use. They can see a 19th-century Russian wedding, a contemporary ‘dacha’, a communal apartment, children in a classroom and army recruits in barracks. They can listen to a university lecture, a family discussion at the dinner table, office workers during a break, college students at a party. They can watch scenes depicting the destructive effects of alcoholism and compare them to scenes where excessive drinking is romanticized.
Next semester I will teach a course in 4th-semester Russian. Over the course of the term my students will be assigned 80-100 video clips to watch, analyze, and reflect upon. They will engage in the creation of English subtitles, forcing them to deal with expressions and ideas not easily translated into English. They will create Russian subtitles, engaging their listening comprehension and knowledge of Russian grammar. They will act out some scenes, assuming temporarily a Russian identity. They will be exposed to many of the great films of Russian culture, giving them a knowledge of one aspect of Russian popular culture. All of this would not be legally possible with DMCA restrictions in place.
Moreover, the BLC is developing a database of foreign language film clips tagged for speech acts, linguistic features, and culture. The database will enable faculty to search on an item of interest (apology, slang, wedding) and receive a list of clips that have been tagged for that feature. This will facilitate incorporation of film into the foreign language curriculum.
EE: The proposed exemptions was broader than what the Register of Copyrights recommended and the Librarian of Congress granted – the proposal included all K-12 teachers and college studies are who not film and media studies majors. Do you believe the new exemption is still too narrow or are you satisfied with the current scope?
De Kosnik: I think that it is ridiculous that there is any copy protection at all on any fixed media. All knowledge should be shareable, transferable, copyable, accessible. Available for being linked to, commented on, edited, translated, and re-constructed. I am one of many people who think that the fact that media corporations are suffering from the decline of their old business models is not the problem of consumers.
Handman: I think it’s totally ridiculous (and somewhat perplexing) that the exemptions are limited to students in Film and Media Studies. The Librarian of Congress/Copyright Office seem to have accepted our strong arguments for film and video as pan-disciplinary resources and the focus of study and teaching across the disciplinary board. They seem to have bought into the concept of including students in these exemptions, as well as faculty. The limitation to Film/Media Studies students consequently makes very little sense. I think these limitations are basically the reflection of pervasive industry paranoia about students running wild in the copyright streets.
As for not extending the exemptions to K-12 teachers … absurd and illogical. The Copyright Office seems to be implicitly saying that K-12 education and educators are somehow not worthy of the same consideration as higher education. I really don’t get it. The good news is that the recent exemption for the production of “non-commercial videos” (e.g. YouTube compilations) may basically give both K-12 teachers and students in both K-12 and higher education circumvention exemptions to do what they need to do anyway.
Kaiser: Of the range of possible rulings, everything from no exemption for anyone in academia to a ruling empowering all educators, I find myself perplexed by the LOC ruling. Why grant the exemption to universities, but not to K-12 instructors? Why are K-12 educators denied the right to practice fair use in their classrooms? Why limit the exemption for students to those in film studies classes? But, on the whole, I must consider the ruling a positive outcome for educators and, most important, for our students.
EE: Is there anything you would like to add or explain regarding the Digital Millennium Copyright Act, its effect on educational uses of digital content, and/or fair use?
Handman: Only that I’m extremely pleased (and somewhat amazed) that we made these gains. Colleagues and I took on this fight because it was basically about limiting the right to exercise fair use rights. In these days of Big Media and increasing media commodification, I think vigilance on the part of educators and librarians in protecting these fundamental rights is essential.
Kaiser: b>What isn’t clear to me is just where things will move in the future. The industry is increasingly turning to downloads as the delivery mechanism of choice. Will DVD’s suffer the same fate as VHS? The movie industry would certainly benefit from a download model: lower costs and greater control over content, as it appears possible to time-stamp the downloaded material and make it unusable after the deadline. Of course, this will engender a new round of hacking to remove time stamps. But, if the DVD disappears, will libraries and media centers be able to acquire and store film from which faculty would make cuts for their classes? It is hard to believe that DVDs might disappear, but just in case we’re aggressively acquiring older DVDs and current foreign films with limited DVD releases.
  • Abigail De Kosnik is an Assistant Professor at the University of California, Berkeley in the Berkeley Center for New Media (bcnm.berkeley.edu) and the Department of Theater, Dance & Performance Studies (tdps.berkeley.edu). She is the co-editor of The Survival of Soap Opera: Strategies for a New Media Era, which will be published by the University Press of Mississippi in December 2010.
  • Gary P. Handman is the Director of the Media Resources Center, Moffitt Library, University of California Berkeley, one of the largest curated video collections in a US academic library. Mr. Handman has written extensively in the field of video librarianship, including a regular video column in American Libraries and regular reviews for Video Librarian magazine. Handman is a member of the board of advisors of the New York Film and Video Festival and of MediaRights.org; he is a founding member of the American Library Association Video Round Table, and was the first elected chair of the group.
  • Mark Kaiser is the Associate Director of the Berkeley Language Center at the University of California, Berkeley, and an occasional lecturer in Russian in the Slavic Department. Formerly an Associate Professor of Russian at Illinois State University, Kaiser became increasingly involved in applying computer technologies to the teaching of Russian, which led him to UC Berkeley in 1996. At the BLC he has overseen the transition from analog to digital technologies, the expansion of Distance Learning services, and the incorporation of film into language teaching.