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Documentarians, DVDs and the MPAA

May 11, 2009 | 12:01 am

DMCA, anti-circumvention, fair use, copyright office, documentaries, MPAA, Morgan Spurlock, Kartemquin Films, Kirby DickYou would think that the movie industry, which celebrates documentarians every year at its awards ceremonies, would want to help those same filmmakers overcome the hurdles posed by changing technology. But Hollywood's copyright holders don't see things quite that way. In fact, they're trying to make it harder for documentarians to practice their craft, opposing the latter's bid for the freedom to extract short clips directly from DVDs.

As instructed by Congress in the 1998 Digital Millennium Copyright Act, the Copyright Office considers requests every three years to create or renew exemptions to the DMCA's ban on circumventing the electronic locks on copyrighted material. Such "technical protection measures" include the encryption on DVDs. In one of the rare exemptions granted by the Copyright Office, film professors have been permitted to copy short clips from DVDs for the purpose of creating video compilations for their classes. Of course, the DMCA makes it illegal for anyone to make or sell a tool that professors could use to extract these clips from discs; luckily for them, it's easy to find (illegal) software online that can do the trick.

Anyway, the Copyright Office held hearings last week on the latest requests for exemptions, including one from a group of documentary filmmakers. Led by Kartemquin Educational Films (the producers of "Hoop Dreams") and joined by well-known filmmakers such as Kirby Dick ("This Film Is Not Yet Rated") and Morgan Spurlock ("Super Size Me"), the group seeks permission to copy short segments from DVDsfor their work. The group (whose papers were prepared by a team from USC's Intellectual Property and Technology Law Clinic and Beverly Hills attorney Michael C. Donaldson) notes that VHS production has all but ceased, meaning that DVD is the de facto medium for video. And without the ability to make fair use of material on DVDs, the group contends, documentaries that cast their subjects in a negative or mocking light may not be possible....

It points to such works as "This Film Is Not Yet Rated," "Smoke and Mirrors: A History of Denial" and "Bigger Stronger Faster" as examples of filmmakers relying on the fair use doctrine for the clips they needed instead of obtaining the copyright holders' consent. According to comments filed by the group:

Each of these films plays an important role in society through its critique, commentary or exposé of some aspect of our culture, but without fair use, none of them could even have been made. Documentary film has faced this reality since the form was developed, and it is why documentary film is an exemplar of the type of activity for which the fair use doctrine was developed.

The MPAA opposed the request, along with a broader one by the Electronic Frontier Foundation that sought permission to take short clips from DVDs for any noncommercial, non-infringing video. "These proposals fail to establish that content desired for non-infringing uses is not available from sources other than DVDs, or that the desired non-infringing uses cannot be made by means that do not require circumvention of technical measures, such as screen shots," the association argued in its comments. But the problem with copying clips from other sources, the documentarians responded, is that it introduces image and sound problems that render the video unacceptable to broadcasters, cable networks and other outlets for their work. 

The reaction by the MPAA and other copyright holders to the documentarians' appeal typified their response to all the requests for exemptions, which ranged from the narrow and common-sensical (such as allowing circumvention by people who had purchased software, music or movies protected by DRM systems that were later abandoned by the retailer), to the broad and, well, quixotic (such as allowing phone resellers to circumvent the locks on mobile phones).

Any new or expanded request drew a uniform "no" from the copyright holders, who contended that expanding the (extremely limited) exemptions would weaken the anti-circumvention regime, "confuse consumers" and "spawn an undergound marketplace for circumvention services" (as if that didn't already exist). The trump card in the copyright holders' arsenal: if the anti-circumvention provisions grow weak, content providers will lose faith in their ability to protect content and make it less available. Of course, the copy protection on DVDs was cracked not long after the discs were introduced, yet the studios continued to sell them and sales exploded anyway.

In the documentarians' case, Hollywood's Katy-bar-the-door approach doesn't just strain credulity; it's more than a little anti-competitive. The copyright holders argue that "the most salient alternative method" for documentary filmmakers is to "obtain footage directly from the copyright owners." That's another way of saying, "Let us retain control of the clips." The fair use doctrine, though, holds that copyright holders don't control all uses of the material they create. It's one of the ways that the courts and Congress have tried to balance the Constitution's protection for "authors and inventors" with the First Amendment rights. The copyright owners correctly observed that fair use is a fuzzy notion, with the courts as the ultimate arbiters. Yet the Copyright Office won't affect what is and isn't a fair use by granting the documentarians an exemption; copyright owners can still sue for infringement if they don't like what a filmmaker does with their work. They could also accuse a filmmaker of illegal circumvention if they prove their infringement claim; after all, the exemption would only apply to non-infringing clips (i.e., fair uses). The only real effect if the exemption is granted is that documentarians would have easier access to video clips as they're making their films, which would increase their productivity and, potentially, help them compete against the studio's releases. The MPAA's members should be willing to meet the documentarians in the marketplace, rather than trying to hold them back in the Copyright Office.

Photo credit: Spencer Platt / Getty Images

-- Jon Healey

Healey writes editorials for The Times' Opinion Manufacturing Division.

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